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IV:I De obligationibus quae ex delicto nascuntur IV:II Vi bonorum raptorum IV:III De lege Aquilia IV:IV De iniuriis IV:V De obligationibus quae quasi ex delicto nascuntur IV:VI De actionibus IV:VII Quod cum eo qui in aliena potestate est negotium gestum esse dicitur IV:VIII De noxalibus actionibus IV:IX Si quadrupes pauperiem fecisse dicetur |
IV:X De his per quos agere possumus IV:XI De satisdationibus IV:XII De perpetuis et temporalibus actionibus et quae ad heredes vel in heredes transeunt IV:XIII De exceptionibus IV:XIV De replicationibus IV:XV De interdictis IV:XVI De poena temere litigantium IV:XVII De officio iudicis IV:XVIII De publicis iudiciis |
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4:1 On obligations which arise from delict 4:2 On goods carried off by force (rapine) 4:3 On the Lex Aquilia 4:4 On injuries 4:5 On obligations which arise as if from delict 4:6 On actions 4:7 That business is said to have been transacted with one who is in another’s power 4:8 On noxal actions 4:9 If a quadruped is said to have caused damage |
4:10 On those by whom we can sue 4:11 On the furnishing of security (surety) 4:12 On perpetual and temporal actions and those which pass to heirs or against heirs 4:13 On exceptions 4:14 On replications 4:15 On interdicts 4:16 On the penalty of those who litigate rashly 4:17 On the office of the judge 4:18 On public trials |
Cum eitum sit superiore libro de obligationibus ex contractu et quasi ex contractu, sequitur, ut de obligationibus ex maleficio dispiciamus. sed illae quidem, ut suo loco tradidimus, in quattuor genera dividuntur: hae vero unius generis sunt, nam omnes ex re nascuntur, id est ex ipso maleficio, veluti ex furto aut rapina aut damno aut iniuria.
Since in the previous book we have treated obligations from contract and quasi-contract, it follows that we should examine obligations from delict. But those indeed, as we have set forth in their proper place, are divided into four genera; these, however, are of one genus, for they all arise from the thing, that is, from the delict itself, as for example from theft or rapine or damage or injury.
Furtum est contrectatio rei fraudulosa vel ipsius rei vel etiam usus eius possessionisve: quod lege naturali prohibitum est admittere. Furtum autem vel a furvo, id est nigro, dictum est, quod clam et obscure fit et plerumque nocte: vel a fraude: vel a ferendo, id est auferendo: vel a Graeco sermone, qui 
appellant fures. immo etiam Graeci 
dixerunt.
Theft is the fraudulent handling of a thing, whether of the thing itself or even of its use or possession: which it is prohibited by natural law to commit. Theft, moreover, is said either from furvus, that is, black, because it is done secretly and in the dark and for the most part at night: or from fraud: or from ferendo, that is, carrying off: or from the Greek tongue, who call thieves . Nay rather, the Greeks also said .
Furtorum autem genera duo sunt, manifestum et nec manifestum. nam conceptum et oblatum species potius actionis sunt furto cohaerentes quam genera furtorum, sicut inferius apparebit. manifestus fur est, quem Graeci 
appellant: nec solum is qui in ipso furto deprehenditur, sed etiam is qui eo loco deprehenditur quo fit, veluti qui in domo furtum fecit et, nondum egressus ianuam deprehensus fuerit, et qui in oliveto olivarum aut in vineto uvarum furtum fecit, quamdiu in eo oliveto aut in vineto fur deprehensus sit: immo ulterius furtum manifestum extendendum est, quamdiu eam rem fur tenens visus vel deprehensus fuerit sive in publico sive in privato vel a domino vel ab alio, antequam eo pervenerit quo perferre ac deponere rem destinasset, sed si pertulit quo destinavit, tametsi deprehendatur cum re furtiva, non est manifestus fur.
But the kinds of thefts are two, manifest and not manifest. For conceptum and oblatum are rather species of an action cohereing with theft than genera of thefts, as will appear below. A manifest thief is what the Greeks call: and not only he who is caught in the very theft, but also he who is apprehended in the place where it is being done, for example, one who has committed theft in a house and, not yet having gone out the door, is apprehended, and he who has committed theft of olives in an olive-grove or of grapes in a vineyard, so long as in that olive-grove or in that vineyard the thief is apprehended: nay rather, manifest theft must be extended further, so long as the thief, holding that thing, has been seen or apprehended whether in public or in private, either by the owner or by another, before he has reached the place where he had intended to carry and deposit the thing; but if he has carried it where he intended, although he is apprehended with the stolen thing, he is not a manifest thief.
non-manifest theft, what it is, is understood from the things we have said: for what is not manifest is, of course, non-manifest. “Conceived” theft is said to occur when, at someone’s place, with witnesses present, a stolen thing has been sought and found; for against him a special action has been established, although he is not a thief, which is called the action “of the thing found by search” (concepti). “Offered” theft is said to occur when a stolen thing has been offered to you by someone and has been found by search with you, especially if it was given to you with the intention that it be “conceived” with you rather than with him who gave it; for to you, with whom it has been found by search, a special action has been established against him who offered it, although he is not a thief, which is called “of the thing offered” (ablati).
There is also an action for prohibited theft against one who has prohibited a person willing to search for the theft with witnesses present. Moreover, a penalty is established by the praetor’s edict, through the action of theft not exhibited, against one who did not exhibit a stolen thing that had been sought out and found in his possession. But these actions—that is, of “conceptum” and “oblatum” and of “prohibited theft,” as well as of “theft not exhibited”—have fallen into desuetude.
for since a search for a stolen thing is not made today according to the old observance, deservedly, by consequence, the aforesaid actions too have withdrawn from common use, since it is most manifest that all who knowingly have received and concealed a stolen thing are liable to non-manifest theft. The penalty for manifest theft is quadruple, from the person of a slave as well as of a free man; for non-manifest, double.
Furtum autem fit non solum cum quis intercipiendi causa rem alienam amovet, sed general iter cum quis alienam rem invito domino contrectat. itaque sive creditor pignore, sive is apud quem res deposita est ea re utatur, sive is qui rem utendam accepit in alium usum eam transferat quam cuius gratia ei data est, furtum committit. veluti si quis argentum utendum acceperit quasi amicos ad cenam invitaturus et id peregre secum tulerit, aut si quis equum gestandi causa commodatum sibi longius aliquo duxerit, quod veteres scripserunt de eo qui in aciem equum perduxisset.
Theft, moreover, happens not only when someone removes another’s property for the sake of seizing it, but, generally, whenever someone handles another’s property against the owner’s will. And so, whether a creditor with a pledge, or the one with whom a thing has been deposited uses that thing, or he who received a thing to be used transfers it to another use than the one for the sake of which it was given, he commits theft. For example, if someone has received silver to use, as if about to invite friends to dinner, and takes it abroad with him; or if someone, having had a horse lent to him for the purpose of riding about, leads it a longer distance somewhere—something which the ancients wrote concerning a man who led a horse into the battle-line.
It has, however, been decided that those who use things lent for use (commodata) otherwise than they received them to be used, do thereby commit theft, if they understand that they are doing this against the owner’s will and that he, had he known, would not have permitted it; but if they believe he would permit it, they appear to be outside the crime: a most excellent distinction indeed, because theft is not committed without the intent (affectus) of stealing. But also, if someone believes that he is handling a thing lent to him against the owner’s will, yet in fact it is done with the owner willing, it is said that theft does not occur. Whence this question arose: when Titius had solicited Maevius’s slave to filch certain things from the master and carry them to him, and the slave reported this to Maevius, Maevius, while wishing to apprehend Titius in the very offense, permitted the slave to carry certain things to him—whether Titius is liable under the action for theft or under the action for a corrupted slave (servi corrupti), or under neither?
And when this doubt was submitted to us and we surveyed the disputations of the ancient jurists on this point—some affording neither the action of theft nor the action for a corrupted slave, others only that of theft—we, going to meet such cunning, sanctioned by our decision that not only the action of theft but also the action for a corrupted slave be granted against him: for although that slave was in no way made worse by the enticer, and therefore the rules do not concur which would introduce the action for a corrupted slave, nevertheless the design of the corruptor was directed to the ruin of the slave’s probity, so that a penal action be imposed upon him, as though in very deed the slave had been corrupted, lest by such impunity a like crime be attempted by some also against another slave who could be corrupted. Sometimes even the theft of free persons occurs, as for example if one of our children, who are in our power, should be stolen away. Sometimes moreover a person even commits theft of his own property, as when a debtor removes a thing which he has given to a creditor by way of pledge.
Interdum furti tenetur qui ipse furtum non fecerit: qualis est cuius ope et consilio furtum factum est. in quo numero est qui tibi nummos excussit, ut alius eos raperet, aut obstitit tibi, ut alius rem tuam surriperet, vel oves aut boves tuas fugaverit, ut alius eas exciperet: et hoc veteres scripserunt de eo qui panno rubro fugavit armentum. sed si quid eorum per lasciviam, et non data opera ut furtum admitteretur, factum est, in factum actio dari debet.
Sometimes one is held liable for theft who has not himself committed the theft: such is he by whose aid and counsel the theft was done. in which number is the man who shook out your coins so that another might snatch them, or who obstructed you so that another might surreptitiously steal your property, or who drove your sheep or oxen into flight so that another might intercept them: and the ancients wrote this also about the one who drove a herd to flight with a red cloth. but if any of those things was done out of wantonness, and not with deliberate design that the theft be committed, an action on the facts should be given.
but when, with the aid of Maevius, Titius has committed a theft, both are liable for theft. A theft is considered to be committed with his aid and counsel also by one who, for instance, sets ladders to the windows, or breaks open the windows themselves or the door, so that another might commit the theft; or by one who has lent tools for breaking in, or ladders to be set to the windows, knowing for whose sake he lent them. Certainly, he who applied no effort toward doing the theft, but only gave counsel and urged the doing of the theft, is not liable for theft.
Those who are in the power of parents or of masters, if they surreptitiously take a thing from them, indeed commit theft against them, and the thing falls into the category of stolen property and on that account cannot be acquired by usucapion by anyone before it returns into the power of the owner; but an action for theft does not arise, because from no other cause can any action arise between them: but if by the aid and counsel of another the theft has been done, since in any case theft is committed, accordingly that person is held liable for theft, because it is true that by his aid and counsel the theft was done.
Furti autem actio ei competit cuius interest rem salvam esse, licet dominus non sit: itaque nec domino aliter competit quam si eius intersit rem non perire. Unde constat, creditorem de pignore subrepto furti agere posse, etiamsi idoneum debitorem habeat, quia expedit ei pignori potius incumbere quam in personam agere: adeo quidem ut, quamvis ipse debitor eam rem subripuerit, nihilo minus creditori competat actio furti. Item si fullo polienda curandave aut sarcinator sarcienda vestimenta mercede certa acceperit eaque furto amiserit, ipse furti habet actionem, non dominus, quia domini nihil interest eam rem non perisse, cum iudicio locati a fullone aut sarcinatore rem suam persequi potest.
But the action for theft belongs to him whose interest it is that the thing be safe, even if he is not the owner: and thus it does not belong to the owner otherwise than if it is to his interest that the thing not perish. Whence it is settled that a creditor can bring an action for theft concerning a pledge that has been stolen, even if he has a solvent debtor, because it is expedient for him to rely on the pledge rather than to sue in personam: indeed, to such an extent that, although the debtor himself has stolen that thing, nonetheless the action for theft belongs to the creditor. Likewise, if a fuller has received garments to be polished or cared for, or a mender to be mended, for a fixed fee, and has lost them by theft, he himself has the action for theft, not the owner, because it is of no concern to the owner that the thing not have perished, since by the action locati he can pursue his property from the fuller or the mender.
But also to a purchaser in good faith, if the thing which he bought has been stolen, although he is not the owner, the action of theft in every way lies, just as to the creditor. But it has been decided that to the fuller and the mender the action of theft lies only if they are solvent—that is, if they can pay to the owner the valuation of the thing: for if they are not solvent, then, because the owner cannot recover his property from them, the action of theft belongs to the owner himself, because in this case it is his interest that the thing be safe. The same is true also if the fuller or the mender are solvent in part.
What we have said about the fuller and the mender, the ancients thought was likewise to be transferred to him to whom a thing is lent for use: for just as that fuller, by receiving a wage, furnishes custody, so also he who takes the convenience of using is similarly obliged to furnish custody. But our providence has even corrected this too in our decisions, to the effect that it lies in the will of the owner, whether he wishes to bring the action of commodatum against the one who received the thing on loan for use, or the action of theft against the one who filched the thing; and, once either of them has been chosen, the owner cannot, out of repentance, come to the other action. But if indeed he should choose the thief, the one who received the thing to be used is wholly released.
but if, however, the lender comes against him who received the thing for use, the action of theft can in no way lie to himself against the thief; but he who is convened on account of the loaned thing can have an action of theft against the thief—yet only if the owner, knowing the thing to have been subrepted (stolen), proceeded against him to whom the thing had been loaned. but if, not knowing and doubting that the thing was not with him, he instituted the action of loan, and afterwards, the matter discovered, wished indeed to remit the action of loan and to proceed to the action of theft, then leave is granted to him also to come against the thief, no obstacle being opposed to him, since, placed in uncertainty, he moved the action of loan against him who received the thing for use (unless satisfaction has been made to the owner by him: then indeed in every way the thief is released by the owner from the action of theft, but is subrogated to him who, on account of the thing loaned to himself, satisfied the owner), since it is most manifest that even if from the beginning the owner, ignorant that the thing had been subrepted, instituted the action of loan, but afterwards, this being known to him, passed over against the thief, in every way he who received the loaned thing is released, whatever outcome of the case the owner may have had against the thief: the same definition obtaining, whether he who received the loaned thing is solvent in part or in solidum. But he with whom a thing is deposited does not furnish custody, but is liable only in this respect, if he himself has done anything with dolus malus: for which cause, if the thing has been subrepted from him, since under the name of restoring it he is not held by deposit, nor on that account is it his interest that the thing be safe, he cannot sue for theft, but the action of theft belongs to the owner. In sum it must be known that it has been asked whether an impubes (a minor) by removing another’s property commits theft.
Furti actio sive dupli sive quadrupli tantum ad poenae persecutionem pertinet: nam ipsius rei persecutionem extrinsecus habet dominus, quam aut vindicando aut condicendo potest auferre. sed vindicatio quidem adversus possessorem est, sive fur ipse possidet sive alius quilibet: condictio autem adversus ipsum furem heredemve eius, licet non possideat, competit.
The action of theft, whether for the double or for the quadruple, pertains only to the pursuit of the penalty: for the owner has the pursuit of the thing itself from elsewhere, which he can recover either by vindication or by condiction. But vindication is indeed against the possessor, whether the thief himself possesses or anyone else whatsoever: whereas condiction lies against the thief himself or his heir, even if he does not possess.
Qui res alienas rapit, tenetur quidem etiam furti (quis enim magis alienam rem invito domino contrectat quam qui vi rapit? ideoque recte dictum est, eum improbum furem esse): sed tamen propriam actionem eius delicti nomine praetor introduxit, quae appellatur vi bonorum raptorum et est intra annum quadrupli, post annum simpli. quae actio utilis est, etiamsi quis unam rem, licet minimam, rapuerit.
Whoever seizes another’s property is indeed liable also for theft (for who handles an alien thing against the will of the owner more than the one who takes it by force? and so it has been rightly said that he is a dishonest thief); but nevertheless the praetor introduced a proper action under the name of that delict, which is called vi bonorum raptorum, and is for the quadruple within a year, after a year for the simple. This action is available even if someone has carried off a single thing, however very small.
