Vi bonorum raptorum et de turba
(Concerning the robbery of property by violence, and disorderly assemblages.)
1 Paulus libro vicensimo secundo ad edictum. Qui rem rapuit, et furti nec manifesti tenetur in duplum et vi bonorum raptorum in quadruplum. sed si ante actum sit vi bonorum raptorum, deneganda est furti: si ante furti actum est, non est illa deneganda, ut tamen id quod amplius in ea est consequatur.
1 Paulus, On the Edict, Book XXII. Anyone who takes property by force is liable to the action of non-manifest theft for double damages, and to the action of robbery with violence for quadruple damages. If the action for robbery with violence is first brought, that of theft will be refused. If that for theft is first brought, the other will not be refused, but only what exceeds the amount included in the first suit can be recovered.
2 Ulpianus libro quinquagensimo sexto ad edictum. Praetor ait: ‘Si cui dolo malo hominibus coactis damni quid factum esse dicetur sive cuius bona rapta esse dicentur, in eum, qui id fecisse dicetur, iudicium dabo. item si servus fecisse dicetur, in dominum iudicium noxale dabo’. 1Hoc edicto contra ea, quae vi committuntur, consuluit praetor. nam si quis se vim passum docere possit, publico iudicio de vi potest experiri, neque debet publico iudicio privata actione praeiudicari quidam putant: sed utilius visum est, quamvis praeiudicium legi Iuliae de vi privata fiat, nihilo minus tamen non esse denegandam actionem eligentibus privatam persecutionem. 2‘Dolo’ autem ‘malo facere’ potest (quod edictum ait) non tantum is qui rapit, sed et qui praecedente consilio ad hoc ipsum homines colligit armatos, ut damnum det bonave rapiat. 3Sive igitur ipse quis cogat homines sive ab alio coactis utitur ad rapiendum, dolo malo facere videtur. 4Homines coactos accipere debemus ad hoc coactos, ut damnum daretur. 5Neque additur, quales homines: qualescumque sive liberos sive servos. 6Sed et si unus homo coactus sit, adhuc dicemus homines coactos. 7Item si proponas solum damnum dedisse, non puto deficere verba: hoc enim, quod ait ‘hominibus coactis’, ut sive solus vim fecerit sive etiam hominibus coactis, sic accipere debemus etiam hominibus coactis vel armatis vel inermibus hoc edicto teneatur. 8Doli mali mentio hic et vim in se habet. nam qui vim facit, dolo malo fecit, non tamen qui dolo malo facit, utique et vi facit. ita dolus habet in se et vim: et sine vi si quid callide admissum est, aeque continebitur. 9‘Damni’ praetor inquit: omnia ergo damna continet et clandestina. sed non puto clandestina, sed ea, quae violentia permixta sunt. etiam quis recte definiet, si quid solus admiserit quis non vi, non contineri hoc edicto, et si quid hominibus coactis, etiamsi sine vi, dummodo dolo sit admissum, ad hoc edictum spectare. 10Ceterum neque furti actio neque legis Aquiliae contributae sunt in hoc edicto, licet interdum communes sint cum hoc edicto: nam Iulianus scribit eum qui vi rapit furem esse improbiorem, et si quid damni coactis hominibus dederit, utique etiam Aquilia poterit teneri. 11‘Vel cuius bona rapta esse dicuntur’. quod ait praetor ‘bona rapta’, sic accipiemus: etiam si una res ex bonis rapta sit. 12Si quis non homines ipse coegerit, sed inter coactos ipse fuerit et quid aut rapuerit aut damni dederit, hac actione tenetur. sed utrum hoc solum contineat edictum, quod dolo malo hominibus a reo coactis damnum datum sit vel raptum, an vero quod dolo malo rei raptum vel damnum datum sit, licet ab alio homines sint coacti, quaeritur. et melius esse dicitur etiam hoc contineri, ut omnia haec contineantur et quod ex coactis ab alio damnum datum sit, ut et is qui coegit et is qui coactus est contineri videatur. 