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FURTUM theft, is the act of unlawfully handling a thing capable of being stolen, wit]h the wrongful intention either of entirely appropriating it, or only of making use of it, or of obtaining possession of it, for the sake of gain. Thus it is defined by Paulus (Dig. 47, 2, 1, 3: cf. Inst. 4.1, 1) as being “contrectatio rei fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus ejus possessionisve.” Movable things only could be objects of furtum, for the opinion of some jurists that there could be furtum of land did not prevail (Dig. 41, 3, 38: cf. Gell. Noct. Att. 11.18). Things without an owner (res nullius) as were animals ferae naturae in a free state, and things abandoned by their owner, could not be stolen; but everything subject to the will of a paterfamilias, which was not res immobilis, was capable of furtum, [p. 1.895]including free persons under power as well as slaves.

There could be no furtum unless there was an animus furandi, or wrongful intention of appropriating property ( “furtum ex affectu consistit,” Gaius, 2.50): consequently a person who took the property of another in the belief that it was his own did not commit it. It was not, however, necessary that a person taking a thing should know whose property it was: the bare knowledge of a finder of lost property that it belonged to some one was sufficient to make him liable if he appropriated it. The intention had to be directed to gain; hence, an act of interference with the property of another, done merely in a sportive way or maliciously, was not furtum.

An impubes might commit furtum if he was of sufficient capacity to understand what he was doing, and there was a presumption of such capacity if he was bordering on the state of puberty. The animus furandi, however clearly manifested by overt acts, did not make a person liable, unless it was accompanied by a rei contrectatio. The contrectatio consisted in moving a thing from its place; on its taking place the act of furtum was complete, although the design of appropriating the thing was immediately abandoned; but it was requisite that the act should be contrary to the wish of the party whose property was affected by it (invito domino), since otherwise the principle “volenti non fit injuria” was applicable. A person was guilty of theft who assisted in carrying it out, though he did not himself handle the res, as if a man should jostle you in order to give another the opportunity of taking your money; or drive away your sheep or cattle in order that another might get possession of them: but merely to instigate a furtum without taking part in its execution was not furtum. Furtum might take place in various ways. In its earliest form it may have been confined to acts similar to those which constitute theft and robbery in English law, but it came to have a much wider scope. A man might commit the offence by converting property entrusted to him to his own use (intervertere, intercipere), as by unlawfully alienating it. If the intention was only to make a wrongful use of a res aliena, it, was furtum usus. A depositarius would commit a furtum usus if he made use of the thing deposited with him. To use a thing lent for use in a different way to that for which it was lent was also furtum usus. A debtor might commit furtum by taking possession of a thing which he had given as a pledge (pignori) to a creditor; or by taking his property when in the possession of a bonâ--fide possessor, instead of recovering it by means of vindicatio. These are cases of furtum possessionis. Thus not only a res aliena might be an object of furtum, but it was possible in certain cases for an owner to commit furtum in respect of his own property. Accordingly the definition of Paulus is “rei contrectatio fraudulosa” without the addition of “alienae.” The distinction between furtum rei, usus, and possessionis was not intended as a classification of theft into three distinct kinds, but only to indicate the extent of the meaning of the term furtum. This is well explained by Vangerow, Pandekten, 3.679.

Furtum was either manifestum or nec manifestum. It was clearly manifestum when the person was caught in the act, and it is probable that at first such furtum did not extend beyond this limit. In various other cases, however, there came to be a difference of opinion as to whether the furtum was manifestum or not. Some jurists thought that it was only furtum manifestum if the fur was caught in the place where the theft was committed; others went. so far as to hold that it was furtum manifestum if the fur was found at any time with the thing stolen in his hands; but this opinion was rejected, and an intermediate one adopted by Justinian, that it was sufficient if the fur was detected before he reached the place to which he designed to carry the thing (Gaius, 3.184; Inst. 4.1, 3). That which was not furtum manifestum was nec manifestum.

The punishment for furtum manifestum was by the law of the Twelve Tables capital; that is, it affected the caput or legal capacity of the delinquent: a freeman was flogged and assigned as a bondsman (addictus) to the injured party, unless he could buy off the claim of the latter to vengeance (Cic. pro Tull. § 50; Gel. 20.1; Gaius, 3.189): a slave was flogged and thrown from the Tarpeian rock. The Edict of the Praetor subsequently substituted for this punishment an actio quadrupli, which entitled the injured party to claim from the thief fourfold the value of the thing stolen. The penalty of the Twelve Tables, in the case of furtum nee manifestum, was duplum; that is, double the value of the thing. The reason of this difference of penalty seems to be, that a person who detected a thief in the act would be likely to punish him more severely than if he was discovered afterwards, and in order to prevent the injured party from taking the law into his own hands the same distinction of punishment is adopted by the state. The notion of furtum manifestum is also found in German law (Grimm, Rechtsalterth. 637). The action by which the twofold or fourfold penalty was recovered on account of furtum is called actio furti. It was brought by the person interested in the safe custody of the thing ( “cujus interest rem salvam fore” ), who might be its owner or a bonâ--fide possessor of it, or one having a real right in it other than that of ownership, or, as the law came to be established, a person simply holding it as bailee under a contract. The owner of a thing, therefore, had not necessarily this action. A creditor might even have this action against the owner of a thing pledged, if the latter unlawfully deprived him of possession. A person to whom a thing was delivered in order to work upon it, as in the case of clothes given to a tailor to mend, could bring this action against the thief, and the owner could not, for the owner could recover over from the tailor, and so had no interest in the thing not being stolen. But if the tailor was not a solvent person, the owner had the actio furti, for then he had an interest. The rule was originally the same in the case of a gratuitous loan for use (commodatum), but Justinian allowed the lender to elect whether he would sue the borrower on the contract or maintain actio furti against the fur.

