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. 7Ad Dig. 47,8,2,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 454, Note 4.Again, 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. 13Ad Dig. 47,8,2,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 454, Note 5.In 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. 18Ad Dig. 47,8,2,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 454, Note 2.He 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. 23Ad Dig. 47,8,2,23Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 454, Note 6.And, 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.

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.

Ulpianus, On the Edict, Book LVI. The Prætor says: “When it is alleged that anyone at a fire, in the destruction of a building, in a shipwreck, or in an attack on a boat or a ship, has taken anything by violence, or fraudulently appropriated property, or caused any loss, I will grant an action for quadruple damages within a year after the time when an action can be brought, and, when the year has elapsed, I will grant an action for double damages. I will also grant the action against a slave, and an entire body of slaves.” 1The benefit of this Edict is evident, and its severity is perfectly justifiable, since it is to the interest of the public that nothing should be stolen under such circumstances. And, although these crimes can be prosecuted criminally, still, the Prætor very properly provides that civil actions may be brought, where offences of this kind have been perpetrated. 2How should we understand the words “at a fire?” Do they mean in the fire itself, or only in the place where the fire occurred? The better opinion is to understand them to mean on account of the fire, that is to say, that the property was stolen because of the confusion produced by the fire, or the fear resulting from it; just as we are accustomed to say “lost in war,” with reference to anything which is lost by reason of war. Hence, if anything should be stolen from the fields near where the fire took place, it must be said that there will be ground for the application of the Edict, because it is true that it was stolen on account of the fire. 3Likewise, the term “destruction” refers to the time when the demolition of the house took place, and not merely where anyone removed property from the fallen building, but also if he removed any from the adjacent houses. 4If there was a suspicion of a fire, or of the demolition of a house, and neither the fire nor the demolition occurred, let us see whether there will be ground for the application of this Edict. The better opinion is that there will be no ground for it, because nothing was taken either on account of the fire, or the demolition of the house. 5The Prætor also says, “If anything is taken in a shipwreck,” and, in this instance, the question arises whether this means if anyone takes property at the time of the shipwreck, or if he takes it at some other time, that is to say, after the shipwreck has occurred; for anything cast upon the shore after a shipwreck is said to belong to the vessel. The better opinion is that this refers to the time of the shipwreck,

Ulpianus, On the Edict, Book LVI. Where anyone seizes property by violence in the place where the shipwreck occurs or has occurred, he is held to come within the terms of this Edict. He, however, who carries away articles cast upon the shore after the shipwreck has happened is in such a position that he should rather be considered a thief than liable under this Edict; just as he who appropriates an article which has fallen from a vehicle, and one who removes property cast upon the shore are not considered to have taken it by force. 1Next, the Prætor says, “In an attack on a boat or a ship.” He is considered to take property by force who, during a battle or a combat directed against a ship or a boat, either seizes it by violence, or does so while robbers are capturing the vessel. 2Labeo says it is only just that, if anything is taken by violence during an attack either upon a house in town or upon one in the country, there will be ground for proceeding under this Edict, for we can be annoyed and attacked by robbers no less upon the sea than upon the land. 3Not only he who has seized the property by force, but also he who received it, is liable in the above-mentioned instances, because receivers of stolen goods are not less guilty than the aggressors themselves. The word, “fraudulently,” has been added, however, for the reason that everyone who receives property under such circumstances does not immediately become guilty, but only he who receives it with fraudulent intent. But what if he received it without knowing the facts? Or what if he received it for the purpose of taking care of it, and keeping it safely for the person who lost it? He certainly should not be held responsible. 4Not only he who took the property by force, but also he who removed it, or set it aside with the intention of removing it, or injured it, or concealed it, is liable in this action. 5It is, however, clear that it is one thing to take property by violence, and another to secretly appropriate it, since anything can be secretly appropriated without violence, but property cannot forcibly be taken without the employment of violence. 6Anyone who takes property by violence from a ship which has run aground is liable under this Edict. To run aground is what the Greeks term ecebrasvy. 7What the Prætor says with reference to causing damage only applies where the damage has been committed maliciously, for if malice is absent, the Edict will not be available. Hence, how must what Labeo stated be understood, namely: if, for the purpose of protecting myself from a fire, which has broken out, I demolish a building belonging to my neighbor, should an action be granted against me, and my slaves? For, as I did this for the purpose of protecting my own house, I certainly am free from malice. Therefore I think that what Labeo said is not true. But can an action be brought under the Aquilian Law? I do not think it can, for anyone who desires to protect himself does not act unjustly when he cannot do otherwise. Celsus, also, was of the same opinion. 8In the time of Claudius, the following Decree of the Senate was enacted: “If anyone, in a shipwreck, should remove the rudders of a vessel, or one of them, he will be liable for taking the whole ship.” It was likewise provided by another Decree of the Senate that those by whose fraud or advice shipwrecked persons were overcome by force, in order to prevent assistance being given to the ship, or to anyone on board who was in danger, would be liable to the penalties of the Cornelian Law relating to assassins. And, moreover, that those who took by violence, or fraudulently obtained anything from the wretched fortunes of the shipwrecked person, should be compelled to pay as much into the Treasury as could be recovered by the Edict of the Prætor.