13In hac actione intra annum utilem verum pretium rei quadruplatur, non etiam quod interest. 14Haec actio etiam familiae nomine competit, non imposita necessitate ostendendi, qui sunt ex familia homines qui rapuerunt vel etiam damnum dederunt. familiae autem appellatio servos continet, hoc est eos, qui in ministerio sunt, etiamsi liberi esse proponantur vel alieni bona fide nobis servientes. 15Hac actione non puto posse actorem singulorum servorum nomine agere adversus dominum eorum, quia sufficit dominum semel quadruplum offerre. 16Ex hac actione noxae deditio non totius familiae, sed eorum tantum vel eius, qui dolo fecisse comperietur, fieri debet. 17Haec actio volgo vi bonorum raptorum dicitur. 18Hac actione is demum tenetur, qui dolum malum adhibuit. si quis igitur suam rem rapuit, vi quidem bonorum raptorum non tenebitur, sed aliter multabitur. sed et si quis fugitivum suum, quem bona fide aliquis possidebat, rapuit, aeque hac actione non tenebitur, quia rem suam aufert. quid ergo, si sibi obligatam? debebit teneri. 19Vi bonorum raptorum actio in impuberem, qui doli mali capax non est, non dabitur: nisi servus ipsius vel familia eius admisisse proponantur, et servi et familiae nomine noxali vi bonorum raptorum actione tenetur. 20Si publicanus pecus meum abduxerit, dum putat contra legem vectigalis aliquid a me factum: quamvis erraverit, agi tamen cum eo vi bonorum raptorum non posse Labeo ait: sane dolo caret: si tamen ideo inclusit, ne pascatur et ut fame periret, etiam utili lege Aquilia. 21Si per vim abductum pecus incluserit quis, utique vi bonorum raptorum conveniri poterit. 22In hac actione non utique spectamus rem in bonis actoris esse: sive in bonis sit sive non sit, si tamen ex bonis sit, locum haec actio habebit. quare sive commodata res sit sive locata sive etiam pignerata proponatur sive deposita apud me sic, ut intersit mea eam non auferri, sive bona fide a me possideatur, sive usum fructum in ea habeam vel quod aliud ius, ut intersit mea non rapi: dicendum est competere mihi hanc actionem, ut non dominium accipiamus, sed illud solum, quod ex bonis meis, hoc est ex substantia mea res ablata esse proponatur. 23Et generaliter dicendum est, ex quibus causis furti mihi actio competit in re clam facta, ex hisdem causis habere me hanc actionem. dicet aliquis: adquin ob rem depositam furti actionem non habemus. sed ideo addidi ‘si intersit nostra non esse raptam’: nam et furti actionem habeo, si in re deposita culpam quoque repromissi vel pretium depositionis non quasi mercedem accepi. 24Utilius dicendum est et si cesset actio furti ob rem depositam, esse tamen vi bonorum raptorum actionem, quia non minima differentia est inter eum qui clam facit et eum qui rapit, cum ille celet suum delictum, hic publicet et crimen etiam publicum admittat. si quis igitur interesse sua vel modice docebit, debet habere vi bonorum raptorum actionem. 25Si fugitivus meus quasdam res instruendi sui causa emerit eaeque raptae sint, quia in bonis meis hae sunt res, possum de his vi bonorum raptorum actione agere. 26Rerum raptarum nomine etiam furti vel damni iniuriae vel condictione agi potest vel certe singulae res vindicari possunt. 27Haec actio heredi ceterisque successoribus dabitur. adversus heredes autem vel ceteros successores non dabitur, quia poenalis actio in eos non datur. an tamen in id, quod locupletiores facti sunt, dari debeat, videamus. et ego puto ideo praetorem non esse pollicitum in heredes in id quod ad eos pervenit, quia putavit sufficere condictionem.