However, the quadruple is not wholly a penalty with, outside the penalty, a pursuit of the thing, just as we said in the action for manifest theft; rather, in the quadruple the recovery of the thing is included as well, so that the penalty is triple, whether the taker by force is apprehended in the very offense or not. For it is ridiculous that he who carries off by force be in a lighter condition than he who removes secretly. Nevertheless, this action so lies only if someone has carried off with fraudulent intent: one who, led on by some error, believing the thing to be his own, and unskilled in law, carried it off with the intention as though it were permitted to the owner to take his own thing even by force from possessors, ought to be acquitted.
To which, of course, it is congruent that he also not be held liable for theft who carried off with this same intention. But lest, while such devices are being contrived, a way be found by which raptores may exercise their avarice with impunity, it has been better provided by imperial constitutions in this regard: that it is permitted to no one to seize by force a movable thing or a thing moving itself, even if he supposes that same thing to be his own; but if anyone shall have acted contrary to the statutes, he is to fall from the dominion of his own thing; if, however, it be another’s, after restitution of the thing he must also render the valuation of that same thing. And the constitutions have judged this to obtain not only in movable things which can be snatched, but also in invasions which are made concerning things of the soil, so that men may abstain from all such rapine.
In this action it is not, to be sure, inspected that the thing be in the plaintiff’s goods: for whether it be in his goods or not, if nevertheless it be from his goods, this action will have a place. Wherefore, whether it be loaned for use, or leased, or even pledged, or deposited with Titius, in such a way that it is his concern that it not be carried off—such as if, in the matter deposited, he also promised liability for fault—or whether he possess in good faith, or someone have a usufruct in it, or whatever other right such that it is his concern that it not be snatched: it must be said that this action is competent to him, not that he take ownership, but only this, that it be put forward that something has been taken away out of the goods of him who has suffered rapine, that is, out of his substance. And, generally, it must be said that from the same causes for which the action for theft is competent in a matter done secretly, from those same causes all have this action.
Damni iniuriae actio constituitur per legem Aquiliam. cuius primo capite cautum est ut, si quis hominem alienum alienamve quadrupedem, quae pecudum numero sit, iniuria occiderit, quanti ea res in eo anno plurimi fuit, tantum domino dare damnetur.
An action for wrongful damage is established by the Aquilian law. In whose first chapter it is provided that, if anyone shall wrongfully have killed another’s slave or another’s four‑footed beast that is counted among herd‑animals, he is to be condemned to give to the owner as much as that thing was worth at its highest in that year.
Quod autem non praecise de quadrupede, sed de ea tantum quae "pecudum numero" est cavetur, eo pertinet, ut neque de feris bestiis neque de canibus cautum esse intellegamus, sed de his tantum quae proprie pasci dicuntur, quales sunt equi, muli, asini, boves, oves, caprae. de suibus quoque idem placuit: nam et sues pecorum appellatione continentur, quia et hi gregatim pascuntur: sic denique et Homerus in Odyssea ait, sicut Aelius Marcianus in suis institutionibus refert:
But the fact that provision is not made precisely concerning a quadruped, but only concerning that which is “in the number of herd-animals,” tends to this: that we understand no provision to have been made regarding wild beasts nor dogs, but only regarding those which are properly said to pasture, such as horses, mules, asses, oxen, sheep, goats. About swine likewise the same has been settled: for swine too are contained under the appellation “pecora,” because they also pasture in herds: thus, finally, Homer also says in the Odyssey, as Aelius Marcianus reports in his Institutions:
"Iniuria" autem occidere intellegitur, qui nullo iure occidit. itaque qui latronem occidit, non tenetur, utique si aliter periculum effugere non potest. Ac ne is quidem hac lege tenetur qui casu occidit, si modo culpa eius nulla invenitur: nam alioquin non minus quam ex dolo ex culpa quisque hac lege tenetur.
“To kill injuriously” is understood of one who kills with no right. Therefore he who kills a robber is not liable, certainly if he cannot otherwise escape the danger. And not even is he held by this law who kills by chance, provided that no fault of his is found: for otherwise, by this law one is held no less for fault (culpa) than for deceitful intent (dolus).
And so, if someone, while playing or practicing with javelins, should pierce your slave as he is passing by, a distinction is made. For if this has been committed by a soldier in the Field, or in a place where it is customary to exercise, no fault (culpa) is understood on his part; but if some other person has committed such a thing, he is liable for fault (culpa). The same law holds concerning a soldier, if he has committed it in a place other than one appointed for exercising soldiers.
Likewise, if a pruner, by a branch cast down from a tree, kills your slave as he was passing by, then, if it was done near a public road or a vicinal road and he did not call out beforehand so that the accident might be avoided, he is answerable for fault; but if he did call out beforehand and the other did not take care to beware, the pruner is outside fault. He is likewise understood to be outside fault if he was cutting apart from the road by chance or in the middle of the estate, although he did not call out, because in that place no outsider had a right of moving about. Moreover, if a physician, who cut (operated on) your slave, has abandoned the treatment and on that account the slave has died, he is answerable for fault.
Inexperience too is reckoned to fault, for instance if a medic for that reason kills your slave because he has cut him badly or has wrongly given him a medicament. If, by the impetus of mules which the muleteer, on account of lack of skill, could not restrain, your slave is crushed, the muleteer is guilty of fault. But also if, because of infirmity, he could not restrain them, when another, stronger, could have restrained them, he likewise is held to fault.
His autem verbis legis "quanti id in eo anno plurimi fuerit" illa sententia exprimitur, ut si quis hominem tuum, qui hodie claudus aut luscus aut mancus erit, occiderit, qui in eo anno integer aut pretiosus fuerit, non tanti teneatur quanti is hodie erit, sed quanti in eo anno plurimi fuerit. qua ratione creditum est, poenalem esse huius legis actionem, quia non solum tanti quisque obligatur quantum damni dederit, sed aliquando longe pluris: ideoque constat, in heredem eam actionem non transire, quae transitura fuisset si ultra damnum numquam lis aestimaretur. Illud non ex verbis legis, sed ex interpretatione placuit, non solum perempti corporis aestimationem habendam esse, secundum ea quae diximus, sed eo amplius quidquid praeterea, perempto eo corpore, damni vobis adlatum fuerit, veluti si servum tuum heredem ab aliquo institutum ante quis occiderit quam is iussu tuo adiret: nam hereditatis quoque amissae rationem esse habendam constat.
But by these words of the statute, “for how much that was at its highest in that year,” this meaning is expressed: that if someone kills your slave who today will be lame or one‑eyed or maimed, who in that year had been sound or valuable, he is held not for so much as he will be today, but for as much as he was at his highest in that year. On this rationale it has been believed that the action of this statute is penal, because each person is obligated not only for as much as damage he has given, but sometimes far more: and therefore it is established that this action does not pass against the heir—an action which would have passed if the suit were never assessed beyond the damage. This has been approved not from the words of the statute, but from interpretation: that not only must the estimation of the slain body be had, according to what we have said, but, beyond that, whatever further loss has been brought to you by that body’s being slain—for example, if someone killed your slave who had been instituted heir by someone, before he entered upon it at your command: for it is agreed that account must also be taken of the inheritance that has been lost.
likewise, if from a pair of mules one has been killed, or from a quadriga of horses one, or if from the comic actors one slave has been killed: not only is an estimation made of the one slain, but in addition there is also computed by how much those who remain have been depreciated. It is open, moreover, to the person whose slave has been killed both to pursue the loss by the private action of the Lex Aquilia, and to make him defendant on a capital charge.
Capite tertio de omni cetero damno cavetur. Itaque si quis servum, vel eam quadrupedem quae pecudum numero est, vulneraverit, sive eam quadrupedem quae pecudum numero non est, veluti canem aut feram bestiam, vulneraverit aut occiderit, hoc capite actio constituitur. in ceteris quoque omnibus animalibus, item in omnibus rebus quae anima carent, damnum iniuria datum hac parte vindicatur.
In the third chapter provision is made concerning all other damage. And so, if someone has wounded a slave, or that quadruped which is counted among herd-animals, or if he has wounded or killed that quadruped which is not counted among herd-animals, such as a dog or a wild beast, by this chapter an action is established. in all the other animals as well, likewise in all things which lack soul, wrongful damage given is vindicated by this part.
for if anything has been burned or ruptured or broken, an action is constituted under this chapter: although the appellation “ruptured” alone could have sufficed for all those cases; for “ruptured” is understood as corrupted in whatever way. whence not only things burned or broken, but also things cut and crushed and effused (spilled) and in whatever way destroyed and made worse are contained under this word: finally, it has been answered that, if someone has put into another’s wine or oil something by which the natural goodness of the wine or oil would be corrupted, he is held under this part of the law. it is clear that, just as under the first chapter one is liable only then if by his deceit or fault (negligence) a man or a quadruped has been slain, so under this chapter each is held for other damage by reason of deceit or fault.
however, under this head the person who has given the damage is bound not for as much as it was in that year, but for as much as the thing was worth in the thirty nearest days; and not even the word "plurimi" is added; but it rightly pleased Sabinus that the valuation should be taken just as if in this part too the word "plurimi" had been added: for the Roman plebs, which passed this law at the request of the tribune Aquilius, was content because in the first part it used that word.
Ceterum placuit, ita demum ex hac lege actionem esse, si quis praecipue corpore suo damnum dederit. ideoque in eum qui alio modo damnum dederit, utiles actiones dari solent: veluti si quis hominem alienum aut pecus ita incluserit ut fame necaretur, aut iumentum tam vehementer egerit ut rumperetur, aut pecus in tantum exagitaverit ut praecipitaretur, aut si quis alieno servo persuaserit ut in arborem ascenderet vel in puteum descenderet, et is ascendendo vel descendendo aut mortuus fuerit aut aliqua parte corporis laesus erit, utilis in eum actio datur. sed si quis alienum servum de ponte aut ripa in flumen deiecerit et is suffocatus fuerit, eo quod proiecerit corpore suo damnum dedisse non difficiliter intellegi poterit ideoque ipsa lege Aquilia tenetur.
Moreover, it has been decided that an action from this law exists only if someone has inflicted damage principally by his own body. and therefore, against one who has given damage in another way, useful actions are usually granted: for example, if someone has shut up another’s slave or cattle in such a manner that they were killed by hunger; or has driven a beast of burden so vehemently that it was ruptured; or has harried cattle to such an extent that it was thrown headlong; or if someone has persuaded another’s slave to climb a tree or to descend into a well, and he, in climbing or descending, either has died or has been injured in some part of his body, a useful action is given against him. but if someone has cast another’s slave from a bridge or a bank into a river and he has been suffocated, it can be understood without difficulty that, because he threw him by his own body, he has given the damage, and therefore he is held by the Aquilian Law itself.
but if the damage has not been given by the body nor the body has been injured, but damage has befallen someone in another way, since neither the direct nor the useful Aquilian action suffices, it has been resolved that he who has been liable is held by an action in factum: for instance, if someone, moved by misericordia, were to loosen another’s slave who was in shackles, so that he might flee.
Generaliter iniuria dicitur omne quod non iure fit specialiter alias contumelia, quae a contemnendo dicta est, quam Graeci 
appellant; alias culpa, quam Graeci 
dicunt, sicut in lege Auilia damnum iniuria accipitur; alias iniquitas et iniustitia, quam Graeci 
vocant. cum enim praetor vel iudex non iure contra quem pronuntiat, iniuriam accepisse dicitur.
Generally, “injury” is said of everything that is done not by right; specifically, sometimes “contumely,” which is said from “to contemn,” which the Greeks call; sometimes “fault,” which the Greeks call, just as in the Aquilian law “damage” is taken as “injury”; sometimes “iniquity” and “injustice,” which the Greeks name. For when a praetor or judge pronounces against someone not by right, he is said to have received an injury.
Iniuria autem committitur non solum cum quis pugno puta aut fustibus caesus vel etiam verberatus erit, sed etiam si cui convicium factum fuerit, sive cuius bona, quasi debitoris, possessa fuerint ab eo qui intellegebat nihil eum sibi debere, vel si quis ad infamiam alicuius libellum aut carmen scripserit, composuerit, ediderit, dolove malo fecerit quo quid eorum fieret; sive quis matremfamilias aut praetextatum praetextatamve adsectatus fuerit, sive cuius pudicitia attentata esse dicetur: et denique aliis pluribus modis admitti iniuriam manifestum est.
But injury is committed not only when someone, say, has been struck with a fist or clubbed or even beaten, but also if a revilement has been made against someone, or if a person’s goods, as though of a debtor, have been seized by one who understood that he owed him nothing, or if someone, to another’s infamy, has written, composed, published a pamphlet or a poem, or by malicious fraud has caused any of these to be done; or if someone has followed about a matron or a boy or girl wearing the praetexta, or if someone’s chastity is said to have been assailed: and finally, it is manifest that in many other ways injury may be committed.
Patitur autem quis iniuriam non solum per semet ipsum, sed etiam per liberos suos, quos in potestate habet: item per uxorem suam, id enim magis praevaluit. itaque si filiae alicuius, quae Titio nupta est, iniuriam feceris, non solum filiae nomine tecum iniuriarum agi potest, sed etiam patris quoque et mariti nomine. contra autem, si viro iniuria facta sit, uxor iniuriarum agere non potest: defendi enim uxores a viris, non viros ab uxoribus aequum est.
But one suffers an injury not only by himself, but also through his children whom he has in power: likewise through his wife, for that has prevailed more. And so, if you have committed an injury against someone’s daughter who is married to Titio, not only can an action for injuries be brought against you in the name of the daughter, but also in the name of the father and of the husband. Conversely, if an injury has been done to the husband, the wife cannot bring an action for injuries: for it is equitable that wives be defended by husbands, not husbands by wives.
but also a father-in-law, in the name of his daughter-in-law whose husband is in his power, can bring an action for injuries. As for slaves, indeed no injury is understood to be done to them themselves, but it is seen to be done to the master through them. Not, however, in the same modes as also through children and wives, but only when something more atrocious has been committed and what openly looks to the contumely of the master: for instance, if someone has beaten another’s slave; and for this case an action is provided.
but if someone has made a reviling (convicium) against a slave or has struck him with a fist, no action accrues to the master against him. If an injury has been done to a common slave, it is equitable that the assessment of the injury be made not according to the share by which each is master, but on the basis of the persons (persona) of the masters, because the injury is done to them themselves. But if the usufruct in a slave belongs to Titius, and the ownership (proprietas) to Maevius, the injury is understood to be done rather to Maevius.
But if a free person who serves you in good faith has suffered an injury, no action will be granted to you, but he will be able to proceed in his own name—unless he was struck in contumely of you; for then an action for injuries also lies for you. The same, therefore, holds in the case of another’s slave serving you in good faith: that an action for injuries is admitted as often as an injury has been done to him in contumely of you.
Poena autem iniuriarum ex lege duodecim tabularum propter membrum quidem ruptum talio erat: propter os vero fractum nummariae poenae erant constitutae quasi in magna veterum paupertate. sed postea praetores permittebant ipsis qui iniuriam passi sunt eam aestimare, ut iudex vel tanti condemnet, quanti iniuriam passus aestimaverit, vel minoris, prout ei visum fuerit. sed poena quidem iniuriae quae ex lege duadecim tabularum introducta est in desuetudinem abiit: quam autem praetores introduxerunt, quae etiam honoraria appellatur, in iudiciis frequentatur.
However, the penalty for injuries under the Law of the Twelve Tables, for a limb indeed ruptured, was talio (retaliation in kind); but for a bone broken, monetary penalties were established, as it were amid the great poverty of the ancients. But afterwards the praetors allowed those who had suffered the injury themselves to assess it, so that the judge would either condemn for as much as the one injured had assessed, or for a lesser amount, as seemed to him. But the penalty for injury which was introduced by the Law of the Twelve Tables has fallen into desuetude; whereas that which the praetors introduced, which is also called the honorary action, is frequent in the courts.
for according to the grade of dignity and the honesty of life the estimation of the injury grows or diminishes: which scale of condemnation is also not without reason observed in the servile person, so that one thing is fixed in the case of a slave-actor (steward), another in a man of intermediate employment, another in the vilest or in a fettered man. But also the Lex Cornelia on injuries speaks and introduced an action for injuries, which lies for this reason, that someone should say that he was struck or beaten, or that his house was entered by force.
