Actio furti manifest!

(a) The discrimination of the manifest thief

Where there was an actio furti nee manifesti there must, of course, have been an actio furti manifesti. It lay for poena quadrupli: for fourfold the value of the object stolen.^[4791] ^{^[4792] ^[4793] Throughout its entire history, Roman law distinguished between furtum nee manifestum and furtum manifestum and dealt with the latter much more severely than with the former.^[4794] This must appear to be rather odd, for there was no difference in guilt between the two forms of theft;^[4795] nor could it have been maintained that the one was the more vicious or dangerous form of wrongful behaviour.^[4796] The only distinctive feature of furtum manifestum was that the thief was caught in flagrante delicto, that is, in the act of stealing;^[4797] and furtum nee manifestum, in turn, could only be defined negatively, and rather trivially, as every form of theft that was not manifest.^[4798] But that was hardly a rational basis for such a drastic differentiation of the penalties.}

What both the classical lawyers and Justinian faithfully preserved^[4799] was a rather rough-and-ready distinction characteristic of the early Romanjurisprudence (as, perhaps, of any early legal system)^[4800] and based on unrefined perceptions of what was just and fair. "In early law there is all the difference between obvious guilt and guilt which has to be proved" writes Jolowicz,^[4801] thus pinpointing the one essential factor that explains the comparatively heavier penalty imposed on manifest thieves; a conspicuous apprehension about indirect (or circumstantial) evidence and a marked reluctance to accept it as tantamount to what was self-evident and, seemingly, indisputable.^[4802] The other point has been emphasized by Sir Henry Maine, when he said:

"The ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the Thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted."^[4803]

The manifest thief deserved to be treated more harshly on account of the fresh and acute resentment he had aroused in the victim: another one^[4804] of those traits of the developed law of delict that were clearly reminiscent of its origin in private vengeance.

At the time of the XII Tables the manifest thief did not even receive the benefit of a proper trial. After having been caught, he merely had to be brought before the magistrate; there a liber homo was first scourged and then assigned for life to the party from whom he had stolen.^[4805] Such a magisterial addictio^[4806] was all that was required before the victim of the theft could wreak his vengeance. A slave, after having been similarly beaten, was hurled down from the Tarpeian rock.^[4807] In two cases it was even lawful to kill a fur manifestus out of hand: if he was caught at night ("Si nox furtum faxsit")^[4808] or if he defended himself with a weapon ("Luci... si se celo defendit").^[4809] But here the law had to ensure, at least, that it did not indirectly sanction secret murder. Therefore the victim of the theft was required to make public the lawfulness of his killing by shouting aloud (endoplarare) and thus alarming whoever might be near.^[4810] Thus it was originally only the fur nee manifestus who had to be sued and whose guilt had to be made incontestable according to the ordinary rules of civil procedure; the actio furti nee manifest! for double the value of the thing stolen was in fact already recognized by the XII Tables.^[4811] Sometime within the next three hundred years^[4812] the praetors, appalled by the "asperitas poenae"^[4813]'¹ for manifest theft, introduced an actio furti manifest! along very similar lines.^[4814] Their intervention heralded the end of the archaic forms of self-redress in theft—though not the end of the discrimination against the manifest thief.

(h) The concept offurtum manifestum

With one important exception, the concept of what constituted furtum manifestum had remained unchanged. It covered all those situations where the thief was caught in flagrante delicto and where his guilt was therefore evident.

But what exactly did that mean?^[4815] Did the thief have to be apprehended in the very act of stealing ("dum fit")? Or did it suffice if he was caught in the place where he had committed the delict ("eo loco... ubi fit")? In that case, the actio furti manifest! would still have been available if a theft of olives committed in an olive grove, or of grapes committed in a vineyard, was detected as long as the thief had not yet left the olive grove or vineyard. Or could one possibly extend the notion of furtum manifestum to all those situations where the thief had not yet carried the stolen object to its intended hiding place ("donee perferret eo quo perferre fur destinasset")? Or did it even embrace cases where the thief was seen, at any time, with the particular object in his hands ("quandoque earn rem fur tenens visus fuerit")? All four approaches were advocated in classical Roman law, as Gaius informs us. He himself regarded either of the first two opinions as tenable, but reported that the second was favoured by most/²⁹ Justinian ultimately adopted the third solution,¹³⁰ as had Julian and Ulpian before him.¹³¹ This dispute, in a slightly modified form, still lives on in modern German criminal law when it comes to drawing the line between attempted and completed theft. The "theories" of contrectatio, apprehensio, ablatio and illatio are mentioned by the textbook writers in this context: the choice thus being between the moment when the object in question is handled, apprehended, carried away or brought into safety.¹³²