Ulpianus, On the Edict, Book LVI. Something done contrary to law is designated an injury, for everything which is illegal is held to be injurious. This, generally speaking, is the case, but, specifically, an injury is defined to be an insult. Sometimes, by the term “injury” damage caused by negligence is meant, as we are accustomed to state in the Aquilian Law. At other times, we call injustice an injury, as where anyone has rendered a wrongful or inequitable decision, and this is styled an injury because it is in violation of law and justice as not being legal. The term “insult” is derived from the verb “to despise.” 1Labeo says that an injury can be caused by a thing, or by words. By a thing, when the hands are employed; by words, when the hands are not used, and the outrage is committed by speech. 2Every injury involves either the person or the honor of him who is the object of it, and has a tendency to render him infamous. It is directed against the person, when he is beaten; against his honor, when a matron is deprived of her attendant; and it tends to render anyone infamous when his or her modesty is attacked. 3Again, an injury is committed against anyone by a person himself, or by others: by the person himself, where it is committed directly against the head, or the mother of a family; by others, where it is committed indirectly, as for instance, against my children, my slaves, my wife, or my daughter-in-law. For injury concerns us when it is directed against those who are subject to our authority, or are entitled to our affection. 4If an injury is perpetrated against the body of a deceased person, of whose estate we are the heirs, or the prætorian possessors, we can bring an action for injury in our own name; for an injury committed in this manner involves our reputation. The same rule applies if the reputation of him whose heirs we are is attacked. 5Moreover, any injury committed against our children is an attack upon our honor; so that, if anyone sells a son with his own consent, his father will be entitled to an action for injury in his own name, but the son will not, because no injury is committed against one who consents. 6Whenever an injury is committed against the funeral of a testator, or his corpse, and this is done after the estate has been entered upon, it must be said that it is, to a certain extent, committed against the heir, for it is always to the interest of the latter to protect the reputation of the deceased. If it was committed before the estate was entered upon, the action will rather be acquired by the estate, and transmitted by it to the heir. Finally, Julianus says, there is no doubt that if the body of the testator is detained before the estate has been entered upon, the right of action will be acquired by the estate. He also thinks that the same rule will apply if any injury is committed against a slave belonging to the estate before it has been entered upon, because the right of action is acquired by the heir through the estate. 7Labeo says that if anyone, before the estate has been entered upon, strikes a slave forming part of it, who has been manumitted by will, the heir can bring an action for injury. But if he should be struck after the estate has been entered upon, whether he knows that he is free or not, he can bring the suit. 8But whether he knows that it is my son or my wife, or whether he does not, Neratius says that I will be entitled to this action in my name. 9Neratius also says that from one injury sometimes a right to proceed against three persons will arise, and that the right of action of one is not extinguished by that of another; as, for instance, when an injury has been committed against my wife who is a daughter under paternal control, the action for injury will lie in favor of me, of her father, and of the woman herself.