As for “home,” we take it to include whether someone dwells in his own house or in a leased one or gratuitously, or is received in hospitality as a guest. An atrocious injury is assessed either from the deed—for instance, if someone has been wounded by another or beaten with clubs; or from the place—as when an injury has been done to someone in the theatre, or in the forum, or in the sight of the praetor; or from the person—as when a magistrate has suffered injury, or when a senator has had an injury done him by a lowly person, or when it is done to a parent or to a patron by children or freedmen; for the injury of a senator and of a parent and a patron is assessed otherwise than that of a stranger and a humble person. Sometimes, too, the site of the wound makes the injury atrocious, as when someone is struck in the eye.
In summa sciendum est, de omni inuria eum qui passus est posse vel criminaliter agere vel civiliter. et si quidem civiliter agatur, aestimatione facta secundum quod dictum est, poena imponitur. sin autem criminaliter, officio iudicis extraordinaria poena reo irrogatur: hoc videlicet observando, quod Zenoniana constitutio introduxit, ut viri illustres quique supra eos sunt et per procuratores possint actionem iniuriaram criminaliter vel persequi vel suscipere, secundum eius tenorem qui ex ipsa manifestius apparet.
In sum, it must be known that, concerning every injury, the one who has suffered it can proceed either criminally or civilly. And if indeed it is proceeded with civilly, after an estimation has been made according to what has been said, a penalty is imposed. But if criminally, by the office of the judge an extraordinary penalty is inflicted upon the defendant: with this to be observed, namely, what the Zenonian constitution introduced, that illustrious men and those above them can also through procurators either pursue or undertake the action for injury criminally, according to its tenor, which appears more plainly from the constitution itself.
Not only is he liable for injuries who did the injury, that is, who struck; but that one also will be held who did it by dolus (guile) or who took care to arrange that someone’s cheeks be struck with a fist. This action is abolished by dissimulation; and therefore, if anyone has abandoned the injury, that is, did not at once, after suffering it, recall it to his mind, thereafter, out of repentance, he will not be able to recollect an injury once remitted.
Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur. sed quia neque ex contractu obligatus est et utique peccasse aliquid intellegitur, licet per imprudentiam: ideo videtur quasi ex maleficio teneri, et in quantum de ea re aequum religioni iudicantis videbitur, poenam sustinebit.
If a judge has made the suit his own, he does not seem properly to be bound from wrongdoing. But because he is bound neither from contract, and in any case is understood to have committed some fault, albeit through imprudence: therefore he seems to be held as if from wrongdoing, and he will bear a penalty to the extent in that matter as shall seem equitable to the conscience of the judge.
Item is ex cuius coenaculo vel proprio ipsius vel conducto vel in quo gratis habitabat, deiectum effusumve aliquid est, ita ut alicui noceretur, quasi ex maleficio obligatus intellegitur: ideo autem non proprie ex maleficio obligatus intellegitur, quia plerumque ob alterius culpam tenetur aut servi aut liberi. cui similis est is qui ea parte qua vulgo iter fieri solet id positum aut suspensum habet quod potest, si ceciderit, alicui nocere: quo casu poena decem aureorum constituta est. de eo vero quod deiectum effusumve est, dupli quanti damnum datum sit, constituta est actio.
Likewise, if from whose upper room—whether his own, or rented, or in which he was living gratis—something has been thrown down or poured out, such that harm has been done to someone, he is understood to be bound as if from a maleficium (a quasi-delict); yet he is not understood to be bound properly from a maleficium, because for the most part he is held on account of another’s fault, whether of a slave or of a free person. Similar is he who, over that part where people commonly travel, has placed or suspended something which, if it should fall, can harm someone: in which case a penalty of ten aurei has been established. But as to that which has been thrown down or poured out, an action has been established for double the amount of the damage done.
but for a free man slain a penalty of fifty aurei is established; if, however, he lives and it will be said that harm has been done to him, an action is given for as much as on that account seems equitable to the judge: for the judge ought to compute the fees paid to the physicians and the other expenditures that have been incurred in the treatment, and besides the labor from which he was deprived, or will be deprived, because he has been rendered unfit. If a son under paternal power (filiusfamilias) has lived apart from his father and something from his upper room has been thrown down or poured out, or if he has had something placed or hung whose fall is dangerous: it pleased Julian that there is no action against the father, but one must litigate with the son himself. The same is to be observed in the case of a son under paternal power who is a judge and has made the lawsuit his own.
Idem exercitor navis aut cauponae aut stabuli de damno, dolo aut furto, quod in nave aut in caupona aut in stabulo factum erit, quasi ex maleficio teneri videtur, si modo ipsius nullum est maleficium, sed alicuius eorum quorum opera navem aut cauponam aut stabulum exerceret: cum enim neque ex contractu sit adversus eum constituta haec actio et aliquatenus culpae reus est, quod opera malorum hominum uteretur, ideo quasi ex maleficio teneri videtur. in his autem casibus in factum actio competit, quae heredi quidem datur, adversus heredem autem non competit.
The same operator of a ship or of an inn or of a stable is considered to be held, as if from a malefice, for loss, fraud, or theft which shall have been done on the ship or in the inn or in the stable, provided that no malefice is his own, but that of one of those by whose services he operated the ship or the inn or the stable: for since this action is not established against him ex contractu, and he is to some extent guilty of fault, because he made use of the services of wicked men, therefore he is considered to be held as if from a malefice. In these cases, however, an action in fact (actio in factum) is available, which indeed is given to the heir, but does not lie against the heir.
Omnium actionum, quibus inter aliquos apud iudices arbitrosve de qua re quaeritur, summa divisio in duo genera deducitur: aut enim in rem sunt aut in personam. namque agit unusquisque aut cum eo qui ei obligatus est vel ex contractu vel ex maleficio, quo casu proditae actiones in personam sunt, per quas intendit adversarium ei dare facere oportere, et aliis quibusdam modis: aut cum eo agit qui nullo iure ei obligatus est, movet tamen alicui de aliqua re controversiam. quo casu proditae actiones in rem sunt.
The principal division of all actions, by which among certain persons before judges or arbiters inquiry is made concerning some matter, is brought down into two genera: for they are either in rem or in personam. For each person proceeds either against him who is obligated to him, whether from contract or from delict, in which case the actions that have been established are in personam, by which he asserts that his adversary ought to give or to do for him, and in certain other modes; or he proceeds against one who by no right is obligated to him, yet raises against someone a controversy concerning some thing. In which case the established actions are in rem.
For instance, if someone possesses a corporeal thing which Titius affirms to be his own, and the possessor says that he is owner: for if Titius asserts it to be his own, the action is in rem. Likewise, if he sues that a right belongs to him in the thing—say, in a farm (fundus) or in houses—of using and enjoying (utendi fruendi), or of going through the neighbor’s land, of driving, or of conducting water from the neighbor’s farm, the action is in rem. Of the same kind is the action concerning the right of urban praedia, for example, if he sues that a right belongs to him of raising his houses higher, or of looking out, or of projecting something, or of letting something into the neighbor’s houses.
Conversely also, concerning usufruct and the servitudes of rural estates, likewise of urban estates, reciprocal actions have likewise been provided, so that one may allege that the adversary has not the right of using-and-enjoying, of going, of driving, or of leading water, likewise of building higher, of looking out, of projecting, of letting in: these actions too are in rem, but negative. Such a kind of action has not been provided in controversies over corporeal things: for in these it is he who does not possess that sues; but for him who does possess no action has been provided by which he might deny that the thing is the other’s. Indeed, in one case the possessor nonetheless occupies the part of plaintiff, as will more opportunely appear in the more ample books of the Digest.
Sed istae quidem actiones, quarum mentionem habuimus, et si quae sunt similes, ex legitimis et civilibus causis descendunt. aliae autem sunt, quas praetor ex sua iurisdictione comparatas habet tam in rem quam in personam, quas et ipsas necessarium est exemplis ostendere. ecce plerumque ita permittit in rem agere, ut vel actor diceret, se quasi usucepisse quod usu non ceperit, vel ex diverso possessor diceret, adversariam suum usu non cepisse quod usuceperit.
But those actions indeed, of which we have made mention, and any that are similar, descend from legitimate and civil causes. There are, however, others which the praetor, from his own jurisdiction, has provided, both in rem and in personam; and it is necessary to show these also by examples. Behold, for the most part he thus permits one to bring an action in rem: either the plaintiff would say that he had, as it were, usucapted (acquired by usucapion) what he has not taken by use, or, conversely, the possessor would say that his adversary has not taken by use that which he himself has usucapted.
For if a thing belonging to another has been delivered to someone on a just cause—such as by reason of purchase, or donation, or dowry, or legacies—and he has not yet become the owner of that thing, if by chance he has lost possession of it, he has no direct action in rem to pursue that thing; for actions have been produced by the civil law in such a way that one vindicates one’s own dominion. But because it was indeed harsh that in that case the action should fail, an action was invented by the praetor, in which the one who has lost possession says that he has acquired that thing by usucapion, and thus he vindicates that it is his. This action is called the Publician action, since it was first proposed in the edict by the praetor Publicius.
Rursus ex diverso si quis, cum rei publicae causa abesset vel in hostium potestate esset, rem eius qui in civitate esset usuceperit, permittitur domino, si possessor rei publicae causa abesse desierit, tunc intra annum, rescissa usucapione, eam petere, id est ita petere ut dicat, possessorem usu non cepisse et ob id suam esse rem. quod genus actionis et aliis, simili aequitate motus, praetor accommodat, sicut ex latiore digestorum seu pandectarum volumine intellegere licet.
Again, conversely, if someone, while absent for the sake of the republic or in the power of enemies, has acquired by usucapion the property of one who was in the state, it is permitted to the owner, if the possessor has ceased to be absent on account of the republic, then within a year, the usucapion being rescinded, to demand it—that is, to demand it in such a way as to assert that the possessor did not take by usucapion and on that account that the thing is his. This kind of action the praetor also accommodates to others, moved by similar equity, as one may understand from the more expansive volume of the Digests or Pandects.
Item si quis in fraudem creditorum rem suam alicui tradiderit, bonis eius a creditoribus ex sententia praesidis possessis, permittitur ipsis creditoribus, rescissa traditione, eam rem petere, id est dicere eam rem traditam non esse et ob id in bonis debitoris mansisse.
Likewise, if anyone has delivered his property to someone in fraud of his creditors, once his goods have been possessed by the creditors by the judgment of the governor, it is permitted to the creditors themselves, the conveyance having been rescinded, to claim that thing—that is, to say that the thing was not delivered and on that account remained among the debtor’s assets.
Item Serviana et quasi Serviana, quae etiam hypothecaria vocatur, ex ipsius praetoris iurisdictione substantiam capit. Serviana autem experitur quis de rebus coloni, quae pignoris iure pro mercedibus fundi ei tenentur; quasi Serviana autem qua creditores pignora hypothecasve persequuntur. inter pignus autem et hypothecam quantum ad actionem hypothecariam nihil interest: nam de qua re inter creditorem et debitorem convenerit ut sit pro debito obligata, utraque hac appellatione continetur.
Likewise the Servian and the so‑called quasi‑Servian, which is also called the hypothecary action, takes its substance from the praetor’s own jurisdiction. The Servian action is employed by one concerning the tenant’s goods, which are held to him by right of pledge for the rents of the farm; the quasi‑Servian is that by which creditors pursue pledges or hypothecs. Moreover, between pledge and hypothec, so far as concerns the hypothecary action, there is no difference: for whatever thing it has been agreed between creditor and debtor is to be bound for the debt, both are contained under this appellation.
But in other respects there is a difference: for under the appellation of pledge we say that is properly contained which is at the same time also delivered to the creditor, especially if it is movable; but that which, without delivery, is held by bare agreement we say is properly contained under the appellation of hypothec.
In personam quoque actiones ex sua iurisdictione propositas habet praetor, veluti de pecunia constituta: cui similis videbatur receptitia: sed ex nostra constitutione, cum et, si quid plenius habebat, hoc in pecuniam constitutam transfusum est, ea quasi supervacua iussa est cum sua auctoritate a nostris legibus recedere. item praetor proposuit de peculio servorum filiorumque familias, et ex qua quaeritur, an actor iuraverit, et alias complures. De pecunia autem constituta cum omnibus agitur quicumque vel pro se vel pro alio soluturos se constituerint, nulla scilicet stipulatione interposita.
The praetor also has actions in personam set forth from his own jurisdiction, as for instance the action on pecunia constituta; to which the receptitia seemed similar. But by our constitution, since whatever fuller scope it had has been poured into pecunia constituta, it has been ordered, as superfluous, to withdraw, together with its own authority, from our laws. Likewise the praetor set forth the action de peculio of slaves and sons of the household, and the one by which it is asked whether the plaintiff has sworn, and many others besides. As to pecunia constituta, suit is brought with all who have constituted themselves to pay, either for themselves or for another, with no stipulation interposed.
for otherwise, if they have promised to the one stipulating, they are held by the civil law. Moreover, the praetor for this reason provided the action de peculio against the father or the master, because, although by the law itself they are not bound from the contract of sons or slaves, nevertheless it was equitable that they be condemned up to the peculium, which is as it were the patrimony of sons and daughters, as also of slaves. Likewise, if anyone, at the adversary’s demand, has sworn that the money which he seeks is owed to him, and it is not paid to him, he most justly accommodates to him such an action, by which what is inquired is not whether money is owed to him, but whether he swore.
Poenales quoque actiones praetor bene multas ex sua iurisdictione introduxit: veluti adversus eum qui quid ex albo eius corrupisset: et in eum qui patronum vel parentem in ius vocasset, cum id non impetrasset: item adversus eum qui vi exemerit eum qui in ius vocaretur, cuiusve dolo alius exemerit: et alias innumerabiles.
The praetor also introduced very many penal actions from his own jurisdiction: for example, against one who had corrupted anything on his album; and against one who had summoned a patron or a parent into court, when he had not obtained that; likewise against one who by force had removed a person who was being called into court, or by whose deceit another had removed him: and countless others.
Praeiudiciales actiones in rem esse videntur, quales sunt, per quas quaeritur, an aliquis liber vel an libertus sit, vel de partu agnoscendo. ex quibus fere una illa legitimam causam habet, per quam quaeritur, an aliquis liber sit: ceterae ex ipsius praetoris iurisdictione substantiam capiunt.
Prejudicial actions seem to be in rem, such as those by which it is inquired whether someone is free or a freedman, or concerning the acknowledging of a birth. Of these, generally only that one has a legitimate cause, by which it is inquired whether someone is free; the others take their substance from the praetor’s own jurisdiction.
Sic itaque discretis actionibus, certum est, non posse actorem rem suam ita ab aliquo petere SI PARET EUM DARE OPORTERE: nec enim quod actoris est, id ei dari oportet, quia scilicet dari cuiquam id intellegitur quod ita datur ut eius fiat, nec res quae iam actoris est, magis eius fieri potest. plane odio furum, quo magis pluribus actionibus teneantur, effectum est, ut extra poenam dupli aut quadrupli, rei recipiendae nomine fures etiam hac actione teneantur SI PARET EOS DARE OPORTERE, quamvis sit adversus eos etiam haec in rem actio, per quam rem suam quis esse petit. Appellamus autem in rem quidem actiones vindicationes: in personam vero actiones, quibus dare facere oportere intenditur, condictiones.
