Justinian•DIGESTA
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Dig. 47.6.0. Si familia furtum fecisse dicetur.
47.5.0. Theft against shipmasters, innkeepers, stablekeepers.
Dig. 47.6.0. If the household is said to have committed theft.
Dig. 47.9.0. De incendio ruina naufragio rate nave expugnata.
47.8.0. On rapine and on a mob.
Dig. 47.9.0. On fire, collapse, shipwreck, and a raft or ship taken by assault.
Dig. 47.12.0. De sepulchro violato.
47.11.0. On extraordinary crimes.
Dig. 47.12.0. On a violated sepulchre.
Dig. 47.15.0. De praevaricatione.
47.14.0. On cattle-rustlers.
Dig. 47.15.0. On prevarication.
Dig. 47.18.0. De effractoribus et expilatoribus.
47.17.0. On bathhouse thieves.
Dig. 47.18.0. On house-breakers and plunderers.
Dig. 47.21.0. De termino moto.
47.20.0. Stellionate.
Dig. 47.21.0. On a moved boundary-marker.
Civilis constitutio est poenalibus actionibus heredes non teneri nec ceteros quidem successores: idcirco nec furti conveniri possunt. sed quamvis furti actione non teneantur, attamen ad exhibendum actione teneri eos oportet, si possideant aut dolo fecerint quo minus possideant: sed enim et vindicatione tenebuntur re exhibita. item condictio adversus eos competit.
The civil constitution is that heirs are not bound by penal actions, nor indeed are other successors: therefore they cannot be sued for theft. But although they are not held by the action for theft, nevertheless they ought to be held by the action ad exhibendum, if they possess or have acted by fraud so that they do not possess: but indeed they will also be bound by vindication once the thing has been produced. Likewise a condiction lies against them.
Quaesitum est, si condictus fuerit ex causa furtiva, an nihilo minus lege aquilia agi possit. et scripsit pomponius agi posse, quia alterius aestimationis est legis aquiliae actio, alterius condictio ex causa furtiva: namque aquilia eam aestimationem complectitur, quanti eo anno plurimi fuit, condictio autem ex causa furtiva non egreditur retrorsum iudicii accipiendi tempus. sed si servus sit, qui haec admisit, ex quacumque actione noxae fuerit deditus, perempta est altera actio.
It has been asked, if one has been sued by condictio on account of a furtive cause, whether nonetheless it is possible to sue under the Aquilian law. And Pomponius wrote that it is possible to sue, because the action of the Aquilian law is of one estimation, the condictio ex causa furtiva of another: for the Aquilian law embraces that valuation, how much it was at the highest in that year, whereas the condictio ex causa furtiva does not go back beyond the time of accepting the iudicium. But if it is a slave who has committed these things, from whichever action he has been noxally surrendered, the other action is extinguished.
Si quis actionem, quae ex maleficiis oritur, velit exsequi: si quidem pecuniariter agere velit, ad ius ordinarium remittendus erit nec cogendus erit in crimen subscribere: enimvero si extra ordinem eius rei poenam exerceri velit, tunc subscribere eum in crimen oportebit.
If anyone should wish to pursue an action which arises from delicts: if indeed he should wish to proceed pecuniarily, he must be remitted to the ordinary law, nor will he be compelled to subscribe to a criminal charge: but indeed, if he should wish the punishment of that matter to be carried out outside the ordinary course, then it will be necessary for him to subscribe to the crime.
Furtum a furvo, id est nigro dictum labeo ait, quod clam et obscuro fiat et plerumque nocte: vel a fraude, ut sabinus ait: vel a ferendo et auferendo: vel a graeco sermone, qui fwras appellant fures: immo et graeci apo tou ferein fwras dixerunt.
theft, labeo says, is named from furvus, that is, black, because it is done secretly and in the dark and for the most part at night: or from fraud, as sabinus says: or from bearing and carrying off: or from the Greek language, who call thieves fwras: nay, even the Greeks said fwras from apo tou ferein.
Sed utrum ita demum fur sit manifestus, si in faciendo furto deprehendatur, an vero et si alicubi fuerit deprehensus? et magis est, ut et iulianus scripsit, etsi non ibi deprehendatur, ubi furtum fecit, adtamen esse furem manifestum, si cum re furtiva fuerit adprehensus, priusquam eo loci rem pertulerit, quo destinaverat.
But whether only then is a thief manifest if he is caught in the act of committing the theft, or indeed also if he is apprehended anywhere? And the better view, as Julian also wrote, is that even if he is not caught there where he committed the theft, nevertheless he is a manifest thief if he is apprehended with the stolen thing, before he has carried the thing to the place to which he had intended.
Si quis in servitute furtum fecerit et manumissus deprehendatur, an fur manifestus sit, videamus. et ait pomponius libro nono decimo ex sabino non posse eum manifesti conveniri, quia origo furti in servitute facti non fuit manifesti.
If someone, while in servitude, has committed theft and, having been manumitted, is apprehended, let us consider whether he is a manifest thief. And Pomponius, in the nineteenth book from Sabinus, says that he cannot be proceeded against as for manifest theft, because the origin of the theft committed in servitude was not manifest.
Sed si eam a fure vindicassem, condictio mihi manebit. sed potest dici officio iudicis, qui de proprietate cognoscit, contineri, ut non aliter iubeat restitui, quam si condictionem petitor remitteret: quod si ex condictione ante damnatus reus litis aestimationem sustulerit, ut aut omnimodo absolvat reum aut ( quod magis placet), si paratus esset petitor aestimationem restituere nec restituetur ei homo, quanti in litem iurasset, damnaretur ei possessor.
But if I had vindicated it from a thief, the condiction will remain to me. But it can be said that, by the duty of the judge who takes cognizance concerning ownership, it is encompassed that he should not order restitution otherwise than if the claimant were to remit the condiction: but if, the defendant having previously been condemned on the condiction, he has carried off the valuation of the suit, then either he should in every way acquit the defendant or (which is more pleasing), if the claimant were prepared to restore the estimation and the slave is not restored to him, the possessor should be condemned to him in as much as he had sworn into the suit.
Sed furti actio malae fidei possessori non datur, quamvis interest eius rem non subripi, quippe cum res periculo eius sit: sed nemo de improbitate sua consequitur actionem et ideo soli bonae fidei possessori, non etiam malae fidei furti actio datur.
But the action for theft is not granted to a bad‑faith possessor, although it is to his interest that the thing not be stolen, since the thing is at his risk: but no one obtains an action from his own improbity, and therefore the action for theft is given only to a good‑faith possessor, not also to a bad‑faith possessor.
Sed et si res pignori data sit, creditori quoque damus furti actionem, quamvis in bonis eius res non sit: quin immo non solum adversus extraneum dabimus, verum et contra ipsum quoque dominum furti actionem, et ita iulianus scripsit. nec non et ipsi domino dari placet, et sic fit, ut non teneatur furti et agat. ideo autem datur utrique, quia utriusque interest.
But also, if a thing has been given in pledge, we grant to the creditor too the action for theft, although the thing is not in his goods: indeed, nay rather, we will give an action for theft not only against a stranger, but even against the owner himself, and thus Julian wrote. And likewise it is agreed that it be given to the owner himself as well, and thus it comes about that he is not held liable for theft and yet sues. Moreover, it is given to both, because it is of interest to each.
but is it always the creditor’s interest, or only then, if the debtor is not solvent? And Pomponius thinks it is always in his interest to have the pledge, which Papinian also proves in the 12th book of the Questions; and it is more correct that everywhere it be seen to be the creditor’s interest, and thus Julian has very often written.
Eum qui emit, si non tradita est ei res, furti actionem non habere, sed adhuc venditoris esse hanc actionem celsus scripsit. mandare eum plane oportebit emptori furti actionem et condictionem et vindicationem, et si quid ex his actionibus fuerit consecutus, id praestare eum emptori oportebit: quae sententia vera est, et ita et iulianus. et sane periculum rei ad emptorem pertinet, dummodo custodiam venditor ante traditionem praestet.
Celsus wrote that the one who buys, if the thing has not been delivered to him, does not have the action for theft, but that this action still belongs to the seller. Clearly, he ought to assign to the buyer the action for theft and the condiction and the vindication, and if he has obtained anything from these actions, he ought to render it to the buyer: which opinion is true, and so also Julian. And indeed the risk of the thing pertains to the buyer, provided that the seller furnishes custody before delivery.
Adeo autem emptor ante traditionem furti non habet actionem, ut sit quaesitum, an ipse subripiendo rem emptor furti teneatur. et iulianus libro vicensimo tertio digestorum scribit: si emptor rem, cuius custodiam venditorem praestare oportebat, soluto pretio subripuerit, furti actione non tenetur. plane si antequam pecuniam solveret, rem subtraxerit, furti actione teneri, perinde ac si pignus subtraxisset.
Moreover, the buyer has no action of theft before delivery to such an extent that the question has been raised whether the buyer himself, by filching the thing, is liable for theft. And Julian writes in the twenty-third book of the Digest: if the buyer, with the price paid, has filched the thing whose custody it was proper for the seller to furnish, he is not held by the action of theft. Clearly, if before he paid the money he abstracted the thing, he is held by the action of theft, just as if he had abstracted a pledge.
Is autem, apud quem res deposita est, videamus, an habeat furti actionem. et cum dolum dumtaxat praestet, merito placet non habere eum furti actionem: quid enim eius interest, si dolo careat? quod si dolo fecit, iam quidem periculum ipsius est, sed non debet ex dolo suo furti quaerere actionem.
But as for the one with whom the thing is deposited, let us see whether he has an action for theft. And since he is liable for dolus (fraud) only, it is rightly held that he does not have an action for theft: for what is his interest, if he is free from dolus? But if he acted with dolus, then indeed the peril is his, but he ought not to seek an action for theft on the basis of his own dolus.
Iulianus quoque libro vicensimo secundo digestorum scribit: quia in omnium furum persona constitutum est, ne eius rei nomine furti agere possint, cuius ipsi fures sunt, non habebit furti actionem is, apud quem res deposita est, quamvis periculo eius esse res coeperit qui eam contrectavit.
Julianus also writes in the twenty-second book of the Digests: because it has been established, in the persona of all thieves, that they cannot sue for theft in respect of the thing of which they themselves are thieves, the one with whom the thing was deposited will not have the action for theft, although the thing has begun to be at the peril of him who handled it.
Papinianus tractat, si duos servos ob decem aureos pignori acceperim et alter subripiatur, cum alter quoque, qui sit retentus, non minoris decem valeret: utrum usque ad quinque tantum habeam furti actionem, quia in alio habeo salvos quinque? an vero, quia mori potest, dici debeat in decem fore actionem, etiamsi magni pretii sit is qui retinetur? et ita putat: non enim respicere debemus pignus, quod subreptum non est, sed id quod subtractum est.
Papinian treats this: if I have received two slaves in pledge for ten aurei, and one is stolen, while the other also, which is retained, was not worth less than ten—whether I have an action for theft only up to five, because in the other I have safe five? Or rather, because he can die, should it be said that the action will be for ten, even if the one retained is of great price? And he thinks thus: for we ought not to regard the pledge which has not been stolen, but that which has been taken away.
Idem scribit, si, cum mihi decem deberentur, servus pignori datus subtractus sit, si actione furti consecutus fuero decem, non competere mihi furti actionem, si iterum subripiatur, quia desiit mea interesse, cum semel sim consecutus. hoc ita, si sine culpa mea subripiatur: nam si culpa mea, quia interest eo quod teneor pigneraticia actione, agere potero. quod si culpa abest, sine dubio domino competere actio videtur, quae creditori non competit.
He likewise writes: if, when ten are owed to me, a slave given in pledge has been carried off, and if by the action of theft I have recovered ten, the action of theft does not lie for me if he is stolen again, because my interest has ceased, since I have once recovered. This is so if he is stolen without my fault; for if through my fault, since it is of interest because I am held under the pignoratitia (pledge-) action, I shall be able to sue. But if fault is absent, without doubt the action seems to belong to the owner, which does not belong to the creditor.
Idem dicunt, et si duo servi subrepti sint simul, competere utriusque nomine furti actionem creditori, sed non in totum, sed pro qua parte, in singulos diviso eo quod ei debetur, eius interest: seperatim autem duobus subreptis, si unius nomine solidum consecutus sit, alterius nihil consequetur.
They say the same: even if two slaves have been stolen at the same time, the action of theft lies to the creditor in the name of each, but not for the whole, rather for that share of his interest in what is owed to him, apportioned to each individually; but if the two were stolen separately, if he has recovered the entire (solidum) in the name of one, he will recover nothing for the other.
An pater, cuius filio commodata res est, furti actionem habeat, quaeritur. et iulianus ait patrem hoc nomine agere non posse, quia custodiam praestare non debeat: sicut, inquit, is qui pro eo, cui commodata res est, fideiussit, non habet furti actionem. neque enim, inquit, is, cuiuscumque intererit rem non perire, habet furti actionem, sed qui ob eam rem tenetur, quod ea res culpa eius perierit: quam sententiam celsus quoque libro duodecimo digestorum probat.
It is asked whether a father, whose son has a thing lent for use (commodatum), has the action for theft. And Julian says that the father cannot sue under this head, because he ought not to be bound to provide custody; just as, he says, one who has stood surety for him to whom the thing is lent does not have an action for theft. For, he says, not whoever’s interest it is that the thing not perish has an action for theft, but he who is held liable on that account because the thing has perished through his fault: which opinion Celsus also approves in book 12 of the Digest.
Is qui precario servum rogaverat subrepto eo potest quaeri an habeat furti actionem. et cum non est contra eum civilis actio ( quia simile donato precarium est) ideoque et interdictum necessarium visum est, non habebit furti actionem. plane post interdictum redditum puto eum etiam culpam praestare et ideo et furti agere posse.
He who had asked for a slave by precarium, when he has been stolen away, it can be asked whether he has an action for theft. And since there is no civil action against him ( because a precarium is similar to a thing given by donation) and therefore an interdict seemed necessary, he will not have an action for theft. Clearly, after the interdict has been issued, I think he is also liable for fault and therefore can also bring an action for theft.
Si res commodata est et is cui commmodata est decesserit: quamvis hereditati furtum fieri non possit et ideo nec heres eius cui commodata est possit agere, tamen commodator poterit furti agere: idemque et in re pignerata vel in re locata. licet enim hereditati furti actio non adquiratur, tamen alii, cuius interest, adquiritur.
If a thing has been loaned for use and the one to whom it was loaned has died: although theft cannot be committed against an inheritance and therefore the heir of him to whom it was loaned cannot bring an action, nevertheless the lender can bring an action for theft: likewise in the case of a pledged thing or a leased thing. for although an action for theft is not acquired to an inheritance, nevertheless it is acquired to another whose interest it concerns.
Non solum autem in re commodata competit ei cui commodata est furti actio, sed etiam in ea, quae ex ea adgnata est, quia et huius custodia ad eum pertinet. nam et si servum tibi commodavero, et vestis eius nomine furti ages, quamvis vestem, qua vestitus est, tibi non commodaverim. item si iumenta tibi commodavero, quorum sequella erat eculeus, puto competere furti actionem etiam eius nomine, quamvis ipse non sit commodatus.
Not only, however, in the thing lent for use does the action for theft belong to the one to whom it is lent, but also in that which is adnate from it, since the custody of this too pertains to him. For even if I should have lent you a slave, you will bring an action for theft in respect of his clothing, although I did not lend you the garment with which he is clothed. Likewise, if I should have lent you beasts of burden, of which the sequella was a foal, I think the action for theft also lies in his regard, although he himself was not lent.
Qualis ergo furti actio detur ei, cui res commodata est, quaesitum est. et puto omnibus, quorum periculo res alienae sunt, veluti commodati, item locati pignorisve accepti, si hae subreptae sint, omnibus furti actiones competere: condictio autem ei demum competit, qui dominium habet.
What kind of action for theft is therefore granted to him to whom a thing has been lent for use, has been asked. And I think that to all those at whose peril other people’s things stand—such as the borrower (under a commodatum), likewise the lessee, or one who has received a pledge—if these have been filched, actions for theft are available to all; but the condiction is competent only to him who has dominion (ownership).
Si epistula, quam ego tibi misi, intercepta sit, quis furti actionem habeat? et primum quaerendum est, cuius sit epistula, utrum eius qui misit, an eius ad quem missa est? et si quidem dedi servo eius, statim ipsi quaesita est, cui misi: si vero procuratori, aeque ( quia per liberam personam possessio quaeri potest) ipsius facta est, maxime si eius interfuit eam habere.
If a letter, which I sent to you, were intercepted, who would have the action of theft? And first it must be asked whose the letter is, whether of the one who sent it, or of the one to whom it was sent. And if indeed I gave it to his slave, at once it was acquired for the very person to whom I sent it; but if to his procurator, likewise ( because through a free person possession can be acquired) it became his, especially if it was to his interest to have it.
But if I sent the letter on the condition that it be returned to me, my ownership remains, because I did not wish to lose or to transfer its ownership. Who, then, will bring the action of theft? The one whose interest it was that it not be filched, that is, to whose utility the things written pertained.
and therefore it can be asked whether even he to whom it was given to be delivered can bring an action for theft. and if its custody pertains to him, he can: but also if it was to his interest to hand over the letter, he will have an action for theft. imagine it was a letter which contained that something be handed over to him or be done: he can have an action for theft: or if he has undertaken the custody of that matter or receives a fee for carrying it.
Sed eum qui tibi commodaverit, si eam rem subripiat, non teneri furti placuisse pomponius scripsit, quoniam nihil tua interesset, utpote cum nec commodati tenearis. ergo si ob aliquas impensas, quas in rem commodatam fecisti, retentionem eius habueris, etiam cum ipso domino, si eam subripiat, habebis furti actionem, quia eo casu quasi pignoris loco ea res fuit.
But Pomponius wrote that it seemed right that the one who has lent to you (by commodatum), if he stealthily takes that thing, is not held for theft, since nothing touched your interest, seeing that you are not even held under the commodatum. Therefore, if on account of certain expenses which you have made upon the thing lent you have had a retention of it, then even against the owner himself, if he steals it, you will have the action of theft, because in that case the thing was, as it were, in the place of a pledge.
Unde est quaesitum, si fuerit alienatus vel manumissus, an furti actione teneatur. et placet non teneri: neque enim actio, quae non fuit ab initio nata, oriri potest adversus hunc furem. plane si manumissus contrectabit, dicendum erit teneri eum furti iudicio, quia hodie furtum fecit.
Whence it has been inquired, if he has been alienated or manumitted, whether he is liable in the action for theft. And it is the settled view that he is not liable: for an action which was not from the beginning born cannot arise against this thief. Clearly, if, after manumission, he shall lay hands on it, it must be said that he is held by the action for theft, because today he committed theft.
Cum autem servus, quem emi traditusque mihi est, a me redhibeatur, non est in ea causa, ut perinde habeatur, atque si meus numquam fuisset, sed et fuit et desiit. idcirco dicit sabinus eum, si furtum fecit, in ea esse causa, ut furti eius nomine is qui redhibuit agere non possit. sed etsi non possit, attamen ratio haberi debet eius quod fecit, cum redhiberi coeperit, idque actione redhibitoria continetur.
When, however, a slave whom I bought and who was delivered to me is redhibited by me, he is not in such a condition that he is treated just as if he had never been mine; rather, he both was mine and ceased to be. Therefore Sabinus says that, if he committed theft, the condition is such that the one who redhibited cannot bring suit for theft on that account. But even if he cannot, nonetheless consideration ought to be had of what he did once redhibition had begun, and this is contained within the redhibitory action.
Illud quaesitum est, si, cum in fuga esset servus, furtum domino fecisset, an aeque posset habere actionem adversus eum, qui in potestatem domini non regressum bona fide possidere coeperit. movet quaestionem, quod, quamvis possidere servum eo tempore, quo in fuga est, videor, attamen furti actione non teneor, quasi non sit in mea potestate: quod enim videor possidere, ad usucapionem tantum mihi proficere iulianus scribit. dicit igitur pomponius libro septimo decimo ex sabino competere furti actionem huic domino, cuius servus in fuga fuit.
It has been asked this: if, when the slave was in flight, he committed theft against his master, whether likewise he could have an action against the one who began to possess in good faith a person who had not returned into the master’s power. The question is moved by the fact that, although I seem to possess the slave at the time when he is in flight, nevertheless I am not held by the action for theft, as if he were not in my power: for Julianus writes that what I seem to possess profits me only for usucapion. Accordingly, Pomponius in the seventeenth book from Sabinus says that the action for theft is available to this master, whose slave was in flight.
Quod dicitur noxam caput sequi, tunc verum est, ut quae initio adversus aliquem nata est caput nocentis sequatur: ideoque si servus tuus furtum mihi fecerit et dominus eius effectus eum vendidero, non posse me agere cum emptore cassiani putant.
what is said, that the noxa follows the head, is then true, namely that what at the beginning arose against someone follows the head of the wrongdoer: and therefore, if your slave has committed theft against me and, having become his master, I have sold him, the Cassians think that I am not able to sue the purchaser.
De veste quaeritur, an color eius dicendus sit. et verum est colorem eius dici oportere ut, quemadmodum in vasis dicitur patera aurea, ita et in veste color dicatur. plane si quis iuret pro certo se colorem dicere non posse, remitti ei huius rei necessitas debet.
Concerning a garment it is asked whether its color should be stated. And it is true that its color ought to be stated, so that, just as in the case of vessels one says “a golden patera,” so also in a garment the color is to be stated. Plainly, if someone swears for certain that he cannot state the color, the necessity of this matter ought to be remitted for him.
Furtum autem rei pigneratae dominus non tantum tunc facere videtur, cum possidenti sive tenenti creditori aufert, verum et si eo tempore abstulerit, quo non possidebat, ut puta si rem pigneratam vendidit: nam et hic furtum eum facere constat. et ita et iulianus scripsit.
Moreover, the owner of a pledged thing is deemed to commit theft not only when he takes it away from the creditor who possesses or holds it, but also if he removed it at a time when he was not in possession, for instance if he sold the pledged thing: for in this case too it is established that he commits theft. And thus also Julianus wrote.
Si bona fide rem meam emeris eamque ego subripuero, vel etiam tuus usus fructus sit et eam contrectavero, tenebor tibi furti actione, etsi dominus rei sum. sed his casibus usucapio quasi furtivae rei non impedietur, quoniam et si alius subripiat et in meam potestatem reversa res fuerit, usucapiebatur.
If in good faith you purchase my property and I steal it away, or even if there is your usufruct and I lay hands upon it, I shall be liable to you by the action for theft, although I am the owner of the thing. But in these cases usucapion will not be hindered as though the thing were stolen, since even if someone else should steal it and the thing has returned into my power, usucapion used to proceed.
Volgaris est quaestio, an is, qui ex acervo frumenti modium sustulit, totius rei furtum faciat an vero eius tantum quod abstulit. ofilius totius acervi furem esse putat: nam et qui aurem alicuius tetigit, inquit trebatius totum eum videri tetigisse: proinde et qui dolium aperuit et inde parvum vini abstulit, non tantum eius quod abstulit, verum totius videtur fur esse. sed verum est in tantum eos furti actione teneri, quantum abstulerunt.
It is a common question, whether the man who has taken a modius from a heap of grain commits theft of the whole thing, or indeed only of that which he removed. ofilius thinks him a thief of the whole heap: for, says trebatius, he who touched someone’s ear is seen to have touched him entirely; accordingly, he who opened a cask and from it took a small amount of wine is seen to be a thief not only of what he took, but of the whole. But the truth is that they are liable in an action for theft only to the extent of what they removed.
for even if someone has opened a cabinet which he could not carry off, and has handled all the things that were in it and so departed, then, having returned, has removed one of these and, before he could withdraw to the place he had intended, has been apprehended, he will be, of the same thing, both a manifest and a non-manifest thief. But also he who by daylight cuts a standing crop and handles it is, of that which he cuts, a manifest and a non-manifest thief.
Sed et si quis subripuit furto duos sacculos, unum decem alterum viginti, quorum alterum suum putavit, alterum scit alienum: profecto dicemus tantum unius, quem putavit alienum, furtum eum facere, quemadmodum si duo pocula abstulerit, quorum alterum suum putavit, alterum scit alienum: nam et hic unius fit furtum.
But also, if someone pilfered by theft two purses, one of ten, the other of twenty, of which he supposed one to be his own, the other he knows to be another’s: surely we shall say that only of the one which he thought was another’s he commits theft, just as if he removed two cups, of which he thought one his own, the other he knows to be another’s: for here too it is the theft of one.
Sed si de navi onerata furto quis sextarium frumenti tulerit, utrum totius oneris an vero sextarii tantum furtum fecerit? facilius hoc quaeritur in horreo pleno: et durum est dicere totius furtum fieri. et quid si cisterna vini sit, quid dicet?
But if someone should take a sextarius of grain from a ship laden with cargo, has he committed theft of the whole cargo, or in truth only of the sextarius? This is more easily asked in the case of a full granary: and it is harsh to say that theft is committed of the whole. And what if it is a cistern of wine—what will he say?