In the case of depositum, the depositee did not [p. 1.896]undertake the safe custody of the thing (custodiam praestare), and he was under no liability except in the case of dolus, or of culpa lata which was not distinguished from dolus; consequently, if the deposited thing was stolen, the depositor alone had the actio furti. If a peregrinus committed furtum, he was made liable to this action by the fiction of his being a Roman citizen, and by the same fiction he had a right of action if his property was stolen (Gaius, 4.37). Recovery of a penalty being the object of the actio furti, it could only be maintained against the fur himself, not against his heredes. Besides his claim to a twofold or fourfold penalty, the injured party had an action for the recovery of damages, which is called condictio furtiva. This action might be brought by the owner of the res furtiva, by the bonâ--fide possessor of it, or by anyone who had a real right in it, but not by a mere bailee. The defendant in this action was the fur, or, in the event of his death, his heredes.

The question whether the condictio furtiva is to be regarded as a delictal or simply as a restitutory action has been much discussed. The fact of the defendant being liable for any loss caused by the furtum, although he has made no gain by it, shows that the action has something of a delictal character. (Windscheid, Pandekten, § 359, n. 18.) It is to be noticed that the condictio furtiva constituted an exception to the rule that no one could maintain condictio on account of property of which he was owner ( “nemo rem suam condicere potest” ), the exception having been allowed, “odio furum quo magis pluribus actionibus teneantur” (Inst. 4.6, 14). As the ownership of the thing was not affected by furtum, so it could be recovered from any innocent holder to whom the thief had transferred it. It was a provision of the Twelve Tables that a res furtiva could not be acquired by usucapion.

Furtum was not a criminal offence in the time of the republic, but only a civil wrong (cf. Maine, Ancient Law, ch. x.); subsequently the injured party was given the alternative of instituting a criminal prosecution or of suing for the twofold or fourfold penalty (Dig. 47, 1, 3; 47, 2, 57, 1). According to the law of the Twelve Tables, if a man was killed whilst committing theft by night, he was lawfully killed; in the daytime he might not be killed unless he resisted with a deadly weapon (telum). In the pursuit of a thief the hue and cry might be raised (cf. Petron. Sat. 13, 8, “per aliquot vicos secutae fugientem, Prende furem clamant” ). The owner of the stolen property conducted the search for it (quaestio), questioning anyone he suspected of having it (Plaut. Poen. 1.1, 51 f.; Paul. 2.31, 22); and, if the answer was unsatisfactory, claiming the right of searching the house where he supposed his property to be. Anyone who prevented a person from searching for a furtum or stolen thing was liable to the actio furti prohibiti, the penalty being fourfold the value of the thing. The action was given by the Edict, the law of the Twelve Tables having affixed no special penalty in this case, though intentionally concealing stolen property may perhaps have been treated as furtum under it. The Twelve Tables prescribed a solemn form of search for stolen property (lance et licio quaerere), which probably originated in jus sacrum. A person who went to search the house of another must be naked (nudus), all but a cloth (licium, not linteum as in the MS. of Gaius) round his middle, and must hold a dish (lancem) in his hands. Voigt (XII. Tafeln, 2.139) however maintains that nudus does not here mean a naked person, but one having only a tunica on, and no toga.

