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PECULA´TUS is the misappropriation or theft of public or sacred property, whether it was done by a public functionary or by a private person. Labeo (Dig. 50, 9, 2) defines it thus: “pecuniae publicae aut sacrae furtum, non ab eo factum cujus periculum est,” the qualifying part of the definition meaning that there could not be peculatus in respect of property entrusted to an official to hold at his own risk. The person guilty of this offence was peculator. Cicero (de Off. 3.18, 73) enumerates peculatores with sicarii, venefici, testamentarii (forgers of wills), and fures. Peculatus, derived from pecus, a term which originally denoted that kind of movable property which was the chief sign of wealth [PECUNIA], seems to have signified in early times the theft of cattle, peculatus publicus having been the offence of stealing cattle from a magistratus which he had taken as multa or as poena sacramenti (Voigt, Zwölf Tafeln, 2.137, n. 17; cf. Varro, L. L. 5.19, 95, “hinc [i. e. a pecude] peculatum publicum primo turn, cum pecore diceretur multa et id esset coactum ni publicum, si erat aversum;” --Festus, 237 a, 13; [p. 2.361]211 a, 18; 202 b, 13;--Paul. Diac. 75, 11). Peculatus was punished in early times by the infliction of a heavy multa on the offender (Liv. 1.37, 25.37, 37.58; Gel. 7.19). Originally trials for peculatus were before the populus or before the senate (Liv. 5.32, 37.51, 38.54). In the time of Cicero matters of peculatus were one of the quaestiones perpetuae (pro Cluent. 53, 147; pro Mur. 20, 42), which implies some Lex de Peculatu, though there is no mention of such a lex in our sources.

Two leges relating to peculatus are cited in the Digest, Lex Julia peculatus and Lex Julia de residuis, but these may perhaps be two chapters of the same lex, just as the Lex Julia de adulteriis comprised a provision de fundo dotali, which chapter is often quoted as if it were a separate lex. The Lex de residuis applied to those who had received public money for public purposes, and had retained it when they ought to have paid it over ( “apud quem pecunia publica resedit” ). The offence differs from ordinary peculatus in that it is constituted by a mere omission. The penalty under this lex on conviction, borrowed from the Lex Silia, was a third part of the sum retained besides liability to restitution. Sacrilegium is treated as a kind of peculatus under the Lex Julia, a sacrilegus being one who plunders sacred property of a public kind (so excluding sacra privata). For an account of the special punishments with which this offence was visited, see art. SACRILEGIUM The Lex Julia peculatus embraced or was extended by interpretation to various species of public frauds, some of which also belong to the crimen falsi, as certain coinage offences, falsification of public accounts or of documents of title to public land, &c. The punishment for peculatus, which under the Lex Julia was aquae et ignis interdictio, was subsequently changed into deportatio: the property of the offender was forfeited. Special punishments were inflicted in the case of particular species of peculatus. (Dig. 48, 13, ad legem Juliam peculatus et de sacrilegis et de residuis; Cod. 9, 28; Inst. 4.18, 9; Paul. Sent. 5, 27; Rein, Das Criminalrecht der Römer, p. 672; Rudorff, Römische Rechtsgeschichte, 2.118; Walter, Römische Rechtsgeschichte, § 813.)

[G.L] [E.A.W]

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