Original scientific paper
Theft in Roman law: delictum publicum and delictum privatum
Ivana Jaramaz Reskušić
Abstract
On the basis of the analysis of relevant legal and non-legal sources, it is shown in the article that, in spite of the explicit reservation of the ancient Roman community about the penal intervention of the public authorities, the dual regime of – public and private – repression of theft was established even in decemviral codification. This was achieved by means of the simple and clear definition of the notion furtum within which there were, on the one hand, furtum manifestum as undoubtedly public criminal offence sanctioned by flogging (verberatio) of the thief and putting the freeman under the authority (addictio) of the victim of theft, or by throwing the slave from the Tarpeian Rock (praecipitatio e saxo) – that is, by capital punishment and, on the other hand, furtum nec manifestum as a predominantly private delict sanctioned by paying the double value of the stolen thing to the plaintiff (duplione damnum decidere). Although later the republican legislation remained almost completely passive concerning the regulation of the crime of theft (with the exception of lex Fabia de plagiariis and Sulla’s lex Cornelia de sicariis et veneficis), and the classical legal-casuistic elaboration – except for the extreme widening of the notion furtum – did not bring any significant changes in relation to the existing (mostly praetorian) regulation of theft as an obligation ex delicto, yet by the late classical determination of the limits of furtum and the imperial affirmation of the judicial procedural system cognitio extra ordinem, which meant the disappearance of the structural and functional difference in acquiring legal protection (and thus private ownership), the process of the progressive execution of public penal repression of theft, particularly of its new, aggravated forms of manifestation, was made possible.
Augustus initiated this process by establishing two urban prefectures – praefectus urbi and praefectus vigilum – to which judicial penal authorities were also given in serious or socially dangerous cases of theft. Classical legal sources show that at the latest by the period of the dynasty of Severa there had crystallized several forms of theft – night theft, pick-pocketing, day theft committed in somebody else’s dining-room or at the place meant for keeping property or in public baths, robbery of the entire property, but also expilatae hereditatis and abigeatus – qualified for public prosecution and punishment in the judicial procedural system cognitio extra ordinem. And by the beginning of dominata, with the final prevalence of this system, prerequisites were created for the competent imperial servant to solve all civil law and criminal law matters concerning theft by one judgment.
Keywords
Roman law; furtum; Code of XII Tables; cognitio extra ordinem; repression
Hrčak ID:
11586
URI
Publication date:
15.4.2007.
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