2 Ulpianus, On the Edict, Book LVI. The Prætor says: “If any damage is said to have been committed maliciously against anyone by persons unlawfully assembled, or his property is said to have been taken by violence, I will grant an action against whoever is alleged to have done these things. Likewise, if a slave is said to have committed these acts, I will grant a noxal action against his master.” 1By this Edict, the Prætor has provided against illegal acts committed by force. For if anyone can prove that he has suffered violence, he can proceed by means of a public action against violence, and certain authorities hold that the private action should not prejudice the public one. It, however, seems to be more available, and although it may interfere with the operations of the Lex Julia having reference to private violence, still, an action ought not to be refused those who select the private remedy. 2He who commits robbery by violence not only perpetrates the crime maliciously, as stated in the Edict, but also when he seizes property by force, after having formed his plan, and collected armed men for the purpose of causing damage. 3Therefore, whether he himself assembles men, or makes use of those who already have been assembled by another in order to commit robbery, he is considered to have acted with malice. 4We should understand men who have been assembled to be such as are brought together for the purpose of causing damage. 5It is not added what kind of men, hence it makes no difference whether they are free or slaves. 6If only one man is called upon, we still say that men have been assembled. 7Again, if you suppose that only one has caused the damage, I do not think that the words of the Edict will fail to be applicable, for when it says, “Persons unlawfully assembled,” we must understand this to mean that, whether one alone is guilty of violence, or whether he acts in company with others who are assembled and they are either armed or unarmed, he will be liable under this Edict. 8The mention of malice includes violence, for he who employs violence acts maliciously. It does not, however, necessarily follow that he who is malicious employs violence; hence malice suggests violence, and he who commits an act without violence But deceitfully is equally included. 9The Prætor says “damage.” This word refers to every kind of injury, even that which is clandestine. I do not think, however, that all clandestine damage is included, but only such as is combined with violence. For anyone will give a suitable definition if he were to say that he who committed damage alone, and without violence, is not included in this Edict, and that if it was committed by persons who are assembled, even without violence, provided malice was present, it will come within the terms of this Edict. 10But neither the action of theft, nor that provided for by the Aquilian Law should be included in this Edict, although sometimes they coincide with it; for Julianus says that he who commits robbery by violence is a more unprincipled thief; and that he who commits any damage with the aid of assembled persons can also be held liable under the Aquilian Law. 11“Or his property is said to have been taken by violence.” When the Prætor says, “Property taken by violence,” we must understand this to apply even where only one article has been obtained by force. 12If anyone does not himself assemble men, but is found among them, and either takes anything by violence, or causes some damage, he will be liable under this action. But does this Edict only refer to damage fraudulently or violently committed by men assembled by the defendant, or does it also refer to robbery by violence, or damage committed by the men aforesaid, although they may have been called together by another, is a question which has been asked. It is better to hold that this also is the case, so that all these things are comprehended, as well as any injury committed by persons assembled by another, so that he who assembled them, as well as he who joined them, may be considered to be included. 13In this action the true price of the property is quadrupled within the available year, but not the amount of the interest of the plaintiff. 14This action will also lie with reference to a household, without it being necessary to show who among the members of the same committed the robbery by violence, or even the damage. The term “household” also includes the slaves, that is to say those that are in service, although it may be alleged that they are free, or are the slaves of others serving us in good faith. 15I do not think that by means of this action the plaintiff can proceed against the master on account of his slaves, because it will be sufficient for the master to once tender fourfold the amount involved. 16Under this suit for reparation, a surrender should not be made of the entire number of slaves, but only of those, or of him, who is proved to have caused the damage. 17This action is commonly styled one for property taken by violence. 