FALSUM
FALSUM The crime of falsum is not
[p. 1.822]defined, by Roman legal writers, but it consisted of acts of fraud which
were injurious to
fides publica, such as
forgery, counterfeiting money, and perverting the course of justice by fraud
and perjury. The oldest legislative provisions at Rome against any acts of
this description are those of the Twelve Tables, to the effect that a person
who gave false testimony should be thrown from the Tarpeian rock (
Gel. 21.53), and that a judge who took a bribe
should be liable to capital punishment (
Gel.
21.7); but there were trials for false testimony before the enactment
of the Twelve Tables (
Liv. 3.24,
25,
29;
4.21). The next legislation in falsum, so far as we
know, was contained in one of the Leges Corneliae passed in the time of the
Dictator Sulla, which was divided, according to Cicero, into two heads, the
Lex testamentaria and the Lex numaria (
in Verr. 2.1, 42),
with reference to the two species of the crime the statute was directed
against. Cicero states that this lex did not create any new offence, but
instituted a
quaestio ad populum for what had
always been a crime. Paulus, who gives its provisions, entitles it Lex
Cornelia testamentaria; it is also known by the more general title Lex
Cornelia de falsis.
The Lex Cornelia appears to have only included two specific kinds of falsum:
(1) forgery and suppression of wills, and (2) adulteration of the coinage.
1. In respect of the first of these, Paulus, citing to some extent the very
words of the statute, says, A person is liable under the Lex Cornelia
testamentaria “qui testamentum quodve aliud instrumentum falsum sciens
dolo malo scripserit, recitaverit, subjecerit, suppresserit, amoverit,
resignaverit, deleverit, quive signum adulterinum sculpserit, fecerit,
expresserit, amoverit, reseraverit;” and (2) in respect of
adulteration of the coin, he says, “quive nummos aureos, argenteos
adulteraverit, laverit, conflaverit, raserit, corruperit,
vitiaverit.” (Paul. 5, 25, 1; Digest (Paulus), 48, 10, 2.) Mr.
Justice Stephen (
Hist. of Grim. Law, ch. ii.) compares with
this statement of the law the language of English statutes:--(1) 24
& 25 Vict., 100.98, s. 2, “Whoever with intent to defraud
(
dolo malo) shall forge or alter
(
interleverit), or shall offer, utter,
dispose of, or put off, knowing the same to be forged or altered, any
will, testament, codicil, or testamentary instrument.”
“The 24 & 25 Vict. 100.96, s. 29,” he adds,
“makes it penal to cancel (
deleverit), obliterate or conceal (
celaverit), any will,” &c. And (2) the 24
& 25 Vict., 100.99, s. 4, declares anyone subject to punishment who
shall “impair, diminish, or lighten any of the Queen's gold or silver
coin,” and s. 3, “whosoever shall gild, or shall with any
wash or materials capable of producing the colour or appearance of gold,
wash (
laverit), case over, or colour any
piece of gold or silver.”
An offence against either branch of this law was a
crimen
publicum, and was under the cognisance of a standing
quaestio. The punishment of falsum under the law (at
least when Paulus wrote) was
deportatio in
insulam for the “honestiores,” and the mines,
crucifixion, or other degrading punishment for the
“humiliores.” In place of
deportatio in
insulam the punishment, according to the statute itself, was
probably the old form of banishment, known as
ignis et
aquae interdictio. The property of a convicted person was
confiscated.
The penalty of the Lex Cornelia was extended by piecemeal legislation to
cases not comprised in the lex, but of a similar kind. This supplementary
law is sometimes referred in legal treatises to the Lex Cornelia, as if it
had been an original part of that law. Thus, according to Paulus, in the
passage we have cited at length, the Lex Cornelia applied to any instrument
as well as a will: but it appears from Ulpian that this was a subsequent
addition made to the lex by a senatusconsultum which was passed in the
consulship of T. Statilius. Taurus and L. Scribonius Libo (A.D. 16).
(
Mos. et Rom. Leg. Coll. 8.7;
Tac. Ann. 19.40,
41.) The
instrument fabricated or falsified might be either public or private, as, e.
g. a. rescript or edict of the emperor, an account book, or an instrument of
sale.
Persons guilty of falsifying documents are called
falsarii. As a precaution against such persons, it was
enacted in the time of Nero, that
tabulae or
written contracts should be pierced with holes and a triple thread passed
through the holes, in addition to the signature. (Sueton.
Ner. 100.17; Paul. 5.25, 6.) In the time of Nero it was also
provided that the first two parts (
cerae) of a
will should have only the testator's signature, and the remaining one those
of the witnesses. Likewise, in order to prevent fraud, it was enacted under
the Emperor Claudius that a person who was employed by a testator to write a
will should be liable to the penalty of the Lex Cornelia, if he inscribed a
legacy to himself, although he did so at the dictation of the testator.
(Cod. 9.23, 3. Suetonius,
Suet. Nero
100.17, attributes this law to Nero.) The Lex de Falsis was further
extended to fraudulent assumptions of names and rank, and to false
pretences, as in the case of a contract to sell a thing to a person, when
the vendor had already to sell the same thing to someone else. The
crimen falsi was also made to include perjury, the
corruption of judges, and other kindred offences. By a senatusconsultum in
the fourteenth year of Tiberius, the penalties of the law were extended to
those who for money undertook to maintain causes, or to procure testimony;
and by a senatusconsultum passed somewhat earlier, conspiracies for the ruin
of innocent persons were comprised within the limits of the law. It may be
noticed in this connexion that by the Lex Cornelia de sicariis the causing
the death of a man by bearing false witness against him had been made
subject to an
interneciei judicium (Isidor. 5.25,
17, 10.149; cf. Rudorff,
Rechtsgesch. § 35, A. 7).
According to Paulus (5.25, 1), the refusal to accept in payment genuine coin
stamped with the head of the princeps was on the same footing as the
adulteration of the coinage, though in this case the element of fraud seems
wanting. Arrian refers to the fact of such refusal of payment being illegal
(
Epict. 3, 3). The use of false measures and weights was
punished as falsum. It appears from numerous passages in the Roman writers
that the crime of falsum in its different forms was very common, and
especially in the case of wills (cf. e. g. Cic.
pro
[p. 1.823]Cluent. 44, 125;
Phil. 14.3, 7;
de Off. 3.18, 73; Juv.
Sat. 1.37;
Plin.
Ep. 2.20). (Paul. 4.7, § § 1, 2, 5.25;
Dig. 48,
10; Inst. 4.18, 7;
Cod. 9, 22 and 23; Heinecc.
Syntag. 4.18, 63; Rein,
Das Criminalrecht der Römer, 774, &c.;
Rudorff,
Rechtsg. 2.116; Geib,
Crim. Recht,
1.53-55; Stephen,
Hist. of Criminal Law, i. p. 20.)
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E.A.W]
