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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.)

[E.A.W]

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