Item si maioris ponderis quid aperuit aut refregit, quod tollere non possit, non est omnium rerum cum eo furti actio, sed earum tantum quas tulit, quia totum tollere non potuit. proinde si involucrum, quod tollere non potuit, solvit, ut contrectet, deinde contrectavit quasdam res: quamvis singulas res, quae in eo fuerunt, tollere potuerit, si tamen totum involucrum tollere non potuerit, singularum rerum, quas tulerit, fur est, ceterarum non est. quod si totum vas tollere potuit, dicimus eum totius esse furem, licet solverit, ut singulas vel quasdam tolleret: et ita et sabinus ait.
likewise, if he opened or forced open something of greater weight, which he cannot carry off, there is not an action for theft with him for all the things, but only for those which he took, because he could not carry off the whole. accordingly, if he unfastened the wrapping, which he could not carry off, in order to handle it, and then handled certain things: although he could have carried off the individual things which were in it, if nevertheless he could not carry off the whole wrapping, he is a thief of the individual things which he carried off; of the others he is not. but if he was able to carry off the whole vessel, we say he is a thief of the whole, although he unfastened it in order to take individual items or some of them: and so also Sabinus says.
Si duo pluresve unum tignum furati sunt, quod singuli tollere non potuerint, dicendum est omnes eos furti in solidum teneri, quamvis id contrectare nec tollere solus posset, et ita utimur: neque enim potest dicere pro parte furtum fecisse singulos, sed totius rei universos: sic fiet singulos furti teneri.
If two or more have stolen one beam, which the individuals could not lift each by himself, it must be said that all of them are liable for theft in solidum, although he alone could neither handle nor lift it; and thus we apply it: for he cannot say that the individuals committed theft for a part, but that the whole thing [was taken] by all together: thus it will come about that each is liable for theft.
Si eo consilio arca refracta sit, ut uniones puta tollerentur, hique furti faciendi causa contrectati sint, eorum tantummodo furtum factum videri: quod est verum. nam ceterae res, quae seponuntur, ut ad uniones perveniatur, non furti faciendi causa contrectantur.
If a chest has been broken open with this design, namely that the pearls, say, might be taken away, and these have been handled for the purpose of committing theft, it is considered that theft has been committed of those only: which is true. For the other things which are set aside in order that one may reach the pearls are not handled for the purpose of committing theft.
Impuberem furtum facere posse, si iam doli capax sit, iulianus libro vicensimo secundo digestorum scripsit: item posse cum impubere damni iniuria agi, quia id furtum ab impubere fit. sed modum esse adhibendum ait: nam in infantes id non cadere. non putamus cum impubere culpae capace aquilia agi posse.
Julianus wrote in book 22 of the Digest that an impubes can commit theft, if he is already capable of dolus; likewise that one can proceed with the action for wrongful damage (damnum iniuria) against an impubes, since that theft is done by an impubes. But he says that a limit must be applied: for this does not extend to infants. We do not think that one can proceed under the Aquilian action against an impubes who is capable of culpa.
Qui tabulas vel cautiones amovet, furti tenetur non tantum pretii ipsarum tabularum, verum eius quod interfuit: quod ad aestimationem refertur eius summae, quae in his tabulis continetur, scilicet si tanti interfuit, ut puta si chirographa aureorum decem tabulae fuerint, dicimus hoc duplicari. quod si iam erant inanes, quia solutum proponebatur, numquid ipsarum tantum tabularum pretii videatur esse aestimatio facienda? quid enim interfuit huius?
He who removes tablets or cautions is held liable for theft not only for the price of the tablets themselves, but also for the interest (what it mattered); which is referred in the estimation to the sum that is contained in these tablets—namely, if the owner’s interest was of that amount—as, for instance, if the tablets were chirographs for ten aurei, we say this is to be doubled. But if already they were empty, because payment was being alleged as made, would it seem that the valuation should be made only for the price of the tablets themselves? For what interest had he in this?
But it can be said that, because sometimes debtors ask that the tablets be restored to themselves, since sometimes debtors make a calumnious claim as though a non-debt had been paid, against such persons it is to the creditor’s interest to have the tablets, lest he perhaps suffer a controversy about that matter. And generally it must be said that the amount of what is of interest is to be doubled.
Inde potest quaeri, si quis, cum alias probationes mensaeque scripturam haberet, chirographi furtum passus sit, an aestimari duplo chirographi quantitas debeat. et numquid non, quasi nihil intersit? quantum enim interest, cum possit debitum aliunde probare?
Thence it can be asked, if someone, although he had other proofs and the writing of the bankers’ table, has suffered the theft of a chirograph, whether the amount of the chirograph ought to be valued at double. And should it not, as if it made no difference? For what difference does it make, since he can prove the debt from elsewhere?
Quidam tabularum dumtaxat aestimationem faciendam in furti actione existimant, quia, si iudici, apud quem furti agatur, possit probari, quantum debitum fuerit, possit etiam apud eum iudicem eadem probare, apud quem pecuniam petat: si vero in furti iudicio probare non potest, ne illud quidem posse ostendi, quanti eius intersit. sed potest post furtum factum tabulas nanctus esse actor, ut ex eo probet, quanti sua interfuerit, si tabulas nanctus non esset.
Certain persons think that only an estimation of the tablets is to be made in the action for theft, because, if it can be proved to the judge before whom the theft is litigated how much was owed, he can also prove the same before that judge before whom he seeks the money: but if he cannot prove it in the theft judgment, then not even this can be shown—how much it is to his interest. But the plaintiff may, after the theft has been committed, have gotten hold of the tablets, so that from that he proves how much his interest would have been, if he had not gotten hold of the tablets.
De lege aquilia maior quaestio est, quemadmodum possit probari, quanti eius intersit: nam si potest alias probare, non patitur damnum. quid ergo, si forte pecuniam sub condicione credidit et interim testium ei copia est, testimonio quorum probationem habeat, qui possunt mori pendente condicione? aut puta me petisse creditum et, quia testes et signatores, qui rem meminissent, praesentes non haberem, victum rem amisisse: nunc vero, cum furti agam, eorum memoria et praesentia ad fidem creditae pecuniae uti possum.
Concerning the Lex Aquilia there is a greater question, in what manner it can be proved how much his interest amounts to: for if he can otherwise prove it, he does not suffer damage. What then if by chance he has lent money under a condition and meanwhile he has a supply of witnesses, by whose testimony he would have the proof, who may die while the condition is pending? Or suppose I had sued for the credit (loan) and, because I did not have present the witnesses and signatories, who would have remembered the matter, being defeated I lost the case: now indeed, since I sue for theft, I can use their memory and presence for the proof of the money credited (loaned).
Tutor administrationem quidem rerum pupillarium habet, intercipiendi autem potestas ei non datur: et ideo si quid furandi animo amoverit, furtum facit nec usucapi res potest. sed et furti actione tenetur, quamvis et tutelae agi cum eo possit. quod in tutore scriptum est, idem erit et in curatore adulescentis ceterisque curatoribus.
The tutor indeed has the administration of the ward’s affairs, but the power of intercepting is not given to him; and therefore, if he removes anything with a mind to steal, he commits theft, nor can the thing be usucapted. But he is also liable to the action for theft, although one can also proceed against him by the action of guardianship. What is written about the tutor will likewise be the same for the curator of an adolescent and the other curators.
Qui servo persuasit, ut fugeret, fur non est: nec enim qui alicui malum consilium dedit, furtum facit, non magis quam si ei persuasit, ut se praecipitet aut manus sibi inferret: haec enim furti non admittunt actionem. sed si alius ei fugam persuaserit, ut ab alio subripiatur, furti tenebitur is qui persuasit, quasi ope consilio eius furtum factum sit. plus pomponius scripsit eum, qui persuasit, quamvis interim furti non teneretur, tunc tamen incipere teneri, cum quis fugitivi fur esse coeperit, quasi videatur ope consilio eius furtum factum.
He who persuaded a slave to flee is not a thief; for indeed he who has given someone evil counsel does not commit theft, no more than if he persuaded him to hurl himself headlong or to lay hands upon himself: for these do not admit an action for theft. But if another has persuaded him to flight, so that he be stealthily taken away by someone else, the one who persuaded will be held liable for theft, as though by his aid and counsel the theft were done. Pomponius wrote further that the one who persuaded, although in the meantime he would not be liable for theft, nevertheless then begins to be held liable when someone has begun to be the thief of the fugitive, as though the theft seems to have been done by his aid and counsel.
Verum est, si meretricem alienam ancillam rapuit quis vel celavit, furtum non esse: nec enim factum quaeritur, sed causa faciendi: causa autem faciendi libido fuit, non furtum. et ideo etiam eum, qui fores meretricis effregit libidinis causa, et fures non ab eo inducti, sed alias ingressi meretricis res egesserunt, furti non teneri. an tamen vel fabia teneatur, qui subpressit scortum libidinis causa?
It is true that, if someone carried off or concealed another’s meretrix, a slave-girl, it is not theft: for it is not the deed that is inquired into, but the cause of doing; and the cause of doing was libido, not theft. And therefore even he who broke open the doors of a meretrix for the sake of libido, and thieves, not brought in by him but having entered otherwise, carried off the meretrix’s goods, is not held liable for theft. Yet is he nevertheless to be held at least under the Fabia, who kept a harlot concealed for the sake of libido?
Quamdiu vivit is qui furtum fecit, non perit furti actio: aut enim sui iuris est is qui furtum fecit, et cum ipso actio est, aut alieni iuris esse coepit, et actio furti cum eo est, cuius potestati subiectus est: et hoc est quod dicitur " noxa caput sequitur".
So long as the one who committed the theft lives, the action for theft does not perish: for either the one who committed the theft is sui iuris, and the action is against him, or he has come to be alieni iuris, and the action for theft lies against the one whose power he is subject to; and this is what is said, "the noxa follows the head."
Si quis post noxam admissam hostium servus fuerit factus, videndum est, an extinguatur actio. et pomponius scripsit extingui actionem, et si fuerit reversus, postliminio vel quo alio iure renasci eam actionem debere: et ita utimur.
If someone, after a noxa having been committed, has become a slave of the enemy, it must be considered whether the action is extinguished. And Pomponius wrote that the action is extinguished, and that, if he should have returned, the action ought to be reborn by postliminium or by some other ius: and thus we practice.
Si servus navem exerceat non voluntate domini, de eo, quod ibi perit, volgaris formula in dominum danda est, ut quod alter admisit " dumtaxat de peculio", quod ipse exercitor, adiciatur " ut noxae dederet". igitur si manumissus sit, persecutio quidem in peculio manebit adversus dominum intra annum, noxalis ipsum sequetur.
If a slave operates a ship not by the master’s will, for what is lost there the ordinary formula is to be granted against the master, so that, as where another admitted “only out of the peculium,” since he himself is the exercitor, there be added “that he should surrender in noxal satisfaction.” Therefore, if he has been manumitted, the pursuit as to the peculium will indeed remain against the master within a year; the noxal claim will follow him himself.
Interdum et manumissus et qui eum manumisit, ob furtum tenetur, si ideo manumisit, ne furti cum eo agi possit: sed si cum domino actum fuerit, ipso iure manumissum liberari sabinus respondit, quasi decisum sit.
Sometimes both the manumitted person and the one who manumitted him are held liable for theft, if he manumitted him for this reason, so that an action for theft could not be brought against him; but if suit has been brought against the master, Sabinus replied that the manumitted person is released by the law itself, as though it had been adjudged.
Falsus procurator furtum quidem facere videtur. sed neratius videndum esse ait, an haec sententia cum distinctione vera sit, ut, si hac mente ei dederit nummos debitor, ut eos creditori perferret, procurator autem eos intercipiat, vera sit: nam et manent nummi debitoris, cum procurator eos non eius nomine accepit, cuius eos debitor fieri vult, et invito domino eos contrectando sine dubio furtum facit. quod si ita det debitor, ut nummi procuratoris fiant, nullo modo eum furtum facere ait voluntate domini eos accipiendo.
A false procurator does indeed seem to commit theft. But Neratius says it must be examined whether this opinion is true with a distinction, namely, that, if the debtor gave him the coins with this intention, that he carry them to the creditor, but the procurator intercepts them, it is true: for the coins remain the debtor’s, since the procurator did not receive them in the name of him whom the debtor wishes them to become, and by handling them against the will of the owner he without doubt commits theft. But if the debtor gives them in such a way that the coins become the procurator’s, he says that in no way does he commit theft, since he receives them by the will of the owner.
Si quis nihil in persona sua mentitus est, sed verbis fraudem adhibuit, fallax est magis quam furtum facit: ut puta si dixit se locupletem, si in mercem se collocaturum quod accepit, si fideiussores idoneos daturum vel pecuniam confestim se soluturum: nam ex his omnibus magis decepit quam furtum fecit, et ideo furti non tenetur. sed quia dolo fecit, nisi sit alia adversus eum actio, de dolo dabitur.
If someone has told nothing false about his own person, but has employed fraud in words, he is a deceiver rather than one who commits theft: for example, if he said that he was wealthy, if he said that he would invest in merchandise what he received, if he would provide suitable sureties (fideiussors) or would pay the money forthwith: for in all these he deceived rather than committed theft, and therefore he is not liable for theft. But because he acted by dolus, unless there is some other action against him, an action de dolo will be given.
Quod si dominus id dereliquit, furtum non fit eius, etiamsi ego furandi animum habuero: nec enim furtum fit, nisi sit cui fiat: in proposito autem nulli fit, quippe cum placeat sabini et cassii sententia existimantium statim nostram esse desinere rem, quam derelinquimus.
But if the owner has abandoned it, theft is not committed of it, even if I have had the intent to steal; for theft is not committed unless there is someone against whom it is committed: in the case proposed, however, it is committed against no one, since the opinion of Sabinus and Cassius is approved, who consider that a thing which we abandon at once ceases to be ours.
Proinde videamus, si nescit cuius esset, sic tamen tulit quasi redditurus ei qui desiderasset vel qui ostendisset rem suam, an furti obligetur. et non puto obligari eum. solent plerique etiam hoc facere, ut libellum proponant continentem invenisse se et redditurum ei qui desideraverit: hi ergo ostendunt non furandi animo se fecisse.
Accordingly, let us see: if he does not know whose it was, yet nevertheless took it as though about to return it to the one who had sought it or who had shown the thing to be his, whether he is obligated for theft. And I do not think he is obligated. Very many are also accustomed to do this, namely, to post a notice containing that they have found it and will return it to whoever has sought it: these therefore show that they did not act with an intention of stealing.
Si quis sponte rem iecit vel iactavit, non quasi pro derelicto habiturus, tuque hanc rem tuleris, an furti tenearis, celsus libro duodecimo digestorum quaerit. et ait: si quidem putasti pro derelicto habitam, non teneris. quod si non putasti, hic dubitari posse ait: et tamen magis defendit non teneri, quia, inquit, res non intervertitur ei, qui eam sponte reiecit.
If someone of his own accord threw or cast a thing, not intending to treat it as derelict, and you carried off this thing, whether you are held liable for theft, Celsus in the twelfth book of the Digest inquires. And he says: if indeed you supposed it to have been treated as derelict, you are not liable. But if you did not so suppose, he says that here it can be doubted; and yet he more strongly defends that you are not liable, because, he says, the thing is not interverted from him who cast it aside of his own accord.
Si iactum ex nave factum alius tulerit, an furti teneatur? quaestio in eo est, an pro derelicto habitum sit. et si quidem derelinquentis animo iactavit, quod plerumque credendum est, cum sciat periturum, qui invenit suum fecit nec furti tenetur.
If someone else has taken up a jettison made from a ship, is he liable for theft? The question is whether it is held as derelict. And if indeed he threw it with the intention of dereliction (abandonment)—which for the most part is to be believed, since he knows it will perish—the one who finds it makes it his own and is not liable for theft.
but if indeed not with this intention, but rather this: that, if it should be safe, he would keep it—then it must be taken away from the one who found it; and if the finder knows this and retains it with an intent of stealing, he is liable for theft. but indeed if with this intention, to make it safe for the owner, he is not liable for theft. and if, thinking it had been simply jettisoned, he is likewise not liable for theft.
Etiamsi partis dimidiae nanciscar dominium in servo, qui mihi antea furtum fecerat, magis est, ut extinguatur actio etiam parte redempta, quia et si ab initio quis partem in servo habebat, furti agere non poterat. plane si usus fructus meus in eo servo esse coeperit, dicendum est furti actionem non extingui, quia fructuarius dominus non est.
Even if I obtain dominion over a half share in a slave who had previously committed theft against me, the better view is that the action is extinguished even when only a share has been bought back, because even if from the beginning someone held a share in the slave, he could not bring an action for theft. Clearly, if my usufruct in that slave has begun, it must be said that the action for theft is not extinguished, because a usufructuary is not an owner.
Inter omnes constat, etiamsi exstincta sit res furtiva, attamen furti remanere actionem adversus furem. proinde mortuo quoque homine, quem quis furto abstulit, viget furti actio. sed nec manumissio furti actionem extinguit: nec enim dissimilis est morti manumissio quod ad subtrahendum domino servum.
Among all it is agreed that, even if the stolen property has perished, nevertheless the action for theft remains against the thief. Accordingly, even when the person has died whom someone carried off by theft, the action for theft is in force. Nor does manumission extinguish the action for theft: for manumission is not dissimilar to death as regards subtracting a slave from his master.
It appears, therefore, that in whatever way a slave has been subtracted from his master, nevertheless the action of theft remains against the thief, and we employ this law: for the action lies not because he is now absent, but because at some time he was absent by the agency of the thief. This same rule is approved in the condiction as well: for a condiction can be brought against the thief, even if the thing has in some manner been extinguished. The same must be said if the thing has come into the power of the enemy: for it is agreed that one can sue for theft concerning it.
Si servus fructuarius subreptus est, uterque, et qui fruebatur et dominus, actionem furti habet. dividetur igitur actio inter dominum et fructuarium: fructuarius aget de fructibus vel quanti interfuit eius furtum factum non esse eius, dupli: proprietarius vero aget, quod interfuit eius proprietatem non esse subtractam.
If a slave subject to usufruct has been stolen, both the one who was enjoying it and the owner have an action for theft. The action, therefore, will be divided between the owner and the usufructuary: the usufructuary will sue for the fruits, or for the amount of his interest that the theft not have been committed, in double; the proprietor, however, will sue for the amount it was of his interest that his proprietorship not have been taken away.
Usque adeo autem diversae sunt actiones, quae eis competunt, ut, si quis eorum pro fure damnum deciderit, dici oporteat solummodo actionem sibi competentem amisisse eum, ceteris vero superesse. nam et si proponas communem servum subreptum et alium ex dominis pro fure damnum decidisse, is qui non decidit habebit furti actionem.
To such a degree, moreover, are the actions that are competent to them diverse, that, if any one of them has settled damages as for a thief, it should be said that he has lost only the action competent to himself, while the others remain. For even if you suppose a common slave to have been stolen and one of the owners to have settled damages as for a thief, the one who did not settle will have the action of theft.
Recte dictum est, qui putavit se domini voluntate rem attingere, non esse furem: quid enim dolo facit, qui putat dominum consensurum fuisse, sive falso id sive vere putet? is ergo solus fur est, qui adtrectavit, quod invito domino se facere scivit.
It has been rightly said that he who thought he was touching the thing by the owner’s will is not a thief: for what does he do by fraud, who thinks that the owner would have consented, whether he thinks that falsely or truly? therefore he alone is a thief who laid hands on it, knowing that he was doing it with the owner unwilling.
Per contrarium quaeritur, si ego me invito domino facere putarem, cum dominus vellet, an furti actio sit. et ait pomponius furtum me facere: verum tamen est, ut, cum ego velim eum uti, licet ignoret, ne furti sit obligatus.
By the contrary it is asked, if I supposed that I was acting with the owner unwilling, while the owner was willing, whether there is an action of theft. And Pomponius says that I commit theft. Yet it is nevertheless true that, when I want him to use it, although he is unaware, he is not obligated for theft.
Qui vas argenteum perdiderat eoque nomine furti egerit: de pondere vasis controversia cum esset et actor maius fuisse diceret, fur vas protulit: id is cuius erat abstulit ei: qui subripuerat dupli nihilo minus condemnatus est. rectissime iudicatum est: nam in actionem poenalem non venit ipsa res quae subrepta est, sive manifesti furti sive nec manifesti agatur.
One who had lost a silver vessel and on that account brought an action of theft: since there was a controversy about the weight of the vessel and the plaintiff said it had been greater, the thief produced the vessel; the person to whom it belonged took it away from him; he who had filched it was nonetheless condemned in double. It was most correctly adjudged: for in a penal action the very thing that was subrepted does not come into the action, whether one sues for manifest theft or for non-manifest.
Quod si dominus vetuit et ille suscepit, si quidem non celandi animo, non est fur, si celavit, tunc fur esse incipit. qui igitur suscepit nec celavit etsi invito domino, fur non est. vetare autem dominum accipimus etiam eum qui ignorat, hoc est eum qui non consensit.
But if the owner has forbidden and he has taken it up, if indeed not with the intention of concealing, he is not a thief; if he has concealed, then he begins to be a thief. who therefore has taken it up and has not concealed it, even with the owner unwilling, is not a thief. moreover we understand the owner’s “forbidding” to include even one who is ignorant, that is, one who did not consent.
Si ego tibi poliendum vestimentum locavero, tu vero inscio aut invito me commodaveris titio et titio furtum factum sit: et tibi competit furti actio, quia custodia rei ad te pertinet, et mihi adversus te, quia non debueras rem commodare et id faciendo furtum admiseris: ita erit casus, quo fur furti agere possit.
If I shall have let to you a garment to be polished, but you, without my knowledge or against my will, shall have lent it to Titius, and a theft has been committed against Titius: then the action for theft belongs to you, because custody of the thing pertains to you; and to me against you, because you ought not to have lent the thing and, by doing that, you have committed theft. Thus there will be a case in which a thief can bring an action for theft.
Ancilla si subripiatur praegnas vel apud furem concepit, partus furtivus est, sive apud furem edatur sive apud bonae fidei possessorem: sed in hoc posteriore casu furti actio cessat. sed si concepit apud bonae fidei possessorem ibique pepererit, eveniet, ut partus furtivus non sit, verum etiam usucapi possit. idem et in pecudibus servandum est et in fetu eorum, quod in partu.
If a maidservant is stolen while pregnant, or conceived in the thief’s keeping, the offspring is stolen, whether she is delivered with the thief or with a possessor in good faith; but in this latter case the action for theft ceases. But if she conceived with a possessor in good faith and gave birth there, it will result that the offspring is not stolen, and indeed can even be acquired by usucapion. The same rule is to be observed also in cattle and in their fetus, as in the case of birth.
Cum fur rem furtivam vendidisset eique nummos pretii dominus rei per vim extorsit, furtum eum nummorum fecisse recte responsum est: idem etiam vi bonorum raptorum actione tenebitur. quod enim ex re furtiva redigitur, furtivum non esse nemini dubium est: nummus ergo hic, qui redactus est ex pretio rei furtivae, non est furtivus.
When a thief had sold the stolen thing and the owner of the thing by force extorted from him the coins of the price, it was rightly answered that he committed theft of those coins: likewise he will also be held by the action for goods taken by force (rapine). For what is realized from a stolen thing is, as no one doubts, not stolen: therefore the coin here, which has been realized from the price of the stolen thing, is not stolen.
Interdum accidit, ut non habeat furti actionem is, cuius interest rem salvam esse. ut ecce creditor ob rem debitoris subreptam furti agere non potest, etsi aliunde creditum servare non possit: loquimur autem scilicet de ea re, quae pignoris iure obligata non sit.
Sometimes it happens that the one whose interest it is that the thing be safe does not have an action for theft. For example, a creditor, on account of the debtor’s thing having been stolen, cannot bring an action for theft, even if he cannot otherwise save the loan: we are, of course, speaking about a thing which is not bound by the right of pledge.
In furti actione non quod interest quadruplabitur vel duplabitur, sed rei verum pretium. sed et si res in rebus humanis esse desierit, cum iudicatur, nihilo minus condemnatio facienda est. itemque et si nunc deterior sit, aestimatione relata in id tempus, quo furtum factum est.
In the action for theft, it is not the amount of interest (damages) that will be quadrupled or doubled, but the true price of the thing. But even if the thing has ceased to exist among human affairs when judgment is given, nonetheless a condemnation must be made. Likewise, even if it is now worse, the valuation is referred back to that time at which the theft was committed.
Cum eo, qui pannum rubrum ostendit fugavitque pecus, ut in fures incideret, si quidem dolo malo fecit, furti actio est: sed et si non furti faciendi causa hoc fecit, non debet impunitus esse lusus tam perniciosus: idcirco labeo scribit in factum dandam actionem.
As to one who showed a red cloth and drove the herd to flight so that it ran into thieves, if indeed he did it with malicious fraud, there is an action for theft; but even if he did not do this for the sake of committing theft, such a pernicious sport ought not to go unpunished: therefore Labeo writes that an in factum action should be granted.
Apud labeonem relatum est, si siliginario quis dixerit, ut quisquis nomine eius siliginem petisset, ei daret, et quidam ex transeuntibus cum audisset, petiit eius nomine et accepit: furti actionem adversus eum, qui suppetet, siliginario competere, non mihi: non enim mihi negotium, sed sibi siliginarius gessit.
