INCENDIUM
INCENDIUM the crime of setting any object on fire, by which
the property of a man is endangered. It was thus a more general term than
the modern arson, which is limited to the act of wilfully and maliciously
burning the property of another. The crime of incendium was the subject of
one of the laws of the Twelve Tables, which inflicted a severe punishment on
the person who set fire to property maliciously (
sciens
prudens); but if it were done
[p. 1.1003]by
accident (
casu, id est negligentia), the law
obliged the offender to repair the injury he had committed (
Dig. 47,
9,
9). The punishment, however, of burning alive, which is
mentioned in the passage of the Digest referred to, is supposed by modern
commentators not to have been contained in the Twelve Tables, but to have
been attributed to earlier times in the imperial period. In the Second Punic
War a great fire broke out at Rome, which was evidently occasioned
humana fraude. The offenders were discovered and
punished (
animadversum est), but Livy
unfortunately does not state in what manner (
Liv.
26.27). The crime of incendium was the subject of various enactments
in the last century of the Republic. Sulla in his Lex Cornelia de sicariis
punished malicious (
dolo malo) incendium, but
only in the city or within a thousand paces of it, with
aquae et ignis interdictio, since it was frequently employed
as a means for the perpetration of murder, which was especially the subject
of this law (
Dig. 48,
8,
1). Cn. Pompeius in B.C. 52 made incendium a
crime of
vis by his Lex Pompeia de vi, in
consequence of the burning of the Curia and the Porcia Basilica on the
burial of Clodius; and the dictator Caesar also included it in his Lex Julia
de vi, which enacted that any act of incendium committed by large numbers of
men, even if the object of their assembling together was not incendium,
should be treated as
vis and punished with
aquae et ignis interdictio (
Cic. Phil. 1.9,
23; cf.
Parad. 4). The more recent Lex Julia de vi
seems to have been less severe, but it is uncertain what punishment it
ordained (Paul. 5, 26, 3). The crime of incendium fell equally under
vis publica and
vis
privata (
Dig. 48,
6,
5; Paul.
l.c.):
and besides the two criminal prosecutions given by the Lex Cornelia de
sicariis and the Lex Julia de vi publica seu privata, a person could also
bring actions to recover compensation for the injury done to his property:
(i.) by the actio legis Aquiliae, in case of accidental incendium (
Dig. 9,
2,
27,
5;
48,
19,
28,
12); (ii.) in the case of a person who had committed
robbery or done injury during an incendium, there was a praetorian action de
incendio, which compelled him to restore fourfold the amount (
Dig. 47,
9,
1 to 5). In the imperial period various distinctions were made
in the crime. First, a distinction was made according to the greater or
smaller danger of the incendium to the contiguous objects: thus incendium in
the city was punished with more severity than incendium in the country
(
Dig. 48,
19,
28,
12;
47,
9,
1,
12;--Paul. 5, 20, 1 and 2). Secondly, a distinction
was made according as the act had been performed
dolo,
culpa, or
casu. If the incendium
was not malicious, but still might have been avoided by ordinary care, and
when
casus therefore approximated to
culpa, a person had to make compensation, and if he
was unable to pay damages he might receive a slight punishment (
“levius castigatur,”
“modice vindicatur,”
Dig. 47,
9,
9 and 11; 48, 19, 28, 12: cf. Coll. Leg. 12, 6; Paul.
5, 3, 6); but if the incendium was purely accidental (
fortuitum), no compensation was necessary (
Dig. 48,
19,
28,
12).
During the later Republic incendium, as falling under the Lex Cornelia or the
Lex Julia, would have formed the subject of an ordinary
JUDICIUM PUBLICUM
During the Empire it gave rise to a
cognitio
extraordinaria, held usually by the Praefectus urbi, but in
some cases by the Praefectus vigilum. The more serious cases, those that
involved
dolus, or
culpa of an aggravated character, came before the Praefectus urbi
(
Dig. 1,
15,
3 and 4), who could exercise his discretion in
inflicting any of the severer punishments attached to the crime. The only
fixed rule as to the penalty was that malicious incendium in the town was
punished
capite (
Dig.
49,
9,
12,
1); the position of the guilty party often determining
the mode of punishment. Thus
humiliores were
thrown to wild beasts, and the penalty of being burnt alive was probably
reserved for the same classes; those in a better position ( “in aliquo
gradu” ) were punished by the sword (Dig.
l.c.), and for those of a still higher rank ( “altiores”
)
deportatio was the penalty. Milder cases of
incendium, those which were not committed
dolo,
but in which
casus approximated to
culpa, were tried summarily by the Praefectus
vigilum, in virtue of the jurisdictio he exercised as chief of the
fire-brigade at Rome (Mommsen,
Staatsr. ii.2 p. 1058; see
VIGILES).
He tried those who had carelessly given rise to fires in their own homes (
“qui negligentia apud se ignes habuerint,”
Dig. 1,
15,
4), and thus endangered the property of others;
sometimes he dismissed the accused with a caution, but in cases of culpable
negligence he might punish
fustibus or
flagellis (
Dig. 1,
15,
4). He probably had the
preliminary cognisance in all cases of incendium, since it was his duty to
remit the more aggravated cases to the jurisdiction of the Praefectus urbi
(
Dig. 1,
15,
3 and 4).
(Rein,
Criminalrecht der Römer, pp. 765-774.)
[
W.S] [
A.H.G]
