Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/127

Rh The other important class of obligations besides contracts are delicts or torts. They arise from acts which without legal justification injure another’s person or family or property or reputation. Such acts, if regarded as likely to be injurious not only to the individual but to the community, become subjects for criminal law: if not so regarded, are subject for private prosecution and compensation. In many cases the injured person had a choice of proceeding against the offender criminally or for private compensation. The tendency in imperial times was to treat criminally the graver cases, especially when accompanied with violence or sacrilege.

The principal classes of delicts were: theft, wrongful damage, and insult (injuriarum). Theft is taking or handling with a gainful intention any movable belonging to another without the owner's consent actual or honestly presumed. Usually the theft is secret: if done with violence it is treated with greater severity as robbery (rapina). Any use of another's thing other than he has authorised comes under this tort, and not only the thief but anyone giving aid or counsel for a theft, is liable for the same. Not only the owner, but anyone responsible for safekeeping can sue as well as the owner. The penalty was ordinarily twofold the value of the thing stolen, but, if the thief was caught on the spot, fourfold the value. If the offence was committed by a slave the master could avoid the penalty by surrendering the slave to the plaintiff. In early days such a surrender of a son or daughter in their father's power was possible, but probably rare. Robbery was subjected to a penalty of fourfold the value. Cattle-driving was usually punished criminally. Theft from a man by a son or slave under his power was a matter of domestic discipline, not of legal process. Theft by a wife was treated as theft, but the name of the suit was softened into an action for making away with things (rerum amotarum).

Wrongful damage rested even till Justinian's time on a statute (Lex Aquilia) of early republican date which received characteristic treatment from lawyers' interpretations extending and narrowing its scope. It embraced damage done whether intentionally or accidentally to any slave or animal belonging to another, or indeed to anything, crops, wine, nets, dress, etc., belonging to another, provided it was done by direct physical touch, not in self-defence nor under irresistible force. If the damage was caused by defendant but not by corporal touch, the Romans resorted to the device of allowing an analogous action by setting forth the facts of the case, or by express statement of the analogy. The penalty was in case of death assessed at the highest value which the slave or animal had within a year preceding the death; in case of damage only, the value to the plaintiff within the preceding thirty days. But condemnations under this head of wrongful damage did not involve the infamy which belonged to theft; that was purposed, this was often the result of mere misfortune. Surrender of a slave who had caused the