It is reported by Labeo that, if someone were to say to a seller of fine wheat that whoever asked for fine wheat in his name he should give it to him, and a certain passer-by, when he heard this, asked in his name and received it, the action for theft belongs to the seller of fine wheat against whichever person is at hand, not to me: for the seller of fine wheat conducted the business not for me, but for himself.
Si fugitivum meum quis quasi suum ad duumviro vel ab aliis qui potestatem habent de carcere vel custodia dimitteret, an is furti teneatur? et placet, si fideiussores dedit, in eos domino actionem dandam, ut hi actiones suas mihi mandent: quod si non acceperint fideiussorem, sed tamquam suum accipienti ei tradiderint, dominum furti actionem adversus plagiarium habiturum.
If someone, treating my fugitive slave as his own, were to secure his release by a duumvir or by others who have authority, from prison or from custody, is he liable for theft? And it is the accepted view that, if he furnished sureties, an action should be given to the owner against them, so that they assign their actions to me; but if they did not accept a surety, and delivered him to a recipient as though he were their own, the owner will have an action of theft against the plagiary (kidnapper).
Si quis massam meam argenteam subripuerit et pocula fecerit, possum vel poculorum vel massae furti agere vel condictione. idem est et in uvis et in musto et in vinaceis: nam et uvarum et musti et vinaceorum nomine furti agere potest, sed et condici.
If someone has surreptitiously stolen my silver mass (ingot) and made cups, I can bring an action for theft either of the cups or of the mass, or proceed by condictio. The same holds for grapes, for must, and for marc: for one can bring an action for theft under the name of grapes and of must and of marc, and also bring a condictio.
Servus, qui se liberum adfirmavit, ut sibi pecunia crederetur, furtum non facit: namque hic nihil amplius quam idoneum se debitorem adfirmat. idem est et in eo, qui se patrem familias finxit, cum esset filius familias, ut sibi promptius pecunia crederetur.
A slave who affirmed himself to be free, so that money might be loaned to him, does not commit theft: for here he asserts nothing more than that he is a suitable debtor. The same holds also in the case of one who feigned himself to be a paterfamilias, when he was a filiusfamilias, so that money might be more readily loaned to him.
Si quis asinum meum coegisset et in equas suas tys gonys dumtaxat xarin admisisset, furti non tenetur, nisi furandi quoque animum habuit. quod et herennio modestino studioso meo de dalmatia consulenti rescripsi circa equos, quibus eiusdem rei gratia subiecisse quis equas suas proponebatur, furti ita demum teneri, si furandi animo id fecisset, si minus, in factum agendum.
If someone had driven my donkey and admitted him to his mares for the sake of procreation only, he is not held liable for theft, unless he also had an intention of stealing. This too I wrote in reply to Herennius Modestinus, my student, consulting me from Dalmatia, concerning horses, in which, for the sake of the same thing, someone was alleged to have put his mares under them: that he is liable for theft only then, if he did it with the intention of stealing; if not, an action in factum is to be brought.
Cum titio honesto viro pecuniam credere vellem, subiecisti mihi alium titium egenum, quasi ille esset locuples, et nummos acceptos cum eo divisisti: furti tenearis, quasi ope tua consilioque furtum factum sit: sed et titius furti tenebitur.
When I wished to lend money to Titius, an honorable man, you substituted to me another Titius, needy, as though he were wealthy, and you divided the coins received with him: you would be held liable for theft, as if by your aid and counsel the theft had been committed; but Titius too will be held liable for theft.
Si servus meus, qui habebat peculii administrationem liberam, pactus sit cum eo non donationis causa, qui rem eius peculiarem subripuerat, recte transactum videtur: quamvis enim domino quaeratur furti actio, attamen in peculio servi est. sed et si tota poena furti dupli servo soluta sit, non dubie fur liberabitur. cui consequens est, ut, si forte a fure acceperit servus, quod ei rei satis esse videatur, similiter recte transactum videatur.
If my slave, who had free management of the peculium, made a pact—not by way of donation—with the person who had surreptitiously taken a thing belonging to his peculium, it seems to have been properly settled: for although an actio furti is available to the master, nevertheless the matter lies within the slave’s peculium. But even if the entire penalty of the actio furti dupli has been paid to the slave, without doubt the thief will be released. Whence it follows that, if perchance the slave has received from the thief what seems sufficient for the matter, likewise it appears to have been properly settled.
Si servus subreptus heres institutus fuerit, furti iudicio actor consequetur etiam pretium hereditatis, si modo servus, antequam iussu domini adeat, mortuus fuerit. condicendo quoque mortuum idem consequetur.
If a slave who has been stolen has been instituted as heir, the plaintiff by the action for theft will also obtain the price/value of the inheritance, provided only that the slave has died before he, by his master’s order, enters upon it. by bringing a condictio as well, he will obtain the same for the dead slave.
Si statuliber subreptus sit vel res sub condicione legata, deinde, antequam adeatur, extiterit condicio, furti iam agi non potest, quia desiit interesse heredis: pendente autem condicione tanti aestimandus est, quanti emptorem potest invenire.
If a statuliber has been stolen, or a thing bequeathed under a condition, then, if before the inheritance is entered upon the condition has arisen, an action for theft can no longer be brought, because the heir’s interest has ceased: however, while the condition is pending, it is to be assessed at as much as it can find a purchaser.
Si servus commodatoris rem subripuerit et solvendo sit is cui subreptum est, sabinus ait posse et commodati agi cum eo et contra dominum furti servi nomine: sed si pecuniam, quam dominus exegit, reddat, evanescere furti actionem: idem et si remittat commodati actionem.
If the slave of the lender has filched the thing, and the one from whom it was filched is solvent, sabinus says that both the commodatum action can be brought against him and, against the master, an action for theft in the slave’s name: but if he pays the money which the owner has exacted, the action for theft evanesces: the same also if he remits the commodatum action.
Qui alienis negotiis gerendis se optulit, actionem furti non habet, licet culpa eius res perierit: sed actione negotiorum gestorum ita damnandus est, si dominus actione ei cedat. eadem sunt in eo, qui pro tutore negotia gerit, vel in eo tutore, qui diligentiam praestare debeat, veluti qui ex pluribus tutoribus testamento datis oblata satisdatione solus administrationem suscepit.
He who has offered himself for managing another’s affairs does not have an action for theft, although through his fault the thing has perished: but by the action of negotia gestio he is to be condemned on this condition, if the owner cedes the action to him. The same holds in the case of one who manages business on behalf of a tutor, or in the case of that tutor who ought to furnish diligence, for example one who, from several tutors appointed by testament, upon security having been proffered, alone undertook the administration.
Si ex donatione alterius rem meam teneas et eam subripiam, ita demum furti te agere mecum posse iulianus ait, si intersit tua retinere possessionem, veluti si hominem donatum noxali iudicio defendisti vel aegrum curaveris, ut adversus vindicantem iustam retentionem habiturus sis.
If by the donation of another you hold my property and I steal it, Julian says that only then can you bring the action of theft against me, if it is in your interest to retain possession—for example, if you have defended the donated slave in a noxal judgment or have cared for him while sick—so that you will have a just retention against the one vindicating.
Eum, qui quod utendum accepit ipse alii commodaverit, furti obligari responsum est. ex quo satis apparet furtum fieri et si quis usum alienae rei in suum lucrum convertat. nec movere quem debet, quasi nihil lucri sui gratia faciat: species enim lucri est ex alieno largiri et beneficii debitorem sibi adquirere.
It has been answered that he who, having received a thing to be used, himself has lent it to another, is bound for theft. From which it is quite apparent that theft is committed even if someone converts the use of another’s thing to his own profit. Nor should it move anyone to object, as if he does nothing for the sake of his own gain: for it is a kind of profit to lavish out of another’s property and to acquire for oneself a debtor of a benefit.
Cum furti actio ad poenae persecutionem pertineat, condictio vero et vindicatio ad rei reciperationem, apparet recepta re nihilo minus salvam esse furti actionem, vindicationem vero et condictionem tolli: sicut ex diverso post solutam dupli aut quadrupli poenam salva est vindicatio et condictio.
Since the action of theft pertains to the prosecution of the penalty, but the condiction and the vindication to the recuperation of the thing, it appears that, the thing having been recovered, nonetheless the action of theft remains intact, while the vindication and the condiction are removed: just as conversely, after the penalty of twofold or fourfold has been paid, the vindication and the condiction are preserved.
Interdum fur etiam manente poenae obligatione in quibusdam casibus rursus obligatur, ut cum eo saepius eiusdem rei nomine furti agi possit. primus casus occurrit, si possessionis causa mutata esset, veluti si res in domini potestatem redisset eandemque idem subriperet vel eidem domino vel ei, cui is commodasset aut vendidisset. sed et si persona domini mutata esset, altera poena obligatur.
Sometimes a thief, even with the obligation of the penalty remaining, is again obligated in certain cases, so that one can bring an action of theft against him more than once in the name of the same thing. The first case occurs if the cause of possession had been changed; for example, if the thing had returned into the power of the owner and the same man pilfered the same thing again, either from that same owner or from the one to whom he had lent it or sold it. But also, if the person of the owner had been changed, he is bound to another penalty.
Qui furem deducit ad praefectum vigilibus vel ad praesidem, existimandus est elegisse viam, qua rem persequeretur: et si negotium ibi terminatum et damnato fure recepta est pecunia sublata in simplum, videtur furti quaestio sublata, maxime si non solum rem furtivam fur restituere iussus fuerit, sed amplius aliquid in eum iudex constituerit. sed et si nihil amplius quam furtivam rem restituere iussus fuerit, ipso, quod in periculum maioris poenae deductus est fur, intellegendum est quaestionem furti sublatam esse.
He who leads a thief to the Prefect of the Watch or to the Governor is to be thought to have chosen the route by which to prosecute the matter; and if the business is concluded there and, the thief having been condemned, the stolen money is recovered in the simple amount, the question of theft is seen to have been removed—especially if the judge has ordered not only that the thief restore the stolen thing, but has imposed something further upon him. But even if he has been ordered to restore nothing more than the stolen thing, by the very fact that the thief has been brought into peril of a greater penalty, it is to be understood that the question of theft has been removed.
Qui tutelam gerit, transigere cum fure potest et, si in potestatem suam redegerit rem furtivam, desinit furtiva esse, quia tutor domini loco habetur. sed et circa curatorem furiosi eadem dicenda sunt, qui adeo personam domini sustinet, ut etiam tradendo rem furiosi alienare existimetur. condicere autem rem furtivam tutor et curator furiosi eorum nomine possunt.
He who exercises tutelage (the tutor) can transact with the thief, and if he has reduced the stolen thing into his own power, it ceases to be stolen, because the tutor is held in the place of the owner. But the same is to be said concerning the curator of the insane person, who so sustains the person of the owner that even by delivering the thing belonging to the madman he is considered to alienate it. Moreover, the tutor and the curator of the insane person can bring a condictio for the stolen thing in their wards’ name.
Si duo servi tui vestem et argentum subripuerint et alterius nomine tecum de veste actum fuerit, alterius de argento agatur: nulla exceptio dari debebit ob eam rem, quod iam de veste actum fuerit.
If two of your slaves have filched a garment and silver, and in the name of the one an action has been brought with you concerning the garment, and in the name of the other it is litigated concerning the silver, no exception ought to be granted on that account, that suit has already been brought about the garment.
Si is, qui rem commodasset, eam rem clam abstulisset, furti cum eo agi non potest, quia suum recepisset et ille commodati liberatus esset. hoc tamen ita accipiendum est, si nullas retinendi causas is cui commodata res erat habuit: nam si impensas necessarias in rem commodatam fecerat, interfuit eius potius per retentionem eas servare quam ultro commodati agere, ideoque furti actionem habebit.
If the one who had lent the thing had secretly taken that thing away, an action for theft cannot be brought against him, because he had recovered his own and would have been released from the commodatum. However, this is to be understood thus, if the person to whom the thing was loaned had no causes for retention: for if he had made necessary expenses on the thing loaned, it was in his interest rather to preserve them by retention than of his own accord to bring an action of commodatum; and therefore he will have the action for theft.
Si servus communis uni ex dominis furtum fecerit, communi dividundo agi debere placet et arbitrio iudicis contineri, ut aut damnum praestet aut parte cedat. cui consequens videtur esse, ut etiam, si alienaverit suam partem, similiter et cum emptore agi possit, ut quodammodo noxalis actio caput sequatur. quod tamen non eo usque producendum ait, ut etiam, si liber sit factus, cum ipso agi posse dicamus, sicuti non ageretur etiam, si proprius fuisset.
If a common slave has committed theft against one of the owners, it is held that the action communi dividundo should be brought and that the matter be contained by the judge’s arbitration, so that either he make good the loss or cede his share. To this it seems consequent that even if he has alienated his share, action can likewise be brought against the purchaser, so that in a certain way the noxal action follows the “head.” However, he says this is not to be carried so far that, even if he has been made free, we should say that action can be brought against him himself, just as it would not be brought even if he had been a sole-owned slave.
Quod vero ad mandati actionem attinet, dubitare se ait, num aeque dicendum sit omni modo damnum praestari debere, et quidem hoc amplius quam in superioribus causis servandum, ut, etiamsi ignoraverit is, qui certum hominem emi mandaverit, furem esse, nihilo minus tamen damnum decidere cogatur. iustissime enim procuratorem allegare non fuisse se id damnum passurum, si id mandatum non suscepisset: idque evidentius in causa depositi apparere. nam licet alioquin aequum videatur non oportere cuiquam plus damni per servum evenire, quam quanti ipse servus sit, multo tamen aequius esse nemini officium suum, quod eius, cum quo contraxerit, non etiam sui commodi causa susceperit, damnosum esse, et sicut in superioribus contractibus, venditione locatione pignore, dolum eius, qui sciens reticuerit, puniendum esse dictum sit, ita in his culpam eorum, quorum causa contrahatur, ipsis potius damnosam esse debere.
But as regards the action on mandate, he says he is in doubt whether it should likewise be said without qualification that loss must be made good, and indeed this to be observed even more than in the preceding cases: namely, that even if the one who had mandated that a particular slave be bought was ignorant that he was a thief, nevertheless he is compelled just the same to make up the loss. For most justly may the procurator allege that he would not have suffered that loss if he had not undertaken that mandate; and this appears more clearly in the case of deposit. For although otherwise it seems equitable that no one should incur more loss through his slave than the amount of the slave’s own value, nevertheless it is much more equitable that no one’s duty—which he assumed not for his own profit but for the sake of him with whom he contracted—should be damaging to him; and just as in the preceding contracts, sale (venditio), letting (locatio), and pledge (pignus), it has been said that the fraud (dolus) of one who knowingly kept silent is to be punished, so in these cases the fault (culpa) of those for whose sake the contract is made ought rather to be damaging to themselves.
Circa commodatum autem merito aliud existimandum, videlicet quod tunc eius solius commodum, qui utendum rogaverit, versetur. itaque eum qui commodaverit, sicut in locatione, si dolo quid fecerit non ultra pretium servi quid amissurum: quin etiam paulo remissius circa interpretationem doli mali debere nos versari, quoniam, ut dictum sit, nulla utilitas commodantis interveniat.
As to the commodatum (loan for use), however, it is rightly to be judged otherwise, namely that then the benefit is engaged for him alone who asked to use the thing. And so, as in letting (locatio), the one who has lent it, if he has done something by dolus, is not to lose anything beyond the price of a slave; indeed we ought to proceed a little more leniently in the interpretation of dolus malus, since, as has been said, no utility of the lender intervenes.
Haec ita puto vera esse, si nulla culpa ipsius, qui mandatum vel depositum susceperit, intercedat: ceterum si ipse ultro ei custodiam argenti forte vel nummorum commiserit, cum alioquin nihil umquam dominus tale quid fecisset, aliter existimandum est.
I think these things to be true thus, if no fault of the very person who has undertaken a mandate or a deposit intervenes: however, if he himself, of his own accord, has committed to him the custody of silver or perhaps of coins, when otherwise the owner would never have done such a thing, it is to be judged otherwise.
Locavi tibi fundum, et ( ut adsolet) convenit, uti fructus ob mercedem pignori mihi essent. si eos clam deportaveris, furti tecum agere posse aiebat. sed et si tu alii fructus pendentes vendideris et emptor eos deportaverit, consequens erit, ut in furtivam causam eos incidere dicamus.
I leased to you the farm, and ( as is customary) it was agreed that the fruits, on account of the rent, should be a pledge to me. If you secretly carry them off, he said that he could proceed with you by an action of theft. But also, if you have sold to another the fruits still hanging and the buyer has carried them off, it will follow that we say they fall into a furtive cause.
for indeed the fruits, so long as they cohere to the soil, are of the estate; and for that reason the colonus, because he seems to take them by the owner’s will, makes them his own fruits. which certainly is not said equally in the case proposed: for by what reasoning could they become the colonus’s, when the buyer collects them in his own name?
Statuliberum, qui, si decem dederit, liber esse iussus erat, heres noxali iudicio defenderat: pendente iudicio servus datis decem heredi ad libertatem pervenit: quaeritur, an non aliter absolutio fieri debeat, quam si decem, quae accepisset, heres actori dedisset. referre existimavit, unde ea pecunia data esset, ut, si quidem aliunde quam ex peculio, haec saltem praestet, quoniam quidem si nondum ad libertatem servus pervenisset, noxae deditus ei, cui deditus esset, daturus fuerit: si vero ex peculio, quia nummos heredis dederit, quos utique is passurus eum non fuerit ei dare, contra statuendum.
A statuliber, who had been ordered to be free if he should give ten, had been defended by the heir in a noxal suit. While the suit was pending, the slave, the ten having been given to the heir, attained freedom. The question is whether acquittal ought not to be effected otherwise than if the heir had given to the plaintiff the ten which he had received. He considered it made a difference whence that money was given: namely, that if from somewhere other than from the peculium, he should at least make this good, since indeed, if the slave had not yet attained freedom, having been surrendered noxally to the person to whom he had been surrendered, he would have given it to him; but if from the peculium, because he gave the heir’s coins, which of course the latter would not have allowed him to give to that person, the opposite is to be decided.
A titio herede homo seio legatus ante aditam hereditatem titio furtum fecit. si adita hereditate seius legatum ad se pertinere voluerit, furti eius servi nomine aget cum eo titius, quia neque tunc, cum faceret furtum, eius fuit, et ( ut maxime quis existimet, si servus esse coeperit eius, cui furtum fecerat, tolli furti actionem, ut nec si alienatus sit, agi possit eo nomine) ne post aditam quidem hereditatem titii factus est, quia ea, quae legantur, recta via ab eo qui legavit ad eum cui legata sunt transeunt.
A man, bequeathed to Seius with Titius as heir, before the inheritance was entered upon, committed a theft against Titius. If, the inheritance having been entered, Seius should wish the legacy to pertain to himself, Titius will bring an action of theft against him in the name of that slave, because neither then, when he was committing the theft, did he belong to him, and ( grant, if one should most strongly think, that if the slave has begun to belong to the one against whom he committed the theft, the action for theft is extinguished, so that not even if he has been alienated can suit be brought on that ground) neither even after the inheritance was entered upon did he become Titius’s, because the things that are bequeathed pass by a straight way from him who bequeathed to him to whom they are bequeathed.
Si is, cui res subrepta sit, dum apud furem sit, legaverat eam mihi, an, si postea fur eam contrectet, furti actionem habeam? et secundum octaveni sententiam mihi soli competit furti actio, cum heres suo nomine non habeat, quia, quacumque ratione dominium mutatum sit, domino competere furti actionem constat.
If the one from whom a thing has been filched, while it is still with the thief, had bequeathed it to me, do I have an action for theft if afterwards the thief handles it? And according to the opinion of Octavenus the action for theft belongs to me alone, since the heir does not have it in his own name, because, however ownership has been changed, it is settled that the action for theft belongs to the owner.
Si tu titium mihi commendaveris quasi idoneum, cui crederem, et ego in titium inquisii, deinde tu alium adducas quasi titium, furtum facies, quia titium esse hunc credo, scilicet si et ille qui adducitur scit: quod si nesciat, non facies furtum, nec hic qui adduxit opem tulisse potest videri cum furtum factum non sit: sed dabitur actio in factum in eum qui adduxit.
If you shall have commended Titius to me as suitable, to whom I might entrust, and I have made inquiry into Titius, then you bring another man as if he were Titius, you will commit theft, because I believe this man to be Titius—provided, of course, that the one who is brought also knows; but if he does not know, you will not commit theft, nor can he who brought him be seen to have furnished aid, since no theft has been done; but an action on the facts (actio in factum) will be given against him who brought him.
Si stipulatus de te sim " per te non fieri, quo minus homo eros intra kalendas illas mihi detur", quamvis mea interesset eum non subripi ( cum subrepto eo ex stipulatu non teneris, si tamen per te factum non sit quo minus mihi daretur), non tamen furti actionem me habere.
If I should have stipulated from you " that it not be brought about by you, to the effect that the slave Eros be delivered to me before those Calends," although it was to my interest that he not be stolen (since, he having been stolen, you are not held on the stipulation, provided that it was not by your agency that he was not delivered to me), nevertheless I do not have an action for theft.
Infitiando depositum nemo facit furtum ( nec enim furtum est ipsa infitiatio, licet prope furtum est): sed si possessionem eius apiscatur intervertendi causa, facit furtum. nec refert, in digito habeat anulum an dactyliotheca quem, cum deposito teneret, habere pro suo destinaverit.
By denying a deposit no one commits theft (for the denial itself is not theft, though it is near to theft): but if he acquires possession of it for the purpose of misappropriating it, he commits theft. Nor does it matter whether he has a ring on his finger or a dactyliotheca (ring-case) which, when he held it on deposit, he has intended to have as his own.
Infans apud furem adolevit: tam adulescentis furtum fecit ille quam infantis, et unum tamen furtum est: ideoque dupli tenetur, quanti umquam apud eum plurimi fuit. nam quod semel dumtaxat furti agi cum eo potest, quid refert propositae quaestioni? quippe, si subreptus furi foret ac rursus a fure altero eum recuperasset, etiam si duo furta fecisset, non amplius quam semel cum eo furti agi posset.
An infant grew up in a thief’s keeping: he committed the theft as much of the adolescent as of the infant, and yet it is one theft; and therefore he is held for the double, in the amount of whatever his highest value ever was while with him. For since only once, and only once, can an action for theft be brought against him, what does that matter to the question proposed? Indeed, if he had been stolen from the thief and then the thief had recovered him again from another thief, even if he had committed two thefts, no more than once could an action for theft be brought against him.
Quod furi ipsi furtum fecerit furtivus servus, eo nomine actionem cum domino furem habiturum placet, ne facinora talium servorum non solum ipsis impunitatem, sed dominis quoque eorum quaestui erunt: plerumque enim eius generis servorum furtis peculia eorundem augentur.
Where a thievish slave has committed theft for the thief himself, it is held that, on that ground, he will have the master as a thief in an action, lest the crimes of such slaves be not only an impunity for themselves, but also a source of profit for their masters: for very often the peculia of slaves of that sort are increased by their thefts.
Si colonus post lustrum conductionis anno amplius fructus invito domino perceperit, videndum, ne messis et vindemiae furti cum eo agi possit. et mihi dubium non videtur, quin fur et si consumpserit rem subreptam, repeti ea ab eo possit.
If a tenant-farmer, after the five-year period of the lease, for more than a year has collected the fruits against the owner’s will, it must be considered whether an action for theft of the harvest and the vintage can be brought against him. And it does not seem doubtful to me that the thief, even if he has consumed the surreptitiously taken thing, can have it recovered from him.
Si is, cui commodata res erat, furtum ipsius admisit, agi cum eo et furti et commodati potest: et, si furti actum est, commodati actio exstinguitur, si commodati, actioni furti exceptio obicitur.
If the person to whom a thing was lent for use (commodatum) has committed theft of it, it is possible to proceed against him both for theft and for commodatum; and, if an action for theft has been brought, the action for commodatum is extinguished; if an action for commodatum, an exception is opposed to the action for theft.
Eius rei, quae pro herede possidetur, furti actio ad possessorem non pertinet, quamvis usucapere quis possit, quia furti agere potest is, cuius interest rem non subripi, interesse autem eius videtur qui damnum passurus est, non eius qui lucrum facturus esset.
The action for theft does not pertain to the possessor of a thing which is possessed as heir, although one may be able to usucapt, because the person who can bring an action for theft is he whose interest it is that the thing not be stolen; and the interest is deemed to be that of the one who is going to suffer damage, not of the one who would be going to make a gain.
Sempronia libellos composuit quasi datura centurioni, ut ad officium transmitterentur, sed non dedit: lucius pro tribunali eos recitavit quasi officio traditos: non sunt inventi in officio neque centurioni traditi: quaero, quo crimini subiciatur, qui ausus est libellos de domo subtractos pro tribunali legere, qui non sint dati? modestinus respondit, si clam subtraxit, furtum commissum.
Sempronia composed petitions (libelli) as if she were going to give them to the centurion, so that they might be transmitted to the office, but she did not give them: lucius, before the tribunal, recited them as if they had been delivered to the office: they were not found in the office nor delivered to the centurion: I ask, to what charge is he subject who dared to read before the tribunal petitions removed from a house, which had not been given? modestinus replied that, if he removed them secretly, theft has been committed.