Ulpianus, On the Edict, Book LVI. It is said, by way of reciprocity, that those who can suffer an injury can also commit it. 1There are, however, some persons who cannot do this, for example, a lunatic, and a minor who is not capable of criminality, since they can suffer injuries but cannot commit them; for as an injury can only take place with the intention of him who commits it, and the result will be that such persons, whether they resort to blows, or use insulting language, are not considered to have committed injury. 2Hence, anyone can suffer an injury without perceiving it, but he cannot commit one unless he is aware of it, even if he does not know against whom it is committed. 3Therefore, if anyone strikes another in jest, or while he is contending with him, he will not be liable for committing an injury. 4When anyone strikes a freeman, thinking that he was his slave, he is in such a position that he will not be liable to an action for injury committed.

Ulpianus, On the Edict, Book LVI. The Cornelian Law relating to injuries has reference to a person who wishes to bring suit for injury, because he says that he has been struck and beaten, or that his house has been entered by force. It is provided by this law that he cannot, in such a case, preside as judge, who is either the son-in-law, father-in-law, stepfather, stepson, cousin, or is any more nearly connected with the plaintiff by either relationship or affinity, or who is the patron, or the father of any of the abovementioned persons. Therefore, the Cornelian Law grants an action for two causes, namely, where anyone has been struck or beaten, or where his house has been forcibly entered. Hence it is apparent that every injury which can be committed by the hands is included in the Cornelian Law. 1The following difference exists between striking and beating, so Ofilius says: to beat is to cause pain, to strike is to inflict blows without pain. 2We should understand the word “house” to be not merely one which is owned by the plaintiff, but the one in which he resides. Therefore this law will be applicable, whether the aggrieved person lives in his own house, or in one which he has leased, or occupied gratis, or is one where he happens to be a guest. 3When he lives in a house in the country, or one surrounded by gardens, what should be done? The same rule should be adopted. 4If the owner should lease a tract of land, and it is entered by force, the tenant, and not the landlord, can bring the action. 5Where, however, anyone enters the land of another which is cultivated by the owner, Labeo denies that this action can be brought by the owner of the land, under the Cornelian Law, because he cannot have his residence everywhere, that is to say, in all his farmhouses. I think that this law applies to every habitation in which the head of a household resides, although he may not have his domicile there. For suppose someone goes to Rome for the purpose of pursuing his studies, he certainly does not reside at Rome, and still it should be said that if his house is entered by force, there will be ground for the application of the Cornelian Law. Therefore it does not apply to temporary lodgings, or to stables. It is, however, applicable to those who remain in a place for a very short time, although they may not have their domicile there. 6The question is asked, whether the head of a household can bring the action for injury under the Cornelian Law, if a son under his control has sustained an injury. It has been decided that he cannot do so. This rule applies in all cases. The Prætorian Action for injury will, however, lie in favor of the father, and that of the Cornelian Law in favor of the son. 7A son under paternal control can bring the action under the Cornelian Law for any of these reasons, and he need not provide that his father will ratify his act; for Julianus has stated that a son who brings an action for injury under any other law cannot be compelled to give security for ratification. 8By this law, the plaintiff is permitted to tender the oath, in order that the defendant may swear that he has not committed any injury. Sabinus, however, in his work on Assessors, says that even Prætors must follow the example of the law. And this is the fact. 9When a person writes anything for the purpose of defaming another, or composes, or publishes it, or maliciously procures this to be done, even though it may be published in the name of someone else, or without any name, he can be prosecuted under this law, and if he should be convicted, he will be declared incapable of testifying in court. 10He who publishes any inscriptions, or anything else, even if it is written, for the purpose of libelling another, will incur the same penalty, under the Decree of the Senate, as a person will who has caused any of these things to be purchased, or sold. 11Anyone, whether he be free or a slave, who gives information of the guilty party shall be rewarded by the judge in proportion to the wealth of the accused person; and where the informer is a slave, he may, perhaps, be granted his freedom. For why not, if the public welfare is promoted by his information?

Ulpianus, On the Edict, Book LVI. Where anyone, having assembled a number of persons, is alleged to have committed damage with malicious intent, the plaintiff should not be compelled to abandon his civil action for the purpose of prosecuting the crime.

Ulpianus, Book LVI. An adjuration is the serving of notice in the presence of witnesses. 1The term “slave” likewise applies to females. 2Children are also included in the expression, “body of slaves.” 3A single slave is not included under the term “familia”; nor indeed do two slaves constitute a familia.

Ulpianus, On the Edict, Book LVI. The absence of him who is away on business for the State should not prejudice him, or anyone else.