PECULA´TUS
PECULA´TUS is the misappropriation or theft of
public or sacred property, whether it was done by a public functionary or by
a private person. Labeo (
Dig. 50,
9,
2) defines it thus: “pecuniae
publicae aut sacrae furtum, non ab eo factum cujus periculum
est,” the qualifying part of the definition meaning that there could
not be peculatus in respect of property entrusted to an official to hold at
his own risk. The person guilty of this offence was
peculator. Cicero (
de Off. 3.18, 73)
enumerates
peculatores with
sicarii, venefici, testamentarii (forgers of wills), and
fures. Peculatus, derived from
pecus, a term which originally denoted that kind of
movable property which was the chief sign of wealth [
PECUNIA], seems to have
signified in early times the theft of cattle, peculatus publicus having been
the offence of stealing cattle from a magistratus which he had taken as
multa or as
poena
sacramenti (Voigt,
Zwölf Tafeln,
2.137, n. 17; cf. Varro,
L. L. 5.19, 95, “hinc [i. e. a
pecude] peculatum publicum primo turn, cum pecore diceretur multa et id
esset coactum ni publicum, si erat aversum;” --Festus, 237 a, 13;
[p. 2.361]211 a, 18; 202 b, 13;--Paul. Diac. 75, 11).
Peculatus was punished in early times by the infliction of a heavy
multa on the offender (
Liv.
1.37,
25.37,
37.58;
Gel. 7.19). Originally trials for
peculatus were before the populus or before the senate (
Liv. 5.32,
37.51,
38.54). In the time of Cicero matters of peculatus
were one of the
quaestiones perpetuae (
pro Cluent. 53, 147;
pro Mur. 20,
42), which implies some Lex de Peculatu, though there is no mention of such
a lex in our sources.
Two leges relating to peculatus are cited in the Digest, Lex Julia peculatus
and Lex Julia de residuis, but these may perhaps be two chapters of the same
lex, just as the Lex Julia de adulteriis comprised a provision
de fundo dotali, which chapter is often quoted as if
it were a separate lex. The Lex de residuis applied to those who had
received public money for public purposes, and had retained it when they
ought to have paid it over ( “apud quem pecunia publica
resedit” ). The offence differs from ordinary peculatus in that it is
constituted by a mere omission. The penalty under this lex on conviction,
borrowed from the Lex Silia, was a third part of the sum retained besides
liability to restitution. Sacrilegium is treated as a kind of peculatus
under the Lex Julia, a sacrilegus being one who plunders sacred property of
a public kind (so excluding
sacra privata). For
an account of the special punishments with which this offence was visited,
see art.
SACRILEGIUM The
Lex Julia peculatus embraced or was extended by interpretation to various
species of public frauds, some of which also belong to the
crimen falsi, as certain coinage offences,
falsification of public accounts or of documents of title to public land,
&c. The punishment for peculatus, which under the Lex Julia was
aquae et ignis interdictio, was
subsequently changed into
deportatio: the
property of the offender was forfeited. Special punishments were inflicted
in the case of particular species of peculatus. (
Dig.
48,
13,
ad legem Juliam
peculatus et de sacrilegis et de residuis; Cod. 9, 28; Inst.
4.18, 9; Paul.
Sent. 5, 27; Rein,
Das Criminalrecht
der Römer, p. 672; Rudorff,
Römische
Rechtsgeschichte, 2.118; Walter,
Römische
Rechtsgeschichte, § 813.)
[
G.L] [
E.A.W]