Furtivam ancillam bona fide duorum aureorum emptam cum possiderem, subripuit mihi attius, cum quo et ego et dominus furti agimus: quaero, quanta aestimatio pro utroque fieri debet. respondit: emptori duplo, quanti eius interest, aestimari debet, domino autem duplo, quanti ea mulier fuerit. nec nos movere debet, quod duobus poena furti praestabitur, quippe, cum eiusdem rei nomine praestetur, emptori eius possessionis, domino ipsius proprietatis causa praestanda est.
When I was in possession of a stolen handmaid, bought in good faith (bona fide) for two aurei, attius stole her from me, against whom both I and the owner bring an action for theft: I ask, what valuation ought to be made for each party. he replied: for the purchaser (emptor), double, to the extent of his interest (quanti eius interest), ought to be assessed; but for the owner, likewise double, according to how much that woman was worth. nor should it move us that the penalty of theft will be rendered to two persons, since, although it is rendered under the name of the same thing, to the purchaser it is to be rendered on account of his possession of it, to the owner on account of its proprietorship.
Qui re sibi commodata vel apud se deposita usus est aliter atque accepit, si existimavit se non invito domino id facere, furti non tenetur. sed nec depositi ullo modo tenebitur: commodati an teneatur, in culpa aestimatio erit, id est an non debuerit existimare id dominum permissurum.
He who has used a thing lent to him for use (commodatum) or deposited with him (deposit) otherwise than as he received it, if he supposed that he did so with the owner not unwilling, is not held for theft. Nor will he be held in any way under deposit; whether he is held under commodatum will be an assessment by fault—that is, whether he ought not to have supposed that the owner would permit it.
Si quis alteri furtum fecerit et id quod subripuit alius ab eo subripuit, cum posteriore fure dominus eius rei furti agere potest, fur prior non potest, ideo quod domini interfuit, non prioris furis, ut id quod subreptum est salvum esset. haec quintus mucius refert et vera sunt: nam licet intersit furis rem salvam esse, quia condictione tenetur, tamen cum eo is cuius interest furti habet actionem, si honesta ex causa interest. nec utimur servii sententia, qui putabat, si rei subreptae dominus nemo exstaret nec exstaturus esset, furem habere furti actionem: non magis enim tunc eius esse intellegitur, qui lucrum facturus sit.
If someone has committed theft against another, and that which he surreptitiously took someone else surreptitiously takes from him, while the owner of that thing can proceed by the action for theft against the later thief, he cannot do so against the earlier thief, because it was to the owner’s interest, not to the earlier thief’s, that what was surreptitiously taken be kept safe. Quintus Mucius reports this, and it is true: for although it is to the thief’s interest that the thing be safe, because he is held by a condiction, nevertheless the person to whose interest it pertains has the action for theft against him, if his interest arises from an honest cause. Nor do we employ the opinion of Servius, who thought that, if the owner of the surreptitiously taken thing did not exist and would not be going to exist, the thief would have the action for theft: for not on that account is it any the more understood to be his who would be going to make a profit.
Cum autem iure dominii defertur furti actio, quamvis non alias, nisi nostra intersit, competat, tamen ad aestimationem corporis, si nihil amplius intersit, utilitas mea referenda est, idque et in statuliberis et in legato sub condicione relicto probatur: alioquin diversum probantibus statui facile quantitas non potest. quia itaque tunc sola utilitas aestimationem facit, cum cessante dominio furti actio nascitur, in istis causis ad aestimationem corporis furti actio referri non potest.
When, however, the action for theft is conferred by right of ownership, although otherwise it is not competent unless our interest is involved, nevertheless, for the valuation of the corpus (the thing), if nothing more is at stake, my utility is to be taken into account; and this is approved both in statulibers (slaves to be freed on condition) and in a legacy left under a condition: otherwise, when different things are being proved, the amount cannot easily be fixed. Therefore, since then utility alone makes the valuation—when, ownership ceasing, the action for theft arises—in these cases the action for theft cannot be referred to the valuation of the corpus (the thing).
Si titius, cuius nomine pecuniam perperam falsus procurator accepit, ratum habeat, ipse quidem titius negotiorum gestorum aget, ei vero, qui pecuniam indebitam dedit, adversus titium erit indebiti condictio, adversus falsum procuratorem furtiva durabit: electo titio non inique per doli exceptionem, uti praestetur ei furtiva condictio, desiderabitur. quod si pecunia fuit debita, ratum habente titio furti actio evanescit, quia debitor liberatur.
If Titius, in whose name a false procurator wrongly received money, should ratify it, Titius himself indeed will bring the action of negotiorum gestorum; but for the one who gave money not owed there will be a condictio indebiti against Titius, while against the false procurator the condictio furtiva will endure: with Titius having been elected, it will not unjustly be required, through the exceptio doli, that the condictio furtiva be furnished to him. But if the money was owed, Titius ratifying, the actio furti vanishes, because the debtor is released.
Falsus autem procurator ita demum furtum pecuniae faciet, si nomine quoque veri procuratoris, quem creditor habuit, adsumpto debitorem alienum circumvenerit. quod aeque probatur et in eo, qui sibi deberi pecuniam ut heredi sempronii creditoris adseveravit, cum esset alius.
Moreover, a false procurator will only then commit theft of money if, having assumed even the name of the true procurator whom the creditor had, he has circumvented another’s debtor. The same is likewise approved in the case of one who asserted that money was owed to himself as the heir of Sempronius the creditor, whereas it was another.
Qui rem titii agebat, eius nomine falso procuratori creditoris solvit et titius ratum habuit: non nascitur ei furti actio, quae statim, cum pecunia soluta est, ei qui dedit nata est, cum titii nummorum dominium non fuerit neque possessio. sed condictionem indebiti quidem titius habebit, furtivam autem qui pecuniam dedit: quae, si negotiorum gestorum actione titius conveniri coeperit, arbitrio iudicis ei praestabitur.
He who was conducting Titius’s affair, in his name paid to the creditor’s false procurator, and Titius ratified it: no action for theft arises to him—the one which, as soon as the money was paid, arose to the person who gave it—since Titius had neither ownership nor possession of the coins. But Titius will indeed have the condiction for a thing not owed, while the one who paid the money will have the furtive condiction; and, if Titius begins to be sued by the action for management of affairs, these will be made over to him at the judge’s discretion.
Is, cuius interest non subripi, furti actionem habet, si et rem tenuit domini voluntate, id est veluti is cui res locata est. is autem, qui sua voluntate vel etiam pro tutore negotia gerit, item tutor vel curator ob rem sua culpa subreptam non habet furti actionem. item is, cui ex stipulatu vel ex testamento servus debetur, quamvis intersit eius, non habet furti actionem: sed nec is, qui fideiussit pro colono.
He whose interest it is that the thing not be stolen has an action for theft, if he also held the thing with the will of the owner, that is, as for example one to whom the thing is leased. But he who manages affairs of another of his own will, or even on behalf of a tutor, likewise a tutor or a curator, on account of a thing stolen through his own fault, does not have an action for theft. Likewise, he to whom a slave is owed ex stipulatu or by testament, although it concerns his interest, does not have an action for theft; nor does he who has stood surety for a colonus (tenant-farmer).
Fullo actione locati de domino liberatus est: negat eum furti recte acturum labeo. item si furti egisset, priusquam ex locato cum eo ageretur et, antequam de furto iudicaretur, locati actione liberatus esset, et fur ab eo absolvi debet. quod si nihil eorum ante accidisset, furem ei condemnari oportere.
A fuller has been freed, as to the owner, by the action on hire (actio locati): Labeo denies that he would proceed rightly with an action of theft. Likewise, if he had brought an action of theft before he was sued ex locato, and, before judgment was given on the theft, he had been released by the action on hire, then the thief too ought to be absolved from him. But if none of those things had happened beforehand, the thief ought to be condemned to him.
Si quis, cum sciret quid sibi subripi, non prohibuit, non potest furti agere. paulus. immo contra: nam si quis scit sibi rapi et, quia non potest prohibere, quievit, furti agere potest.
If someone, when he knew that something was being stolen from him, did not prohibit it, he cannot bring an action for theft. paulus. rather, the contrary: for if someone knows that something is being carried off from him and, because he cannot prevent it, kept quiet, he can bring an action for theft.
but if he was able to prohibit and did not prohibit, nonetheless he will bring an action for theft; and in this way a patron also [may bring it] against a freedman; and the person toward whom there is great reverence on the part of him whom, in his presence, modesty (shame) hinders from resisting, is wont to commit theft.
Meminisse oportebit nunc furti plerumque criminaliter agi et eum qui agit in crimen subscribere, non quasi publicum sit iudicium, sed quia visum est temeritatem agentium etiam extraordinaria animadversione coercendam. non ideo tamen minus, si qui velit, poterit civiliter agere.
It should be remembered that now theft is for the most part proceeded against criminally, and that he who proceeds subscribes to the charge, not as though it were a public prosecution, but because it has seemed that the rashness of the actors ought also to be curbed by extraordinary animadversion. Not for that reason, however, any the less, if anyone wishes, he will be able to proceed civilly.
Lex duodecim tabularum neque solvere permittit tignum furtivum aedibus vel vineis iunctum neque vindicare ( quod providenter lex effecit, ne vel aedificia sub hoc praetextu diruantur vel vinearum cultura turbetur): sed in eum, qui convictus est iunxisse, in duplum dat actionem.
The Law of the Twelve Tables permits neither the loosening of a stolen beam joined to houses or vineyards nor its vindication (which the law has provided prudently, lest either buildings be torn down under this pretext or the cultivation of vineyards be disturbed): but it gives an action for double against him who is convicted of having joined it.
Tigni autem appellatione continetur omnis materia, ex qua aedificium constet, vineaeque necessaria. unde quidam aiunt tegulam quoque et lapidem et testam ceteraque, si qua aedificiis sunt utilia ( tigna enim a tegendo dicta sunt), hoc amplius et calcem et harenam tignorum appellatione contineri. sed et in vineis tigni appellatione omnia vineis necessaria continentur, ut puta perticae pedamenta.
By the appellation “timber” is contained every material from which an edifice consists, and what is necessary for a vineyard. Whence some say that a tile as well, and stone and potsherd, and the rest, if there are any things useful for buildings (for timbers are said to be so called from covering), and, moreover, that lime and sand too are contained under the appellation of timbers. But also in vineyards, under the appellation “timber” all things necessary for vineyards are contained, for example poles and props.
Si dolo malo eius, qui liber esse iussus erit, post mortem domini ante aditam hereditatem in bonis, quae eius fuerunt, qui eum liberum esse iusserit, factum esse dicetur, quo minus ex his bonis ad heredem aliquid perveniret: in eum intra annum utilem dupli iudicium datur.
If by the malicious fraud of him who shall have been ordered to be free, after the death of the master and before the inheritance has been entered upon, in the goods which belonged to him who ordered him to be free, something is said to have been done whereby anything from these goods would fail to reach the heir: an action for the double is granted against him within a useful year.
Haec autem actio, ut labeo scripsit, naturalem potius in se quam civilem habet aequitatem, si quidem civilis deficit actio: sed natura aequum est non esse impunitum eum, qui hac spe audacior factus est, quia neque ut servum se coerceri posse intellegit spe imminentis libertatis, neque ut liberum damnari, quia hereditati furtum fecit, hoc est dominae, dominus autem dominave non possunt habere furti actionem cum servo suo, quamvis postea ad libertatem pervenerit vel alienatus sit, nisi si postea quoque contrectaverit. e re itaque esse praetor putavit calliditatem et protervitatem horum, qui hereditates depopulantur, dupli actione coercere.
This action, as Labeo wrote, has in itself a natural rather than a civil equity, if indeed the civil action fails: but by nature it is equitable that he not go unpunished who has been made bolder by this hope, because he understands that he can neither be restrained as a slave, by reason of the hope of impending liberty, nor be condemned as a free man, because he committed theft against the inheritance, that is, of the mistress; yet a master or a mistress cannot have an action for theft against their own slave, although afterwards he may have come to liberty or been alienated, unless he also handled it thereafter. Therefore the praetor judged it to be expedient to restrain by an action for the double the craftiness and insolence of those who ravage inheritances.
Non alias tenebitur iste libertus, quam si dolo quid dissipasse proponatur. culpa autem neglegentiaque servi post libertatem excusata est, sed culpa dolo proxima dolum repraesentat. proinde si quid damni dedit sine dolo, cessabit ista actio, quamvis alias aquilia tenetur ob hoc, quod damnum qualiterqualiter dederit.
This freedman will not otherwise be held liable than if it is alleged that he dissipated something by fraud. But the fault and negligence of a slave are excused after freedom; yet negligence nearest to fraud represents fraud. Accordingly, if he has caused any loss without fraud, this action will cease to lie, although otherwise he is held under the Aquilian action on this account, that he caused the damage in whatever way he caused it.
Accordingly, this action has a definite limit: namely, that he both acted with fraud (dolus) and after the master’s death and before the inheritance was entered upon. But if without fraud—or indeed with fraud, yet while the master was alive—he will not be bound by this action; nay rather, even if after the death, after the inheritance has been entered upon, the action will cease: for when the inheritance has been entered upon, he can already be sued as though free.
Sed si fideicommissaria libertas servo data sit, quidquid in hereditate maleficii admisit, numquid non prius cogatur heres manumittere, quam si satisfecerit? est autem saepissime et a divo marco et ab imperatore nostro cum patre rescriptum non impediri fideicommissariam libertatem, quae pure data est. divus sane marcus rescripsit arbitrum ex continenti dandum, apud quem ratio ponatur: sed hoc rescriptum ad rationem ponendam pertinet actus, quem servus administravit.
but if fideicommissary freedom has been given to a slave, whatever misdeed he has committed in the estate, is the heir not compelled to manumit first, before he has made satisfaction? and it has very often been rescripted both by the deified marcus and by our emperor with his father that fideicommissary freedom, which has been given purely, is not impeded. indeed the deified marcus rescripted that an arbiter is to be given immediately, before whom an account may be presented: but this rescript pertains to the setting forth of the account of the business which the slave administered.
Si pupillus heres institutus sit et a substituto eius libertas data medioque tempore quaedam admittantur: si quidem vivo pupillo quid fuerit factum, locum non esse huic actioni: sin vero post mortem, antequam quis pupillo succederet, actionem istam locum habere.
If a ward has been instituted heir and freedom has been granted by his substitute, and in the meantime certain things are committed: if indeed something was done while the ward was alive, this action has no place; but if rather after his death, before anyone succeeded to the ward, that action has a place.
Haec actio locum habet non tantum in rebus, quae in bonis fuerunt testatoris, sed et si heredis interfuit dolum malum admissum non esse, quo minus ad se perveniret. et ideo scaevola plenius tractat et si eam rem subripuisset servus, quam defunctus pignori acceperat, hanc actionem honorariam locum habere: plenius enim causam bonorum hic accipimus pro utilitate. nam si in locum deficientis furti actionis propter servitutem hanc actionem substituit praetor, verisimile est in omnibus causis eum, in quibus furti agi potuit, substituisse.
This action has a place not only in things which were in the testator’s goods, but also if it was in the heir’s interest that no dolus malus was committed by which it failed to reach him. And therefore Scaevola treats more fully that even if a slave had surreptitiously taken that thing which the deceased had received in pledge, this honorary action has a place: for here we more broadly accept the concern of the estate (bonorum) for the sake of utility. For if, in place of the failing action of theft on account of slavery (servitude), the praetor substituted this action, it is plausible that in all cases in which an action for theft could have been brought, he substituted it.
Scaevola ait possessionis furtum fieri: denique si nullus sit possessor, furtum negat fieri: idcirco autem hereditati furtum non fieri, quia possessionem hereditas non habet, quae facti est et animi. sed nec heredis est possessio, antequam possideat, quia hereditas in eum id tantum transfundit, quod est hereditatis, non autem fuit possessio hereditatis.
Scaevola says that theft of possession occurs: indeed, if there is no possessor, he denies that theft occurs: and therefore theft is not committed with respect to an inheritance, because an inheritance does not have possession, which is a matter of fact and of intention. but neither is possession the heir’s, before he possesses, because the inheritance transfers into him only that which belongs to the inheritance, but there was not possession in the inheritance.
Si paulo ante, quam statuta libertas optigerit, amoverit aliquid servus aut corruperit, ignorantia domini non introducit hanc actionem: ideoque licet maxime ignoraverit heres a statulibero aut quilibet alius dominus a servo suo amotum aliquid corruptumve esse, non impetrat post libertatem eius ullam actionem, quamvis in pluribus aliis causis iusta ignorantia excusationem mereatur.
If a little before the stipulated liberty has fallen due a slave has removed something or corrupted it, the master’s ignorance does not introduce this action: and therefore, although the heir or any other master may have been wholly unaware that something had been removed or spoiled—by a statuliber from the heir, or by his own slave from any other master—he does not obtain, after that person’s freedom, any action at all, although in many other cases just ignorance earns an excuse.
In eos, qui naves cauponas stabula exercebunt, si quid a quoquo eorum quosve ibi habebunt furtum factum esse dicetur, iudicium datur, sive furtum ope consilio exercitoris factum sit, sive eorum cuius, qui in ea navi navigandi causa esset.
Against those who will operate ships, inns, or stables, if it shall be said that anything has been stolen by any of them or by those whom they have there, an action is granted, whether the theft was committed with the aid and advice of the proprietor, or of those who were in that ship for the purpose of sailing.
Cum enim in caupona vel in navi res perit, ex edicto praetoris obligatur exercitor navis vel caupo ita, ut in potestate sit eius, cui res subrepta sit, utrum mallet cum exercitore honorario iure an cum fure iure civili experiri.
For when in an inn or on a ship a thing is lost, by the praetor’s edict the ship’s exercitor or the innkeeper (caupo) is bound, in such a way that it is in the power of the person whose thing has been stolen to choose whether he would rather proceed against the exercitor by honorary (praetorian) law or against the thief by civil law.
unless perhaps on this account: that, when employing a free man, he ought to have determined about him what sort he was; whereas, in the case of his own slave, he should be pardoned, as for a domestic mischief, if he is prepared to make a noxal surrender. But if he employed another’s slave, he will be held as though in the case of a free man.
Caupo praestat factum eorum, qui in ea caupona eius cauponae exercendae causa ibi sunt, item eorum, qui habitandi causa ibi sunt: viatorum autem factum non praestat. namque viatorem sibi eligere caupo vel stabularius non videtur nec repellere potest iter agentes: inhabitatores vero perpetuos ipse quodammodo elegit, qui non reiecit, quorum factum oportet eum praestare. in navi quoque vectorum factum non praestatur.
The innkeeper is answerable for the act of those who are in that inn for the purpose of exercising that inn, likewise of those who are there for the purpose of dwelling; but he does not answer for the act of travelers. For the innkeeper or stable-keeper is not considered to choose the traveler for himself, nor can he repel those who are making a journey; but the permanent inhabitants he has, in a certain way, chosen, in that he did not reject them, for whose act it is proper that he be answerable. On a ship likewise the act of passengers is not answered for.
Utilissimum id edictum praetor proposuit, quo dominis prospiceret adversus maleficia servorum, videlicet ne, cum plures furtum admittunt, evertant domini patrimonium, si omnes dedere aut pro singulis aestimationem litis offerre cogatur. datur igitur arbitrium hoc edicto, ut, si quidem velit dicere noxios servos, possit omnes dedere, qui participaverunt furtum: enimvero si maluerit aestimationem offerre, tantum offerat, quantum, si unus liber furtum fecisset, et retineat familiam suam.
That most useful edict the praetor published, by which he looked out for masters against the malefices of slaves, namely lest, when several commit theft, they overturn the master’s patrimony, if he should be forced either to surrender them all or to offer, for each one, the estimation of the suit. Therefore by this edict a choice is given: that, if indeed he wishes to declare the slaves noxal, he can surrender all who participated in the theft; but if he prefers to offer an estimation, let him offer only as much as if one free person had committed the theft, and let him retain his household.
Haec autem facultas domino tribuitur totiens, quotiens ignorante eo furtum factum est: ceterum si sciente, facultas ei non erit data: nam et suo nomine et singulorum nomine conveniri potest noxali iudicio, nec una aestimatione, quam homo liber sufferret, defungi poterit: is autem accipitur scire, qui scit et potuit prohibere: scientiam enim spectare debemus, quae habet et voluntatem: ceterum si scit, prohibuit tamen, dicendum est usurum edicti beneficio.
But this faculty is granted to the master as often as the theft was committed with him being ignorant of it; but if with him knowing, the faculty will not be given to him: for he can be convened both in his own name and in the name of each by a noxal judgment, nor will he be able to be discharged by the single assessment which a free man would undergo. Moreover, he is taken to “know” who both knows and was able to prohibit: for we ought to regard as knowledge one which also has will; but if he knows and yet prohibited, it must be said that he will make use of the edict’s benefit.
Cum plures servi eiusdem rei furtum faciunt et unius nomine cum domino lis contestata sit, tamdiu aliorum nomine actio sustineri debebit, quamdiu priore iudicio potest actor consequi, quantum consequeretur, si liber id furtum fecisset,
When several slaves commit a theft of the same thing, and the suit has been joined with the master in the name of one, an action in the names of the others ought to be maintained so long as, by the prior judgment, the plaintiff is able to recover as much as he would recover if a free person had committed that theft,
Quotiens tantum praestat dominus, quantum praestaretur, si unus liber fecisset, cessat ceterorum nomine actio, non adversus ipsum, verum etiam adversus emptorem dumtaxat, si forte quis eorum, qui simul fecerant, venierit. idemque et si fuerit manumissus. quod si prius fuerit ablatum a manumisso, tunc dabitur adversus dominum familiae nomine: nec enim potest dici, quod a manumisso praestitum est, quasi a familia esse praestitum.
Whenever the master furnishes only as much as would be furnished if a single free man had done it, the action, in the name of the others, ceases—not only against himself, but also against a purchaser, at least if perchance one of those who acted together has been sold. And the same holds if he has been manumitted. But if the amount has first been exacted from the manumitted man, then an action will be given against the master under the name of the household; for it cannot be said that what has been furnished by the manumitted is as if furnished by the household.
plainly, if the purchaser has satisfied it, I think the action against the vendor should be denied: for in a certain way this has been provided by the vendor, to whom recourse has sometimes been had on this account, especially if he promised that it had been discharged with respect to theft ^ thefts^ and noxal liability.
Familia communis sciente altero furtum fecit: omnium nomine cum eo qui scit furti agi poterit, cum altero ad eum modum, qui edicto comprehensus est: quod ille praestiterit non totius familiae nomine, ab hoc socio partem consequeretur. et si servus communis alterius iussu damnum dederit, etiam quod praestiterit alter, si modo cum eo quoque ex lege aquilia vel ex duodecim tabulis agi potest, repetat a socio, sicuti cum communi rei nocitum est. si ergo dumtaxat duos habuerim servos communes, cum eo, quo non ignorante factum est, agetur utriusque servi nomine, sed non amplius consequentur a socio, quam si unius nomine praestitisset: quod si cum eo, quo ignorante factum est, agere volet, duplum tantum consequetur.
A common household having committed theft, one of the partners being aware: an action for theft can be brought, on account of all the members, against the one who knows; against the other, only to the extent comprised by the Edict: and whatever he has paid not in the name of the whole household, he would recover a share from this partner. And if a common slave, by the order of the other partner, has caused damage, then even what the other has paid—provided that an action can also be brought against him under the Aquilian law or under the Twelve Tables—he shall reclaim from his partner, just as when harm has been done to a thing held in common. If therefore I have only two common slaves, suit will be brought against the one who was not ignorant in the name of both slaves; but they will not recover from the partner more than if he had paid in the name of one: whereas if he should wish to proceed against the one who was ignorant, he will obtain only the double.
and let us see whether now an action ought not to be granted against the partner in the name of the other slave, just as if the partner had settled in the name of all; unless perhaps in this case it is to be constituted more severely by the praetor, and no indulgence is to be shown to the one privy to the slaves.
Labeo putat, si coheres meus, quod furtum familia cuius fecisset, duplum abstulisset, me non impediri, quo minus dupli agam, eoque modo fraudem edicto fieri esseque iniquum plus heredes nostros ferre, quam ferremus ipsi.
Labeo thinks that, if my coheir, on account of a theft which his household had committed, had exacted the twofold, I am not hindered from bringing the action for the twofold; and that in this way a fraud is worked upon the edict, and that it is iniquitous that our heirs should receive more than we ourselves would receive.
Idem, si defunctus minus duplo abstulit, adhuc singulos heredes recte experiri. scaevola respondit: verius puto partes eius heredes persecuturos, sed ut cum eo, quod defunctus abstulit, uterque heres non plus duplo ferat.
Likewise, if the deceased carried off less than the double, the individual heirs may still properly bring suit. scaevola replied: I think it truer that the heirs will pursue their respective shares, but so that, counting that which the deceased carried off, each heir does not bear more than the double.
Si furtim arbores caesae sint, et ex lege aquilia et ex duodecim tabularum dandam actionem labeo ait: sed trebatius ita utramque dandam, ut iudex in posteriore deducat id quod ex prima consecutus sit et reliquo condemnet.
If trees have been cut down by stealth, Labeo says that an action is to be given both under the Lex Aquilia and under the Twelve Tables; but Trebatius [says] that both are to be given in such a way that the judge, in the latter, deducts what he has obtained from the former and condemns for the remainder.