Thus therefore, with the actions distinguished in this way, it is certain that a plaintiff cannot demand his own thing from someone in this manner, IF IT APPEARS THAT HE OUGHT TO GIVE: for what belongs to the plaintiff is not something that ought to be given to him, since, of course, “to be given” is understood as that which is given in such a way that it becomes his, and a thing which already is the plaintiff’s cannot become his more. Clearly, out of hatred of thieves, so that they may be held by more numerous actions, it has been brought about that, besides the penalty of the double or the quadruple, in the name of recovery of the thing, thieves are also held by this action, IF IT APPEARS THAT THEY OUGHT TO GIVE, although there is also against them this action in rem, by which one asserts that the thing is his own. We call actions in rem indeed vindications; but actions in personam, by which it is alleged that one ought to give or to do, condictions.
Sequens illa divisio est, quod quaedam actiones rei persequendae gratia comparatae sunt, quaedam poenae persequendae, quaedam mixtae sunt. Rei persequendae causa comparatae sunt omnes in rem actiones. earum vero actionum quae in personam sunt, hae quidem quae ex contractu nascuntur fere omnes rei persequendae causa comparatae videntur: veluti quibus mutuam pecuniam vel in stipulatum deductam petit actor, item commodati, depositi, mandati, pro socio, ex empto vendito, locato conducto.
The following division is this: some actions are established for the sake of pursuing the thing, some for pursuing a penalty, some are mixed. All in rem actions are established for the sake of pursuing the thing. But of those actions which are in personam, those indeed which arise from contract seem almost all to be established for the sake of pursuing the thing: for example, those by which the plaintiff seeks money lent (mutuum) or money brought under stipulation, likewise the actions of commodatum, deposit, mandate, pro socio, from purchase and sale (ex empto vendito), from letting and hiring (locatio conductio).
plainly, if an action of deposit is brought on the ground that the deposit was made because of tumult, fire, collapse, or shipwreck, the praetor grants an action for double, provided only that suit is brought either against the very person with whom it was deposited or against his heir on account of his own fraud: in which case the action is mixed. But from maleficia the actions established are: some are arranged solely for the pursuing of the penalty, others both for the penalty and for the thing, and on that account are mixed. One pursues only the penalty by the action of theft; for whether suit is brought for manifest theft for quadruple, or for non-manifest for double, the suit is about the penalty alone: for one pursues the thing itself by a proper action, that is, claiming that it is his, whether the thief himself possesses that thing or anyone else: furthermore, against the thief there is also a condiction for the thing.
But the action for goods seized by force is mixed, because within the quadruple the recovery of the thing is contained, while the penalty is triple. And the action of the Aquilian Law concerning damage is also mixed, not only if it is brought for the double against a denier, but sometimes even if one sues for the simple amount. For example, if someone kills a lame man or a one‑eyed man who in that year had been sound and of great value; for he is condemned in as much as that man was at his highest worth in that year, according to the division already handed down.
likewise, a mixed action lies against those who have deferred giving what was left to sacrosanct churches or other venerable places under the name of a legacy or fideicommissum, to such a degree that they were even called into judgment: for then they are compelled both to give the thing itself or the money that was left, and as much again by way of penalty, and therefore the condemnation is in double of it.
Quaedam actiones mixtam causam optinere videntur tam in rem quam in personam. qualis est familiae erciscundae actio, quae competit coheredibus de dividenda hereditate: item communi dividundo, quae inter eos redditur inter quos aliquid commune ex quacumque causa est, ut id dividatur: item finium regundorum, quae inter eos agitur qui confines agros habent. in quibus tribus iudiciis permittitur iudici rem alicui ex litigatoribus ex bono et aequo adiudicare et, si unius pars praegravari videbitur, eum invicem certa pecunia alteri condemnare.
Certain actions seem to hold a mixed cause, both in rem and in personam. Such is the action familiae erciscundae, which is competent to coheirs for dividing the inheritance; likewise communi dividundo, which is brought between those among whom something is common from whatever cause, so that it may be divided; likewise finium regundorum, which is litigated between those who have adjoining fields. In these three proceedings it is permitted to the judge to adjudge a thing to one of the litigants according to what is good and equitable, and, if the share of one shall seem to be overburdened, to condemn him in turn to a fixed sum of money in favor of the other.
Omnes autem actiones vel in simplum conceptae sunt vel in duplum vel in triplum vel in quadruplum: ulterius autem nulla actio extenditur. In simplum agitur veluti ex stipulatione, ex mutui datione, ex empto, vendito, locato, conducto, mandato et denique ex aliis compluribus causis. In duplum agimus veluti furti nec manifesti, damni iniuriae ex lege Aquilia, depositi ex quibusdam casibus: item servi corrupti, quae competit in eum cuius hortatu consiliove servus alienus fugerit aut contumax adversus dominum factus est aut luxuriose vivere coeperit aut denique quolibet modo deterior factus sit (in qua actione etiam earum rerum quas fugiendo servus abstulit aestimatio deducitur): item ex legato quod venerabilibus locis relictum est, secundum ea quae supra diximus.
But all actions are framed either for the simple amount, or for the double, or for the triple, or for the quadruple; and no action extends further. One sues for the simple amount, as, for example, from a stipulation, from the giving of a mutuum (loan), from purchase, sale, letting, hiring, mandate, and, finally, from many other causes. We sue for the double, as, for example, for theft not manifest, for wrongful damage under the Aquilian law, for deposit in certain cases; likewise for a corrupted slave, which action lies against the person at whose incitement or counsel another’s slave has fled, or has become contumacious toward his master, or has begun to live luxuriously, or, finally, has been made worse in any way (in which action the valuation of those things which the slave carried off in fleeing is also reckoned); likewise from a legacy which has been left to venerable places, according to what we said above.
In triple, indeed, when someone has inserted in the bill of complaint a greater amount than the true valuation, so that from this cause the viatores, that is, the executors of suits, might exact a larger sum under the name of sportulae: for then the defendant will recover from the plaintiff triple of what loss he has suffered on their account, so that in this triple the simple amount, in which he suffered the loss, is counted. This our constitution introduced, which shines in our Code, from which beyond doubt it follows that a condictician action issues by law. In quadruple, as in manifest theft; likewise concerning what has been done by reason of fear; and concerning money which has been given for this purpose—that the person to whom it is given, for the sake of calumny, should do or not do some business for someone: likewise a condictician action arises from our constitution, imposing a condemnation in quadruple upon those executors of suits who, contrary to the norm of our constitution, have exacted anything from defendants.
But indeed the action for theft not manifest, and for a corrupted slave, differs from the others of which we have spoken together in this, that these actions are in every case for double; but those, that is, of wrongful damage under the Lex Aquilia and sometimes of deposit, are doubled by denial, whereas against one confessing they are given for the simple. But that action which lies concerning those things which have been left to venerable places is not only doubled by denial, but also if he has deferred the payment of what was left until he is convened by order of our magistrates; while for one confessing and paying before he is convened by order of the magistrates it is rendered for the simple. Likewise, the action concerning that which was done by cause of fear differs from the others of which we have spoken together in this, that it is tacitly contained in its nature that he who, by the judge’s order, restores the thing itself to the plaintiff is absolved. Which in the other cases is not so, but in every way one is condemned in quadruple, which is also the case in the action for manifest theft.
Actionum autem quaedam bonae fidei sunt, quaedam stricti iuris, bonae fidei sunt hae: ex empto, vendito, locato, conducto, negotiorum gestorum, mandati, depositi, pro socio, tutelae, commodati, pigneraticia, familiae erciscundae, communi dividundo, praescriptis verbis quae de aestimato proponitur, et ea quae ex permutatione competit, et hereditatis petitio. quamvis enim usque adhuc incertum erat, sive inter bonae fidei iudicia connumeranda sit sive non, nostra tamen constitutio aperte eam esse bonae fidei disposuit. Fuerat antea et rei uxoriae actio ex bonae fidei iudiciis: sed cum, pleniorem esse ex stipulatu actionem invenientes, omne ius quod res uxoria ante habebat cum multis divisionibus in ex stipulatu actionem, quae de dotibus exigendis proponitur, transtulimus, merito rei uxoriae actione sublata, ex stipulatu, quae pro ea introducta est, naturam bonae fidei iudicii tantum in exactione dotis meruit ut bonae fidei sit.
Now, some actions are of good faith, others of strict law; of good faith are these: from purchase, from sale, from letting, from hiring, of management of business, of mandate, of deposit, for a partner, of tutelage, of loan for use, pignoratitious (pledge), for partitioning a family inheritance, for dividing common property, by prescribed words which is proposed concerning an aestimatum (appraised thing), and that which is competent from exchange, and the petition of inheritance. For although up to this point it was uncertain whether it should be counted among judgments of good faith or not, our constitution has plainly decreed that it is of good faith. Formerly too the action for a wife’s property (rei uxoriae) was among judgments of good faith: but since, discovering that the action ex stipulatu is fuller, we transferred all the right which the wife’s property previously had, with many subdivisions, into the action ex stipulatu which is proposed for exacting dowries, with good reason, the action rei uxoriae having been removed, the ex stipulatu—introduced in its place—earned the nature of a judgment of good faith only in the exaction of the dowry, so that it is of good faith.
but we have also granted to her a tacit hypothec; moreover, we have judged that she be preferred to other creditors in hypothecs when the woman herself proceeds concerning her dowry, for whose benefit alone we introduced this provision. In actions of good faith, however, a free power seems to be permitted to the judge to estimate, according to good and equitable principles, how much ought to be restored to the plaintiff. In which is contained also this: that, if the plaintiff in turn ought to render anything, that being compensated, the party with whom the action is brought ought to be condemned for the remainder.
but also in strict‑law judgments, by a rescript of the deified Marcus, set‑off (compensation) was introduced by opposing the exception of malicious fraud. but our constitution has more broadly introduced those compensations which rest upon clear law, so that actions are diminished by the law itself—whether in rem or personal or any others whatsoever—save only the action of deposit, to which we have judged it quite impious that anything be opposed under the name of compensation, lest under the pretext of compensation anyone be defrauded of the recovery of deposited things.
Praeterea quasdam actiones arbitrarias, id est ex arbitrio iudicis pendentes, appellamus, in quibus nisi iudicis is cum quo agitur actori satisfaciat, veluti rem restituat vel exhibeat vel solvat vel ex noxali causa servum dedat, condemnari debeat. sed istae actiones tam in rem quam in personam inveniuntur. in rem veluti Publiciana, Serviana de rebus coloni, quasi Serviana, quae etiam hypothecaria vocatur: in personam veluti quibus de eo agitur quod aut metus causa aut dolo malo factum est, item qua id quod certo loco promissum est, petitur.
Moreover we call certain actions arbitrary, that is, depending on the arbiter-judge’s discretion, in which, unless the person with whom suit is conducted satisfies the actor (plaintiff) as the judge directs—such as to restore the thing or exhibit it or pay, or to surrender a slave on account of a noxal cause—he ought to be condemned. but such actions are found both in rem and in personam. in rem, for example, the Publiciana, the Serviana concerning the tenant-farmer’s goods, the quasi-Serviana, which is also called hypothecary: in personam, for example, those by which it is litigated concerning what was done either by reason of fear (metus causa) or by dolus malus (fraud), likewise that by which that which was promised at a certain place is sought.
Si quis agens in intentione sua plus complexas fuerit, quam ad eum pertinet, causa cadebat, id est rem admittebat, nec facile in integrum a praetore restituebatur, nisi minor erat viginti quinque annis. huic enim, sicut in aliis causis causa cognita succurrebatur si lapsus iuventute fuerat, ita et in hac causa succurri solitum erat. sane si tam magna causa iusti erroris interveniebat ut etiam constantissimus quisque labi posset, etiam maiori viginti quinque annis succurrebatur: veluti si quis totum legatum petierit, post deinde prolati fuerint codicilli, quibus aut pars legati adempta sit aut quibusdam aliis legata deta sint, quae efficiebant ut plus petisse videretur petitor quam dodrantem, ad quem ideo lege Falcidia legata minuebantur.
if anyone acting as plaintiff has encompassed more in his intention than pertains to him, the case fell—that is, he admitted the matter—and he was not easily restored in integrum by the praetor, unless he was under twenty-five years. for to such a one, just as in other cases, relief was afforded upon the cause being examined if he had lapsed by reason of youth; and so too in this case it was customary to give succor. indeed, if so great a cause of just error intervened that even the most constant person might slip, relief was afforded even to one over twenty-five years: as, for example, if someone had claimed the whole legacy, and thereafter codicils were produced by which either part of the legacy was taken away or bequests were given to certain others, which made it appear that the claimant had asked for more than three-quarters (dodrans), to which amount therefore by the Falcidian law legacies were reduced.
Plus autem quattuor modis petitur: re, tempore, loco, causa: re veluti si quis pro decem aureis, qui ei debebantur, viginti petierit, aut si is cuius ex parte res est, totam eam vel maiore ex parte suam esse intenderit. Tempore: veluti si quis ante diem vel ante condicionem petierit. qua ratione enim qui tardius solvit quam solvere deberet minus solvere intellegitur, eadem ratione qui praemature petit plus petere videtur.
More, however, is claimed in four modes: in the thing, in time, in place, in cause: in the thing, for example, if someone, instead of ten aurei that were owed to him, should claim twenty, or if he whose the thing is in part should assert that the whole of it, or a greater part, is his. In time: for example, if someone should claim before the day or before the condition. for by the same reasoning as he who pays later than he ought to pay is understood to pay less, by that same reasoning he who claims prematurely is seen to claim more.
More is demanded by place, for example when someone asks in another place for that which he stipulated should be given to him in a certain place, without any commemoration of the place in which he had stipulated it be given: for instance, if one who had stipulated thus—AT EPHESUS DO YOU PROMISE TO GIVE?—should at Rome plainly allege that it ought to be given to him. He is therefore understood to be demanding more, because by the bare intention he deprives the promisor of the utility which he would have had if he paid at Ephesus: for which cause an actio arbitraria is put forward against one demanding in another place, in which, namely, account is taken of the utility that would have accrued to the promisor if he were to pay in that place.
the utility is for the most part found greatest in merchandise, for example wine, oil, grain, which in individual regions have diverse prices; but even ready money is not in all regions put out at interest under the same interest rates. If someone, however, demands at Ephesus—that is, demands in that place in which he stipulated that it be given to him—he proceeds rightly by a pure action; and the praetor also demonstrates this, namely because the utility of paying is preserved for the promisor. Next to him who is understood to demand more by place is he who demands more by cause: as, for instance, if someone has thus stipulated from you, DO YOU PROMISE TO GIVE THE MAN STICHUS OR TEN AUREI?
then let him demand either one or the other, for example only the slave or only ten aurei. He is therefore understood to be claiming more because in that kind of stipulation the choice belongs to the promisor, whether he prefers to discharge by money or by the slave: accordingly, he who alleges that only the money or only the slave ought to be given to him snatches the choice from his adversary and in that way makes his own condition better, but his adversary’s worse. For which cause an action has been provided in that matter, that one should allege that the slave Stichus or ten aurei ought to be given to him—that is, that he should seek in the same manner in which he stipulated.
furthermore, if someone has stipulated generally for a slave and then demands specifically Stichus, or having stipulated generally for wine demands specifically Campanian, or having stipulated generally for purple then demands specifically Tyrian: he is understood to be demanding more, because he removes the choice from the adversary, to whom by the law of the stipulation it had been free to perform something other than what was being demanded. indeed, even though what one demands be the very cheapest, nonetheless he is understood to be demanding more, because it often happens that for the promisor it is easier to perform that which is of higher price. But these things, indeed, had formerly been in use.
afterwards, however, the Zenonian law and ours narrowed the matter; and if indeed more has been asked as to time, what ought to be decreed is set forth by the constitution of Zeno of blessed memory; but if more has been asked as to quantity or in some other way, let every loss which may perchance have happened from this cause, as in the case of sportulae, to him against whom more has been demanded, be punished by the incurrence of triple condemnation, as we said above. If the plaintiff has encompassed less in his intentio than pertained to him—for example, if, when ten were owed to him, he asserted that five ought to be given to him, or when the whole estate was his, he claimed that a half was his—he proceeds without peril: for as to the remainder the judge nonetheless condemns the adversary in the same proceeding, by virtue of the constitution of Zeno of divine memory. If someone has aimed at one thing for another, it is our pleasure that he run no risk, but we permit him in the same proceeding, once the truth is ascertained, to correct his error; for instance, if he who ought to have sought the slave Stichus has sought Erotus, or if someone has asserted that something ought to be given to him ex testamento which is owed ex stipulatu.