18He alone is liable in this action who has been guilty of fraud. Therefore, if anyone forcibly seizes what is his own, he will not be liable for taking property in violence, but he will be fined in a different way. If, however, anyone should forcibly seize his own slave, of whom another has possession in good faith, he will, in like manner, not be liable under this action, because he removes his own property. But what if he takes away some article that had been encumbered to him? He will be liable. 19The action for property taken by violence will not be granted against a child under the age of puberty who is not capable of criminality, unless his slave, or his body of slaves, are alleged to have committed the offence, and, when this is the case, he will be liable in a noxal action for property taken by violence by his slave, or by a number of his slaves. 20If a farmer of the revenue should drive away my cattle, thinking that I have committed some offence against the tax law, although he may be mistaken, still, I cannot bring an action against him for property taken by violence, Labeo says, for he is not guilty of fraud. Where, however, he shuts up the cattle in order that they may not feed, and causes them to perish with hunger, a prætorian action can be brought under the Aquilian Law. 21When anyone shuts up cattle which he has taken by violence, suit can be brought against him on this account. 22In this action we do not merely consider whether that which has been forcibly seized constitutes part of the property of the plaintiff, for, whether it does or does not, if it has any connection with it, there will be ground for this proceeding. Therefore, whether the property is loaned for use, or leased, or even pledged, or deposited with me, and hence it is to my interest that it should not be removed, or if any of it is possessed by me in good faith; or I have an usufruct or any other right in it, so that it is to my interest that it shall not forcibly be taken away, it must be said that I will be entitled to this action, not that the ownership, but merely that what has been removed from my property, that is to say, from my substance, may be recovered. 23And, generally speaking, it must be held that an action for theft will lie in my favor for whatever has been done clandestinely in all these cases, and that I will be entitled to a right of action on this ground. Someone, however, may say that we are not entitled to an action for theft on account of property which has been deposited, but with reference to this, I have added: “If it is to our interest that the property should not be taken by violence,” for then I am entitled to an action for theft. 24If, where property is deposited, I have become responsible for negligence, or if I have received the value of the deposit, but not as compensation, it is more proper to hold that even though the action for theft based on the deposit will not lie, one for property taken by force can be brought; because only a very small difference exists between one who acts clandestinely, and one who takes property by violence, as the former conceals his crime, and the other publishes his, and even commits it publicly. Therefore, when anyone proves that he has only a moderate interest in the matter, he should have an action for property taken by violence. 25If my fugitive slave buys articles to be used by himself, and they are taken away by force, for the reason that the said articles are included in my property, I can bring an action for robbery with violence. 26When property is taken by violence, an action can be brought for theft or wrongful damage, or a personal action will be available, or proceedings can be instituted for the recovery of each article. 27This action will lie in favor of the heir and other successors. It shall not, however, be granted against heirs and other successors, because a penal action cannot be brought against them. Let us see whether it should be granted for something by which they have become pecuniarily benefited. I think that the Prætor did not promise the action against the heirs for what comes into their hands, because he thought that the personal action was sufficient.
3 Paulus libro quinquagensimo quarto ad edictum. Si servus rapuerit et cum libero agatur, etiam, si cum domino experiundi potestas fuit, non recte cum manumisso post annum agetur, quia cum quocumque experiundi potestas fuerit, excluditur actor. si cum domino intra annum actum sit, deinde cum manumisso agatur, rei iudicatae exceptionem nocere Labeo ait.
3 Paulus, On the Edict, Book LIV. If a slave takes property by violence, and an action is brought against him when he becomes free, although he has the power to proceed against his master, suit cannot legally be brought against the manumitted slave after a year has elapsed; because, no matter against whom proceedings could have been instituted, the plaintiff will be excluded. If an action should be brought against the master within a year, and afterwards one is brought against the manumitted slave, Labeo says that an exception on the ground of res judicata, will operate as a bar.