Sed si quis saligneas virgas instituendi salicti causa defixerit haeque, antequam radices coegerint, succidantur aut evellantur, recte pomponius scripsit non posse agi de arboribus succisis, cum nulla arbor proprie dicatur, quae radicem non conceperit.
But if someone has fixed willow rods in the ground for the purpose of instituting a willow‑bed, and these, before they have taken root, are cut down or pulled up, Pomponius rightly wrote that an action cannot be brought concerning felled trees, since nothing is properly called a tree which has not taken root.
Si arbor in vicini fundum radices porrexit, recidere eas vicino non licebit, agere autem licebit non esse ei ius ( sicuti tignum aut protectum) immissum habere. si radicibus vicini arbor aletur, tamen eius est, in cuius fundo origo eius fuerit.
If a tree has stretched its roots into the neighbor’s estate, it will not be permitted to the neighbor to cut them back; but it will be permitted to bring an action that the other has no right to have a let-in (as with a beam or a projection). If the tree is nourished by roots in the neighbor’s land, nevertheless it belongs to the one in whose estate its origin was.
Qui rem rapuit, et furti nec manifesti tenetur in duplum et vi bonorum raptorum in quadruplum. sed si ante actum sit vi bonorum raptorum, deneganda est furti: si ante furti actum est, non est illa deneganda, ut tamen id quod amplius in ea est consequatur.
Whoever has carried off a thing is liable both under the action for theft not manifest for double and under the action for goods rapt by force for quadruple. But if the action for goods rapt by force has been brought first, the action for theft must be denied; if the action for theft has been brought first, that other is not to be denied, provided, however, that he recovers the further amount in it.
Praetor ait: " si cui dolo malo hominibus coactis damni quid factum esse dicetur sive cuius bona rapta esse dicentur, in eum, qui id fecisse dicetur, iudicium dabo. item si servus fecisse dicetur, in dominum iudicium noxale dabo".
The Praetor says: " if it shall be said that, by malicious fraud, with men gathered together, some damage has been done, or that someone’s goods have been carried off by rapine, I will grant an action against him who shall be said to have done it. Likewise, if it shall be said that a slave did it, I will grant a noxal action against the master".
Hoc edicto contra ea, quae vi committuntur, consuluit praetor. nam si quis se vim passum docere possit, publico iudicio de vi potest experiri, neque debet publico iudicio privata actione praeiudicari quidam putant: sed utilius visum est, quamvis praeiudicium legi iuliae de vi privata fiat, nihilo minus tamen non esse denegandam actionem eligentibus privatam persecutionem.
By this edict the praetor provided against those things which are committed by force. For if anyone can show that he has suffered violence, he can proceed by the public action for violence; nor, as some think, ought the public judgment to be prejudiced by a private action: but it seemed more expedient that, although a prejudgment be made to the Julian Law on private violence, nonetheless the action is not to be denied to those choosing a private prosecution.
Item si proponas solum damnum dedisse, non puto deficere verba: hoc enim, quod ait " hominibus coactis", ut sive solus vim fecerit sive etiam hominibus coactis, sic accipere debemus etiam hominibus coactis vel armatis vel inermibus hoc edicto teneatur.
Likewise, if you posit that he inflicted only damage, I do not think the words are lacking: for this, where he says " hominibus coactis", so that whether he alone committed violence or even with men assembled, thus we ought to take it, that even with men assembled, whether armed or unarmed, he is held by this edict.
Doli mali mentio hic et vim in se habet. nam qui vim facit, dolo malo fecit, non tamen qui dolo malo facit, utique et vi facit. ita dolus habet in se et vim: et sine vi si quid callide admissum est, aeque continebitur.
The mention of malicious fraud here also has force in itself. For he who employs force has acted with malicious fraud; yet he who acts with malicious fraud does not necessarily also act with force. Thus fraud contains within itself force as well; and even without force, if anything has been craftily perpetrated, it will be equally encompassed.
" damni" praetor inquit: omnia ergo damna continet et clandestina. sed non puto clandestina, sed ea, quae violentia permixta sunt. etiam quis recte definiet, si quid solus admiserit quis non vi, non contineri hoc edicto, et si quid hominibus coactis, etiamsi sine vi, dummodo dolo sit admissum, ad hoc edictum spectare.
" of damage," says the praetor: therefore it contains all damages, even clandestine ones. But I do not think it [covers] clandestine [damages], but those which are mixed with violence. Moreover, one will define rightly that, if someone alone has committed something not by force, this is not contained in this edict; and that, if anything was done by men under compulsion, even if without force, provided it was committed with dolus (fraud), it pertains to this edict.
Ceterum neque furti actio neque legis aquiliae contributae sunt in hoc edicto, licet interdum communes sint cum hoc edicto: nam iulianus scribit eum qui vi rapit furem esse improbiorem, et si quid damni coactis hominibus dederit, utique etiam aquilia poterit teneri.
Moreover, neither the action for theft nor the Aquilian law have been appended in this edict, although at times they are common with this edict: for iulianus writes that he who takes by force is a thief of a more unscrupulous sort, and that, if he has caused any damage with men compelled, he can certainly also be held by the Aquilian law.
Si quis non homines ipse coegerit, sed inter coactos ipse fuerit et quid aut rapuerit aut damni dederit, hac actione tenetur. sed utrum hoc solum contineat edictum, quod dolo malo hominibus a reo coactis damnum datum sit vel raptum, an vero quod dolo malo rei raptum vel damnum datum sit, licet ab alio homines sint coacti, quaeritur. et melius esse dicitur etiam hoc contineri, ut omnia haec contineantur et quod ex coactis ab alio damnum datum sit, ut et is qui coegit et is qui coactus est contineri videatur.
If someone has not himself coerced men, but has himself been among the coerced, and has either committed rapine or inflicted damage, he is held liable by this action. But whether the edict contains only this, that damage was inflicted or something seized by the malicious deceit of the defendant with men coerced by him, or rather that something was seized or damage inflicted by the malicious deceit of the defendant, although the men were coerced by another, is the question. And it is said to be better that this too be contained, so that all these are encompassed—including that damage was inflicted by those coerced by another—so that both he who coerced and he who was coerced appear to be included.
Haec actio etiam familiae nomine competit, non imposita necessitate ostendendi, qui sunt ex familia homines qui rapuerunt vel etiam damnum dederunt. familiae autem appellatio servos continet, hoc est eos, qui in ministerio sunt, etiamsi liberi esse proponantur vel alieni bona fide nobis servientes.
This action also lies under the name “familia,” with no necessity imposed of showing which persons of the familia carried off the goods or also caused the damage. Moreover, the appellation “familia” includes slaves—that is, those who are in service—even if they are put forward as free, or belong to another while in good faith serving us.
Hac actione is demum tenetur, qui dolum malum adhibuit. si quis igitur suam rem rapuit, vi quidem bonorum raptorum non tenebitur, sed aliter multabitur. sed et si quis fugitivum suum, quem bona fide aliquis possidebat, rapuit, aeque hac actione non tenebitur, quia rem suam aufert.
By this action only he is held to account who has employed malicious fraud. Therefore, if someone has seized his own property, he will not be liable under the action for goods taken by force, but he will be mulcted otherwise. And likewise, if someone has carried off his own fugitive slave, whom someone was possessing in good faith, he likewise will not be liable under this action, because he is taking away his own property.
Vi bonorum raptorum actio in impuberem, qui doli mali capax non est, non dabitur: nisi servus ipsius vel familia eius admisisse proponantur, et servi et familiae nomine noxali vi bonorum raptorum actione tenetur.
The action for goods seized by force will not be granted against an impubes, who is not capable of dolus malus; unless it is alleged that his slave or a member of his household committed it, and he is liable on a noxal basis, under the action for goods seized by force, in respect of the slave and of the household.
Si publicanus pecus meum abduxerit, dum putat contra legem vectigalis aliquid a me factum: quamvis erraverit, agi tamen cum eo vi bonorum raptorum non posse labeo ait: sane dolo caret: si tamen ideo inclusit, ne pascatur et ut fame periret, etiam utili lege aquilia.
If a publican has led away my cattle, while he thinks that I have done something contrary to the law of the tax: although he has erred, nevertheless Labeo says that one cannot bring an action against him by the action for goods taken by force; indeed he is free of fraud: if, however, he has penned it up so that it not graze and so that it perish by hunger, then also by the useful action under the Lex Aquilia.
In hac actione non utique spectamus rem in bonis actoris esse: sive in bonis sit sive non sit, si tamen ex bonis sit, locum haec actio habebit. quare sive commodata res sit sive locata sive etiam pignerata proponatur sive deposita apud me sic, ut intersit mea eam non auferri, sive bona fide a me possideatur, sive usum fructum in ea habeam vel quod aliud ius, ut intersit mea non rapi: dicendum est competere mihi hanc actionem, ut non dominium accipiamus, sed illud solum, quod ex bonis meis, hoc est ex substantia mea res ablata esse proponatur.
in this action we do not at all look to the thing’s being in the plaintiff’s goods: whether it is in the goods or is not, nevertheless, if it is out of the goods, this action will have a place. wherefore whether the thing be commodatum (loaned for use) or locatum (leased) or even proposed as pigneratum (pledged) or deposited with me in such a way that it is my concern that it not be taken away, or possessed by me in good faith, or I have usus fructus (usufruct) in it or some other right such that it is my concern that it not be snatched: it must be said that this action is competent to me, so that we do not take dominion, but only this, that from my goods, that is, from my substance, the thing is alleged to have been removed.
Et generaliter dicendum est, ex quibus causis furti mihi actio competit in re clam facta, ex hisdem causis habere me hanc actionem. dicet aliquis: adquin ob rem depositam furti actionem non habemus. sed ideo addidi " si intersit nostra non esse raptam": nam et furti actionem habeo, si in re deposita culpam quoque repromissi vel pretium depositionis non quasi mercedem accepi.
And generally it must be said that, from the causes on account of which the action for theft is competent to me in a matter done clandestinely, from these same causes I have this action. Someone will say: but indeed, for a deposited thing we do not have an action for theft. But for that reason I added, “if it is in our interest that it not be snatched”: for I also have an action for theft, if, in the case of a deposited thing, I likewise guaranteed for fault, or I received a price of the deposit, not as if it were wages.
Utilius dicendum est et si cesset actio furti ob rem depositam, esse tamen vi bonorum raptorum actionem, quia non minima differentia est inter eum qui clam facit et eum qui rapit, cum ille celet suum delictum, hic publicet et crimen etiam publicum admittat. si quis igitur interesse sua vel modice docebit, debet habere vi bonorum raptorum actionem.
It is more useful to say that even if the action for theft ceases on account of a deposited thing, nevertheless the action for goods carried off by force lies, because there is no small difference between one who does a thing secretly and one who rapes (snatches) it, since the former conceals his offense, the latter makes it public and even commits a public crime. If, therefore, anyone will show his interest even in a small degree, he ought to have the action for goods carried off by force.
Si servus rapuerit et cum libero agatur, etiam, si cum domino experiundi potestas fuit, non recte cum manumisso post annum agetur, quia cum quocumque experiundi potestas fuerit, excluditur actor. si cum domino intra annum actum sit, deinde cum manumisso agatur, rei iudicatae exceptionem nocere labeo ait.
If a slave has carried off by rapine, and action is brought against a free person, then even if there was the opportunity to proceed against the master, it will not be proper to sue the manumitted person after a year, because whenever there was the opportunity to proceed against anyone, the plaintiff is excluded. If it has been proceeded against the master within a year, and thereafter action is brought against the manumitted person, Labeo says the plea of res judicata is harmful.
Hoc edicto dicendum est etiam eum teneri, qui venit et in turba fuit auctor damni dandi, si tamen et ipse inter turbam fuit, cum damnum daretur, et dolo malo fuit: nam et huius dolo malo in turba damni quid factum esse negari non potest.
By this edict it must be said that he too is held liable who came and in the crowd was an author/instigator of causing damage, provided, however, that he himself was also among the crowd when the damage was being done, and acted with malicious intent (dolus malus); for it cannot be denied that by his malicious intent something of the damage in the crowd was done.
Si quis adventu suo turbam concitavit vel contraxit, vel clamore vel facto aliquo vel dum criminatur aliquem vel dum misericordiam provocat: si dolo malo eius damnum datum sit, etiamsi non habuit consilium turbae cogendae, tenetur. verum est enim dolo malo eius in turba damni quid datum: neque enim exigit praetor, ut ab ipso sit turba convocata, sed hoc, ut dolo alicuius in turba damnum datum sit. eritque haec differentia inter hoc edictum et superius, quod ibi de eo damno praetor loquitur, quod dolo malo hominibus coactis datum est vel raptum etiam non coactis hominibus: at hic de eo damno, quod dolo malo in turba datum est, etiamsi non ipse turbam coegit, sed ad clamorem eius vel dicta vel misericordiam turba contracta est, vel si alius contraxit vel ipse ex turba fuit.
If someone, by his arrival, has stirred up or drawn together a crowd, whether by shouting or by some act, or while he is accusing someone, or while he is provoking compassion: if by his dolus malus damage has been caused, he is liable, even if he did not have the counsel of compelling a crowd. For it is true that by his dolus malus some damage was caused in a crowd: nor does the praetor require that the crowd be convoked by him, but this—that by someone’s dolus damage was caused in a crowd. And there will be this difference between this edict and the previous: there the praetor speaks about that damage which was caused by dolus malus with men having been gathered, or about rapine even with men not gathered; but here about that damage which by dolus malus was caused in a crowd, even if he himself did not gather the crowd, but the crowd was drawn together at his shouting or words or compassion, or if another gathered it, or he himself was from the crowd.
Si, cum servum meum titius pulsaret, turba fuerit collecta isque servus in ea turba aliquid perdiderit, cum eo qui pulsabat agere possum, quippe cum in turba dolo malo damnum datum sit: sic tamen, si, ut damnum daret, ideo coeperat caedere. ceterum si alia causa verberandi fuit, cessat actio.
If, when Titius was striking my slave, a crowd was gathered and that slave lost something in that crowd, I can bring an action against the one who was striking, since in the crowd damage was inflicted with malicious deceit; thus, however, only if he began to beat for this reason, in order to cause the damage. Otherwise, if there was another cause for the beating, the action ceases.
Sed et si quis ipse turbam convocasset, ut turba coram servum verberaret iniuriae faciendae causa, non damni dandi consilio, locum habet edictum. verum est enim eum, qui per iniuriam verberat, dolo facere et eum, qui causam praebuit damni dandi, damnum dedisse.
But also, if someone himself had convened a crowd, so that the crowd would beat a slave openly for the purpose of committing an affront (injury), not with a plan of giving damage, the edict applies. For it is true that he who beats wrongfully acts with dolus (fraudulent intent), and that he who furnished the cause for damage to be given has himself given the damage.
Praetor ait: " in eum, qui ex incendio ruina naufragio rate nave expugnata quid rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur: in quadruplum in anno, quo primum de ea re experiundi potestas fuerit, post annum in simplum iudicium dabo. item in servum et in familiam iudicium dabo".
The Praetor says: " against him who, from a fire, a collapse, a shipwreck, a raft, or a ship that has been captured, is said to have snatched something or to have received it with malicious intent, or to have inflicted any damage in these matters: I will grant an action for fourfold within the year in which there shall first have been the power to bring suit concerning that matter; after a year I will grant an action for simple damages. Likewise, I will grant an action against a slave and against the household".
Huius edicti utilitas evidens et iustissima severitas est, si quidem publice interest nihil rapi ex huiusmodi casibus. et quamquam sint de his facinoribus etiam criminum executiones, attamen recte praetor fecit, qui forenses quoque actiones criminibus istis praeposuit.
The utility of this edict is evident, and its severity most just, since indeed it is of public concern that nothing be snatched in cases of this kind. And although for these misdeeds there are criminal prosecutions as well, nevertheless the praetor acted rightly, in that he even gave precedence to forensic (i.e., civil) actions over those crimes.
" ex incendio" quemadmodum accipimus, utrum ex ipso igne an vero ex eo loco, ubi incendium fit? et melius sic accipietur propter incendium, hoc est propter tumultum incendii vel trepidationem incendii, rapit: quemadmodum solemus dicere in bello amissum, quod propter causam belli amittitur. proinde si ex adiacentibus praediis, ubi incendium fiebat, raptum quid sit, dicendum sit edicto locum esse, quia verum est ex incendio rapi.
" from the conflagration"—how do we take this, whether from the fire itself or rather from that place where the conflagration occurs? And it will be better taken thus: on account of the conflagration, that is, on account of the tumult of the conflagration or the trepidation of the conflagration, one carries off loot; just as we are accustomed to say "lost in war," that which is lost because of the cause of war. Accordingly, if from adjacent estates, where the conflagration was occurring, something has been snatched, it should be said that the edict has application, because it is true that it is taken "from the conflagration."
Item ait praetor: " si quid ex naufragio". hic illud quaeritur, utrum, si quis eo tempore tulerit, quo naufragium fit, an vero et si alio tempore, hoc est post naufragiumque: nam res ex naufragio etiam hae dicuntur, quae in litore post naufragium iacent. et magis est, ut de eo tempore.
Likewise the praetor says: " if anything from a shipwreck". Here the question is raised, whether, if someone has taken at the time when the shipwreck is occurring, or indeed also if at another time, that is, after the shipwreck: for things are also called "from a shipwreck" which lie on the shore after the shipwreck. And the better view is that it concerns that time.
Quo naufragium fit vel factum est, si quis rapuerit, incidisse in hoc edictum videatur. qui autem rem in litore iacentem, postea quam naufragium factum est, abstulit, in ea condicione est, ut magis fur sit quam hoc edicto teneatur, quemadmodum is, qui quod de vehiculo excidit tulit. nec rapere videtur, qui in litore iacentem tollit.
Where a shipwreck occurs or has occurred, if anyone has snatched something, he appears to have fallen under this edict. But he who carried off a thing lying on the shore, after the shipwreck has taken place, is in the position that he is rather a thief than held by this edict, just as the one who took what fell from a vehicle. Nor is he deemed to commit rapine who picks up what is lying on the shore.
Non tantum autem qui rapuit, verum is quoque, qui recepit ex causis supra scriptis, tenetur, quia receptores non minus delinquunt quam adgressores. sed enim additum est " dolo malo", quia non omnis qui recipit statim etiam delinquit, sed qui dolo malo recipit. quid enim, si ignarus recipit?
Not only, moreover, is he who carried off held liable, but he also who received for the reasons written above, because receivers delinquent no less than aggressors. But indeed it has been added " dolo malo", because not everyone who receives straightway also offends, but he who receives " dolo malo". For what, if he receives unwittingly?
Quod ait praetor de damno dato, ita demum locum habet, si dolo damnum datum sit: nam si dolus malus absit, cessat edictum. quemadmodum ergo procedit, quod labeo scribit, si defendendi mei causa vicini aedificium orto incendio dissipaverim, et meo nomine et familiae iudicium in me dandum? cum enim defendendarum mearum aedium causa fecerim, utique dolo careo.
What the praetor says about damage done has a place only if the damage was done with dolus; for if dolus malus is absent, the edict ceases. How, then, does what Labeo writes hold—that if, for the sake of defending myself, I have dismantled my neighbor’s building when a fire has arisen, both an action in my name and on account of my household is to be granted against me? For since I did it for the sake of defending my own house, I am assuredly free of dolus.
Senatus consultum claudianis temporibus factum est, ut, si quis ex naufragio clavos vel unum ex his abstulerit, omnium rerum nomine teneatur. item alio senatus consulto cavetur eos, quorum fraude aut consilio naufragi suppressi per vim fuissent, ne navi vel ibi periclitantibus opitulentur, legis corneliae, quae de sicariis lata est, poenis adficiendos: eos autem, qui quid ex miserrima naufragorum fortuna rapuissent lucrative fuissent dolo malo, in quantum edicto praetoris actio daretur, tantum et fisco dare debere.
A senatorial decree was made in Claudian times, that if anyone from a shipwreck should remove the nails, even a single one of them, he shall be held liable for all things. Likewise, by another senatorial decree it is provided that those by whose fraud or counsel the shipwrecked had been overpowered by force, so that they might not render aid to the ship or to those there in peril, are to be subjected to the penalties of the Lex Cornelia which was passed concerning assassins; but those who had snatched anything from the most pitiable fortune of the shipwrecked and had made gain of it with malicious deceit, must give to the fisc the same amount as that for which an action would be granted by the praetor’s edict.
Divus antoninus de his, qui praedam ex naufragio diripuissent, ita rescripsit: " quod de naufragiis navis et ratis scripsisti mihi, eo pertinet, ut explores, qua poena adficiendos eos putem, qui diripuisse aliqua ex illo probantur. et facile, ut opinor, constitui potest: nam plurimum interest, peritura collegerint an quae servari possint flagitiose invaserint. ideoque si gravior praeda vi adpetita videbitur, liberos quidem fustibus caesos in triennium relegabis aut, si sordidiores erunt, in opus publicum eiusdem temporis dabis: servos flagellis caesos in metallum damnabis.
The deified Antoninus, concerning those who had plundered spoil from a shipwreck, thus wrote in a rescript: " what you wrote to me about the shipwrecks of a ship and of a raft pertains to this, that you should examine by what penalty I think those ought to be subjected who are proved to have snatched something from it. and, as I reckon, it can easily be determined: for it makes a very great difference whether they collected things that were going to perish, or whether they flagitiously invaded things which can be preserved. and so, if more serious plunder appears to have been sought by force, free persons indeed, beaten with cudgels, you will relegate for three years, or, if they are more sordid, you will assign to public work for the same period: slaves, beaten with whips, you will condemn to the mines.
if the things are not of great value, you will be able to dismiss the freeborn, beaten with clubs, and the slaves, beaten with whips". And in general, as in other matters, so in cases of this kind, there must be a careful assessment based on the condition of the persons and the quality of the things, lest anything either harsher or more lenient be decreed than the case will require.
Si quis ex naufragio vel ex incendio ruinave servatam rem et alio loco positam subtraxerit aut rapuerit, furti scilicet aut alias vi bonorum raptorum iudicio tenetur, maxime si non intellegebat ex naufragio vel incendio ruinave eam esse. iacentem quoque rem ex naufragio, quae fluctibus expulsa sit, si quis abstulerit, plerique idem putant. quod ita verum est, si aliquod tempus post naufragium intercesserit: alioquin si in ipso naufragii tempore id acciderit, nihil interest, utrum ex ipso mari quisque rapiat an ex naufragiis an ex litore.
If someone, from a shipwreck or from a conflagration or collapse, has withdrawn a thing that had been saved and placed in another location, or has snatched it away, he is of course liable by the action for theft or otherwise by the action for goods carried off by force, especially if he did not understand that it was from the shipwreck or the fire or the collapse. Also, as to a thing lying from a shipwreck, which has been driven out by the waves, if someone removes it, most think the same. Which is true thus, if some time has intervened after the shipwreck; otherwise, if it happens at the very time of the shipwreck, it makes no difference whether one snatches it from the sea itself or from the shipwrecked items or from the shore.
Ne quid ex naufragiis diripiatur vel quis extraneus interveniat colligendis eis, multifariam prospectum est. nam et divus hadrianus edicto praecepit, ut hi, qui iuxta litora maris possident, scirent, si quando navis vel inficta vel fracta intra fines agri cuiusque fuerit, ne naufragia diripiant, in ipsos iudicia praesides his, qui res suas direptas queruntur, reddituros, ut quidquid probaverint ademptum sibi naufragio, id a possessoribus recipiant. de his autem, quos diripuisse probatum sit, praesidem ut de latronibus gravem sententiam dicere.
That nothing from shipwrecks be plundered, nor that any outsider intervene in gathering them, has been provided for in many ways. For the deified Hadrian also by edict commanded that those who possess land next to the sea-shores should know that, if ever a ship either be stuck fast or broken within the bounds of anyone’s field, they are not to plunder the wreckage; and that the governors will render judgments for those who complain that their property has been plundered, so that whatever they prove to have been taken from them in the shipwreck they may recover from the possessors. As for those who shall be proved to have plundered, the governor is to pronounce a heavy sentence, as upon bandits.
in order that the proof of an offense of this kind may be easier, he also permitted those who complain that they have suffered anything of this sort to approach the prefects and to testify before him, and to demand the defendants, so that, according to the measure of the fault, they be sent back to the governor either in chains or under sureties. it is further ordered that security be taken from the owner of the holding on which it is said the act was committed, so that he not be absent from the inquiry. but the senate declares that it does not please it that, in the collecting of shipwrecks, either a soldier or a private person or a freedman or slave of the princeps should intervene.
Qui aedes acervumve frumenti iuxta domum positum conbusserit, vinctus verberatus igni necari iubetur, si modo sciens prudensque id commiserit. si vero casu, id est neglegentia, aut noxiam sarcire iubetur aut, si minus idoneus sit, levius castigatur. appellatione autem aedium omnes species aedificii continentur.
Whoever shall have burned aedes or a heap of grain placed next to a house, being bound and scourged he is ordered to be put to death by fire, provided that he committed it knowingly and intentionally. if, however, it was by chance, that is, through negligence, he is either ordered to make good the damage, or, if he be less able, he is punished more lightly. under the appellation of aedes all species of edifice are encompassed.