Sunt praeterea quaedam actiones quibus non solidum quod debetur nobis persequimur, sed modo solidum consequimur, modo minus. ut ecce si in peculium filii servive agamus: nam, si non minus in peculio sit quam persequimur, in solidum pater dominusve condemnatur: si vero minus inveniatur, eatenus condemnat iudex quatenus in peculio sit. quemadmodum autem peculium intellegi debeat, suo ordine proponemus.
There are, moreover, certain actions by which we do not pursue the whole that is owed to us, but sometimes we obtain the whole, sometimes less. As, for instance, if we bring suit with respect to the peculium of a son or a slave: for if there is not less in the peculium than we pursue, the father or the master is condemned for the whole; but if less is found, the judge condemns only to the extent that there is in the peculium. How, moreover, the peculium ought to be understood, we shall set forth in its proper order.
Likewise, if by a judicial action a woman sues concerning the dowry, it is held that the husband ought to be condemned only to that extent that he can perform, that is, insofar as his means allow. And so, if his means meet the amount of the dowry, he is condemned for the whole; if they are less, then only to the amount he can perform. On account of retention of the dowry, too, the recovery (repetition) is reduced: for retention has been granted to the husband for expenses incurred on the dowry items, because by the law itself the dowry is diminished by necessary expenditures, as one may learn from the more expansive books of the Digests.
But also, if anyone brings suit against his parent or his patron, and likewise if a partner brings the action of partnership against a partner, the plaintiff does not obtain more than his adversary is able to perform. The same holds if someone is convened on account of his donation. Compensations (set‑offs) too, when opposed, for the most part bring it about that each one obtains less than is owed to him: for on grounds of good and equitable dealing, account being taken of what in turn the plaintiff ought to render from the same cause, it is permitted to condemn the one with whom the action is brought for the remainder, as has already been said.
Quia tamen superius mentionem habuimus de actione quae in peculium filiorumfamilias servorumque agitur: opus est ut de hac actione, et de ceteris quae eorundem nomine in parentes dominosve dari solent, diligentius admoneamus. et quia, sive cum servis negotium gestum sit, sive cum his qui in potestate parentis sunt, fere eadem iura servantur, ne verbosa fiat disputatio, dirigamus sermonem in personam servi dominique, idem intellecturi de liberis quoque et parentibus, quorum in potestate sunt. nam si quid in his proprie observetur, separatim ostendemus.
Because, however, above we made mention of the action that is brought on the peculium of children under paternal power and of slaves: it is needful that we more diligently give notice concerning this action, and concerning the others which are accustomed to be granted, in their name, against parents or masters. And because, whether business has been transacted with slaves or with those who are in the power of a parent, nearly the same laws are observed, lest the discussion become verbose, let us direct our discourse to the person of the slave and the master, understanding the same also of children and of the parents in whose power they are. For if anything is observed peculiarly in these cases, we shall show it separately.
Eadem ratione praetor duas alias in solidum actiones pollicetur, quarum altera exercitoria, altera institoria appellatur. excercitoria tunc locum habet, cum quis servum suum magistrum navis praeposuerit, et quid cum eo eius rei gratia cui praepositus erit contractum fuerit. ideo autem exercitoria vocatur, quia exercitor appellatur is ad quem cottidianus navis quaestus pertinet.
By the same rationale the praetor promises two other actions in solidum, of which the one is called the exercitory, the other the institory. The exercitory has place when someone has set his slave as master of a ship, and something has been contracted with him for the sake of that matter to which he will have been appointed. And it is called exercitory because exercitor is the name for him to whom the everyday profit of the ship pertains.
the institoria then has its place, when someone has put a slave in charge of a shop or of any negotiation (business), and whatever has been contracted with him for the sake of the matter for which he was put in charge. it is therefore called institoria, because those who are set over negotiations are called institores. Nevertheless, the praetor also furnishes these two actions if someone has put a free man or another’s slave in charge of a ship or a shop or any negotiation, namely because the same reasoning of equity intervened even in that case.
Introduxit et aliam actionem praetor, quae tributoria vocatur. namque si servus in peculiari merce, sciente domino, negotietur, et quid cum eo eius rei causa contractum erit, ita praetor ius dicit ut quidquid in his mercibus erit quodque inde receptum erit, id inter dominum, si quid ei debebitur, et ceteros creditores pro rata portione distribuatur. et quia ipsi domino distributionem permittit, si quis ex creditoribus queratur, quasi minus ei tributum sit quam oportuerit, hanc ei actionem accommodat, quae tributoria appellatur.
The praetor also introduced another action, which is called the tributory action. For if a slave, with the master knowing, does business in merchandise belonging to his peculium, and whatever shall have been contracted with him for that matter, the praetor thus declares the law: that whatever will be in these goods and whatever is received therefrom is to be distributed among the master, if anything is owed to him, and the other creditors in a pro rata portion. And because he permits the distribution to the master himself, if any of the creditors should complain, as if less had been allotted to him than ought, he furnishes to him this action, which is called the tributory action.
Praeterea introducta est actio de peculio, deque eo quod in rem domini versum erit, ut, quamvis sine voluntate domini negotium gestum erit, tamen sive quid in rem eius versum fuerit, id totum praestare debeat, sive quid non sit in rem eius versum, id eatenus praestare debeat quatenus peculium patitur. In rem autem domini versum intellegitur, quidquid necessario in rem eius impenderit servus, veluti si mutuatus pecuniam creditoribus eius solverit, aut aedificia ruentia fulserit, aut familiae frumentum emerit, vel etiam fundum aut quamlibet aliam rem necessariam mercatus erit. Itaque si ex decem utputa aureis, quos servos tuus a Titio mutuos accepit, creditori tuo quinque aureos solverit, reliquos vero quinque quolibet modo consumpserit pro quinque quidem in solidum damnari debes, pro ceteris vero quinque eatenus quatenus in peculio sit: ex quo scilicet apparet, si toti decem aurei in rem tuam versi fuerint, totos decem aureos Titium consequi posse.
Moreover, an action de peculio has been introduced, and also concerning that which has been turned into the master’s estate (in rem domini versum), so that, although business has been transacted without the master’s will, nevertheless, if anything has been turned to his estate, he ought to make that whole amount good; but if anything has not been turned to his estate, he ought to make it good only to the extent that the peculium permits. “Turned into the master’s estate” is understood as whatever the slave has necessarily expended for his estate, as, for instance, if, having borrowed money, he has paid his creditors, or has propped up buildings that were collapsing, or has bought grain for the household, or even has purchased a farm or any other necessary thing. And so, if out of, say, ten gold pieces, which your slave received on loan from Titius, he has paid five gold pieces to your creditor, but has consumed the remaining five in any manner whatsoever, you ought to be condemned in solidum for the five, but for the other five only to the extent that there is in the peculium: whence, of course, it appears that, if all ten gold pieces have been turned into your estate, Titius can recover the whole ten gold pieces.
for although there is one action by which suit is brought about the peculium and about that which has been turned to the master’s account, nevertheless it has two condemnations. and so the judge, before whom that action is litigated, is accustomed first to consider whether anything has been turned to the master’s account, nor does he otherwise proceed to the estimation of the peculium than if either nothing is understood to have been turned to the master’s account or not the whole. but when it is inquired how much is in the peculium, there is first deducted whatever the slave owes to the master or to whoever is in his power, and what remains, that alone is understood to be the peculium.
Sometimes, however, that which a slave, who is in the master’s power, owes to someone who is likewise under the master’s power is not deducted from the peculium, for instance if that person is in this very man’s peculium. Which comes to this, that if the slave owes anything to his own vicarius, that is not deducted from his peculium.
Ceterum dubium non est quin is quoque qui iussu domini contraxerit cuique institoria vel exercitoria actio competit, de peculio deque eo quod in rem domini versum est agere possit: sed erit stultissimus, si omissa actione qua facillime solidum ex contractu consequi possit, se ad difficultatem perducat probandi, in rem domini versum esse, vel habere servum peculium et tantum habere ut solidum sibi solvi possit. Is quoque cui tributoria actio competit aeque de peculio et in rem verso agere potest: sed sane huic modo tributoria expedit agere, modo de peculio et in rem verso. tributoria ideo expedit agere, quia in ea domini condicio praecipua non est, id est, quod domino debetur, non deducitur, sed eiusdem iuris est dominus, cuius et ceteri creditores: at in actione de peculio ante deducitur quod domino debetur, et in id quod reliquum est creditori dominus condemnatur.
Moreover, there is no doubt that he too who has contracted by the order of the master, and to whom the institorial or exercitorial action is competent, can sue de peculio and concerning that which has been turned to the master’s account; but he would be most foolish if, omitting the action by which he could most easily obtain the solid amount from the contract, he should bring himself to the difficulty of proving that it has been turned to the master’s account, or that the slave has a peculium and has it in such an amount that the full sum can be paid to him. He also to whom the tributory action is competent can likewise sue de peculio and by the action in rem verso; but indeed for this man it is sometimes expedient to sue by the tributoria, sometimes by de peculio and in rem verso. The tributoria is expedient to bring for this reason, because in it the master’s condition is not preferential—that is, what is owed to the master is not deducted—but the master is of the same right as the other creditors; whereas in the action de peculio what is owed to the master is first deducted, and the master is condemned to the creditor in respect of what remains.
again, to sue de peculio is advantageous for this reason: in this action account is taken of the whole peculium, whereas in the tributory action only of that part with which business is transacted; and a person may perhaps be doing business with a third part of the peculium, or a fourth, or even the least part, but have the greater part in estates and slaves, or in money at interest. accordingly, as it is expedient, each should choose either this action or that: certainly, he who can prove that something has been turned in rem of the master ought to sue de in rem verso.
Quae diximus de servo et domino, eadem intellegimus et de filio et filia aut nepote et nepte et patre avove cuius in potestate sunt. Illud proprie servatur in eorum persona, quod senatusconsultum Macedonianum prohibuit mutuas pecunias dari eis qui in parentis erunt potestate: et ei qui crediderit denegatur actio, tam adversus ipsum filium filiamve, nepotem neptemve, sive adhuc in potestate sunt, sive morte parentis vel emancipatione suae potestatis esse coeperint, quam adversus patrem avumve, sive habeat eos adhuc in potestate sive emancipaverit. quae ideo senatus prospexit, quia saepe onerati aere alieno creditarum pecuniarum, quas in luxuriam consumebant, vitae parentium insidiabantur.
What we have said about the slave and the master, we understand the same to hold for the son and daughter, or the grandson and granddaughter, and the father or grandfather in whose power they are. One thing is specially observed in their case: the Macedonian senatus‑consult forbade loans of money to be given to those who are in a parent’s power; and an action is denied to whoever has given credit, both against the son or daughter, the grandson or granddaughter—whether they are still in power, or have begun to be in their own power by the death of the parent or by emancipation—and against the father or grandfather, whether he still has them in power or has emancipated them. The Senate made provision for this because, often burdened by debt of monies lent, which they spent in luxury, they would plot against the lives of their parents.
Illud in summa admonendi sumus, id quod iussu patris dominive contractum fuerit quodque in rem eius versum fuerit, directo quoque posse a patre dominove condici tamquam si principaliter cum ipso negotium gestum esset. ei quoque qui vel exercitoria vel institoria actione tenetur, directo posse condici placet, quia huius quoque iussu contractum intellegitur.
In sum we must be admonished that whatever has been contracted by the order of the father or master, and whatever has been turned to his interest (in rem eius versum), can also be demanded directly by condiction from the father or master, as if the business had been transacted principally with him. It is likewise agreed that a direct condiction can be brought against him who is liable by the exercitorial or institorial action, because this too is understood to have been contracted by his order.
Ex maleficiis servorum, veluti si furtum fecerint aut bona rapuerint aut damnum dederint aut iniuriam commiserint, noxales actiones proditae sunt, quibus domino damnato permittitur, aut litis aestimationem sufferre aut hominem noxae dedere. Noxa autem est corpus quod nocuit, id est servus: noxia ipsum maleficium, veluti furtum, damnum, rapina, iniuria. Summa autem ratione permissum est noxae deditione defungi: namque erat iniquum, nequitiam eorum ultra ipsorum corpora dominis damnosam esse.
From the maleficia of slaves—such as if they have committed theft, or have carried off goods by rapine, or have caused damage, or have perpetrated an injury—noxal actions have been brought forth, by which, when the master has been condemned, it is permitted either to undergo the assessment of the suit or to surrender the person in noxa. Now noxa is the body that did the harm, that is, the slave; noxia is the maleficium itself, such as theft, damage, rapine, injury. And with highest reason it has been permitted to be discharged by noxal surrender; for it was inequitable that their wickedness should be damaging to their masters beyond their own bodies.
Summoned by a noxal judgment in the name of his slave, the master is discharged by surrendering the slave in noxa to the plaintiff. Nor any the less is the perpetual ownership of him transferred from the master; but if, having procured money, he makes good the loss to the person to whom he was delivered, with the aid of the praetor, even with the master unwilling, he is manumitted. Noxal actions have been established either by laws or by the praetor’s edict: by laws, for example, theft by the Law of the Twelve Tables, and wrongful damage by the Aquilian Law; by the praetor’s edict, for example, for injuries and for rapine (goods seized by force).
Omnis autem noxalis actio caput sequitur. nam si servus tuus noxiam commiserit, quamdiu in tua potestate sit tecum est actio: si in alterius potestatem pervenerit, cum illo incipit actio esse, aut si manumissus fuerit, directo ipse tenetur et extinguitur noxae deditio. ex diverso quoque directa actio noxalis esse incipit: nam si liber homo noxiam commiserit, et is servus tuus esse coeperit (quod casibus quibasdam effici primo libro tradidimus), incipit tecum esse noxalis actio, quae ante directa fuisset.
But every noxal action follows the person (caput). For if your slave has committed a wrong, so long as he is in your power the action lies against you; if he has come into another’s power, the action begins to lie against that person; or if he has been manumitted, he himself is held directly, and the surrender for the wrong (noxae deditio) is extinguished. Conversely, a direct action also begins to become a noxal one: for if a free man has committed a wrong, and he has begun to be your slave (which we have handed down in Book 1 can be effected in certain cases), the noxal action begins to lie against you, which previously would have been direct.
If a slave has committed a noxious act against his master, no action arises: for between a master and one who is in his power no obligation can be born. And therefore even if the slave has come into another’s power or has been manumitted, suit can be brought neither against him nor against the one in whose power he now is. Whence, if another’s slave has committed a noxious act against you and afterward he has begun to be in your power, the action is cut off, because it has been brought into that case in which it could not subsist: and therefore, although he has gone out of your power, you cannot sue—just as, if a master has committed something against his own slave, not even if the slave has been manumitted or alienated can he have any action against the master.
Sed veteres quidem haec et in filiisfamilias masculis et feminis admiserunt. nova autem hominum conversatio huiusmodi asperitatem recte respuendam esse existimavit et ab usu communi haec penitus recessit: quis enim patitur filium suum et maxime filiam in noxam alii dare, ut pene per corpus filii pater magis quam filius periclitetur, cum in filiabus etiam pudicitiae favor hoc bene excludit? et ideo placuit, in servos tantummodo noxales actiones esse proponendas, cum apud veteres legum commentatores invenimus saepius dictum, ipsos filiosfamilias pro suis delictis posse conveniri.