4 Ulpianus libro quinquagensimo sexto ad edictum. Praetor ait: ‘Cuius dolo malo in turba damnum quid factum esse dicetur, in eum in anno, quo primum de ea re experiundi potestas fuerit, in duplum, post annum in simplum iudicium dabo’. 1Hoc edictum de eo damno proponitur, quod quis in turba dedit. 2Turbam autem appellatam Labeo ait ex genere tumultus idque verbum ex Graeco tractum ἀπὸ τοῦ θορυβεῖν. 3Turbam autem ex quo numero admittimus? si duo rixam commiserint, utique non accipiemus in turba id factum, quia duo turba non proprie dicentur: enimvero si plures fuerunt, decem aut quindecim homines, turba dicetur. quid ergo, si tres aut quattuor? turba utique non erit. et rectissime Labeo inter turbam et rixam multum interesse ait: namque turbam multitudinis hominum esse turbationem et coetum, rixam etiam duorum. 4Hoc autem edicto tenetur non solus, qui damnum in turba dedit, sed et is, qui dolo malo fecerit, ut in turba damni quid daretur, sive illo venerit sive non fuerit praesens: dolus enim malus etiam absentis esse potest. 5Hoc edicto dicendum est etiam eum teneri, qui venit et in turba fuit auctor damni dandi, si tamen et ipse inter turbam fuit, cum damnum daretur, et dolo malo fuit: nam et huius dolo malo in turba damni quid factum esse negari non potest. 6Si quis adventu suo turbam concitavit vel contraxit, vel clamore vel facto aliquo vel dum criminatur aliquem vel dum misericordiam provocat: si dolo malo eius damnum datum sit, etiamsi non habuit consilium turbae cogendae, tenetur. verum est enim dolo malo eius in turba damni quid datum: neque enim exigit praetor, ut ab ipso sit turba convocata, sed hoc, ut dolo alicuius in turba damnum datum sit. eritque haec differentia inter hoc edictum et superius, quod ibi de eo damno praetor loquitur, quod dolo malo hominibus coactis datum est vel raptum etiam non coactis hominibus: at hic de eo damno, quod dolo malo in turba datum est, etiamsi non ipse turbam coegit, sed ad clamorem eius vel dicta vel misericordiam turba contracta est, vel si alius contraxit vel ipse ex turba fuit. 7Idcirco illud quidem edictum propter atrocitatem facti quadrupli poenam comminatur, at hoc dupli. 8Sed et hoc et illud intra annum tribuit experiundi facultatem: post annum in simplum competit. 9Loquitur autem hoc edictum de damno dato et de amisso, de rapto non: sed superiori edicto vi bonorum raptorum agi poterit. 10Amissa autem dicuntur ea, quae corrupta alicui relinquuntur, scissa forte vel fracta. 11Haec autem actio in factum est et datur in duplum, quanti ea res erit: quod ad pretium verum rei refertur. et praesentis temporis fit aestimatio: et semper in duplum intra annum est. 12Docereque actor in turba damnum esse datum debet: ceterum si alibi datum sit quam in turba, cessabit haec actio. 13Si, cum servum meum Titius pulsaret, turba fuerit collecta isque servus in ea turba aliquid perdiderit, cum eo qui pulsabat agere possum, quippe cum in turba dolo malo damnum datum sit: sic tamen, si, ut damnum daret, ideo coeperat caedere. ceterum si alia causa verberandi fuit, cessat actio. 14Sed et si quis ipse turbam convocasset, ut turba coram servum verberaret iniuriae faciendae causa, non damni dandi consilio, locum habet edictum. verum est enim eum, qui per iniuriam verberat, dolo facere et eum, qui causam praebuit damni dandi, damnum dedisse. 15In servum autem et in familiam praetor dat actionem. 16Quae de heredibus ceterisque successoribus in vi bonorum raptorum actione diximus, et hic erunt repetita.