Ne piscatores nocte lumine ostenso fallant navigantes, quasi in portum aliquem delaturi, eoque modo in periculum naves et qui in eis sunt deducant sibique execrandam praedam parent, praesidis provinciae religiosa constantia efficiat.
Let the religious constancy of the governor of the province bring it about that fishermen do not at night, with a light displayed, deceive navigators, as if about to conduct them into some harbor, and in that way lead ships and those who are in them into peril and prepare for themselves execrable booty.
Sometimes by the appellation “injury” is signified damage given by fault, as we are wont to say under the Aquilian law: sometimes we call iniquity “injury,” for when someone has pronounced a sentence inequitably or unjustly, it is called an injury from the fact that it lacks law and justice—so to speak, a non-right—whereas “contumely” is from contemning.
Item aut per semet ipsum alicui fit iniuria aut per alias personas. per semet, cum directo ipsi cui patri familias vel matri familias fit iniuria: per alias, cum per consequentias fit, cum fit liberis meis vel servis meis vel uxori nuruive: spectat enim ad nos iniuria, quae in his fit, qui vel potestati nostrae vel affectui subiecti sint.
Likewise, either an injury is done to someone by himself or through other persons. by himself, when the injury is done directly to the person himself, to a paterfamilias or a materfamilias: through others, when it happens by consequences, when it is done to my children or my slaves or to my wife or daughter-in-law: for the injury pertains to us which is done in those who are subject either to our power or to our affection.
Et si forte cadaveri defuncti fit iniuria, cui heredes bonorumve possessores exstitimus, iniuriarum nostro nomine habemus actionem: spectat enim ad existimationem nostram, si qua ei fiat iniuria. idemque et si fama eius, cui heredes exstitimus, lacessatur.
And if by chance an injury is done to the corpse of a deceased person, of whom we have become heirs or possessors of the estate, we have an action for injuries in our own name: for it pertains to our estimation, if any injury is done to him. And the same likewise if the fame of him, whose heirs we have become, is assailed.
Usque adeo autem iniuria, quae fit liberis nostris, nostrum pudorem pertingit, ut etiamsi volentem filium quis vendiderit, patri suo quidem nomine competit iniuriarum actio, filii vero nomine non competit, quia nulla iniuria est, quae in volentem fiat.
So far, moreover, does the injury which is done to our children reach our own modesty (pudor), that even if someone has sold a willing son, the action for injuries indeed belongs to the father in his own name, but does not belong in the son’s name, because there is no injury which is done to one who is willing.
Quotiens autem funeri testatoris vel cadaveri fit iniuria, si quidem post aditam hereditatem fiat, dicendum est heredi quodammodo factam ( semper enim heredis interest defuncti existimationem purgare): quotiens autem ante aditam hereditatem, magis hereditati, et sic heredi per hereditatem adquiri. denique iulianus scribit, si corpus testatoris ante aditam hereditatem detentum est, adquiri hereditati actiones dubium non esse. idemque putat et si ante aditam hereditatem servo hereditario iniuria facta fuerit: nam per hereditatem actio heredi adquiretur.
However, whenever an injury is done to the testator’s funeral or to the corpse, if indeed it is done after the inheritance has been entered upon, it must be said to have been done in a certain way to the heir (for it is always the heir’s interest to purge the estimation/reputation of the deceased); but whenever it is before the inheritance is entered upon, rather to the inheritance, and thus to be acquired to the heir through the inheritance. Finally, Julian writes that, if the testator’s body was detained before the inheritance was entered upon, it is not doubtful that the actions are acquired to the inheritance. And he thinks the same also if, before the inheritance was entered, an injury was done to a slave of the inheritance: for through the inheritance the action will be acquired to the heir.
Labeo scribit, si quis servum hereditarium testamento manumissum ante aditam hereditatem verberaverit, iniuriarum heredem agere posse: at si post aditam hereditatem verberatus sit, sive scit se liberum sive ignorat, ipsum agere posse.
Labeo writes that, if someone has beaten a hereditary slave manumitted by testament before the inheritance has been entered upon, the heir can bring an action for injuries; but if he has been beaten after the inheritance has been entered, whether he knows himself to be free or is ignorant, he himself can bring the action.
Idem ait neratius ex una iniuria interdum tribus oriri iniuriarum actionem neque ullius actionem per alium consumi. ut puta uxori meae filiae familias iniuria facta est: et mihi et patri eius et ipsi iniuriarum actio incipiet competere.
the same neratius says that from one injury sometimes three actions for injury arise, and that no one’s action is consumed by another. For example, an injury has been done to my wife, a daughter‑in‑power (filia familias): then both to me and to her father and to herself the action for injury will begin to be available.
Sane sunt quidam, qui facere non possunt, ut puta furiosus et impubes, qui doli capax non est: namque hi pati iniuriam solent, non facere. cum enim iniuria ex affectu facientis consistat, consequens erit dicere hos, sive pulsent sive convicium dicant, iniuriam fecisse non videri.
Surely there are some who cannot commit it, for instance a madman and one under the age of puberty, who is not capable of dolus; for these are wont to suffer an injury, not to do one. For since injury consists in the affect of the doer, it will be consequent to say that such persons, whether they strike or utter reviling, do not seem to have committed an injury.
Lex cornelia de iniuriis competit ei, qui iniuriarum agere volet ob eam rem, quod se pulsatum verberatumve domumve suam vi introitam esse dicat. qua lege cavetur, ut non iudicet, qui ei qui agit gener socer, vitricus privignus, sobrinusve est propiusve eorum quemquem ea cognatione adfinitateve attinget, quive eorum eius parentisve cuius eorum patronus erit. lex itaque cornelia ex tribus causis dedit actionem: quod quis pulsatus verberatusve domusve eius vi introita sit.
The Cornelian law concerning injuries is available to him who will wish to bring an action for injuries on account of this matter: that he says he was struck or beaten, or that his house was entered by force. By which law it is provided that he shall not judge who, to the one who brings the action, is a son-in-law, father-in-law, stepfather, stepson, or cousin, or whoever more closely by that kinship or affinity will touch him, or who will be the patron of any of them or of the parent of any of them. Therefore the Cornelian law granted an action on three causes: that someone has been struck, or beaten, or that his house has been entered by force.
Si tamen in fundum alienum, qui domino colebatur, introitum sit, labeo negat esse actionem domino fundi ex lege cornelia, quia non possit ubique domicilium habere, hoc est per omnes villas suas. ego puto ad omnem habitationem, in qua pater familias habitat, pertinere hanc legem, licet ibi quis domicilium non habeat. ponamus enim studiorum causa romae agere: romae utique domicilium non habet et tamen dicendum est, si vi domus eius introita fuerit, corneliam locum habere.
If, however, entry has been made into another’s estate (fundus), which was being cultivated by the owner, Labeo denies that there is an action for the owner of the estate under the Cornelian law, because he cannot have a domicile everywhere, that is, throughout all his villas. I think that this law pertains to every habitation in which the paterfamilias resides, although one may not have a domicile there. For let us suppose that, for the sake of studies, he is staying at Rome: at Rome he certainly does not have a domicile, and yet it must be said that, if his house has been entered by force, the Cornelian law has application.
Illud quaeritur, an pater filio familias iniuriam passo ex lege cornelia iniuriarum agere possit: et placuit non posse deque ea re inter omnes constat. sed patri quidem praetoria iniuriarum actio competit, filio vero legis corneliae.
It is asked whether a father can bring an action under the Lex Cornelia on Injuries for a filius familias who has suffered an injury; and it has been settled that he cannot, and on this matter it is agreed among all. But to the father the praetorian action for Injuries lies, and to the son the action of the Lex Cornelia.
In lege cornelia filius familias agere potest ex omni causa nec cavere debet ratam rem patrem habiturum: nam nec alias agentem filium iniuriarum ad cautionem de rato compellendum iulianus scribit.
Under the Cornelian law, a son of the household can sue in every kind of case, nor ought he to furnish security that his father will have the matter ratified; for Julian writes that not even otherwise, when the son is acting in an action for injuries, is he to be compelled to a caution of ratification.
Si quis librum ad infamiam alicuius pertinentem scripserit composuerit ediderit dolove malo fecerit, quo quid eorum fieret, etiamsi alterius nomine ediderit vel sine nomine, uti de ea re agere liceret et, si condemnatus sit qui id fecit, intestabilis ex lege esse iubetur.
If anyone has written, composed, published, or by malicious deceit has done something whereby any of those would be done, a book pertaining to the infamy of someone—even if he has published it in another’s name or without a name—it shall be permitted to bring an action concerning that matter; and, if the one who did this has been condemned, he is ordered by law to be intestabilis.
Quod senatus consultum necessarium est, cum nomen adiectum non est eius, in quem factum est: tunc ei, quia difficilis probatio est, voluit senatus publica quaestione rem vindicari. ceterum si nomen adiectum sit, et iure communi iniuriarum agi poterit: nec enim prohibendus est privato agere iudicio, quod publico iudicio praeiudicatur, quia ad privatam causam pertinet. plane si actum sit publico iudicio, denegandum est privatum: similiter ex diverso.
That senatorial decree is necessary when the name of the person against whom it was made has not been appended: then, because proof is difficult, the Senate wished the matter to be prosecuted by a public inquest. Otherwise, if the name has been appended, an action for injuries can be brought under the common law: for he is not to be forbidden to proceed by a private action on the ground that it is prejudged by a public judgment, since it pertains to a private cause. Clearly, if the public trial has been pursued, the private one is to be denied; and similarly conversely.
Praetor edixit: " qui agit iniuriarum, certum dicat, quid iniuriae factum sit": quia qui famosam actionem intendit, non debet vagari cum discrimine alienae existimationis, sed designare et certum specialiter dicere, quam se iniuriam passum contendit.
Praetor has proclaimed: " whoever brings an action for injury, let him state something definite—what injury has been done": because he who intends a defamatory action ought not to wander at large to the peril of another’s estimation, but to designate and specifically say something certain, what injury he contends he has suffered.
Si dicatur homo iniuria occisus, numquid non debeat permittere praetor privato iudicio legi corneliae praeiudicari? idemque et si ita quis agere velit " quod tu venenum dedisti hominis occidendi causa?" rectius igitur fecerit, si huiusmodi actionem non dederit. adquin solemus dicere, ex quibus causis publica sunt iudicia, ex his causis non esse nos prohibendos, quo minus et privato agamus.
If it be said that a man has been wrongfully slain, ought the praetor not to allow the Lex Cornelia to be prejudged by a private action? And the same, too, if someone should wish to proceed thus: "that you gave poison for the purpose of killing a man?" He will therefore have acted more correctly if he does not grant an action of this kind. Indeed, we are accustomed to say that, in those causes for which there are public trials, we are not thereby to be prohibited from also proceeding by a private action.
This is true, but where the case is not principally concerning that matter which has public prosecution. What then do we say about the Aquilian law? For that action also, although it includes this—that a man has been killed—does not include it as the principal point: for there the principal concern is the damage that has been given to the owner, whereas in the action for injury it is for the very killing or the poison that vindication is sought, not that the damage be made good.
What then, if someone for that reason wishes to bring an action for injury, because his head was struck with a sword? Labeo says it ought not to be forbidden; for, he says, it is not necessarily this that is alleged, namely that which carries public punishment. Which is not true: for who doubts that this man too can be said to be proceeded against under the Cornelian Law?
Praeterea illo spectat dici certum de iniuria, quam passus quis sit, ut ex qualitate iniuriae sciamus, an in patronum liberto reddendum sit iniuriarum iudicium. etenim meminisse oportebit liberto adversus patronum non quidem semper, verum interdum iniuriarum dari iudicium, si atrox sit iniuria quam passus sit, puta servilis. ceterum levem cohercitionem utique patrono adversus libertum dabimus nec patietur eum praetor querentem, quasi iniuriam passus sit, nisi atrocitas eum moverit: nec enim ferre praetor debet heri servum, hodie liberum conquerentem, quod dominus ei convicium dixerit vel quod leviter pulsaverit vel emendaverit.
Moreover, that provision aims at having a definite statement made about the injury which someone has suffered, so that from the quality of the injury we may know whether the action for insults (iniuriae) ought to be granted to a freedman against his patron. For we must remember that an action for insults is given to a freedman against a patron, not indeed always, but sometimes, if the injury he has suffered is atrocious, for example a “servile” one. But assuredly we will allow a light coercition to the patron against the freedman, and the praetor will not tolerate his complaining, as though he had suffered an injury, unless the atrocity moves him: for the praetor ought not to put up with one who was yesterday a slave, today a free man, complaining that the master uttered an abusive shout against him (convicium dixerit), or that he lightly struck him, or corrected him.
Si mihi plures iniurias feceris, puta turba et coetu facto domum alicuius introeas et hoc facto efficiatur, et simul et convicium patiar et verberer: an possim separatim tecum experiri de singulis iniuriis, quaeritur. et Marcellus secundum neratii sententiam hoc probat cogendum iniurias, quas simul passus est, coniungere.
If you commit several injuries against me—suppose, a crowd and an assembly having been formed, you enter someone’s house and by this act the offense is constituted, and at the same time I both suffer abusive outcry and am beaten—the question is whether I can proceed with you separately regarding each individual injury. And Marcellus, according to the opinion of Neratius, approves this: that one must be compelled to join together the injuries which he suffered simultaneously.
Atrocem autem iniuriam aut persona aut tempore aut re ipsa fieri labeo ait. persona atrocior iniuria fit, ut cum magistratui, cum parenti patrono fiat. tempore, si ludis et in conspectu: nam praetoris in conspectu an in solitudine iniuria facta sit, multum interesse ait, quia atrocior est, quae in conspectu fiat.
Moreover, Labeo says that an atrocious injury is committed either by reason of the person, or of the time, or of the thing itself. By reason of the person, the injury becomes more atrocious, as when it is done to a magistrate, to a parent, or to a patron. By reason of the time, if at the games and in sight; for he says it makes much difference whether the injury was done in the praetor’s sight or in solitude, because that is more atrocious which is done in sight.
Sed est quaestionis, quod dicimus re iniuriam atrocem fieri, utrum, si corpori inferatur, atrox sit, an et si non corpori, ut puta vestimentis scissis, comite abducto vel convicio dicto. et ait pomponius etiam sine pulsatione posse dici atrocem iniuriam, persona atrocitatem faciente.
But it is a matter of question, since we say that an atrocious injury is made by the deed (re), whether, if it is inflicted upon the body, it is atrocious, or also if not upon the body, as, for example, with garments torn, a companion abducted, or an insult spoken. And Pomponius says that even without a beating an atrocious injury can be said, the person making the atrociousness.
Iniuriarum actio ex bono et aequo est et dissimulatione aboletur. si quis enim iniuriam dereliquerit, hoc est statim passus ad animum suum non revocaverit, postea ex paenitentia remissam iniuriam non poterit recolere. secundum haec ergo aequitas actionis omnem metum eius abolere videtur, ubicumque contra aequum quis venit.
The action for affronts is from what is good and equitable and is abolished by dissimulation. For if anyone has abandoned an injury—that is, having suffered it, did not at once call it back to his mind—afterwards, out of repentance, he will not be able to recollect an injury he has remitted. According to these things, therefore, the equity of the action seems to abolish all fear of him, wherever someone has come against what is equitable.
Quamquam adversus patronum liberto iniuriarum actio non detur, verum marito libertae nomine cum patrono actio competit: maritus enim uxore sua iniuriam passa suo nomine iniuriarum agere videtur. quod et Marcellus admittit. ego autem apud eum notavi non de omni iniuria hoc esse dicendum me putare: levis enim coercitio etiam in nuptam vel convici non impudici dictio cur patrono denegetur?
Although an action for injuries is not given to a freedman against his patron, yet an action lies to the husband, in the name of the freedwoman, against the patron: for the husband is seen to bring an action for injuries in his own name, his wife having suffered an injury. Marcellus also admits this. But I have noted in him that, in my view, this is not to be said of every injury: for why should slight correction even upon a married woman, or the utterance of a not-indecent insult, be denied to the patron?
but if she had been married to a fellow‑freedman, we would say that altogether the husband’s action for injuries against the patron ceases, and many feel thus. From which it appears that our freedmen are not only unable to prosecute, by the action for injuries and against us, those affronts whatever are done to themselves, but not even those which are done to persons whose not suffering an injury concerns them.
Ei, qui servus dicitur seque adserit in libertatem, iniuriarum actionem adversus dicentem se dominum competere nulla dubitatio est. et hoc verum est, sive ex libertate in servitutem petatur sive ex servitute in libertatem proclamet: nam hoc iure indistincte utimur.
To one who is called a slave and asserts himself into liberty, there is no doubt that the action for injury (iniuria) lies against the one declaring himself to be his master. And this is true whether he is claimed from freedom into slavery or, from slavery, proclaims into liberty: for we use this law without distinction.
Si quis de honoribus decernendis alicuius passus non sit decerni ut puta imaginem alicui vel quid aliud tale: an iniuriarum teneatur? et ait labeo non teneri, quamvis hoc contumeliae causa faciet: etenim multum interest, inquit, contumeliae causa quid fiat an vero fieri quid in honorem alicuius quis non patiatur.
If someone, concerning honors to be decreed for a person, has not allowed them to be decreed—say, an image for someone or anything else of that sort: is he liable on the action for insults? And Labeo says he is not liable, although he does this for the sake of contumely; for, he says, it makes much difference whether something is done for the sake of contumely, or rather that someone does not allow something to be done in another’s honor.
Idem labeo scribit, si, cum alium contingeret legatio, alii hoc onus duumvir indixerit, non posse agi iniuriarum ob laborem iniunctum: aliud enim esse laborem iniungere, aliud iniuriam facere. idem ergo erit probandum et in ceteris muneribus atque honoribus, quae per iniuriam iniunguntur. ergo si quis per iniuriam sententiam dixerit, idem erit probandum.
Likewise Labeo writes that, if, when the legation pertained to one person, the duumvir imposed this burden upon another, the actio iniuriarum cannot be brought on account of the labor enjoined: for to enjoin a labor is one thing, to do an iniuria another. The same conclusion, therefore, must be reached also in the case of other munera and honores which are enjoined through iniuria. Therefore, if someone has pronounced a sentence through iniuria, the same conclusion must be reached.
Si quis me prohibeat in mari piscari vel everriculum ( quod graece sagyny dicitur) ducere, an iniuriarum iudicio possim eum convenire? sunt qui putent iniuriarum me posse agere: et ita pomponius et plerique esse huic similem eum, qui in publicum lavare vel in cavea publica sedere vel in quo alio loco agere sedere conversari non patiatur, aut si quis re mea uti me non permittat: nam et hic iniuriarum conveniri potest. conductori autem veteres interdictum dederunt, si forte publice hoc conduxit: nam vis ei prohibenda est, quo minus conductione sua fruatur.
If someone should prohibit me from fishing in the sea or from drawing a dragnet ( which in Greek is called sagyny), can I bring him by the action for injuries? There are those who think I can bring an action for injuries: and thus Pomponius and the majority consider similar to this the case of one who does not allow a person to bathe in public, or to sit in a public seating, or to do, sit, or socialize in some other place; or if someone does not permit me to use my own property: for here too he can be proceeded against by the action for injuries. But to the lessee the ancients granted an interdict, if perchance he has leased this from the public: for force is to be prohibited against him, so that he may not be prevented from enjoying his lease.
If, however, I forbid someone to fish in front of my house or in front of my praetorium, what is to be said? Am I held by an action for injury (iniuria) or not? And indeed the sea is common to all and so are the shores, just like the air, and it has very often been declared by rescript that no one can be forbidden to fish; nor to go fowling either—except that a person can be forbidden to enter another’s field.
Nevertheless this too has been usurped, although by no law, that someone can be prohibited from fishing before my house or my praetorium; wherefore, if anyone is prohibited, an action for injuria can still be brought. In a lake, however, which is of my dominion, I can certainly prohibit someone from fishing.
Sane si maris proprium ius ad aliquem pertineat, uti possidetis interdictum ei competit, si prohibeatur ius suum exercere, quoniam ad privatam iam causam pertinet, non ad publicam haec res, utpote cum de iure fruendo agatur, quod ex privata causa contingat, non ex publica. ad privatas enim causas accommodata interdicta sunt, non ad publicas.
Indeed, if a proper right in the sea pertains to someone, the interdict uti possidetis is available to him if he is prevented from exercising his right, since this matter now pertains to a private cause, not to a public one, inasmuch as it is about the enjoying of a right, which arises from a private cause, not from a public one. For interdicts are accommodated to private causes, not to public ones.
Convicium non tantum praesenti, verum absenti quoque fieri posse labeo scribit. proinde si quis ad domum tuam venerit te absente, convicium factum esse dicitur. idem et si ad stationem vel tabernam ventum sit, probari oportere.
Labeo writes that abusive outcry can be made not only against one present but also against one absent. Accordingly, if someone should come to your house while you are absent, it is said that abusive outcry has been committed. The same likewise, if one has come to a station or a shop, it ought to be proved.
Ex his apparet non omne maledictum convicium esse: sed id solum, quod cum vociferatione dictum est, sive unus sive plures dixerint, quod in coetu dictum est, convicium est: quod autem non in coetu nec vociferatione dicitur, convicium non proprie dicitur, sed infamandi causa dictum.
From these it appears that not every malediction is a convicium: but only that which has been spoken with vociferation, whether one person or several have said it; that which is said in an assembly is a convicium: but that which is neither in an assembly nor said with vociferation is not properly called a convicium, but something said for the purpose of defaming.
Si quis virgines appellasset, si tamen ancillari veste vestitas, minus peccare videtur: multo minus, si meretricia veste feminae, non matrum familiarum vestitae fuissent. si igitur non matronali habitu femina fuerit et quis eam appellavit vel ei comitem abduxit, iniuriarum tenetur.
If someone had accosted maidens, if, however, they were clothed in ancillary dress, he seems to sin less: much less, if the women had been clothed in meretricious dress, not in that of matrons of families. If, therefore, a woman was not in matronal attire, and someone accosted her or led away her companion/escort from her, he is liable for iniuriae.
Comitem accipere debemus eum, qui comitetur et sequatur et ( ut ait labeo) sive liberum sive servum sive masculum sive feminam: et ita comitem labeo definit " qui frequentandi cuiusque causa ut sequeretur destinatus in publico privatove abductus fuerit". inter comites utique et paedagogi erunt.
we must understand as a companion him who accompanies and follows, and (as Labeo says) whether free or slave, whether male or female: and thus Labeo defines “companion”: “one who, for the purpose of attending upon anyone, having been appointed to follow, has been taken along in public or in private.” among companions, of course, there will also be pedagogues.
Meminisse autem oportebit non omnem, qui adsectatus est, nec omnem, qui appellavit, hoc edicto conveniri posse ( neque enim si quis colludendi, si quis officii honeste faciendi gratia id facit, statim in edictum incidit), sed qui contra bonos mores hoc facit.
However, it ought to be remembered that not everyone who has followed in attendance, nor everyone who has addressed, can be proceeded against under this edict ( for it is not the case that if someone does this for the sake of colluding, or someone for the sake of performing a duty honorably, he straightway falls under the edict), but he who does this against good morals.
Hoc edictum supervacuum esse labeo ait, quippe cum ex generali iniuriarum agere possumus. sed videtur et ipsi labeoni ( et ita se habet) praetorem eandem causam secutum voluisse etiam specialiter de ea re loqui: ea enim, quae notabiliter fiunt, nisi specialiter notentur, videntur quasi neclecta.
Labeo says that this edict is superfluous, since indeed we can sue under the general action for injuries. but it seems that even to Labeo himself ( and so it is) the praetor, following the same rationale, wished also to speak specifically about that matter: for those things which are done notably, unless they are specially noted, seem as it were neglected.
Generaliter vetuit praetor quid ad infamiam alicuius fieri. proinde quodcumque quis fecerit vel dixerit, ut alium infamet, erit actio iniuriarum. haec autem fere sunt, quae ad infamiam alicuius fiunt: ut puta ad invidiam alicuius veste lugubri utitur aut squalida, aut si barbam demittat vel capillos submittat, aut si carmen conscribat vel proponat vel cantet aliquod, quod pudorem alicuius laedat.
Generally the praetor forbade that anything be done tending to anyone’s infamy. Accordingly, whatever someone does or says in order to defame another, there will lie an actio iniuriarum (an action for outrage). And these, for the most part, are the things that are done tending to someone’s infamy: for example, to excite ill-will against someone he wears mourning garb or squalid attire, or he lets his beard hang down or lets his hair grow long, or he composes or posts or sings some song that injures someone’s modesty.
Quod ait praetor: " si quis adversus ea fecerit, prout quaqua re erit, animadvertam", sic intellegendum est, ut plenior esset praetoris animadversio, id est ut quodcumque eum moverit vel in persona eius qui agit iniuriarum actionem vel eius adversus quem agitur vel etiam in re ipsa, in qualitate iniuriae, non audiat eum qui agit.
As the praetor says: "If anyone shall have acted against these, according as the matter shall be in whatever respect, I will take notice," it is to be understood thus: that the praetor’s animadversion be more ample—that is, that whatever may move him, whether in the person of the one who brings an action of injury or of the one against whom it is brought, or even in the matter itself, in the quality of the injury, he is not to hear the one who brings suit.