But indeed the ancients admitted these things even in filii familias, both male and female. But the new conversatio of mankind has judged that such asperity ought rightly to be rejected, and this has completely receded from common use: for who allows his son, and especially his daughter, to be given into noxa to another, such that almost through the body of the child the father rather than the child is imperiled, since in daughters also the favor of pudicitia properly excludes this? And therefore it has been decided that noxal actions are to be proposed only against slaves, although among the ancient commentators on the laws we find it often said that the filii familias themselves can be proceeded against for their own delicts.
Animalium nomine, quae ratione carent, si quidem lascivia aut fervore aut feritate pauperiem fecerint, noxalis actio lege duodecim tabularum prodita est (quae animalia, si noxae dedantur, proficiunt reo ad liberationem, quia ita lex duodecim tabularum scripta est); puta si equus calcitrosus calce percusserit aut bos cornu petere solitus petierit. haec autem actio in his quae contra naturam moventur locum habet: ceterum si genitalis sit feritas, cessat. Denique si ursus fugit a domino et sic nocuit, non potest quondam dominus conveniri, quia desiit dominus esse, ubi fera evasit.
Under the designation “animals,” which lack reason, if indeed through wantonness or heat or ferity they have caused impoverishment, a noxal action is provided by the law of the Twelve Tables (which animals, if they are surrendered noxally, profit the defendant toward liberation, because thus the law of the Twelve Tables is written); for instance, if a kicking horse has struck with a kick, or an ox accustomed to charge with its horn has charged. Moreover, this action has a place in those which are moved against nature: but if the ferity is congenital, it ceases. Finally, if a bear has fled from its master and thus has harmed, the former master cannot be convened, because he ceased to be master when the wild beast escaped.
Ceterum sciendum est. aedilitio edicto prohiberi nos canem, verrem, aprum, ursum, leonem ibi habere qua vulgo iter fit: et si adversus ea factum erit et nocitum homini libero esse dicetur, quod bonum et aequum iudici videtur, tanti dominus condemnetur, ceterarum rerum, quanti damnum datum sit, dupli. praeter has autem aedilicias actiones et de pauperie locum habebit: numquam enim actiones praesertim poenales de eadem re concurrentes alia aliam consumit.
Moreover it must be known. by the aedilician edict we are prohibited to keep a dog, a boar (a male swine), a wild boar, a bear, a lion in a place where people commonly make their way: and if anything is done contrary to these and it will be said that harm has been done to a free man, the owner shall be condemned in such amount as seems good and equitable to the judge, for other things, to twice the amount of the damage done. besides these aedilician actions, the action de pauperie also will have a place: for never do actions, especially penal ones, concurrent concerning the same matter, one consume another.
Nunc admonendi sumus, agere posse quemlibet aut suo nomine aut alieno. alieno veluti procuratorio, tutorio, curatorio, cum olim in usu fuisset, alterius nomine agere non posse nisi pro populo, pro libertate, pro tutela. praeterea lege Hostilia permissum est furti agere eorum nomine qui apud hostes essent aut rei publicae causa abessent quive in eorum cuius tutela essent.
Now we must be advised that anyone can act either in his own name or in another’s. in another’s, for example in a procuratorial, tutelary, or curatorial capacity, whereas formerly the practice had been that one could not act in another’s name except on behalf of the people, on behalf of liberty, or on behalf of guardianship. moreover, by the Hostilian Law it is permitted to bring an action for theft in the name of those who were among the enemy or were absent for the sake of the Republic, or of those who were in the tutelage of such persons.
and because this had no small inconvenience, that it was not permitted, in another’s name, either to bring an action or to receive/meet an action, people began to litigate through procurators: for sickness and age and necessary peregrination, as well as many other causes, are often an impediment, whereby they are less able to prosecute their own matter themselves. A procurator is constituted neither by fixed words nor with the adversary present—indeed, for the most part with him unaware of it: for whoever you permit to act or to defend your case is understood to be a procurator. How tutors and curators are constituted has been set forth in the first book.
Olim enim si in rem agebatur, satisdare possessor compellebatur, ut, si victus nec rem ipsam restitueret nec litis aestimationem, potestas esset petitori aut cum eo agendi aut cum fideiussoribus eius. quae satisdatio appellabatur iudicatum solvi: unde autem sic appellabatur, facile est intellegere. namque stipulabatur quis, ut solveretur sibi quod fuerit iudicatum.
For formerly indeed, if an action in rem was being prosecuted, the possessor was compelled to give security, so that, if defeated, he should neither restore the thing itself nor the valuation of the suit, there would be power for the petitioner either to proceed against him or against his sureties. This security was called iudicatum solvi: and why it was so called is easy to understand. For one would stipulate that what had been adjudged be paid to him.
Much more, the one who was sued by an in rem action was compelled to give surety, if he accepted the suit in another’s name. But the one who himself was bringing an in rem action, if he was claiming in his own name, was not compelled to give surety. A procurator, however, if he was bringing an in rem action, was ordered to give surety that the owner would hold the matter ratified; for there was a danger that the owner might try again concerning the same thing.
but if, however, it was in personam, on the actor’s (plaintiff’s) side the same things obtained which we said in the action in which one proceeds in rem. but on the side of the one against whom suit is brought, if indeed someone intervened in another’s name, he in every way furnished surety, since no defender in another’s matter is considered adequate without suretyship. but if someone accepted a suit in personam in his own name, he was not compelled to furnish surety that the adjudged sum be paid (iudicatum solvi).
Sed haec hodie aliter observantur. sive enim quis in rem actione convenitur sive personali suo nomine, nullam satisdationem propter litis aestimationem dare compellitur; sed pro sua tantum persona, quod in iudicio permaneat usque ad terminum litis, vel committitur suae promissioni cum iureiurando, quam iuratoriam cautionem vocant, vel nudam promissionem vel satisdationem pro qualitate personae suae dare compellitur. Sin autem per procuratorem lis vel infertur vel suscipitur, in actoris quidem persona, si non mandatum actis insinuatum est vel praesens dominus litis in iudicio procuratoris sui personam confirmaverit, ratam rem dominum habiturum satisdationem procurator dare compellitur, eodem observando et si tutor vel curator, vel aliae tales personae quae alienarum rerum gubernationem receperunt, litem quibusdam per alium inferunt.
But these matters today are observed otherwise. For whether someone is sued by an action in rem or by a personal action in his own name, he is not compelled to give any surety on account of the valuation of the suit; but only for his own person, that he will remain in the proceeding up to the end of the litigation, either it is committed to his own promise with an oath—which they call juratory caution—or he is compelled to give a naked promise, or surety according to the quality of his person. But if the suit is either brought or undertaken through a procurator, then on the plaintiff’s side, if the mandate has not been entered in the record, or the present master of the suit has not in court confirmed the person of his procurator, the procurator is compelled to give surety that the master will have the matter ratified; the same is to be observed also if a tutor or curator, or other such persons who have received the governance of others’ affairs, bring a suit for certain persons through another.
But if someone is sued, if indeed, being present, he is prepared to provide a procurator, he can either himself come into court and confirm for the person of his procurator the solemn stipulations of the iudicatum solvi satisdatio, or set forth a satisdatio outside of court, by which he himself becomes fideiussor for his procurator for all the clauses of the iudicatum solvi satisdatio. In this case he is also compelled to agree concerning a hypotheca of his goods, whether he has promised in court or has given security outside of court, so that both he himself and his heirs are bound: another safeguard besides, either a cautela or a satisdatio, must be set forth on account of his person, to the effect that at the time of the sentence to be recited he will be found in court, or, if he does not come, the fideiussor will pay all things that are contained in the condemnation unless there has been an appeal. But if the defendant is not at hand for whatever cause and another is willing to undertake the defense, with no difference to be introduced between actions in rem or personal actions, he can do this, provided, however, that he furnish a satisdatio iudicatum solvi pro litis aestimatione.
for no one, according to the old rule, as has already been said, is understood to be a suitable defender of another’s matter without satisdation. All these things more clearly and most perfectly appear from the everyday practice of the courts in the very documents of the cases. We judge that this form holds not only in this royal city, but also in all our provinces, although perhaps on account of inexperience they are conducted otherwise; since it is necessary that all the provinces follow the head of all our cities, that is, this royal city, and its observance.
Hoc loco admonendi sumus, eas quidem actiones quae ex lege senatusve consulto sive ex sacris constitutionibus proficiscuntur, perpetuo solere antiquitus competere, donec sacrae constitutiones tam in rem quam personalibus actionibus certos fines dederunt: eas vero quae ex propria praetoris iurisdictione pendent, plerumque intra annum vivere (nam et ipsius praetoris intra annum erat imperium). aliquando tamen et in perpetuum extenduntur, id est usque ad finem constitutionibus introductum, quales sunt hae quas bonorum possessori, ceterisque qui heredis loco sunt, accommodat. furti quoque manifesti actio, quamvis ex ipsius praetoris iurisdictione proficiscatur, tamen perpetuo datur: absurdum enim esse existimavit anno eam terminari.
At this point we must be reminded that those actions which proceed from statute or senatorial decree or from sacred constitutions were of old accustomed to be perpetual, until the sacred constitutions set fixed limits both to real and to personal actions; but those which depend on the praetor’s own jurisdiction for the most part live within a year (for the praetor’s own imperium was within a year). Sometimes, however, they are even extended in perpetuity, that is, up to the endpoint introduced by the constitutions, such as those which he furnishes to the possessor of the estate and to the others who are in the place of an heir. The action for manifest theft also, although it proceeds from the praetor’s own jurisdiction, nevertheless is given perpetually: for he thought it absurd that it be terminated by a year.
Non omnes autem actiones quae in aliquem aut ipso iure competunt aut a praetore dantur et in heredem aeque competunt aut dari solent. est enim certissima iuris regula, ex maleficiis poenales actiones in heredem non competere, veluti furti, vi bonorum raptorum, iniuriarum, damni iniuriae. sed heredibus huiusmodi actiones competunt nec denegantur, excepta iniuriarum actione et si qua alia similis inveniatur.
However, not all actions which either by the law itself lie against someone or are granted by the praetor likewise lie or are wont to be granted against the heir. For it is a most certain rule of law that, from delicts, penal actions do not lie against the heir, such as for theft, for goods seized by force, for outrages, for wrongful damage. But to the heirs actions of this kind lie and are not denied, except for the action of outrages, and if any other similar one be found.
Sometimes, however, even an action from contract does not lie against the heir, when the testator has acted fraudulently and nothing from that fraud has come to his heir. But penal actions, which we said above, if they have been instituted by the principal persons themselves, are both given to the heirs and pass against the heirs.
Superest ut admoneamus quod si ante rem iudicatam is cum quo actum est satisfaciat actori, officio iudicis convenit eum absolvere, licet iudicii accipiendi tempore in ea causa fuisset, ut damnari debeat: et hoc est, quod ante vulgo dicebatur, omnia iudicia absolutoria esse.
It remains to admonish that, if before res judicata the party against whom suit has been brought satisfies the plaintiff, it accords with the office of the judge to absolve him, although at the time of accepting the iudicium he was in such a case that he ought to be condemned; and this is what formerly was commonly said: that all iudicia are absolutory.
Sequitur ut de exceptionibus dispiciamus. comparatae sunt autem exceptiones defendendorum eorum gratia cum quibus agitur: saepe enim accidit, ut, licet ipsa actio qua actor experitur iusta sit, tamen iniqua sit adversus eum cum quo agitur. Verbi gratia si metu coactus aut dolo inductus aut errore lapsus stipulanti Titio promisisti quod non debueras promittere, palam est, iure civili te obligatum esse, et actio qua intenditur dare te oportere, efficax est: sed iniquum est te condemnari, ideoque datur tibi exceptio metus causa aut doli mali aut in factum composita ad impugnandam actionem.
It follows that we should examine exceptions. Exceptions, moreover, have been devised for the sake of defending those against whom suit is brought: for it often happens that, although the very action by which the actor prosecutes is just, nevertheless it is inequitable against him with whom it is brought. For example, if, compelled by fear or induced by fraud or slipping by error, you promised to Titius, who was stipulating, what you ought not to have promised, it is clear that by civil law you are bound, and the action by which it is intended that you ought to give is effective; but it is inequitable that you be condemned, and therefore an exception is given to you by reason of fear or of evil fraud, or one framed on the facts, for attacking the action.
It is the same in law, if someone, as if for the sake of lending, has stipulated money and has not counted it out. For it is certain that he can demand that money from you: for you ought to give, since you are bound ex stipulatu. But because it is inequitable that you be condemned on that account, it is held that you ought to be defended by the exception of money not counted, the time-limits of which we, according to what has already been written in the preceding books, have curtailed by our constitution. Moreover, if the debtor has made a pact with the creditor that suit not be brought against him, nevertheless he remains obligated, because obligations are not in every respect dissolved by a concluded pact: for which reason the action is effective against him by which the plaintiff alleges IF IT APPEARS THAT HE OUGHT TO GIVE.
but because it is inequitable that he be condemned contrary to the pact, he is defended by the exception of a pact agreed. Likewise, if the debtor, the creditor tendering the oath, shall have sworn that he ought to give nothing, he nevertheless remains bound: but because it is inequitable to inquire into perjury, he is defended by the exception of an oath. In those actions too in which one proceeds in rem, exceptions are equally necessary: for example, if, with the claimant tendering the oath, the possessor shall have sworn that that thing is his, and nonetheless the claimant vindicates the same thing: for although what he alleges is true, that is, that the thing is his, yet it is inequitable that the possessor be condemned.
Likewise, if it has been proceeded against you by judgment, whether in rem or in personam, nonetheless on that account the action endures, and therefore by the law itself thereafter suit can be brought against you concerning the same matter; but you ought to be aided by the exception of res iudicata. To have set down these things by way of example will suffice. Otherwise, how from many and various causes exceptions are necessary can be understood from the more expansive books of the Digests or Pandects.
Appellantur autem exceptiones aliae perpetuae et peremptoriae, aliae temporales et dilatoriae. Perpetuae et peremptoriae sunt, quae semper agentibus obstant et semper rem de qua agitur peremunt: qualis est exceptio doli mali et quod metus causa factum est et pacti conventi, cum ita convenerit, ne omnino pecunia peteretur. Temporales atque dilatoriae sunt quae ad tempus nocent et temporis dilationem tribuunt: qualis est pacti conventi, cum convenerit, ne intra certum tempus ageretur, veluti intra quinquennium, nam finito eo tempore non impeditur actor rem exsequi.
Now exceptions are called, some perpetual and peremptory, others temporal and dilatory. Perpetual and peremptory are those which always obstruct those bringing suit and always extinguish the matter in dispute: such is the exception of evil fraud, and of what was done by reason of fear, and of a pact convened, when it has been agreed thus that money not be demanded at all. Temporal and dilatory are those which harm for a time and grant a postponement of time: such is that of a pact convened, when it has been agreed that no action be brought within a certain time, as, for instance, within five years; for when that time has ended, the plaintiff is not hindered from pursuing the matter.
therefore those against whom, when wishing to act within the time, an exception either of pacti conventi or another similar is raised, ought to defer the action and proceed after the time: for these exceptions are for this reason also called dilatory. Otherwise, if they should act within the time and the exception be objected, they would obtain nothing in that trial because of the exception, nor after the time in former practice could they bring an action, since they were rashly bringing the matter into judgment and consuming it, whereby they lost the matter. But today we do not wish these things to proceed so strictly; rather we judge that he who has dared to bring a suit before the time of the pact or obligation is subject to the Zeno-nian constitution, which the most sacred legislator brought forth concerning those who demanded more in respect of time, to the effect that both the reprieves, which he has despised—whether the plaintiff himself had voluntarily granted them or the nature of the action contains them—those who have suffered such an injury shall have in double; and after these are finished, the suit is not otherwise to be undertaken unless all the expenses of the suit have first been received, so that plaintiffs, terrified by such a penalty, may be taught to observe the times of lawsuits.
