3. PENAL ACTIONS. ACTIONS for a private wrong were of four kinds: EX FURTO, RAPINA, DAMNO, INJURIA; for theft, robbery, damage, and personal injury. 1. The different punishments of thefts were borrowed from the Athenians. By the laws of the Twelve Tables, a thief in the night-time might be put to death; and also in the daytime, if he defended himself with a weapon,2 but not without having first called out for assistance.3 The punishment of slaves was more severe. They were scourged and thrown from the Tarpeian rock. Slaves were so addicted to this crime, that they were anciently called FURES; and theft, SERVILE PROBRUM. 4 But afterwards these punishments were mitigated by various laws, and by the edicts of the prætors. One caught in manifest theft was obliged to restore fourfold, besides the things stolen; for the recovery of which there was a real action against the possessor, whoever he was. If a person was not caught in the act, but so evidently guilty that he could not deny it, he was called fur NEC MANIFESTUS, and was punished by restoring double." When a thing stolen was, after much search, found in the possession of any one, it was called FURTUM CONCEPTUM, and by the law of the Twelve Tables was punished as manifest theft, but afterwards, as furtum nec manifestum. 10 If a thief, to avoid detection, offered things stolen to any one to keep, and they were found in his possession, he had an action, called actio FURTI OBLATI, against the person who gave him the things, whether it was the thief or another, for the triple of their value. If any one hindered a person to search for stolen things, or did not exhibit them when found, actions were granted by the prætor against him, called actiones FURTI PROHIBITI et NON EXHIBITI; in the last for double." What the penalty was in the first is uncertain. But in whatever manner theft was punished, it was always attended with infamy. 13 2. Robbery 12 took place only in movable things.l Immovable things were said to be invaded, and the possession of them was recovered by an interdict of the prætor. si nox (noctu) furtum faxit, sim (si eum) aliquis occisit (occiderit), jure casus esto. 2 si luci furtum faxit, sim aliquis endo (in) ipso furto capsit (ceperit), verberator, illique, cui furtum fac. tum escit (erit) addici- quid domini faciant, 5 in furto manifesto. 4' Virg. Ecl. iii. 16. 6 quadruplum. 7 vindicatio. 1 res furtivas vel furto 11 Plaut. P. iii. 1. v. 61. 12 rapina. 13 in rebus mobilibus. 1 Although the crime of robbery was much more pernicious than that of theft, it was, however, less severely punished. An action was granted by the prætor against the robber,3 only for fourfold, including what he had robbed. And there was no difference whether the robber was a freeman or a slave; only the proprietor of the slave was obliged, either to give him up, or pay the damage.5 3. If any one slew the slave or beast of another, it was called DAMNUM INJURIA DATUM, i. e. dolo vel culpa nocentis admissum, whence ACTIO vel JUDICIUM DAMNI INJURIA, SC. dati, whereby he was obliged to repair the damage by the Aquilian law. QUI SERVUM SERVAMVE, ALIENUM ALIENAMVE, QUADRUPEDEM vel PECUDEM INJURIA OCCIDERIT, QUANTI ID IN EO ANNO PLURIMI FUIT, (whatever its highest value was for that year,) TANTUM ES DARE DOMINO DAMNAS ESTO. By the same law, there was an action against a person for hurting any thing that belonged to another, and also for corrupting another man's slave, for double if he denied. There was, on account of the same crime, a prætorian action for double even against a person who confessed. 9 4. Personal injuries or affronts respected either the body, the dignity, or character of individuals. They were variously punished at different periods of the republic. By the Twelve Tables, smaller injuries 10 were punished with a fine of twenty-five asses or pounds of brass. 12 But if the injury was more atrocious; as, for instance, if any one deprived another of the use of a limb," he was punished by retaliation, if the person injured would not accept of any other satisfaction.13 If he only dislocated or broke a bone,14 he paid 300 asses, if the sufferer was a freeman, and 150, if a slave. If any slandered another by defamatory verses,15 he was beaten with a club, as some say, to death.16 But these laws gradually fell into disuse, and, by the edicts of the prætor, an action was granted on account of all personal injuries and affronts only for a fine, which was proportioned to the dignity of the person, and the nature of the injury. This, however, being found insufficient to check licentiousness and insolence, Sylla made a new law concerning injuries, by which, not only a civil action, but also a criminal prosecution, was appointed for certain injuries, with the punishment of exile, or working in the mines. Tiberius ordered one who had written defamatory verses against him to be thrown from the Tarpeian rock.17 1 crimen raptus. 2 actio vi bonorum rap- 3 in raptorem. in duplum, 1. 1. princ. 8 1. 5. s. 2. ibid. 10 injuriæ leviores. 13 see p. 153. 14 qui os ex genitali, i. lice diffamasset, eique fronted him, vel car- 16 Hor. Sat ii. 1 v. 82. An action might also be raised against a person for an injury done by those under his power, which was called ACTIO NOXALIS; as, if a slave committed theft, or did any damage without his master's knowledge, he was to be given up to the injured person: and so if a beast did any damage, the owner was obliged to offer a compensation, or give up the beast.2 There was no action for ingratitude,3 as among the Macedonians, or rather Persians; because, says Seneca, all the courts at Rome would scarcely have been sufficient for trying it. He adds a better reason; quia hoc crimen in legem cadere non debet.5 4. MIXED AND ARBITRARY ACTIONS. 6 ACTIONS by which one sued for a thing were called actiones REI PERSECUTORIÆ; but actions merely for a penalty or punishment were called PENALES; for both, MIXTE. 