FURTUM
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.)
[
E.A.W]
