BOOK III. Pt. I. Ch. II.

a Cf. D. 50, 16, 193; ‘Anct Law,' p. 379.

and see above, § 56.

hensum occidere permittit, ut tamen id ipsum cum clamore testificetur, interdiu autem deprehensum ita permittit occidere, si is se telo defendat, ut tamen aeque cum clamore testificetur.-1. 4, I, D. ad leg. Aq. 9, 2.-Id.: Teli autem appellatione et ferrum et fustis et lapis et denique omne, quod nocendi causa habetur, significatur.-1. 55, § 2, D. h. t.1

Gai. iii. 189: Poena manifesti furti ex lege XII tabularum capitalis erat: nam liber verberatus addicebatur ei cui furtum fecerat utrum autem servus efficeretur ex addictione, an adiudicati loco constitueretur, veteres quaerebant. Sed postea improbata est asperitas poenae et . . . quadrupli actio praetoris edicto constituta est.

Ulp. Si pro fure damnum decisum sit, . . . furti actio, non autem condictio tollitur.-1. 7, pr. D. de cond. furt. 13, 1.3

In furtum nec manifestum it was for double thereof. Gai. iii. 190: Nec manifesti furti poena per legem XII tabularum dupli irrogatur, eamque etiam praetor conservat."

4

1 A law of the Twelve Tables allows one to kill a thief caught by night, but so that he notifies it by a loud shout; but it allows killing him when caught in the day-time upon condition that he defends himself with a weapon, but so also that he make this known by a loud shout.-By weapon is meant both a sword and club and stone, and in fine, anything in one's hands to work mischief.

2 The punishment of manifest theft, according to a law of the Dirksen, s. v.; Twelve Tables, affected a man's caput. For a freeman was scourged, and adjudged to him whose property he had stolen ; but whether he was rendered a slave by virtue of the adjudication, or was in the position of judgment-debtor, was a moot point with the old jurists. But afterwards the severity of the punishment met with disapproval and . . . an action for fourfold the value was created by the Praetor's edict.

If terms have been arranged on behalf of a thief as to the damage, an action of theft, but not a personal action, is

...

taken away.

A penalty for non-manifest theft of double the value is

The actiones furti concepti, oblati, prohibiti' BOOK III. disappeared in the later Law, along with the formal Pt. I. Ch. II. search of the house (of ante-Roman origin) upon which they were grounded.

Gai. iii. §§ 186-188: Conceptum furtum dicitur, cum apud aliquem testibus praesentibus furtiva res quaesita et inventa est: nam in eum propria actio constituta est, quamvis fur non sit, quae appellatur concepti. § Oblatum furtum dicitur, cum res furtiva tibi ab aliquo oblata sit eaque apud te concepta sit; utique si ea mente data tibi fuerit, ut apud te potius, quam apud eum qui dederit, conciperetur: nam tibi, apud quem concepta est, propria adversus eum qui obtulit, quamvis fur non sit, constituta est actio, quae appellatur oblati. Est etiam prohibiti furti adversus eum, qui furtum quaerere volentem prohibuerit. -§§ 191-2: Concepti et oblati poena ex lege XII tabularum tripli est, eaque similiter a praetore servatur. § Prohibiti actio quadrupli est ex edicto praetoris introducta: lex autem eo nomine nullam poenam constituit; hoc solum praecepit, ut qui quaerere velit, nudus quaerat, licio cinctus, lancem habens; qui si quid invenerit iubet id lex furtum manifestum esse.'

imposed by a law of the Twelve Tables, and this the Praetor also keeps up.

It is said to be furtum when the stolen thing has been searched for, and discovered in the presence of witnesses, in some one's possession; for a special action has been appointed against him, although he be not the thief, which is called the actio concepti. § It is said to be furtum oblatum when the stolen thing has been brought to you by some one, and has been discovered in your possession; at least if it has been given you with the view of its being discovered in your possession rather than in that of the donor. For there is a special action appointed for you in whose possession it has been discovered against him who placed it in your possession, although he be not the thief, which is called the actio oblati. There is also an actio prohibiti furti against one who impedes a person in his

U U

Sed hae actiones . . . in desuetudinem abierunt. Cum enim requisitio rei furtivae hodie secundum veterem observationem non fit, merito ex consequentia etiam praefatae actiones ab usu communi recesserunt: cum manifestissimum est, quod omnes, qui scientes rem furtivam susceperint et celaverint, furti nec manifesti obnoxii sunt. § 4, I. h. t.'

Besides the actio furti, the owner that has suffered the theft has still the 'condictio furtiva'-grounded upon an obligatio quasi ex contractu-against the thief and his heirs for restitution (dare) of the stolen a Supra. D. 13, thing." In respect of this duty of restitution, the thief is regarded as constantly 'in mora.'b

1,7 pr.

§ 109.