The one exception concerned an ancient institution which even Gaius could no longer understand. Under the law of the XII Tables a person was considered to be fur manifestus if the stolen goods were found on his premises in the course of a formal, highly ritualistic search.¹³³ This was the famous quaestio lance et licio: to be performed (but for the licium) in stark nakedness and with a dish (lanx) in both hands.¹³⁴ Streams of ink have flowed in ever-repeated attempts to explain these rather mysterious particulars.

Gaius¹³⁵ opened the roundabout of speculation by suggesting that the licium was some sort of apron, designed to cover the privy parts of the searcher. He also mentions two possible reasons why the searcher had to carry a dish (or perhaps rather

“ Gai. Ill. 184. For interesting case law. see Ulp. D. 47. 2. 7. 1-3.

“ Inst. IV. 1. 3.

^Q lul./Ulp. D. 47. 2. 3. 2. Gaius' objection to this solution. magnam recipit dubitationem utrum unius did an etiam plurium dierum spatio id terminandum sit") was answered by accepting the limitation suggested by Paul (" 'Quo destinaverit quis auferre' sic accipiendum est 'quo destinaverit eo die manere eum eo furto' ").

'" Cf, for example, Reinhart Maurach, Friedrich-Christian Schroeder, Strafrecht, Besonderer Tell, Part I (6th ed., 1977). § 34 III BI. The moment of apprehensio is generally regarded as relevant today (that is, a contrectatio that amounts to an assumption of control and gives the thief the opportunity to remove the object). 1 doubt whether this correctly reflects the meaning of the notion of "Weynahme" (taking away), as used in § 242 StGB.

^m Gai. Ill, 192; Aulus Gellius, Nodes Atticae, Lib. XI, XVIII, 9.

³¹ For similar ritualistic searches in other early legal systems, c(. Claudius Freiherr von Schwerin, Die Formen der Haussuchim% in iridoqermanischen Rechten (1924).

“ III. 193. a platter) with him: either it was to engage his hands and so to prevent him from palming anything off, or else he may have required it as a receptacle for whatever he found. But these theories are almost certainly too rationalistic, and Gaius himselt refused to accept them.^{^[4816]} Over the centuries, many other views have been propounded,^{^[4817]} ^{^[4818]} but no certainty has, as yet, been reached. Theodor Mommsen, writing in 1898, refused even to detail all the old and new "pieces of folly" ("Thorheiten"y^3s advanced in this context.

Yet the most plausible view appears to be that all the three characteristic elements of the quaestio—nakedness as well as lanx and licium — were required for an expiatory offering to the household gods;^{^[4819]} for, after all, the search constituted a grave breach of the peace of the house, a sacrilege (nefas) that had to be expiated somehow. The lanx may then have been an offering-cup, the licium a kind of sacral fillet. The nakedness may have been symbolic for the plaintiffs purity; at the same time, it clearly demonstrated that he entered the house unarmed and with nothing in his pocket that he could later pretend to find. The whole procedure became obsolete sometime during the 2nd century b.c.,^{^[4820]} and by the middle of the 2nd century A.D. it could already be dismissed, rather curtly, as ridiculous.^{^[4821]} Yet, even in classical Roman law, a thief whose guilt was established through an informal search of his premises—in front ot witnesses — was dealt with more severely than a mere fur nee manifestos, although he was no longer branded a fur manifestus either. An actio furti concept! for three times the value of the object stolen was available against him.^{^[4822]} If a suspect refused to have his premises searched, he was liable to be charged fourfold (actio furti prohibit!).^{^[4823]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Actio furti manifest!

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