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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]

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