Gai. iv. § 4: certum est non posse nos rem nostram ab alio ita petere SI PARET EVM DARE OPORTERE; nec enim quod nostrum est, nobis dari potest, cum scilicet id dari nobis intelligatur, quod ita datur, ut nostrum fiat: nec res quae est nostra, nostra amplius fieri potest. Plane odio furum, quo magis pluribus actionibus teneantur, receptum est, ut extra poenam dupli

But

desire to search for stolen property. § The penalty for stolen
property, discovered or introduced, according to a law of the
Twelve Tables was threefold the value, and this the Praetor
likewise retains. § The actio furti prohibiti was for fourfold
the value, and was introduced by the edict of the Praetor.
the law of the Twelve Tables had provided no penalty on that
behalf; it only directed that he who wishes to search should do
so naked, girt with a 'linteum' (linen cloth) and carrying a
plate; and if he shall have discovered anything, the statute
directs that the theft shall be regarded as manifest.

1 But these actions . . . have fallen into disuse. For since
the search for stolen property is not made at the present day
according to the ancient practice, the actions just mentioned
have also in consequence appropriately passed out of common
use, since it is quite clear that all who have advisedly received
and concealed stolen property are chargeable with non-manifest
theft.

aut quadrupli rei recipiendae nomine fures ex
hac actione etiam teneantur: SI PARET EOS DARE
OPORTERE, quamvis sit etiam adversus eos haec
actio, qua ‘rem nostram esse' petimus.'

Furti actio poenam petit legitimam, condictio
rem ipsam.-Condictio rei furtivae, quia rei habet
persecutionem, heredem quoque furis obligat, nec
tantum si vivat servus furtivus, sed etiam si de-
cesserit.-1. 7, §§ 1-2, D. de cond. furt.

In furtiva re soli domino condictio competit. -1, I eod.3

$132. VI BONA RAPTA."

The acts of violence that prevailed during the civil wars occasioned the grant in the Praetorian Edict (edictum Luculli) of an action for the cases of outrage (plunder and injury to things) perpetrated by armed mobs. The ground was thereby laid for the development of the special delict of Robbery (rapina), as an appropriation of something belonging to another combined with application of personal violence; in which

1 it is certain we cannot claim our own property from another thus: 'If it appear that he ought to give'; for that which is our own cannot be given to us, since of course that is regarded as given to us which is given so that it may become ours; and a thing which is ours cannot become more so. It is manifestly from detestation of thieves, and that they might be made liable to a greater number of actions, that it has been received as law, that besides the penalty of double or fourfold the amount, thieves may, with the view of recovering the thing, be made liable under such action: If it appear that they ought to give,' although there also lies against them the action in which we claim a thing as ours.

2 The action of theft claims the statutory penalty, the condictio the thing itself. The condictio of the stolen property, inasmuch as it comprises the recovery of the property, binds also the heir of the thief, and that not only if the stolen slave should live, but also if he has died.

3 In respect of stolen property, the condictio is open to the owner alone.

BOOK III.

Pt. I. Ch. II.

essentially the same principles obtain as in Furtum. This was the actio vi bonorum raptorum.'

Praetor ait: SI CVI DOLO MALO [VI] HOMINIBVS COACTIS [ARMATISVE] DAMNI QVID FACTVM ESSE DICETVR, SIVE CVIVS BONA RAPTA ESSE DICENTVR, IN EVM, QVI ID FECISSE DICETVR [INTRA ANNVM, QVO PRIMVM DE EA RE EXPERIVNDI POTESTAS

FVERIT, IN QUADRVPLVM, POST ANNVM IN SIMPLVM], IVDICIVM DABO.—1. 2 pr., D. h. t. = vi bon. rapt. 47, 8.1

Ulp. Item si proponas solum damnum dedisse, non puto deficere verba; hoc enim quod ait 'hominibus coactis' sic accipere debemus etiam hominibus coactis, vel armatis vel inermibus, ut, sive solus vim fecerit sive etiam hominibus coactis, hoc edicto teneantur.-Ib. § 7.2

Gai. iii. 209: Qui res alienas rapit, tenetur etiam furti: quis enim magis alienam rem invito domino contrectat, quam qui vi rapit? Itaque recte dictum est eum improbum furem esse; sed propriam actionem eius delicti nomine praetor introduxit, quae appellatur vi bonorum raptorum : quae actio utilis est, et si quis unam rem, licet minimam, rapuerit.3

1 The Praetor says: 'If it is alleged that an injury has been craftily [and by force] done to any one by bands of persons [or armed men], or that any one's property has been robbed, against such person as shall be alleged to have done this I will give an action [within a year from the time when it was first possible to sue for it, for the fourfold, but after a year for the simple amount].

2 Likewise, if you suppose a single person has inflicted the damage, I do not think the words fail of application; for the phrase 'by bands of men' we must take to mean: Even bands of men, either armed or unarmed, so that, whether it be a single person has done the violence, or even bands of men, they shall be liable by this edict.

He that takes by violence the property of another is also liable for theft; for who meddles with another's property more against the owner's will than one who takes it by violence?