Various explanations are given by ancient writers of this formal proceeding. (Gaius, 3.192-194; Gel. 11.18.9; 16.10.8; Paul. Diac. p. 117, 2: cf. Vangerow, de furto conccpto; Voigt, XII. Tafeln, 2.139.) Gaius, who regards the whole proceeding as an absurdity, notices and criticises some of these; the most satisfactory account of the dish is that it was intended to occupy the hands of the searcher, so as to prevent him from introducing property and then asserting that it had been stolen. Plato (Legg. 12.94 A) and Aristophanes (Aristoph. Cl. 497-9) notice a similar custom as prevailing in Greece (Meier and Schumann, Att. >Proc. 485); traces of it are also found in early German law (Grimm, Rechtsalterth. 640 f.; Zeitschr. f. gesch. Rechtswiss. 2.91; Sohm, Proz. der Lex Salica, 65 ff.). Gellius states that this mode of search was put an end to by the Lex Aebutia, and it is probable that even before this enactment the search was as a rule conducted simply in the presence of witnesses. If the search was successful, and the thing was found in the possession of the fur himself, he was treated as a fur manifestus; if it was found in the possession of a person who was not the thief, such person, although an innocent receiver of the property, was liable to an action called furti concepti, by which the finder recovered three times the value of the thing. If a man gave you a stolen thing in order that it might be found (conciperetur) in your possession, rather than in his, this was called furtum oblatum, and you had an actio furti oblati against him, even if he was not the fur, by which a threefold penalty was recovered. The actiones furti concepti, oblati, and prohibiti were no longer in use in the time of Justinian (Inst. 4.1, 4), but a person who received property which he knew to have been stolen was liable to the actio furti, and the search for stolen property was conducted by public officials only (Dig. 4, 1, 3).

He who took the property of another by force was guilty of furtum; but in the case of this species of furtum, which is called rapina, the praetor gave a special action, known as actio vi bonorum raptorum. The origin of this action is referred by Cicero (pro Tull. 100.8) to the time of the civil wars, when robbery with violence became common. (Savigny, Ueber Cic. pro Tull., Zeitsch. für gesch. Rechtsw. 5.3, 1825; Huschke, Analecta, 1826, ii.) Accordingly the edict was originally directed against those who with bodies of armed men ( “hominibus armatis coactisque” ) did injury to the property of another or carried it off ( “quid aut rapuerint aut damni dederint” ). Subsequently it was found convenient to widen the scope of the action by leaving out the word armatis. Thus this word is not found in the edict as cited in the Digest (Dig. 48, 8, 2, pr.). The application of the edict would still, however, have been very limited, if it had been confined to cases [p. 1.897]where numbers were engaged in the violence or robbery; and so the jurists by a somewhat strained interpretation extended the edict to the case of a single man committing robbery or damage with violence (Dig. 47, 8, 2, 7, Mommsen's ed.), where Savigny would read “hoc enim quod ait ‘hominibus coactis’ sic accipere debemus ‘ etiam hominibus coactis,’ ut sive solus vim fecerit sive etiam hominibus coactis vel armatis vel inermibus hoc edicto teneatur.” The edict originally comprehended devastation of property carried out by violence (damnum) as well as robbery (rapina); in fact, it seems probable that the special object of the edict was to prevent such high-handed acts of violence as are committed by powerful men in times of disturbance. Under the empire such damnum ceased to be .common, so rapina became the ordinary offence for which this edict was used, and ultimately the only one; hence in Ulpian's time the action was simply called vi bonorum raptorum. In Justinian's legislation the action applied to robbery only, and there was no trace of the other part of the edict. This instructive illustration of the gradual adaptation, even of the edictal law, tot circumstances, is given by Savigny, who adopts the above emendation of Dig. 47, 8, 2, 7, by Heyse. By the actio vi bonorum raptorum fourfold was recovered, but this included damages as well as penalty.

The following are peculiar kinds of actiones furti:--

    1. Actio de tigno juncto, against a person who employed another person's timber in his building, by which, according to the Twelve Tables, double the value of the materials was recovered. (Dig. 41, 1, 7, 10: cf. Huschke, ad Leg. XII. Tab. de tign. junct.; Puchta, Kleine civilistiche Schriften, 392, &c.; Voigt, XII. Tafeln, 2.139.)
  • 2. Actio de distrahendis rationibus, also given by the Twelve Tables, on account of the abstraction of the property of a ward by his guardian.
  • 3. Actio rerum amotarum, action brought by a man against a woman who had been his wife on account of acts which would have constituted theft if not committed by a wife (Dig. 25, 2, 1).
The special kind of furtum which consisted in cattle lifting, appears to have been originally called peculatus (Varro, L. L. 5.19, 95; Festus, 237a, 13) [ABIGEI], but in later times peculatus is the crime of stealing or embezzling money appropriated to religious or public purposes. (Inst. 4.1; Dig. 47, 2; Cod. 6, 2; Gaius, 3.183-209; Gel. 11.18; Rein, Das röm. Privatrecht, 736-754; Puchta, Institutionen, 3.277; Savigny, Obligationenrecht, 2.300-311; Dollmann, Die Entwendung, u. s. w.; Voigt, XII. Tafeln, 2. § § 138, 139, 140; Vangerow, Pandekten, 3.679; Windscheid, Pandekten, § § 452, 453; Müller, Institutionen, § 129; Böcking, Römisches Privatrecht, 2.31; Keller, Inst. § 159; Kuntze, Inst. 1.717, 17, 2.500-4; Danz, Lehrbuch, u. s. w. § 15.)


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