4 Ulpianus, On the Edict, Book LVI. The Prætor says: “When any damage is said to have been committed maliciously by one of a mob, I will grant an action for double damages against him within the year from the time when proceedings could have been instituted, and, after a year has elapsed, I will grant an action for simple damages.” 1This Edict is introduced with reference to damage committed by any member of a disorderly crowd. 2Labeo says that the term “crowd” indicates a kind of riotous assemblage, and that it is derived from a Greek term signifying to “make a tumult.” 3How large a number shall we consider to constitute a crowd? If two persons engage in a quarrel, we should not understand this to be done by a crowd, because two persons cannot properly be said to compose one. If, however, there should be a larger number, for instance, ten or fifteen persons, they may be called a crowd. But what if there are only three or four? This will not be a crowd. Labeo very properly says that there is a great difference between a tumult and a quarrel; because a tumult is the uproar and disturbance made by a multitude of men, and a quarrel is made by only two. 4Not only he who causes damage while in a tumultuous assemblage is liable under this Edict but also he who maliciously exerted himself in order that damage might result from the acts of the assemblage whether he was present or not, for malice can be manifested even if the person is absent. 5It must be said that he also is liable under this Edict who joined the crowd, and advised the damage to be committed; provided, however, he himself was present when it was done, and was there with evil intent, for it cannot be denied that the damage was committed by the crowd through his malicious interference. 6Where a man on his arrival excites or unites a crowd either by his cries, or by any act, either accusing someone, or arousing pity, and through his malicious conduct damage is committed, he will be liable; even if he did not have the intention of convoking the assemblage. For it is true that through his malice damage was committed by the crowd, and the Prætor does not require that it should be brought together by the person himself, but that the damage should be committed through the malicious instigation of one forming a part of it. The following difference exists between this Edict and the former one, namely: in the first the Prætor speaks of damage maliciously committed by persons tumultuously assembled, or robbery with violence perpetrated by them where they were not assembled; but in the second, he refers to damage committed maliciously by a crowd, although the accused person did not convoke it, but where it was incited by his cries, or his languages, or because he aroused pity, even if another assembled the mob, for he himself constituted part of it. 7Therefore, on account of the atrocity of the deed, the first Edict presents a penalty of quadruple damages, and the latter one of double damages. 8Both of them, however, grant the power of bringing an action within a year, but, after the year has elapsed, an action for only simple damages will lie. 9Moreover, this Edict mentions damage which has been caused and property which has been lost, but it does not refer to robbery with violence; still, suit can be brought for robbery with violence under the former Edict. 10Property is said to be lost which has been allowed by anyone to be destroyed, as for instance cut, or broken to pieces. 11Again, this action is in factum, and is granted for double the value of the property, which has reference to its true price and the estimate made at the present time, is always doubled within a year. 12The plaintiff must prove that the damage was caused by a mob. If, however, it was caused in any other way than by a mob, this action will not lie. 13If, when Titius struck my slave, a crowd assembled, and the slave lost something thereby, I can bring suit against the person who struck him, even though the crowd was responsible for the loss, and he began to strike him in order that injury might be committed. The action, however, will not lie if any other cause for striking him existed. 14When, however, anyone himself assembles a crowd, and beats the slave in its presence for the purpose of doing him injury, and not with the intention of causing damage, the Edict will apply; for it is true that he who strikes anyone unjustifiably displays malice, and that he who is responsible for the commission of damage commits it. 15The Prætor grants an action against a slave, and against an entire body of slaves. 16What we have stated with reference to heirs and other successors being entitled to bring the action for property taken by violence may be repeated here.
5 Gaius libro vicensimo primo ad edictum provinciale. Non prodest ei qui vi rapuit ad evitandam poenam, si ante iudicium restituat rem quam rapuit.
5 Gaius, On the Provincial Edict, Book XXI. It will not benefit the person guilty of robbery with violence to restore the property before judgment is rendered, with a view to avoiding the penalty.
6 Venuleius libro septimo decimo stipulationum. Quod vi possessum raptumve sit, antequam in potestatem domini heredisve eius perveniat, usucapi lex vetat.
6 Venuleius, Stipulations, Book XVII. The law forbids property which has been possessed or taken by violence to be acquired by usucaption, before it again comes under the control of the owner, or his heir.