Idem ait eum, qui eventum sententiae velut daturus pecuniam vendidit, fustibus a praeside ob hoc castigatum iniuriarum damnatum videri: utique autem apparet hunc iniuriam ei fecisse, cuius sententiam venditavit.
The same says that the man who, as though about to deliver the outcome of a sentence, sold it for money, being on this account chastised with cudgels by the governor, is to be deemed condemned for injuries; and in any case it is apparent that he committed an injury against the man whose sentence he peddled for sale.
Praetor ait: " qui servum alienum adversus bonos mores verberavisse deve eo iniussu domini quaestionem habuisse dicetur, in eum iudicium dabo. item si quid aliud factum esse dicetur, causa cognita iudicium dabo".
The praetor says: " who shall be said to have beaten another’s slave contrary to good morals, or to have held an inquiry about him without the master’s authorization, I will grant an action against him. Likewise, if anything else shall be said to have been done, after the case has been examined I will grant an action".
Si quis sic fecit iniuriam servo, ut domino faceret, video dominum iniuriarum agere posse suo nomine: si vero non ad suggillationem domini id fecit, ipsi servo facta iniuria inulta a praetore relinqui non debuit, maxime si verberibus vel quaestione fieret: hanc enim et servum sentire palam est.
If someone has thus done an injury to a slave as to do it to the master, I see that the master can bring an action for injuries in his own name; but if he did this not for the master's disparagement, the injury done to the slave ought not to be left unavenged by the praetor, especially if it were done by beatings or by questioning (torture): for it is plain that the slave too feels this.
Unde quaerit labeo, si magistratus municipalis servum meum loris ruperit, an possim cum eo experiri, quasi adversus bonos mores verberaverit. et ait iudicem debere inquirere, quid facientem servum meum verberaverit: nam si honorem ornamentaque petulanter adtemptantem ceciderit, absolvendum eum.
Whence Labeo inquires, if a municipal magistrate has scourged my slave with thongs, whether I can proceed at law against him, as though he had beaten contrary to good morals. And he says the judge ought to inquire what my slave was doing when he beat him: for if he struck him while he was petulantly attempting honor and insignia, he is to be acquitted.
Praetor ait: " si quid aliud factum esse dicetur, causa cognita iudicium dabo". proinde si quidem verberatus sit servus vel tormentis de eo quaestio habita est, sine causae cognitione iudicium in eum competit, si vero aliam iniuriam passus sit, non aliter competit quam causa cognita.
The Praetor says: " if anything else is said to have been done, once the cause has been examined I will grant an action". accordingly, if indeed a slave has been beaten, or a questioning about him has been held by tortures, an action lies against him without examination of the cause; but if he has suffered some other injury, it lies only when the cause has been examined.
Itaque praetor non ex omni causa iniuriarum iudicium servi nomine promittit: nam si leviter percussus sit vel maledictum ei leviter, non dabit actionem: at si infamatus sit vel facto aliquo vel carmine scripto puto causae cognitionem praetoris porrigendam et ad servi qualitatem: etenim multum interest, qualis servus sit, bonae frugi, ordinarius, dispensator, an vero vulgaris vel mediastinus an qualisqualis. et quid si compeditus vel male notus vel notae extremae? habebit igitur praetor rationem tam iniuriae, quae admissa dicitur, quam personae servi, in quem admissa dicitur, et sic aut permittet aut denegabit actionem.
Therefore the praetor does not promise an action for insult in a slave’s name in every case: for if he has been lightly struck or lightly reviled, he will not grant an action; but if he has been defamed either by some deed or by written verse, I think the praetor’s cognition of the cause ought to be extended, and also to the quality of the slave: for it makes much difference what sort of slave he is—of good character, an ordinary household slave, a steward, or rather a common fellow or a mediastinus, or just of whatever sort. And what if he is in fetters, or ill-reputed, or of the worst notoriety? Therefore the praetor will have regard both to the insult which is said to have been committed and to the person of the slave against whom it is said to have been committed, and so will either permit or deny the action.
Interdum iniuria servo facta ad dominum redundat, interdum non: nam si pro libero se gerentem aut cum eum alterius potius quam meum existimat quis, non caesurus eum, si meum scisset, non posse eum, quasi mihi iniuriam fecerit, sic conveniri mela scribit.
Sometimes an injury done to a slave redounds to the master, sometimes not: for if someone, supposing him to be acting as a free man, or when he thinks him to belong to another rather than to me, would not have beaten him, had he known he was mine, Mela writes that he cannot be proceeded against as though he had committed an injury against me.
Si usum fructum in servo habeam, tu proprietatem isque verberatus sit vel quaestio de eo habita, iniuriarum actio magis proprietario quam mihi competit. idemque probatur et si servum meum, quem bona fide possidebam, cecideris: domino enim magis competit iniuriarum actio.
If I have a usufruct in a slave, and you have the proprietorship, and he has been beaten or an inquest concerning him has been held, the action for injury (iniuriarum) belongs rather to the proprietor than to me. And the same is approved even if you have struck my slave, whom I was possessing in good faith: for the action for injury belongs more to the owner.
Item, si liberum hominem, qui mihi bona fide serviebat, quis ceciderit, distinguendum est, ut, si in contumeliam pulsatus sit, competat mihi iniuriarum actio. idem ergo et si in servo alieno bona fide mihi serviente, ut totiens admittamus iniuriarum actionem, quotiens in meam contumeliam iniuria ei facta sit. nam ipsius quidem servi nomine domino dabimus iniuriarum actionem.
Likewise, if someone has struck a free man who in good faith was serving me, a distinction must be made, namely that, if he was beaten in contumely, the action for injury (iniuriarum) is competent to me. The same therefore also if it is a foreign slave in good faith serving me, so that we admit the action for injury as often as an injury has been done to him to my contumely. For indeed, in the slave’s own name we will grant the action for injury to his owner.
Servus meus opera vel querella tua flagellis caesus est a magistratu nostro. mela putat dandam mihi iniuriarum adversus te, in quantum ob eam rem aequum iudici videbitur, et si servus decesserit, dominum eius agere posse labeo ait, quia de damno, quod per iniuriam factum est, agatur. et ita trebatio placuit.
My slave, by your agency or complaint, was beaten with whips by our magistrate. Mela thinks that an action of iniuriarum ought to be granted to me against you, in so far as, on account of that matter, it shall seem equitable to the judge; and if the slave has died, Labeo says that his owner can bring suit, because it is a case of damage that has been done through wrongdoing. And thus it was approved by Trebatius.
Cum servus iniuriam facit, maleficium eum admittere palam est: merito igitur sicuti ex ceteris delictis, ita et ex hoc iniuriarum noxalis actio datur. sed in arbitrio domini est, an velit eum verberandum exhibere, ut ita satisfiat ei qui iniuriam passus est: neque erit necesse domino utique eum verberandum praestare, sed dabitur ei facultas praestare ei servum verberandum aut, si de eo verberibus satis non fiat, noxae dedendum vel litis aestimationem sufferendam.
When a slave commits an injury, it is evident that he commits a maleficium: deservedly, therefore, just as from other delicts, so also from this a noxal action for injuries is granted. But it is in the master’s discretion whether he wishes to produce him to be beaten, so that in this way satisfaction be made to the one who has suffered the injury: nor will it be necessary for the master invariably to provide him to be beaten, but there will be given to him the option to provide to that person the slave to be beaten, or, if by beatings satisfaction is not made with respect to him, to surrender him for noxa or to endure the assessment of the suit.
Si ante iudicem dominus verberandum servum exhibuerit, ut satis verberibus ei fieret, et erit factum arbitratu alicuius, postea actor agere iniuriarum perseverat, non est audiendus: qui enim accepit satisfactionem, iniuriam suam remisit. nam et si nuda voluntate iniuriam remisit, indubitate dicendum est extingui iniuriarum actionem non minus, quam si tempore abolita fuerit iniuria.
If before a judge the master has produced a slave to be beaten, so that sufficient satisfaction be made to him by beatings, and it has been done at someone’s discretion, afterwards if the plaintiff persists in bringing an action for injuries, he is not to be heard: for he who has accepted satisfaction has remitted his injury. For even if by naked will he has remitted the injury, it must be said without doubt that the action for injuries is extinguished no less than if the injury had been abolished by lapse of time.
Si iussu domini servus iniuriam fecerit, utique dominus conveniri poterit etiam suo nomine. sed si proponatur servus manumissus, placet labeoni dandam in eum actionem, quia et noxa caput sequitur nec in omnia servus domino parere debet: ceterum et si occiderit iussu domini, cornelia eum eximemus.
If by the order of the master a slave has committed an injury (iniuria), of course the master can be proceeded against, even in his own name. But if it be put that the slave has been manumitted, it pleases Labeo that an action be given against him, because the noxal liability follows the person (noxa caput sequitur), nor ought a slave obey his master in all things; moreover, even if he has killed by the master’s order, we remove him under the Cornelian law.
Si servus, in quo usus fructus meus est, iniuriam mihi fecerit, adversus dominum noxali iudicio experiri potero: neque debeo deterioris condicionis ob hoc esse, quod usum fructum in eo habeo, quam si non haberem. aliter atque si servus communis esset: tunc enim non daremus socio actionem, eapropter, quia et ipse iniuriarum actione tenetur.
If a slave, in whom my usufruct is, should commit an injury against me, I shall be able to proceed against the owner by a noxal action: nor ought I to be in a worse condition on this account, that I have a usufruct in him, than if I did not have it. aliter atque si servus communis esset: for then we would not grant an action to the partner (co‑owner), for this reason, because he too is liable under the action for injuries.
Ait praetor: " si ei, qui in alterius potestate erit, iniuria facta esse dicetur et neque is, cuius in potestate est, praesens erit neque procurator quisquam existat, qui eo nomine agat: causa cognita ipsi, qui iniuriam accepisse dicetur, iudicium dabo".
The praetor says: " if it shall be said that an injury has been done to one who is in the power of another, and neither the one in whose power he is will be present nor will there be any procurator to act in that name: after the cause has been examined I will grant an action to the person himself who is said to have received the injury".
Plane si praesens agere nolit, vel quia differt vel quia remittit atque donat iniuriam, magis est, ut filio actio non detur: nam et cum abest, idcirco datur filio actio, quia verisimile est patrem, si praesens fuisset, acturum fuisse.
Clearly, if, being present, he is unwilling to bring an action, either because he defers or because he remits and donates (condones) the injury, it is rather that an action not be granted to the son: for even when he is absent, on that account an action is given to the son, because it is likely that the father, if he had been present, would have acted.
Interdum tamen putamus et si pater remittat, iniuriarum actionem filio dandam, ut puta si patris persona vilis abiectaque sit, filii honesta: neque enim debet pater vilissimus filii sui contumeliam ad suam vilitatem metiri. ponamus esse eum patrem, cui iure meritoque curator a praetore constitueretur.
Sometimes, however, we think that even if the father remits it, an action for insults ought to be given to the son, for instance if the father’s persona is vile and abject, the son’s honorable: for a most base father ought not to measure his son’s contumely by his own vileness. Let us suppose such a father as one for whom, by right and deservedly, a curator would be appointed by the praetor.
Procuratorem patris praetulit praetor ipsis personis, quae iniuriam passae sunt. si tamen procurator aut neglegat aut colludat aut non sufficiat adversus personas, quae iniuriam fecerunt, ipsi potius, qui passus est iniuriam, actio iniuriarum competit.
The praetor preferred the father’s procurator to the very persons who suffered the injury. If, however, the procurator either is negligent, or colludes, or is not adequate against the persons who committed the injury, then rather to the very one who suffered the injury the action for injury is available.
Quod autem ait praetor causa cognita ipsi, qui iniuriam accepisse dicetur, iudicium permitti, ita accipiendum est, ut in cognitione causae hoc versetur, quam longe pater absit et quando superventurus, et numquid is, qui iniuriarum vult actionem movere, segnitior vel inutilis admodum, qui non sufficiat ad rei cuius administrationem ac per hoc nec ad actionem.
But as for what the praetor says—that, the cause having been inquired into, the action is permitted to the very person who is said to have received the injury—it is to be understood thus: that in the inquiry of the cause the question turns on this, how far away the father is and when he will be arriving, and whether the one who wishes to bring the action of insults is rather sluggish or altogether unfit, not sufficient for the administration of the matter and therefore not for the action.
Quod deinde ait " qui iniuriam accepit", interdum ita accipiendum est, ut patri eius competat actio. ut puta nepoti facta iniuria est, pater praesens est, avus abest: scribit iulianus patri potius dandam iniuriarum actionem quam ipsi nepoti: ad cuius, inquit, officium pertinet etiam vivente avo filium suum in omnibus tueri.
What he then says, “he who has received an injury,” must sometimes be understood in such a way that the action belongs to his father. For instance, an injury has been done to a grandson, the father is present, the grandfather absent: Julianus writes that the action for injuries ought rather to be given to the father than to the grandson himself; to whose duty, he says, it pertains, even with the grandfather alive, to protect his son in all things.
Idem iulianus scribit filium non tantum ipsum agere debere, verum procuratorem dare posse: alioquin, inquit, nisi ei permiserimus procuratorem dare, futurum est, ut, si valetudine impediatur neque sit qui iniuriarum actionem exequatur, impediatur actio.
The same Julian writes that a son ought not only himself to bring suit, but indeed can appoint a procurator: otherwise, he says, unless we permit him to appoint a procurator, it will come about that, if he is hindered by ill health and there is no one to prosecute the action for injuries, the action will be impeded.
Idem ait, et si nepoti facta sit iniuria et nemo sit, qui avi nomine agat, permittendum esse patri experiri, et is procuratorem dabit. omnibus enim, qui suo nomine actionem habent, procuratoris dandi esse potestatem: intellegi autem filium, inquit, familias suo nomine agere, cum patre cessante praetor ei agere permittat.
He likewise says that, if an injury has been done to a grandson and there is no one to sue in the grandfather’s name, it should be permitted to the father to bring the action, and he will appoint a procurator. For to all who have an action in their own name there is the power of appointing a procurator: moreover, a son of the household is understood, he says, to act in his own name, when, the father standing aside, the praetor allows him to sue.
Idem ait filio familias iniuriarum nomine actionem dari, quotiens nemo est, qui patris nomine experiatur, et hoc casu quasi patrem familiae constitui. quare sive emancipatus sit sive ex parte heres scriptus fuerit vel etiam exheredatus sive paterna hereditate abstinuerit, executionem litis ei dandam: esse enim perabsurdum, quem praetor manente patria potestate ad actionem admittendum probaverit, ei patri familias ultionem iniuriarum suarum eripi et transferri ad patrem, qui eum, quantum in ipso est, omiserit, aut, quod est indignius, ad heredes patris, ad quos non pertinere iniuriam filio familias factam procul dubio est.
The same says that an action under the head of iniuriae is granted to a filius familias whenever there is no one to sue in the father’s name, and that in this case he is constituted as if a pater familias. Wherefore, whether he has been emancipated or has been appointed heir in part, or even disinherited, or has abstained from the paternal inheritance, the execution of the suit is to be given to him: for it would be most absurd that the very person whom the praetor, while the patria potestas remained, judged should be admitted to the action, should then, once a pater familias, have the vengeance/redress of his own iniuriae snatched from him and transferred to the father, who, so far as in him lies, has renounced him—or, what is more unworthy, to the father’s heirs, to whom beyond doubt the iniuria done to a filius familias does not pertain.
Si nupta filia familiae iniuriam acceperit et vir et pater iniuriarum agant, pomponius recte putat tanti patri condemnandum esse reum, quanti condemnetur, si ea vidua esset, viro tanti, quanti condemnaretur, si ea in nullius potestate esset, quod sua cuiusque iniuria propriam aestimationem haberet. et ideo si nupta in nullius potestate sit, non ideo minus eam iniuriarum agere posse, quod et vir suo nomine agat.
If a married daughter in the family (filia familiae) has received an insult and both her husband and her father bring actions for insults, Pomponius rightly thinks that the defendant ought to be condemned to the father for as much as he would be condemned if she were a widow, and to the husband for as much as he would be condemned if she were in no one’s power, because each person’s injury has its own proper valuation. And therefore, if a married woman is in no one’s power, she is nonetheless no less able to bring the action for insults, because the husband also proceeds in his own name.
Si iniuria mihi fiat ab eo, cui sim ignotus, aut si quis putet me lucium titium esse, cum sim gaius seius: praevalet, quod principale est, iniuriam eum mihi facere velle: nam certus ego sum, licet ille putet me alium esse quam sum, et ideo iniuriarum habeo.
If an injury is done to me by one to whom I am unknown, or if someone thinks me to be lucius titius, when I am gaius seius: what is principal prevails—that he wishes to do me an injury: for I am a definite person, although he thinks me to be other than I am, and therefore I have an action for injuries.
At cum aliquis filium familias patrem familias putat, non potest videri iniuriam patri facere, non magis quam viro, si mulierem viduam esse credat, quia neque in personam eorum confertur iniuria nec transferri personae putationem ex persona filiorum ad eos potest, cum affectus iniuriam facientis in hunc tamquam in patrem familias consistat.
But when someone takes a filiusfamilias for a paterfamilias, he cannot be seen to be doing an injury to the father—no more than to a husband, if he believes a woman to be a widow—because the injury is not directed against their person, nor can the supposition as to the person be transferred from the person of the sons to them, since the intention of the one committing the injury rests upon this man as upon a paterfamilias.
Quod si scisset filium familias esse, tamen, si nescisset, cuius filius esset, dicerem, inquit, patrem suo nomine iniuriarum agere posse: nec minus virum, si ille nuptam esse sciret: nam qui haec non ignorat, cuicumque patri, cuicumque marito per filium, per uxorem vult facere iniuriam.
But if he knew that he was a son of the household (filius familias), nevertheless, if he did not know whose son he was, I would say, he says, that the father can sue for injuries in his own name: and no less the husband, if he knew that she was a married woman: for he who does not ignore these things wishes to do an injury to any father, to any husband, through the son, through the wife.
Si quis servum meum vel filium ludibrio habeat licet consentientem, tamen ego iniuriam videor accipere: veluti si in popinam duxerit illum, si alea luserit. sed hoc utcumque tunc locum habere potest, quotiens ille qui suadet animum iniuriae faciendae habet. atquin potest malum consilium dare et qui dominum ignoret: et ideo incipit servi corrupti actio necessaria esse.
If anyone holds my slave or my son up to mockery, even though he consents, nevertheless I seem to receive an injury: for example, if he has led him into a tavern, if he has played at dice. But this can in some fashion then have a place, whenever the one who urges has a mind to commit an injury. And yet even one who is ignorant of the master can give evil counsel; and for that reason the action for a corrupted slave begins to be necessary.
Nec magistratibus licet aliquid iniuriose facere. si quid igitur per iniuriam fecerit magistratus vel quasi privatus vel fiducia magistratus, iniuriarum potest conveniri. sed utrum posito magistratu an vero et quamdiu est in magistratu?
Nor is it permitted to magistrates to do anything injuriously. If, therefore, a magistrate has done something through injury either as if a private person or in reliance on the confidence of his magistracy, he can be sued for injuries. But is this after he has laid down the magistracy, or indeed also while he is in office?
but the truer view is that, if he is a magistrate who cannot, without fraud, be called into court, one must wait until he departs from the magistracy. whereas if he is of the lesser magistrates, that is, magistrates without imperium or potestas, they can be convened even while in the magistracy itself.
Si plures servi simul aliquem ceciderint aut convicium alicui fecerint, singulorum proprium est maleficium et tanto maior iniuria, quanto a pluribus admissa est. immo etiam tot iniuriae sunt, quot et personae iniuriam facientium.
If several slaves together have beaten someone or have made an abusive outcry against someone, the malefaction is proper to each individual, and the injury is the greater, by as much as it has been committed by more persons. Nay rather, there are as many injuries as there are persons committing the injury.
Si filii nomine cum patre iniuriarum agere velim et is procuratorem det, non intellegitur filius defendi, nisi iudicatum solvi satisdetur: et ideo actio adversus filium, tamquam a patre non defendatur, danda erit.
If I should wish to bring an action of injuries, in the son’s name, against the father, and he appoints a procurator, the son is not understood to be defended unless security is furnished for payment of the judgment; and therefore an action against the son will be granted, as though he were not defended by his father.
Divus severus dionysio diogeni ita scripsit: " atrocis iniuriae damnatus in ordine decurionum esse non potest. nec prodesse tibi debet error praesidum aut eius, qui de te aliquid pronuntiavit, aut eorum, qui contra formam iuris mansisse te in ordine decurionum putaverunt".
The deified Severus wrote thus to Dionysius Diogenes: "One condemned for atrocious injury cannot be in the order of decurions. Nor should the error of the governors, or of him who pronounced something concerning you, or of those who thought that, contrary to the form of law, you had remained in the order of decurions, profit you."
Si inferiorum dominus aedium superioris vicini fumigandi causa fumum faceret, aut si superior vicinus in inferiores aedes quid aut proiecerit aut infuderit, negat labeo iniuriarum agi posse: quod falsum puto, si tamen iniuriae faciendae causa immittitur.
If the owner of the lower premises should make smoke, for the sake of fumigating, into the upper neighbor’s premises, or if the upper neighbor should either throw or pour something into the lower premises, Labeo denies that an action for injuries can be brought; which I think is false, if, however, it is let in for the purpose of causing injury.
De iniuria nunc extra ordinem ex causa et persona statui solet. et servi quidem flagellis caesi dominis restituuntur, liberi vero humilioris quidem loci fustibus subiciuntur, ceteri autem vel exilio temporali vel interdictione certae rei coercentur.
Concerning injury, it is now usually determined outside the ordinary course, according to the case and the person; and slaves, indeed, scourged with whips, are restored to their masters, while free persons of humbler station are subjected to cudgels; but the others are restrained either by temporary exile or by interdiction of a certain thing.
Qui puero stuprum abducto ab eo vel corrupto comite persuaserit aut mulierem puellamve interpellaverit quidve impudicitiae gratia fecerit, domum praebuerit pretiumve, quo is persuadeat, dederit: perfecto flagitio punitur capite, imperfecto in insulam deportatur: corrupti comites summo supplicio adficiuntur.
Whoever has persuaded a boy to sexual outrage, his companion having been abducted from him or corrupted, or has accosted a woman or a girl, or has done anything for the sake of impudicity, has provided a house or has given a price by which he may persuade him: when the flagitious deed has been completed, he is punished with capital punishment; if not completed, he is deported to an island; the companions who have been corrupted are afflicted with the supreme penalty.
Annonam adtemptare et vexare vel maxime dardanarii solent: quorum avaritiae obviam itum est tam mandatis quam constitutionibus. mandatis denique ita cavetur: " praeterea debebis custodire, ne dardanarii ullius mercis sint, ne aut ab his, qui coemptas merces supprimunt, aut a locupletioribus, qui fructus suos aequis pretiis vendere nollent, dum minus uberes proventus exspectant, annona oneretur". poena autem in hos varie statuitur: nam plerumque, si negotiantes sunt, negotiatione eis tantum interdicitur, interdum et relegari solent, humiliores ad opus publicum dari.
They who most especially are accustomed to tamper with and vex the grain-supply are the dardanarii; and their greed has been met both by mandates and by constitutions. Finally, the mandates provide thus: " moreover you must keep watch that there be no dardanarii dealing in any wares; that the grain-supply not be burdened either by those who, having bought up goods, suppress them, or by the wealthier men who are unwilling to sell their produce at fair prices, while they await less abundant yields". But the penalty upon these persons is set in various ways: for the most part, if they are traders, only commerce is forbidden to them; sometimes they are also wont to be relegated, the humbler being assigned to public works.
Saccularii, qui vetitas in sacculos artes exercentes partem subducunt, partem subtrahunt, item qui derectarii appellantur, hoc est hi, qui in aliena cenacula se dirigunt furandi animo, plus quam fures puniendi sunt: idcircoque aut ad tempus in opus dantur publicum, aut fustibus castigantur et dimittuntur, aut ad tempus relegantur.
Saccularii, who, practicing forbidden arts upon purses, draw off a part and subtract a part, likewise those who are called derectarii, that is, those who direct themselves into others’ upper rooms with a mind to steal, are to be punished more than thieves: and therefore either they are given for a time to public work, or they are chastised with cudgels and dismissed, or they are relegated for a time.
Sunt quaedam, quae more provinciarum coercitionem solent admittere: ut puta in provincia arabia skopelismon crimen appellant, cuius rei admissum tale est: plerique inimicorum solent praedium inimici skopelizein, id est lapides ponere indicio futuros, quod, si quis eum agrum coluisset, malo leto periturus esset insidiis eorum, qui scopulos posuissent: quae res tantum timorem habet, ut nemo ad eum agrum accedere audeat crudelitatem timens eorum qui scopelismon fecerunt. hanc rem praesides exequi solent graviter usque ad poenam capitis, quia et ipsa res mortem comminatur.
There are certain acts which, by the custom of the provinces, are usually subject to coercive punishment: for example, in the province of Arabia they call the crime skopelismon, the commission of which is as follows: many men are accustomed, in regard to their enemies, to skopelizein the enemy’s estate—that is, to place stones as a sign indicating that, if anyone should cultivate that field, he would perish a wretched death through the ambushes of those who had set the rocks. This matter carries such terror that no one dares to approach that field, fearing the cruelty of those who have committed skopelismon. The governors are accustomed to pursue this matter severely, even up to capital punishment, because the thing itself threatens death.
