From the Justinian Code
The Justinian Code, or Corpus Juris Civilis, was a mammoth
legal project undertaken by 6th-century Byzantine (Eastern Roman)
Emperor Justinian I.
The work incorporated, updated, and clarified the Roman law that
had come before. Previous acts that were not incorporated into
the Code were declared invalid. The code consisted of four
parts: the Codex clarified and updated past imperial statutes; the
Digesta interpreted and updated past legal decisions; the Institutiones
was a handbook for student lawyers; and the Novellae was a collection
of Justinian's laws that were issued after publication of the Codex.
This excerpt from the Digesta demonstrates the literary technique
of the code, which used such devices as a conversation and examples
drawn from life to illustrate legal points. Here, two pedagogic
figures discuss laws concerning theft.
From the Justinian Code - citation from Digesta
(ULPIAN) In an action for theft
it is enough if the thing stolen is described sufficiently for it
to be identified. It is not necessary to speak of the weight of
vessels, for example, and it is therefore enough to refer to 'a
plate,' 'a dish,' or 'a cup' - but its material should be added,
whether it be silver or gold or anything else.
But if someone brings an action for unwrought silver, he
should speak of a 'lump of silver' and give its weight. In the case
of silver coins their number must be stated, and similarly how many
gold coins have been taken by theft. It is debated whether the colour
of a dress need be specified and indeed it is desirable that it
should; for just as in the case of a gold cup the material is stated,
so in the case of a dress the colour should be given, though clearly
if a man swears on oath that he cannot say for certain what the
colour is he must be relieved of this particular obligation.
Anyone who pawns a thing and then purloins it is liable to
an action for theft. The owner of a pledged object is deemed to
commit theft not only when he carries it off from his creditor who
has it in his possession, or indeed in his hands, but even if he
takes it when it is not in the creditor's possession, as for example
if the owner sells it after pledging it. It is settled that in such
a case he is also guilty of theft, and that was Julian's opinion
also.
(PAUL) If a copper object is
given as a pledge and the pledger says it is gold, he is certainly
acting disgracefully, but he is not committing theft.
But if having handed over something made of gold, he got
it back by saying that he wanted to weigh it or add his seal and
then substituted something of bronze base metal in its place, he
commits theft, for he is meddling with the thing already pledged.
If you buy something from me, in good faith, and I carry it
off, or if indeed you have a usufruct of something of mine and I
interfere with it dishonestly, I shall be liable in your action
for theft, even though I am the owner of that thing. But in these
cases usucapio (acquisition through long possession) is
not impeded as in the usual case of stolen things. For even if a
third party had stolen it and then it came back into my hands, it
could he usucaped.
(PAUL) It is a common question
whether if someone takes a bushel out of a whole heap of corn, he
commits theft of the heap or only of as much as he carried off.
Ofilius says that he steals the whole heap.
Consider the case of touching someone's ear. Trebatius says
this seems to be a case of touching the whole person. Thence it
follows that he who opens a cask and draws off a small quantity
of wine seems to be a thief not only of what he takes but of the
whole cask, though he will only be liable to pay damages for the
amount he actually took.
Take the case of a man who opens a chest which is too heavy
to lift and handles everything inside and then goes away, but later
comes back and carries off some item or other and is caught before
reaching the place he was making for: in such a case he is both
an "ordinary thief" and a red-handed (manifest) thief
in respect of the same thing. And similarly a man who cuts corn
and handles it during daylight is both an ordinary thief and also
a red-handed thief in respect of that which he is caught carrying
off during the following night.
If a man who deposits a bag of twenty coins with someone
else for safekeeping is later given back another bag of thirty (because
of the other person's mistake) and thinks that his own twenty are
among them, it seems that he is liable for theft as to the ten.
If someone steals some copper, thinking it is gold (or vice
versa according to the eighth volume of [1st-century Latin writer
Lucius] Pomponius on Sabinus), or he thinks he takes a small amount
of something whereas it is in fact a lot, he commits theft of that
which he actually takes. [Third-century Roman Empire minister of
justice] Ulpian says the same.
But if a thief takes two purses, one containing ten coins
and the other twenty, of which he thinks one is his own and knows
the other is someone else's, we will surely say he commits theft
of only one, that is the one he knows is not his, just as if he
took two cups, thinking one was his own and knowing that one was
not - this also is theft of one only. But if he thought the handle
of the cup was his - or indeed if it really was - this is still
theft of the whole cup, according to Pomponius. Again,
if someone steals a bushel of corn from a whole shipload, is this
theft of the whole cargo or just of the bushel? The problem can
be considered more easily in respect of a full warehouse. Surely
it is a bit hard to hold that this would be theft of the whole contents?
But what then should be said of a cistern of wine, or of
water - or what indeed of a ship carrying wine (and there are many
ships whose holds are brimming with wine)? What shall we say of
someone who draws off some of the wine? Would this be theft of the
whole cargo? It is most likely that we would not go that far. There
is no doubt though, if you put the case of jars in a storeroom and
they are stolen, that that is not one theft of the whole store but
of the individual jars, just as when a thief takes away one individual
thing from among a number of movable things in a warehouse.
If someone enters a room with intent to steal he is not yet
a thief, even though he entered in order to steal. Well then, to
what action is he liable? Certainly he is liable to an action for
iniuria (insult), or if he entered by force, he is liable to proceedings
for violence. Suppose someone opens or breaks into
something too heavy to be moved. He is not liable to an action of
theft for the whole thing but only for those things which he actually
stole, because he cannot take the whole. Similarly if anyone opens
a case of things which he cannot carry away in order to meddle with
the contents and he does meddle with them then even though he could
manage to take away several of the individual things, he is only
a thief of the particular things he takes and not of the whole if
he cannot carry away the whole lot, case and all. However, if he
was capable of carrying away the whole container we say that he
is a thief of the whole lot, whether or not he opened it to take
away the contents, or some of them, one at a time - and Sabinus
says that this is so.
If two or more men steal a piece of timber which no one of
them could lift by himself, it must be said that they are all equally
liable for the whole theft even though no one of them could handle
or remove it alone, and this is indeed the law, for we cannot say
that each one committed a part of the theft, but the whole thing
was the act of them all and thus each man is individually liable
for the theft. But although a man may be guilty of the theft of
things which he did not himself carry away he will not be liable
to make restitution, because the relevant action only lies for the
things which a man has actually taken - and thus Pomponius writes.
(PAUL) If a thief has smashed
or broken something with which he was not meddling in order to steal,
no action for theft lies against him in respect of that thing. By
this reasoning, if a chest is broken open, so that pearls, say,
may be taken away, and these are handled with intent to steal them,
it seems that theft is committed only as to the pearls; and this
is right, for other things which are moved aside to get at the pearls
are not handled with a view to theft of them.
A person who takes a scraping from a metal dish is a thief
of the whole dish and is liable in an action of theft to the extent
of its value to the owner.
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