Moreover, there are also dilatory exceptions arising from the person: such as procuratorial ones, as for instance if someone wishes to act through a soldier or a woman; for to soldiers it is not conceded to litigate either on behalf of a father or mother or wife, nor—by sacred rescript—to proceed under a procuratorial title; yet they can attend to their own affairs without offense to discipline. But as for those exceptions which formerly were opposed to procurators on account of infamy, whether of the appointer or of the procurator himself, since we have perceived that they are in no way frequented in the courts, we ordain that they fall quiet, lest, while there is wrangling about these, the very dispute of the business be protracted.
Interdum evenit ut exceptio quae prima facie iusta videatur, inique noceat. quod cum accidit, alia allegatione opus est adiuvandi actoris gratia, quae replicatio vocatur, quia per eam replicatur atque resolvitur vis exceptionis. veluti cum pactus est aliquis cum debitore suo, ne ab eo pecuniam petat, deinde postea in contrarium pacti sunt, id est ut petere creditori liceat: si agat creditor et excipiat debitor, ut ita demum condemnetur, si non convenerit, ne eam pecuniam creditor petat, nocet ei exceptio; convenit enim ita, etiamque nihilo minus hoc verum manet, licet postea in contrarium pacti sunt.
Sometimes it happens that an exception which at first sight seems just harms inequitably. When that occurs, there is need of another allegation for the sake of aiding the plaintiff, which is called a replication, because through it the force of the exception is replicated and resolved. For example, when someone has bargained with his debtor that he not seek money from him, and then afterwards they have bargained to the contrary, that is, that it be permitted to the creditor to sue: if the creditor brings suit and the debtor pleads by way of exception that he be condemned only if it has not been agreed that the creditor should not demand that money, the exception harms him; for it was indeed so agreed, and this remains nonetheless true, although afterwards they have bargained to the contrary.
Rursus interdum evenit ut replicatio quae prima facie iusta sit, inique noceat. quod cum accidit, alia allegatione opus est adiuvandi rei gratia, quae duplicatio vocatur. Et si rursus ea prima facie iusta videatur, sed propter aliquam causam inique actori noceat, rursus allegatione alia opus est, qua actor adiuvetur, quae dicitur triplicatio.
Again, it sometimes happens that a replication which is prima facie just harms unjustly. When this occurs, there is need of another allegation for the sake of aiding the defendant, which is called a duplication. And if again that appears prima facie just, but for some cause unjustly harms the plaintiff, again there is need of another allegation by which the plaintiff is aided, which is called a triplication.
Exceptiones autem quibus debitor defenditur plerumque accommodari solent etiam fideiussoribus eius: et recte, quia, quod ab his petitur, id ab ipso debitore peti videtur, quia mandati iudicio redditurus est eis quod hi pro eo solverint. qua ratione et si de non petenda pecunia pactus quis cum reo fuerit, placuit, proinde succurrendum esse per exceptionem pacti conventi illis quoque qui pro eo obligati essent, ac si et cum ipsis pactus esset, ne ab eis ea pecunia peteretur. sane quaedam exceptiones non solent his accommodari.
Moreover, the exceptions by which a debtor is defended are for the most part accustomed to be applied also to his sureties; and rightly so, because what is demanded from them is deemed to be demanded from the debtor himself, since by an action of mandate he will be bound to restore to them what they have paid on his behalf. On this reasoning, even if someone has made a pact with the defendant for money not to be demanded, it has been decided that relief should likewise be afforded, through the exception of pactum conventum, to those also who had been obligated for him, as if he had likewise made a pact with them that that money not be sought from them. To be sure, certain exceptions are not usually accommodated to these persons.
Behold, if the debtor has surrendered his goods and the creditor proceeds against him, he is defended by the exception UNLESS HE HAS SURRENDERED HIS GOODS: but this exception is not given to fideiussors (sureties), namely for this reason: he who obligates others on behalf of the debtor has this especially in view, that, when the debtor has fallen from his means, he may be able to obtain what is his from those whom he obligated for him.
Sequitur ut dispiciamus de interdictis seu actionibus quae pro his exercentur. erant autem interdicta formae atque conceptiones verborum, quibus praetor aut iubebat aliquid fieri aut fieri prohibebat. quod tum maxime faciebat, cum de possessione aut quasi possessione inter aliquos contendebatur.
It follows that we should examine interdicts, or the actions which are exercised on their behalf. Now interdicts were forms and conceptions of words, by which the praetor either ordered something to be done or forbade it to be done. This he did especially when a dispute was being contested between certain persons about possession or quasi-possession.
Summa autem divisio interdictorum haec est, quod aut prohibitoria sunt aut restitutoria aut exhibitoria. prohibitoria sunt quibus vetat aliquid fieri, veluti vim sine vitio possidenti, vel mortuum inferenti quo ei ius erit inferendi, vel in loco sacro aedificari, vel in flumine publico ripave eius aliquid fieri quo peius navigetur. restitutoria sunt quibus restitui aliquid iubet, veluti bonorum possessori possessionem eorum quae quis pro herede aut pro possessore possidet ex ea hereditate, aut cum iubet ei qui vi possessione fundi deiectus sit restitui possessionem.
The highest division of interdicts is this: they are either prohibitory, or restitutory, or exhibitory. Prohibitory are those by which the praetor forbids something to be done, for example, violence against one possessing without fault, or hindering one bringing in a corpse to a place where he will have the right of bringing it, or building in a sacred place, or anything being done in a public river or on its bank whereby navigation is made worse. Restitutory are those by which he orders that something be restored, for example, to the possessor of the goods the possession of those things which someone possesses from that inheritance as heir or as possessor, or when he orders that possession be restored to him who has been ejected by force from the possession of a farm.
Exhibitory are those by which he orders something to be exhibited, as, for example, the person whose liberty is in question, or a freedman upon whom the patron wishes to impose services, or to a parent the children who are in his power. There are, however, those who think that properly those are called interdicts which are prohibitory, because to interdict is to denounce and to prohibit; but restitutory and exhibitory are properly called decrees. Nevertheless, it has prevailed that all are called interdicts, because they are pronounced between two parties.
Adipiscendae possessionis causa interdictum accommodatur bonorum possessori, quod appellatur QUORUM BONORUM, eiusque vis et potestas haec est, ut, quod ex his bonis quisque quorum possessio alicui data est, pro herede aut pro possessore possideat, id ei cui bonorum possessio data est restituere debeat. pro herede autem possidere videtur qui putat se heredem esse: pro possessore is possidet qui nullo iure rem hereditariam, vel etiam totam hereditatem, sciens ad se non pertinere, possidet. ideo autem adipiscendae possessionis vocatur interdictum, quia ei tantum utile est qui nunc primum conatur adipisci rei possessionem: itaque si quis adeptus possessionem amiserit eam, hoc interdictum ei inutile est.
For the sake of acquiring possession an interdict is accommodated to the bonorum possessor, which is called QUORUM BONORUM; and its force and power are this: that whatever, from these goods of which possession has been given to someone, anyone possesses pro herede or pro possessore, he must restore that to him to whom the possession of the goods has been given. He is considered to possess pro herede who thinks himself to be heir; he possesses pro possessore who, with no right, possesses an hereditary thing, or even the whole inheritance, knowing it does not pertain to him. And therefore it is called an interdict of acquiring possession, because it is only useful to him who now for the first time attempts to acquire possession of the thing; and so, if someone, having acquired possession, has lost it, this interdict is useless to him.
Retinendae possessionis causa comparata sunt interdicta UTI POSSIDETIS et UTRUBI, cum ab utraque parte de proprietate alicuius rei controversia sit et ante quaeritur, uter ex litigatoribus possidere et uter petere debeat. namque nisi ante exploratum fuerit, utrius eorum possessio sit, non potest petitoria actio institui, quia et civilis et naturalis ratio facit ut alius possideat, alius a possidente petat. et quia longe commodius est possidere potius quam petere, ideo plerumque et fere semper ingens existit contentio de ipsa possessione.
For the purpose of retaining possession the interdicts UTI POSSIDETIS and UTRUBI have been devised, when on both sides there is a controversy over the proprietorship of some thing, and first it is inquired which of the litigants ought to possess and which ought to petition. For unless it has first been ascertained whose possession it is, a petitory action cannot be instituted, since both civil and natural reason effect that one should possess, another should seek from the possessor. And because it is far more advantageous to possess rather than to seek, therefore for the most part, and almost always, a great contention arises about possession itself.
The advantage of possessing lies in this, that even if the thing is not his who possesses, yet if only the plaintiff cannot prove it to be his own, the possession remains in its place; for which cause, when the rights of both are obscure, judgment is wont to be given against the petitioner. But by the interdict UTI POSSIDETIS the contest is about the possession of a farm (fundi) or of buildings (aedium), whereas by the interdict UTRUBI it is about the possession of movable things. The force and potency of these had among the ancients a very great difference between themselves: for under the interdict UTI POSSIDETIS he prevailed who at the time of the interdict was in possession, provided he had not acquired the possession from his adversary by force, by stealth, or by precarium, even if he had expelled another by force, or had secretly snatched away another’s possession, or had requested someone by way of precarium that it be permitted him to possess for himself; under the interdict UTRUBI, however, he prevailed who for the greater part of that year was possessing as against his adversary neither by force, nor by stealth, nor by precarium.
today, however, it is otherwise observed; for the power of both interdicts, insofar as it pertains to possession, has been equalized, so that he prevails, both in a matter of land and in a matter of movables, who at the time of the contestation of the suit holds the possession neither by force, nor secretly, nor by permission at will. Moreover, each is considered to possess not only if he himself possesses, but also if someone is in possession in his name, although that person is not subject to his legal power, such as a colonus and an inquilinus; through those also with whom one has deposited something or to whom he has lent it, he himself is deemed to possess; and this is what is said, that someone can retain possession through anyone who is in possession in his name. Indeed, it is also accepted that possession is retained by intention, that is, although neither he himself is in possession nor another in his name, nevertheless, if he has departed from there not with the intent of relinquishing possession, but intending to return later, he is deemed to retain possession.
Reciperandae possessionis causa solet interdici si quis ex possessione fundi vel aedium vi deiectus fuerit; nam ei proponitur interdictum UNDE VI, per quod is qui deiecit cogitur ei restituere possessionem, licet is ab eo qui vi deiecit, vi vel clam vel precario possidebat. sed ex sacris constitutionibus, ut supra diximus si quis rem per vim occupaverit, si quidem in bonis eius est. dominio eius privatur, si aliena, post eius restitutionem etiam aestimationem rei dare vim passo compellitur.
For the sake of recovering possession it is customary that an interdict be issued, if someone has been cast out by force from the possession of an estate or of buildings; for the interdict UNDE VI is proposed to him, by which the one who ejected him is compelled to restore possession to him, although he had been possessing from the very one who ejected him by force, either by force or secretly or on sufferance. But by the sacred constitutions, as we said above, if someone has occupied a thing by force, if indeed it is among his goods. He is deprived of its dominion; if it is another’s, after its restitution he is also compelled to give the valuation of the thing to the one who suffered the force.
But whoever has cast someone out of possession by force is liable under the Julian law on private violence or on public violence: under the law on private violence, if he used force without arms; but if he expelled him from possession with arms, under the law on public violence. Moreover, by the appellation “arms” we understand not only shields and swords and helmets to be signified, but also clubs and stones.
Tertia divisio interdictorum haec est, quod aut simplicia sunt aut duplicia. simplicia sunt, in quibus alter actor, alter reus est: qualia sunt omnia restitutoria aut exhibitoria: namque actor est qui desiderat aut exhiberi aut restitui reus is a quo desideratur ut restituat aut exhibeat. prohibitoriorum autem interdictorum alia simplicia sunt, alia duplicia.
The third division of interdicts is this: that they are either simple or double. Simple are those in which the one is actor, the other defendant: such as are all restitutory or exhibitory; for the actor is he who desires that something be exhibited or restored, the defendant is he from whom it is desired that he restore or exhibit. But among prohibitory interdicts some are simple, others double.
simple are, as when the praetor prohibits something to be done in a sacred place or in a public river or on its bank (for the plaintiff is he who desires that nothing be done, the defendant he who attempts to do something): double are, as the UTI POSSIDETIS interdict and the UTRUBI. ideo, moreover, they are called double because the condition of each litigant in them is equal, and no one is understood particularly as defendant or plaintiff, but each bears the part both of defendant and of plaintiff.
De ordine et veteri exitu interdictorum supervacuum est hodie dicere: nam quotiens extra ordinem ius dicitur, qualia sunt hodie omnia iudicia, non est necesse reddi interdictum, sed perinde iudicatur sine interdictis atque si utilis actio ex causa interdicti reddita fuisset.
About the order and the ancient outcome of interdicts it is superfluous today to speak; for whenever law is administered outside the ordinary course—as all proceedings today are—it is not necessary for an interdict to be issued, but judgment is rendered without interdicts just as if a “useful action” arising from the cause of the interdict had been granted.
Nunc admonendi sumus, magnam curam egisse eos qui iura sustinebant, ne facile homines ad litigandum procederent: quod et nobis studio est. idque eo maxime fieri potest, quod temeritas tam agentium quam eorum cum quibus agitur, modo pecuniaria poena, modo iurisiurandi religione, modo metu infamiae coercetur. Ecce enim iusiurandum omnibus qui conveniuntur ex nostra constitutione defertur: nam reus non aliter suis allegationibus utitur, nisi prius iuraverit, quod putans se bona instantia uti ad contradicendum pervenit.
Now we must be admonished that those who upheld the laws took great care that men should not easily proceed to litigate—a zeal which is also ours. And this can most especially be brought about because the rashness both of plaintiffs and of those with whom it is litigated is restrained now by a pecuniary penalty, now by the religion/sanctity of an oath, now by fear of infamy. For behold, by our constitution an oath is tendered to all who are summoned: for the defendant does not otherwise make use of his allegations unless he has first sworn, thinking that, by this, he comes to contradict employing good insistence.
but against deniers, in certain causes an action for double is established, as, for example, if suit is brought in the name of wrongful damage or of legacies left to venerable places. but straightway from the beginning the action is for more than single, as in manifest theft fourfold, in non‑manifest theft double: for in these causes and certain others, whether one denies or confesses, the action is for more than single.
Item actoris quoque calumnia coercetur: nam etiam actor pro calumnia iurare cogitur ex nostra constitutione. utriusque etiam partis advocati iusiurandum subeunt, quod alia nostra constitutione comprehensum est. haec autem omnia pro veteris calumniae actione introducta sunt, quae in desuetudinem abiit, quia in partem decimam litis actorem multabat, quod nusquam factum esse invenimus: sed pro his introductum est et praefatum iusiurandum et ut improbus litigator etiam damnum et impensas litis inferre adversario suo cogatur.
Likewise the plaintiff’s calumny is restrained: for even the plaintiff is compelled by our constitution to swear an oath against calumny. The advocates of each party also undergo an oath, which is comprised in another of our constitutions. But all these things have been introduced in place of the old action of calumny, which has passed into desuetude, because it used to fine the plaintiff a tenth part of the suit, which we have found to have been done nowhere: but instead of these there has been introduced both the aforesaid oath, and that a shameless litigator be compelled also to pay to his adversary the damage and the expenses of the suit.
Ex quibusdam iudiciis damnati ignominiosi fiunt, veluti furti, vi bonorum raptorum, iniuriarum, de dolo, item tutelae, mandati, depositi, directis non contrariis actionibus, item pro socio, quae ab utraque parte directa est, et ob id quilibet ex sociis eo iudicio damnatus ignominia notatur. sed furti quidem aut vi bonorum raptorum aut iniuriarum aut de dolo non solum damnati notantur ignominia, sed etiam pacti: et recte; plurimum enim interest, utrum ex delicto aliquis an ex contractu debitor sit.
