BOOK III. Pt. 1. Ch. II. 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.' 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 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. But 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 Furti actio poenam petit legitimam, condictio 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. essentially the same principles obtain as in Furtum. This was the actio vi bonorum raptorum.' Pt. I. Ch. II. : 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. § 72 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 hands 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? Pt. 1. Ch. II. Ulp. Et generaliter dicendum est, ex quibus BOOK III. causis furti mihi actio competit in re clam facta, ex iisdem causis habere me hanc actionem.-1. 2, § 23, h. t.1 Quadruplum autem non totum poena est, et extra poenam rei persecutio, . . . sed in quadruplo inest et rei persecutio, ut poena tripli sit. -pr. I. h. t., 4, 2.2 $133. DAMNUM INIURIA DATUM." a Cf. Holmes, 'Common and notes to Damage to property by illegal, culpable destruction Law,' Lect. i., of, or injury to, a thing belonging to another (damnum Vicars v. iniuria datum) was within the scope of the lex Aquilia, (Smith, Leada plebiscite of uncertain date, in three chapters.d nunc Willcocks ing Cases, $2: D. 50, 17, 151. e? 467 U.c. d second, see Ulp. Lex Aquilia omnibus legibus, quae ante sqq.). se de damno iniuriae locutae sunt, derogavit, sive XII tabulis, sive alia quae fuit: quas leges referre non est necesse. Quae lex Aquilia plebi- & Upon the scitum est cum eam Aquilius tribunus plebis a plebe rogaverit.-1. 1, D. h. t. (ad 1. Aq. 9, 2).3 This lex, by virtue of the development it received from interpretation by the jurists, gave the owner of the thing a penal action for reparation against the Therefore it is rightly said that he is an abandoned thief. But the Praetor has introduced a special action in respect of such wrong, which is called the action for robbery with violence . . . and this action is available even if a man has taken by violence a single thing, although the most trifling. 1 And we must say in general that in all the cases where the action of theft belongs to me in respect of a matter done clandestinely, upon the same grounds have I this action. 2 The fourfold value, however, is not altogether a penalty, and a recovery of the article besides the penalty . . . but the recovery of the article is included also in the fourfold value, so that the penalty is threefold. 3 The 1. Aquilia altered all earlier statutes which treated of wrongful damage as well the law of the Twelve Tables as all others an enumeration of these statutes is now unnecessary. The Aquilian statute is a decree of the plebs, since the plebeian tribune Aquilius carried it upon inquiry of the plebs. : Gai. iii. 215 BOOK III. Pt. 1. Ch. 11. wrong-doer, which, according to the nature of the thing injured, is directed to the highest value such thing had within the last year or month. 1 Gai. Lege Aquilia capite primo cavetur: SI QVIS SERVVM SERVAMVE ALIENVM ALIENAMVE QUADRVPEDEMVE PECVDEM INIVRIA OCCIDERIT, QVANTI ID IN EO ANNO PLVRIMI FVIT, TANTVM AES DARE DOMINO DAMNAS ESTO.-Et infra deinde cavetur ut adversus infitiantem in duplum actio esset.1. 2 pr., § 1 eod.1 Ulp. Huius legis secundum quidem capitulum in desuetudinem abiit.-Tertio autem capite ait eadem lex Aquilia: CETERARVM RERVM PRAETER HOMINEM ET PECVDEM OCCISOS SI QVIS ALTERI DAMNVM FAXIT VSSERIT FREGERIT RVPERIT INIVRIA, QVANTI EA RES FVIT IN DIEBVS TRIGINTA PROXIMIS, TANTVM AES DOMINO DARE DAMNAS ESTO.-1. 27, §§ 4, 5 eod.2 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 intelligamus, sed de his tantum, quae proprie pasci dicuntur: quales sunt equi muli asini boves oves caprae; de suibus quoque idem placuit.—§ 1, I. h. t. (de l. Aq. 4, 3).3 By the first chapter in the 7. Aquilia it is provided, 'He that hath illegally slain another man's slave or slave-woman, or a quadruped of his cattle, shall be condemned to pay to the owner in money as much as the amount of its highest value in such year.' And then lower down it is provided that against a disclaimant there shall be an action for twofold the value. 2 The second chapter, as it is, of this statute has fallen into disuse. But in the third chapter, the 1. Aquilia speaks as follows: If a man have caused injury to another in other things besides a slave and cattle slain, he shall be condemned to make good to the owner in money what he hath illegally injured, burnt, broken, or spoiled, according to the value which the thing had in the thirty days next (preceding).' 3 But that provision is made, not for four-footed animals exactly, but for four-footed animals only comprised under cattle, |