7 Actions in which the judge was obliged to determine strictly, according to the convention of parties, were called actiones STRICTI JURIS actions which were determined by the rules of equity, were called ARBITRARIE, OF BONE FIDEI. In the former, a certain thing, or the performance of a certain thing, was required; a sponsio was made; and the judge was restricted to a certain form in the latter, the contrary of all this was the case. Hence, in the form of actions bonæ fidei about contracts, these words were added, EX BONA FIDE; in those trusts called fiduciæ, UT INTER BONOS BENE AGIER OPORTET, ET SINE FRAUDATIONE; and in a question about recovering a wife's portion after a divorce, and in all arbitrary actions, QUANTUM vel QUID EQUIUS, MELIUS.1 9 10 IV. DIFFERENT KINDS OF JUDGES; JUDICES, ARBITRI, RECUPERATORES, ET CENTUMVIRI. AFTER the form of the writ was made out," and shown to the defendant, the plaintiff requested of the prætor to appoint one person or more to judge of it.12 If he only asked one, he asked a judex, properly so called, or an arbiter : if he asked more than one,13 he asked either those who were called recuperatores or centumviri. 1. A JUDEX judged both of fact and of law, but only in such cases as were easy and of smaller importance, and which he was obliged to determine according to an express law or a certain form prescribed to him by the prætor. 2. An ARBITER judged in those causes which were called bonæ fidei, and arbitrary, and was not restricted by any law or form,1 he determined what seemed equitable, in a thing not sufficiently defined by law. Hence he is called HONORARIUS. Ad arbitrum vel judicem ire, adire, confugere, arbitrum sumere, capere; ARBITRUM ADIGERE, i. e. ad arbitrum agere vel cogere, to force one to submit to an arbitration; ad arbitrum vocare vel appellere; AD vel APUD JUDICEM, agere, experiri, litigare, petere; but arbiter and judex, arbitrium and judicium, are sometimes confounded; arbiter is also sometimes put for TESTIS, or for the master or director of a feast, arbiter bibendi, arbiter Adriæ, ruler of the Adriatic; maris, having a prospect of the sea. A person chosen by two parties by compromise, to determine a difference without the appointment of the prætor, was also called arbiter, but more properly COMPROMISSARIUS. 6 4 3 3. RECUPERATORES were so called, because by them every one recovered his own.5 This name at first was given to those who judged between the Roman people and foreign states about recovering and restoring private things; and hence it was transferred to those judges who were appointed by the prætor for a similar purpose in private controversies; but afterwards they judged also about other matters." They were chosen from Roman citizens at large, according to some; but more properly, according to others, from the JUDICES SELECTI; and, in some cases only, from the senate. So in the provinces, where they seem to have judged of the same causes as the centumviri at Rome, a trial before the recuperatores was called JUDICIUM RECUPERATORIUM, cum aliquo recuperatores sumere, vel eum ad recuperatores adducere, to bring one to such a trial.10 8 The 4. CENTUMVIRI Were judges chosen from the thirty-five tribes, three from each; so that properly there were 105, but they were always named by a round number, CENTUMVIRI." causes which came before them 12 are enumerated by Cicero. They seem to have been first instituted soon after the creation of the prætor peregrinus. They judged chiefly concerning testaments and inheritances. 13 After the time of Augustus they formed the council of the 2 prætor, and judged in the most important causes,' whence trials before them are sometimes distinguished from private trials; but these were not criminal trials, as some have thought,3 for in a certain sense all trials were public.* The number of the Centumviri was increased to 180, and they were divided into four councils, hence QUADRUPLEX JUDICIUM is the same as CENTUMVIRALE; sometimes only into two, and sometimes in important causes they judged all together. A cause before the centumviri could not be adjourned.5 6 Ten men were appointed, five senators and five equites, to assemble these councils, and preside in them in the absence of the prætor.7 Trials before the centumviri were held usually in the Basilica Julia, sometimes in the forum. They had a spear set upright before them. Hence judicium haste, for CENTUMVIRALE, centumviralem hastam cogere, to assemble the courts of the centumviri, and preside in them. So, CENTUM GRAVIS HASTA VIRORUM, the tribunal of the centumviri. Cessat centeni moderatrix judicis hasta.8 The centumviri continued to act as judges for a whole year, but the other judices only till the particular cause was determined for which they were appointed. The DECEMVIRI also judged in certain causes, and it is thought that in particular cases they previously tock cognizance of the causes which were to come before the centumviri, and their decisions were called PRÆJUDICIA.9 V. THE APPOINTMENT OF A JUDGE OR JUDGES. 11 Or the above-mentioned judges the plaintiff proposed to the defendant,10 such judge or judges as he thought proper according to the words of the sponsio, NI ITA ESSET: hence, JUDICEM vel -es FERRE ALICUI, NI ITA ESSET, to undertake to prove before a judge or jury that it was so,11 and asked that the defendant would be content with the judge or judges whom he named, and not ask another. If he approved, then the judge was said to be agreed ɔn, CONVENIRE, and the plaintiff requested of the prætor to appoint him in these words, PRÆTOR, JUDICEM ARBITRUMVE POSTULO, UT DES IN DIEM TERTIUM SIVE PERENDINUM, and in the same manner recuperatores were asked.13 Hence, judices dare, to appoint one to take his trial before the ordinary judices." But centum 1 Tac. Or. 38. 2 judicia centum viralia. 5 Plin. Ep. i. 18. iv, 24. vi. 33. Quin. v. 2. xi. 6 decemviri, see p. 122. Max. vii 8. 1. Quinct. 36. Mart. Epig. vii. 62. ii. 65. 14 12 ne alium procaret, i. |