From certain judgments, the condemned become ignominious, as in theft, in the violent carrying-off of goods, in injuries, in an action on fraud, likewise in guardianship, mandate, deposit, by direct and not by contrary actions; likewise in the action pro socio, which is directed by either party, and for that reason any one of the partners condemned in that judgment is marked with ignominy. But in matters of theft or of violent carrying-off of goods or of injuries or of fraud, not only are those condemned marked with ignominy, but even those who have made a pact; and rightly so, for it makes a very great difference whether someone is a debtor from a delict or from a contract.
Omnium autem actionum instituendarum principium ab ea parte edicti proficiscitur qua praetor edicit de in ius vocando: utique enim in primis adversarius in ius vocandus est, id est ad eum vocandus est qui ius dicturus sit. qua parte praetor parentibus et patronis, item liberis parentibusque patronorum et patronarum hunc praestat honorem ut non aliter liceat liberis libertisque eos in ius vocare quam si id ab ipso praetore postulaverint et impetraverint: et si quis aliter vocaverit, in eum poenam solidorum quinquaginta constituit.
But the beginning of instituting all actions proceeds from that part of the edict in which the praetor proclaims concerning calling into court: for necessarily, first of all, the adversary must be called into court, that is, he must be called to him who is to speak the law. In this part the praetor grants this honor to parents and patrons, likewise to the children and parents of patrons and patronesses, that it is not otherwise permitted for children and freedmen to call them into court unless they have requested and obtained this from the praetor himself: and if anyone shall have summoned otherwise, he establishes against him a penalty of fifty solidi.
Superest ut de officio iudicis dispiciamus. et quidem in primis illud observare debet iudex, ne aliter iudicet quam legibus aut constitutionibus aut moribus proditum est. Ideo si noxali iudicio addictus est, observare debet ut, si condemnandus videbitur dominus, ita debeat condemnare: PUBLIUM MAEVIUM LUCIO TITIO DECEM AUREIS CONDEMNO AUT NOXAM DEDERE.
It remains that we examine the office of the judge. And indeed, first of all the judge ought to observe this: that he not judge otherwise than as has been handed down by laws or constitutions or customs. Therefore, if it is a noxal action, he must observe that, if the master shall seem to be one who must be condemned, he should condemn in this way: I CONDEMN PUBLIUS MAEVIUS TO LUCIUS TITIUS IN TEN GOLD PIECES, OR TO SURRENDER THE WRONGDOER.
Et si in rem actum sit, sive contra petitorem iudicavit, absolvere debet possessorem, sive contra possessorem, iubere eum debet ut rem ipsam restituat cum fructibus. sed si in praesenti neget se possessor restituere posse et sine frustratione videbitur tempus restituendi causa petere, indulgendum est ei, ut tamen de litis aestimatione caveat cum fideiussore, si intra tempus quod ei datum est non restituisset. et si hereditas petita sit, eadem circa fructus interveniunt quae diximus intervenire in singularum rerum petitione.
And if the action has been in rem, whether he has judged against the petitioner, he ought to absolve the possessor; or whether against the possessor, he ought to order him to restore the thing itself with the fruits. But if at present the possessor denies that he can restore, and it seems that he seeks time for the sake of restoring without trickery, indulgence is to be granted to him, provided, however, that he give security, with a surety, for the estimation of the suit, if within the time that has been given to him he should not have restored. And if an inheritance has been claimed, the same things intervene concerning the fruits as we said intervene in the petition of individual things.
But as to those fruits which the possessor did not take by his own fault, in either action nearly the same reckoning is held, if he was a plunderer. If indeed he was a good-faith possessor, no account is taken either of what has been consumed or of what has not been collected; however, after the suit has been initiated, account is also taken of those which were not collected through the possessor’s fault, or, having been collected, were consumed.
Si ad exhibendum actum fuerit, non sufficit si exhibeat rem is cum quo actum est, sed opus est ut etiam causam rei debeat exhibere, id est ut eam causam habeat actor quam habiturus esset si cum primum ad exhibendum egisset exhibita res fuisset: ideoque si inter moras usucapta sit res a possessore, nihilo minus condemnabitur. praeterea fructuum medii temporis, id est eius quod post acceptum ad exhibendum iudicium ante rem iudicatam intercessit, rationem habere debet iudex. quod si neget is cum quo ad exhibendum actum est in praesenti exhibere se posse et tempus exhibendi causa petat idque sine frustratione postulare videatur, dari et debet, ut tamen caveat, se restituturum: quod si neque statim iussu iudicis rem exhibeat neque postea exhibiturum se caveat, condemnandus est in id quod actoris intererat ab initio rem exhibitam esse.
If an action ad exhibendum has been brought, it is not sufficient if the one against whom the action is brought exhibits the thing, but it is needful that he must also exhibit the cause of the thing, that is, that the plaintiff have that cause which he would have had if, when he first proceeded ad exhibendum, the thing had been exhibited: and therefore, if amid the delays the thing has been usucapted by the possessor, he will nonetheless be condemned. Moreover, the judge ought to have regard to the fruits of the intermediate time, that is, of that which intervened after the adjudication ad exhibendum was accepted before the matter was adjudged. But if the one against whom the action ad exhibendum has been brought says that he cannot at present exhibit and asks time for the sake of exhibiting, and he appears to request this without pretext, it both can and should be granted, provided however that he give security that he will restore: but if he neither at once by the judge’s order exhibits the thing nor afterwards gives security that he will exhibit, he must be condemned in the amount in which it was to the plaintiff’s interest that the thing have been exhibited from the beginning.
Si familiae erciscundae iudicio actum sit, singulas res singulis heredibus adiudicare debet et, si in alterius persona praegravare videatur adiudicatio, debet hunc invicem coheredi certa pecunia, sicut iam dictum est, condemnare. eo quoque nomine coheredi quisque suo condemnandus est, quod solus fructus hereditarii fundi percepit aut rem hereditariam corrupit aut consumpsit. quae quidem similiter inter plures quoque quam duos coheredes subsequuntur.
If it has been proceeded with by the action for dividing the family estate, he ought to adjudge individual things to individual heirs; and, if the adjudication appears to weigh too heavily upon one person, he ought, as already said, to condemn this one in turn to his coheir in a fixed sum of money. Also on this ground each is to be condemned to his coheir: because he alone has taken the fruits of the hereditary farm, or has spoiled or consumed an hereditary thing. And indeed the same consequences ensue among several coheirs as well as between two.
Eadem interveniunt et si communi dividundo de pluribus rebus actum fuerit. quod si de una re, veluti de fundo, si quidem iste fundus commode regionibus divisionem recipiat, partes eius singulis adiudicare debet et, si unius pars praegravare videbitur, is invicem certa pecunia alteri condemnandus est: quodsi commode dividi non possit, vel homo forte aut mulus erit de quo actum sit, uni totus adiudicandus est et is alteri certa pecunia condemnandus.
The same consequences ensue also if the action for dividing common property (communi dividundo) has been brought regarding several things. But if it is about one thing, for example about a farm, then if that farm suitably admits a division by regions, he ought to adjudicate its parts to the individuals; and if one person’s part will seem to preponderate, he in turn must be condemned to the other in a certain sum of money. But if it cannot be conveniently divided, or it will be, say, a person (slave) or a mule about which the action has been brought, the whole must be adjudicated to one, and that one must be condemned to the other in a certain sum of money.
Si finium regundorum actum fuerit, dispicere debet iudex, an necessaria sit adiudicatio. quae sane uno casu necessaria est, si evidentioribus finibus distingui agros commodius sit quam olim fuissent distincti; nam tunc necesse est ex alterius agro partem aliquam alterius agri domino adiudicari: quo casu conveniens est ut is alteri certa pecunia debeat condemnari. eo quoque nomine damnandus est quisque hoc iudicio, quod forte circa fines malitiose aliquid commisit, verbi gratia quia lapides finales furatus est aut arbores finales cecidit.
If an action for regulating boundaries has been brought, the judge ought to consider whether adjudication is necessary. This indeed is necessary in one case: if it is more convenient that the fields be distinguished by more evident boundaries than they had formerly been distinguished; for then it is necessary that some part be adjudicated from the field of the one to the owner of the other’s field: in which case it is fitting that he be condemned to owe the other a certain sum of money. One is also to be condemned in this action on this ground, that perhaps he has maliciously committed something concerning the boundaries, for example because he has stolen boundary-stones or has cut down boundary-trees.
also under the name of contumacy each person is condemned in that judgment, for example if someone, with the judge ordering, has not allowed the fields to be measured. But whatever has been adjudicated to someone by these judgments immediately becomes the property of him to whom it has been adjudged.
Publica iudicia neque per actiones ordinantur nec omnino quidquam simile habent ceteris iudiciis de quibus locuti sumus, magnaque diversitas est eorum et in instituendis et in exercendis. Publica autem dicta sunt quod cuivis ex populo exsecutio eorum plerumque datur. Publicorum iudiciorum quaedam capitalia sunt, quaedam non capitalia.
Public trials are neither arranged through actions nor do they have anything at all similar to the other trials about which we have spoken, and there is a great diversity of them both in their institution and in their exercise. They are called “public” because the prosecution of them is for the most part granted to anyone from the populace. Of public trials some are capital, some non-capital.
Likewise, the Julian Law on curbing adulteries, which punishes not only violators of others’ marriages with the sword, but also those who dare to exercise unspeakable lust with males. But by this same Julian Law the scandal/crime of stuprum is also punished, when someone without force has debauched either a virgin or a widow living honorably. The same law imposes upon the offenders, if they are of honorable rank, the publication of half their goods; if of low status, bodily coercion together with relegation.
Item lex Cornelia de sicariis, quae homicidas ultore ferro persequitur vel eos, "qui hominis occidendi causa cum telo ambulant." "telum" autem, ut Gaius noster in interpretatione legis duodecim tabularum scriptum reliquit, vulgo quidem id appellatur quod ab arcu mittitur, sed et omne significatur quod manu cuiusdam mittitur: sequitur ergo ut et lapis et lignum et ferrum hoc nomine contineatur. dictumque ab eo quod in longinquum mittitur, a Graeca voce figuratum, 
: et hanc significationem invenire possumus et in Graeco nomine: nam quod nos telum appellamus, illi
appellant 
admonet nos Xenophon; nam ita scripsit:
Likewise the Cornelian law concerning sicarii (assassins), which prosecutes homicides with avenging steel, or those “who walk about with a weapon for the purpose of killing a man.” Moreover, “telum,” as our Gaius has left written in his interpretation of the Law of the Twelve Tables, is commonly called that which is shot from a bow, but it also signifies anything that is thrown by someone’s hand: it follows, therefore, that both stone and wood and iron are contained under this name. And it is said to be named from that which is sent to a distance, formed from a Greek word, : and we can also find this signification in the Greek name: for what we call “telum,” they call, Xenophon reminds us; for thus he wrote:
Alia deinde lex asperrimum crimen nova poena persequitur, quae Pompeia de parricidiis vocatur. qua cavetur, ut, "si quis parentis aut filii, aut omino adfectionis eius quae nuncupatione parricidii continetur, fata properaverit, sive clam sive palam id" ausus fuerit, nec non is cuius dolo malo id factum est, vel conscius criminis existit, licet extraneus sit, "poena parricidii puniatur, et neque gladio neque ignibus neque ulli alii solemni poenae subiugetur, sed insutus culeo cum cane et gallo gallinaceo et vipera et simia et inter eius ferales angustias comprehensus," secundum quod regionis qualitas tulerit, "vel in vicinum mare vel in amnem proiciatur, ut omni elementorum usu vivus carere incipiat et ei caelum superstiti, terra mortuo auferatur." si quis autem alias cognatione vel adfinitate coniunctas personas necaverit, poenam legis Corneliae de sicariis sustinebit.
Another law then pursues the most grievous crime with a new penalty, which is called the Pompeian law on parricides. By it provision is made that, "if anyone has hastened the fates of a parent or a son, or of anyone at all of that relationship which is contained under the designation of parricide, whether he has dared this secretly or openly," and likewise he by whose malicious guile it has been done, or who is privy to the crime, although he be a stranger, "be punished with the penalty of parricide, and be subjected neither to the sword nor to fires nor to any other solemn penalty, but, sewn into a sack with a dog and a cock and a viper and an ape and confined within its funereal constrictions," according as the quality of the region has allowed, "let him be thrown either into the neighboring sea or into a river, so that he may begin, while alive, to lack all use of the elements, and that to him the sky be taken away while surviving, the earth when dead." But if anyone has killed other persons joined by consanguinity or by affinity, he will undergo the penalty of the Cornelian law on assassins.
Item lex Cornelia de falsis, quae etiam testamentaria vocatur, poenam irrogat ei qui testamentum vel aliud instrumentum falsum scripserit, signaverit, recitaverit, subiecerit, quive signum adulterinum fecerit, sculpserit, expresserit sciens dolo malo. eiusque legis poena in servos ultimum supplicium est, quod et in lege de sicariis et veneficis servatur, in liberos vero deportatio.
Likewise the Cornelian law concerning forgeries, which is also called the testamentary law, imposes a penalty on him who shall have written, sealed, read aloud, or substituted a false will or other instrument, or who shall have made, carved, or impressed a counterfeit seal, knowingly and with malicious deceit. And the penalty of this law for slaves is the ultimate punishment, which is also observed in the law concerning assassins and poisoners; but for the freeborn, deportation.
Item lex Iulia de vi publica seu privata adversus eos exoritur qui vim vel armatam vel sine armis commiserint. sed si quidem armata vis arguatur, deportatio ei ex lege Iulia de vi publica irrogatur: si vero sine armis, in tertiam partem bonorum publicatio imponitur. sin autem per vim raptus virginis vel viduae vel sanctimonialis, velatae vel aliae, fuerit perpetratus, tunc et peccatores et ii qui opem flagitio dederunt, capite puniuntur secundam nostrae constitutionis definitionem, ex qua haec apertius possibile est scire.
Likewise the Julian law on public or private violence arises against those who have committed force, either armed or unarmed. But if armed force be proved, deportation is imposed on him by the Julian law on public violence; if, however, it be without arms, a public confiscation of a third part of his goods is imposed. But if by force the ravishment of a virgin or widow or a sanctimonial, veiled or otherwise, has been perpetrated, then both the offenders and those who gave aid to the crime are punished capitally, according to the definition of our constitution, from which it is possible to know these things more plainly.
The Julian law on peculation punishes those who have stolen money or public, sacred, or religious property. But if the judges themselves, during the time of their administration, have subtracted public monies, they are punished with capital punishment—and not only they, but also those who rendered them service for this, or who, knowing, received the things subtracted by them; whereas the others who have fallen under this law are subjected to the penalty of deportation. There is also among public prosecutions the Fabian law on plagiaries (kidnappers), which sometimes, by sacred constitutions, inflicts the capital penalty, sometimes a lighter one.
There are moreover public prosecutions: the Julian Law on Ambitus (electoral bribery), the Julian Law on Repetundae (extortion), the Julian Law on the Annona (grain-supply), and the Julian Law on Residua (outstanding balances), which speak to certain specific heads of charge and do not impose loss of life, but subject to other penalties those who have neglected their precepts.
Sed de publicis iudiciis haec euimus, ut vobis possibile sit summo digito et quasi per indicem ea tetigisse. alioquin diligentior eorum scientia vobis ex latioribus digestorum sive pandectarum libris deo propitio adventura est.
But about public trials we have run through these points, so that it may be possible for you to have touched them with the tip of the finger and, as it were, by means of an index. Otherwise, a more diligent knowledge of them will, God propitious, come to you from the broader books of the Digests or Pandects.