In aegypto qui chomata rumpit vel dissolvit ( hi sunt aggeres, qui quidem solent aquam niloticam continere), aeque plectitur extra ordinem: et pro condicione sua et pro admissi mensura quidam opere publico, alii autem metallo plectuntur, et metallo quidem secundum suam dignitatem. si quis arborem sycaminonem exciderit, nam et haec res vindicatur extra ordinem non levi poena, idcirco quod hae arbores colligunt aggeres niloticos, per quos incrementa nili dispensantur et coercentur. et deminutiones aeque coercentur: chomata etiam et diacopi, qui in aggeribus fiunt, plecti efficiunt eos, qui id ^ ^ admiserint.
in egypt, whoever breaks or loosens the chomata (these are embankments, which are accustomed to contain nile water), is likewise punished extra ordinem; and, according to his condition and the measure of the offense, some are punished with public works, while others with the mines, and indeed with the mines in accordance with their dignity. if anyone cuts down a sycamine tree, for this matter too is prosecuted extra ordinem with no light penalty, for the reason that these trees bind the nile embankments, through which the increases of the nile are apportioned and restrained. and the diminutions are likewise restrained: the chomata also and the diacopi, which are made in the embankments, bring it about that those who have admitted it are punished.
Si sepulchrum quis diruit, cessat aquilia: quod vi tamen aut clam agendum erit: et ita de statua de monumento evolsa celsus scribit. idem quaerit, si neque adplumbata fuit neque adfixa, an pars monumenti effecta sit an vero maneat in bonis nostris: et celsus scribit sic esse monumenti ut ossuaria et ideo quod vi aut clam interdicto locum fore.
If someone demolishes a sepulchre, the Aquilian [action] does not apply; however, it will have to be proceeded with under the quod vi aut clam; and thus Celsus writes about a statue torn from a monument. The same man inquires, if it was neither leaded-in nor affixed, whether it has been made a part of the monument or rather remains among our goods; and Celsus writes that it is of the monument, as ossuaries are, and therefore that there will be room for the interdict quod vi aut clam.
Praetor ait: " cuius dolo malo sepulchrum violatum esse dicetur, in eum in factum iudicium dabo, ut ei, ad quem pertineat, quanti ob eam rem aequum videbitur, condemnetur. si nemo erit, ad quem pertineat, sive agere nolet: quicumque agere volet, ei centum aureorum actionem dabo. si plures agere volent, cuius iustissima causa esse videbitur, ei agendi potestatem faciam.
The praetor says: "Concerning whoever by malicious deceit it shall be said that a sepulcher has been violated, against him I will grant an action in factum, so that he be condemned to as much as shall seem equitable to him to whom it pertains on account of that matter. If there is no one to whom it pertains, or he is unwilling to sue: whoever will wish to sue, to him I will give an action for one hundred aurei. If several will wish to sue, to him whose cause shall seem most just I will grant the power of suing.
Prima verba ostendunt eum demum ex hoc plecti, qui dolo malo violavit. si igitur dolus absit, cessabit eiusdem. personae igitur doli non capaces, ut admodum impuberes, item omnes, qui non animo violandi accedunt, excusati sunt.
The first words show that only he is punished by this who has violated with malicious dolus. If, therefore, dolus is absent, the same [penalty] will cease. Therefore persons not capable of dolus, such as very young minors, likewise all who do not approach with an intention of violating, are excused.
Si quis in hereditarium sepulchrum inferat, quamvis heres, tamen potest sepulchri violati teneri, si forte contra voluntatem testatoris intulit: licet enim cavere testatori, ne quis eo inferatur, ut rescripto imperatoris antonini cavetur: servari enim voluntatem eius oportere. ergo et si cavit, ut unus tantum heredum inferret, servabitur, ut solus inferat.
If anyone should inter in a hereditary sepulcher, although an heir, nevertheless he can be held liable for a violated sepulcher, if perchance he brought it in contrary to the will of the testator: for it is permitted to the testator to make provision that no one be interred there, as is provided by a rescript of Emperor Antoninus: for his will ought to be observed. Therefore, even if he provided that only one of the heirs be interred, it will be observed, that he alone be interred.
Non perpetuae sepulturae tradita corpora posse transferri edicto divi severi continetur, quo mandatur, ne corpora detinerentur aut vexarentur aut prohiberentur per territoria oppidorum transferri. divus tamen marcus rescripsit nullam poenam meruisse eos, qui corpus in itinere defuncti per vicos aut oppidum transvexerunt, quamvis talia fieri sine permissu eorum, quibus permittendi ius est, non debeant.
It is contained in the edict of the deified Severus that bodies not consigned to perpetual burial can be transferred, which commands that bodies not be detained or vexed or prohibited from being carried through the territories of towns. However, the deified Marcus rescripted that those who conveyed the body of a person who died while on a journey through villages or a town incurred no penalty, although such things ought not to be done without the permission of those who have the right of permitting.
Divus hadrianus rescripto poenam statuit quadraginta aureorum in eos qui in civitate sepeliunt, quam fisco inferri iussit, et in magistratus eadem qui passi sunt, et locum publicari iussit et corpus transferri. quid tamen, si lex municipalis permittat in civitate sepeliri? post rescripta principalia an ab hoc discessum sit, videbimus, quia generalia sunt rescripta et oportet imperialia statuta suam vim optinere et in omni loco valere.
The deified Hadrian by rescript established a penalty of forty aurei upon those who bury in the city, which he ordered to be paid into the fisc; and the same upon magistrates who have allowed it; and he ordered the place to be made public property and the body to be transferred. What, however, if a municipal law permits burial in the city? After the imperial rescripts, whether there has been a departure from this we shall consider, because the rescripts are general, and it is proper that imperial statutes retain their own force and be valid in every place.
Adversus eos, qui cadavera spoliant, praesides severius intervenire, maxime si manu armata adgrediantur, ut, si armati more latronum id egerint, etiam capite plectantur, ut divus severus rescripsit, si sine armis, usque ad poenam metalli procedunt.
Against those who despoil cadavers, governors are to intervene more severely, especially if they attack with an armed hand, so that, if armed they have done it in the manner of bandits, they are even punished with capital punishment, as the deified Severus wrote in a rescript; if without arms, they go as far as the penalty of the mines.
Qui de sepulchri violati actione iudicant, aestimabunt, quatenus intersit, scilicet ex iniuria quae facta est, item ex lucro eius qui violavit, vel ex damno quod contigit, vel ex temeritate eius qui fecit: numquam tamen minoris debent condemnare, quam solent extraneo agente.
Those who judge concerning the action for a violated sepulcher will assess, to the extent of the interest, namely from the injury that was done, likewise from the profit of the one who violated it, or from the damage that ensued, or from the temerity of the one who did it: nevertheless, they ought never to condemn for less than they are accustomed when an outsider is bringing the action.
Utimur eo iure, ut dominis fundorum, in quibus sepulchra fecerint, etiam post venditos fundos adeundorum sepulchrorum sit ius. legibus namque praediorum vendundorum cavetur, ut ad sepulchra, quae in fundis sunt, item eius aditus ambitus funeri faciendi sit.
We make use of this law, that to the owners of farms, on which they have made sepulchers, even after the farms have been sold, there is a right of approaching the sepulchers. For by the laws concerning the selling of estates it is provided that to the sepulchers which are on the farms there likewise be access and a circuit for the conducting of a funeral.
Sepulchri violati actio in primis datur ei, ad quem res pertinet. quo cessante si alius egerit, quamvis rei publicae causa afuerit dominus, non debebit ex integro adversus eum, qui litis aestimationem sustulerit, dari. nec potest videri deterior fieri condicio eius, qui rei publicae causa afuit, cum haec actio non ad rem familiarem eiusdem, magis ad ultionem pertineat.
The action for a violated sepulchre is in the first place granted to him to whom the matter pertains. If he is remiss and another brings the suit, although the owner was absent on account of public business, it ought not to be granted afresh against him who has borne the valuation of the suit. Nor can the condition of him who was absent on public business be seen to be made worse, since this action pertains not so much to his family estate as to vengeance.
Sepulchri violati crimen potest dici ad legem iuliam de vi publica pertinere ex illa parte, qua de eo cavetur, qui fecerit quid, quo minus aliquis funeretur sepeliaturve: quia et qui sepulchrum violat, facit, quo quis minus sepultus sit.
The crime of a violated sepulcher can be said to pertain to the Julian law on public violence from that part where provision is made concerning one who has done something by which someone is prevented from being given funeral rites or from being buried: because he who violates a sepulcher also does that by which someone is the less buried.
Quaesitum est, an ad heredem necessarium, cum se bonis non miscuisset, actio sepulchri violati pertineret. dixi recte eum ea actione experiri, quae in bonum et aequum concepta est: nec tamen si egerit, hereditarios creditores timebit, cum etsi per hereditatem optigit haec actio, nihil tamen ex defuncti capiatur voluntate, neque id capiatur, quod in rei persecutione, sed in sola vindicta sit constitutum.
It was asked whether the action for a violated sepulcher pertained to a necessary heir, when he had not mixed himself with the estate. I said that he could rightly proceed by that action, which is conceived on what is good and equitable; nor, however, if he brings it, will he fear the hereditary creditors, since, although this action has fallen to him through the inheritance, nevertheless nothing is taken from the intention of the deceased, nor is anything taken such as in real recovery, but it has been established for vengeance alone.
Rei sepulchrorum violatorum, si corpora ipsa extraxerint vel ossa eruerint, humilioris quidem fortunae summo supplicio adficiuntur, honestiores in insulam deportantur. alias autem relegantur aut in metallum damnantur.
Defendants in cases of violated sepulchers, if they have extracted the bodies themselves or unearthed the bones, those of humbler fortune are subjected to the supreme punishment, while those of more honorable rank are deported to an island. Otherwise, however, they are relegated or condemned to the mines.
Concussionis iudicium publicum non est: sed si ideo pecuniam quis accepit, quod crimen minatus sit, potest iudicium publicum esse ex senatus consultis, quibus poena legis corneliae teneri iubentur, qui in accusationem innocentium coierint quive ob accusandum vel non accusandum, denuntiandum vel non denuntiandum testimonium pecuniam acceperit.
A public prosecution for extortion is not established: but if someone received money for this reason, that he threatened a criminal charge, there can be a public prosecution by virtue of senatorial decrees, by which they are ordered to be held to the penalty of the Cornelian law—those who have combined for the accusation of the innocent, or whoever has received money for accusing or not accusing, for giving notice or not giving notice of testimony.
De abigeis puniendis ita divus hadrianus consilio baeticae rescripsit: " abigei cum durissime puniuntur, ad gladium damnari solent. puniuntur autem durissime non ubique, sed ubi frequentius est id genus maleficii: alioquin et in opus et nonnumquam temporarium dantur".
on punishing abigei, thus the deified hadrian wrote back by rescript to the council of baetica: " abigei, when they are punished most severely, are wont to be condemned to the sword. they are punished most severely, however, not everywhere, but where that kind of malefaction is more frequent: otherwise they are given over to labor, and sometimes to temporary [labor]".
Abigei autem proprie hi habentur, qui pecora ex pascuis vel ex armentis subtrahunt et quodammodo depraedantur, et abigendi studium quasi artem exercent, equos de gregibus vel boves de armentis abducentes. ceterum si quis bovem aberrantem vel equos in solitudine relictos abduxerit, non est abigeus, sed fur potius.
Abigei, however, are properly considered to be those who withdraw livestock from pastures or from herds and in a certain manner depredate, and who practice the pursuit of driving off as though it were an art, abducting horses from droves or oxen from herds. But if someone has abducted a straying ox or horses left in solitude, he is not an abigeus, but rather a thief.
Quamquam autem hadrianus metalli poenam, item operis vel etiam gladii praestituerit, attamen qui honestiore loco nati sunt, non debent ad hanc poenam pertinere, sed aut relegandi erunt aut movendi ordine. sane qui cum gladio abigunt, non inique bestiis obiciuntur.
Although, moreover, Hadrian has ordained the penalty of the mines, likewise of labor, or even of the sword, nevertheless those born of more honorable rank ought not to pertain to this penalty, but either must be relegated or removed from their order. Indeed, those who drive off with the sword are not unjustly thrown to the beasts.
Is autem praevaricator proprie dicitur, qui publico iudicio accusaverit: ceterum advocatus non proprie praevaricator dicitur. quid ergo de eo fiet? sive privato iudicio sive publico praevaricatus sit, hoc est prodiderit causam, hic extra ordinem solet puniri.
But a “prevaricator” is properly so called who has prosecuted in a public proceeding; however, an advocate is not properly called a prevaricator. What then shall be done about him? Whether in a private action or in a public one he has prevaricated—that is, has betrayed the cause—he is accustomed to be punished extra ordinem (by extraordinary procedure).
Nam si reus accusatori publico iudicio ideo praescribat, quod dicat se eodem crimine ab alio accusatum et absolutum, cavetur lege iulia publicorum, ut non prius accusetur, quam de prioris accusatoris praevaricatione constiterit et pronuntiatum fuerit. huius ergo praevaricationis pronuntiatio publici iudicii intellegitur.
For if the defendant in a public trial pleads in bar to the accuser on this ground, that he says he was accused of the same charge by another and acquitted, it is provided by the Julian law on public prosecutions that he is not to be prosecuted before it has been established and pronounced concerning the prevarication of the prior accuser. Therefore, the pronouncement regarding this prevarication is understood to be one of a public trial.
Si ideo quis accusetur, quod dicatur crimen iudicii publici destituisse, iudicium publicum non est, quia neque lege aliqua de hac re cautum est, neque per senatus consultum, quo poena quinque auri librarum in desistentem statuitur, publica accusatio inducta est.
If someone is accused for this reason, namely that he is said to have abandoned a charge in a public prosecution, it is not a public prosecution; because neither has any law made provision on this matter, nor, by the senatus consultum by which a penalty of five pounds of gold is established for the one who desists, has a public accusation been introduced.
Ab imperatore nostro et patre eius rescriptum est, ut in criminibus, quae extra ordinem obiciuntur, praevaricatores eadem poena adficiantur, qua tenerentur, si ipsi in legem commisissent, qua reus per praevaricationem absolutus est.
It has been rescripted by our emperor and his father, that in crimes which are brought under extraordinary procedure, prevaricators are subjected to the same penalty to which they would be liable if they themselves had committed the offense against the law, for which the defendant has been acquitted through prevarication.
Fures nocturni extra ordinem audiendi sunt et causa cognita puniendi, dummodo sciamus in poena eorum operis publici temporarii modum non egrediendum. idem et in balneariis furibus. sed si telo se fures defendunt vel effractores vel ceteri his similes nec quemquam percusserunt, metalli poena vel honestiores relegationis adficiendi erunt.
Nocturnal thieves are to be heard outside the ordinary course and, once the case is known, punished, provided we understand that, in their punishment, the measure of temporary public works is not to be exceeded. The same applies to bathhouse thieves. But if thieves or housebreakers or others of the same kind defend themselves with a weapon and have struck no one, they are to be subjected to the penalty of the mines, or—if they are of the more honorable class—to relegation.
De his, qui carcere effracto evaserunt, sumendum supplicium divi fratres aemilio tironi rescripserunt. saturninus etiam probat in eos, qui de carcere eruperunt sive effractis foribus sive conspiratione cum ceteris, qui in eadem custodia erant, capite puniendos: quod si per neglegentiam custodum evaserunt, levius puniendos.
Concerning those who have escaped with the prison broken open, the deified brothers wrote back to Aemilius Tiro that punishment is to be exacted. Saturninus also approves that those who broke out of prison, whether with the doors broken or by conspiracy with the others who were in the same custody, are to be punished with the death penalty; but if they escaped through the negligence of the guards, they are to be punished more lightly.
Expilatores, qui sunt atrociores fures ( hoc enim est expilatores), in opus publicum vel perpetuum vel temporarium dari solent, honestiores autem ordine ad tempus moveri vel fines patriae iuberi excedere. quibus nulla specialis poena rescriptis principalibus imposita est: idcirco causa cognita liberum erit arbitrium statuendi ei qui cognoscit.
Plunderers, who are more atrocious thieves (for this is what expilatores are), are accustomed to be given over to public works, either perpetual or temporary; but those of more honorable rank are to be removed from their order for a time, or ordered to depart beyond the borders of their native country. For them no special penalty has been imposed by imperial rescripts: therefore, with the case known, there will be free discretion of determining for the one who hears it.
Simili modo et sacculari et derectarii erunt puniendi, item effractores. sed enim divus marcus effractorem equitem romanum, qui effracto perforatoque pariete pecuniam abstulerat, quinquennio abstinere iussit provincia africa, unde erat, et urbe et italia. oportebit autem aeque et in effractores et in ceteros supra scriptos causa cognita statui, prout admissum suggerit, dummodo ne quis in plebeio operis publici poenam vel in honestiore relegationis excedat.
In a similar manner both cutpurses (saccularii) and street-robbers (derectarii) are to be punished, likewise housebreakers (effractores). But indeed the deified Marcus ordered that a housebreaker who was a Roman knight, who, the wall having been broken and bored through, had carried off money, abstain for five years from the province of Africa, whence he was, and from the City and from Italy. Moreover, it will be proper that, likewise for housebreakers and for the others written above, judgment be set after inquiry into the case, as the admitted offense suggests, provided that no one, in the case of a commoner, exceed the penalty of public works, or, in the case of a man of higher rank, that of relegation.
Apparet autem expilatae hereditatis crimen eo casu intendi posse, quo casu furti agi non potest, scilicet ante aditam hereditatem, vel post aditam antequam res ab herede possessae sunt. nam in hunc casum furti actionem non competere palam est: quamvis ad exhibendum agi posse, si qui vindicaturus exhiberi desideret, palam sit.
However, it appears that the charge of a plundered inheritance can be brought in that case in which an action for theft cannot be brought, namely before the inheritance has been entered upon, or after it has been entered upon but before the things have been possessed by the heir. For in this case it is clear that the action for theft does not lie; although it is clear that one may proceed by the action ad exhibendum, if someone intending to vindicate desires that it be produced.
Divus severus et antoninus rescripserunt electionem esse, utrum quis velit crimen expilatae hereditatis extra ordinem apud praefectum urbi vel apud praesides agere an hereditatem a possessoribus iure ordinario vindicare.
The deified Severus and Antoninus issued a rescript that there is an election: whether one wishes to prosecute the charge of a plundered inheritance by extraordinary (extra ordinem) procedure before the Prefect of the City or before the governors, or to vindicate the inheritance from the possessors by the ordinary law.
Si rem hereditariam, ignorans in ea causa esse, subripuisti, furtum te facere respondit. paulus: rei hereditariae furtum non fit sicut nec eius, quae sine domino est, et nihil mutat existimatio subripientis.
If you surreptitiously took hereditary property, not knowing it to be of that character, he responded that you are committing theft. paulus: No theft is committed of hereditary property, just as neither of that which is without an owner; and the estimation of the one who surreptitiously takes changes nothing.
Stellionatum autem obici posse his, qui dolo quid fecerunt, sciendum est, scilicet si aliud crimen non sit quod obiciatur: quod enim in privatis iudiciis est de dolo actio, hoc in criminibus stellionatus persecutio. ubicumque igitur titulus criminis deficit, illic stellionatus obiciemus. maxime autem in his locum habet: si quis forte rem alii obligatam dissimulata obligatione per calliditatem alii distraxerit vel permutaverit vel in solutum dederit: nam hae omnes species stellionatum continent.
One must know that stellionate can be alleged against those who have done something by deceit, namely if there is no other crime to be alleged: for what in private actions is the action on deceit, this in criminal matters is the prosecution for stellionate. Wherever, therefore, the title of a crime fails, there we will allege stellionate. But it has its chief place especially in these cases: if someone, a thing obligated/encumbered to another, with the obligation concealed, through craft has alienated it to another or has exchanged it or has given it in payment; for all these species comprise stellionate.
but also if anyone has substituted merchandise or has diverted goods that were pledged or has corrupted them, he will likewise be a defendant for the crime of stellionate. likewise, if anyone has committed an imposture or a collusion for the death of another, he may be prosecuted for stellionate. and, to speak generally, when the title of another crime is lacking, this crime finds application, nor is there need to enumerate the species.
Poena autem stellionatus nulla legitima est, cum nec legitimum crimen sit. solent autem ex hoc extra ordinem plecti, dummodo non debeat opus metalli haec poena in plebeis egredi. in his autem, qui sunt in aliquo honore positi, ad tempus relegatio vel ab ordine motio remittenda est.
But there is no legitimate (statutory) penalty for stellionate, since it is not even a legitimate (statutory) crime. Nevertheless, people are wont for this to be punished extra ordinem, provided that, in the case of plebeians, this penalty ought not to go so far as labor in the mines. But as for those who are placed in some honor, temporary relegation or removal from their order is to be imposed.
Divus hadrianus in haec verba rescripsit: " quin pessimum factum sit eorum, qui terminos finium causa positos propulerunt, dubitari non potest. de poena tamen modus ex condicione personae et mente facientis magis statui potest: nam si splendidiores personae sunt, quae convincuntur, non dubie occupandorum alienorum finium causa id admiserunt, et possunt in tempus, ut cuiusque patiatur aetas, relegari, id est si iuvenior, in longius, si senior, recisius. si vero alii negotium gesserunt et ministerio functi sunt, castigari et ad opus biennio dari.
The deified Hadrian wrote back in these words: "That the deed of those who have pushed forward the boundary-stones set for the sake of borders is most wicked cannot be doubted. As to the punishment, however, the measure can more suitably be fixed from the condition of the person and the mind of the doer: for if those convicted are persons of higher rank, they have undoubtedly admitted it for the purpose of occupying others’ boundaries, and they can be relegated for a period, as each one’s age permits—that is, if younger, for a longer time; if older, for a shorter. But if others conducted the business and performed the service, they are to be chastised and assigned to labor for two years."
Lege agraria, quam gaius caesar tulit, adversus eos, qui terminos statutos extra suum gradum finesve moverint dolo malo, pecuniaria poena constituta est: nam in terminos singulos, quos eiecerint locove moverint, quinquaginta aureos in publico dari iubet: et eius actionem petitionem ei qui volet esse iubet.
By the agrarian law which Gaius Caesar proposed, against those who with malicious fraud shall have moved the established boundary-stones beyond their proper line or borders, a pecuniary penalty is constituted: for for each individual boundary-stone which they shall have cast out or moved from its place, he orders fifty aurei to be paid into the public treasury; and he orders that the action for this claim be available to whoever will.
Mandatis principalibus praecipitur praesidibus provinciarum, ne patiantur esse collegia sodalicia neve milites collegia in castris habeant. sed permittitur tenuioribus stipem menstruam conferre, dum tamen semel in mense coeant, ne sub praetextu huiusmodi illicitum collegium coeat. quod non tantum in urbe, sed et in italia et in provinciis locum habere divus quoque severus rescripsit.
By imperial mandates it is enjoined upon the governors of the provinces that they not allow collegia sodalicia to exist, nor that soldiers have collegia in the camps. But it is permitted to the poorer to contribute a monthly contribution, provided nevertheless that they meet once in a month, lest under the pretext of this kind an illicit collegium assemble. Which the deified Severus also rescripted to have effect not only in the City, but also in Italy and in the provinces.
Non licet autem amplius quam unum collegium licitum habere, ut est constitutum et a divis fratribus: et si quis in duobus fuerit, rescriptum est eligere eum oportere, in quo magis esse velit, accepturum ex eo collegio, a quo recedit, id quod ei competit ex ratione, quae communis fuit.
However, it is not permitted to have more than one lawful collegium, as has been established also by the deified brothers: and if anyone has been in two, it has been rescripted that he ought to choose the one in which he would rather be, and he will receive from that collegium from which he withdraws that which is due to him according to the account which was held in common.
Servos quoque licet in collegio tenuiorum recipi volentibus dominis, ut curatores horum corporum sciant, ne invito aut ignorante domino in collegium tenuiorum reciperent, et in futurum poena teneantur in singulos homines aureorum centum.
It is also permitted that slaves be received into the collegium of the lower orders with the masters willing, so that the curators of these bodies may know not to receive anyone into the collegium of the lower orders with the master unwilling or unaware, and henceforth they shall be held to a penalty of one hundred gold aurei for each person.
Sodales sunt, qui eiusdem collegii sunt: quam graeci hetaireian vocant. his autem potestatem facit lex pactionem quam velint sibi ferre, dum ne quid ex publica lege corrumpant. sed haec lex videtur ex lege solonis tralata esse.
Sodales are those who are of the same college: which the Greeks call hetaireia. To these, however, the law gives the power to set up for themselves whatever pact they wish, provided that they do not corrupt anything of the public law. But this law seems to have been transferred from the law of Solon.
for there it is thus: if a deme, or the phratores (members of a phratry), or celebrants of sacred orgies, or sailors, or syssitoi (common-table fellows), or homotaphoi (same-burial fellows), or thiasotai (members of a thiasos), or those going out for booty, or for commerce, whatever of these they agree among themselves is valid, unless public law forbids.