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[7arg] These words from the Atinian law, “the claim on whatever shall be stolen shall be everlasting,” seemed to Publius Nigidius and Quintus Scaevola to have reference not less to a past theft than to a future one.


THE words of the ancient Atinian law 1 are as follows: 2 “Whatever shall have been stolen, let the right to claim the thing be everlasting.” Who would suppose that in these words the law referred to anything else than to future time? But Quintus Scaevola says 3 that his father 4 and Brutus 5 and Manilius, 6 exceedingly learned men, inquired and were in doubt whether the law was valid in cases of future theft only or also in those already committed in the past; since subruptum erit seems to indicate both times, past as well as future.

Therefore Publius Nigidius, the most learned man of the Roman State, discussed this uncertainty of theirs in the twenty-third book of his Grammatical Notes. 7 And he himself too has the same opinion, that the indication of the time is indefinite, but he speaks very concisely and obscurely, so that you may see that he is rather making notes to aid his own memory than trying to instruct his readers. 8 However, his meaning seems to be that est and erit are independent words; when they are used alone, they have and retain their own tense, but when they are joined with a past participle, they lose the force of their own tense, and are transferred to the past. For when I say in campo est, or “he is in the field,” and in comitio est, or “he is in the comitium,” I refer to the present time; also when I [p. 229] say in campo erit (he will be in the field), or in comitio erit (he will be in the comitium), I indicate future time: but when I say factum est, scriptum est or subruptum est, although the verb est is in the present tense, it is nevertheless united with the past and ceases to be present.

“Similarly then,” he says, “with regard also to the wording of the law; if you divide and separate these two words subruptum and erit, so that you understand subruptum erit as you would certamen erit, that is, 'there will be a contest,' or sacrificium erit (there will be a sacrifice), then the law will seem to have reference to an act completed in future time; but if you understand the two words to be united and mingled, so that subruptum erit is not two words, but one, and is a single form of the passive inflection, then that word indicates past time no less than future.”

1 Different from the plebiscitum of xiv. 8. 2. The date is uncertain.

2 Fontes Iur. Rom., p. 45, 6.

3 Fr. 3, Huschke; Iur. Civ. xvi. 5, Bremer.

4 Resp. 4, Bremer.

5 Resp. 5, Bremer.

6 Resp. 5, Bremer.

7 Fr. 34, Swoboda.

8 Cf. xvi. 8. 3.

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