The Action

There was more than one action, as we shall see; but the most common was the actiofurti nec manifesti (the claim for non-manifest theft). It went right back to the Twelve Tables.

If it appears that theft of a golden plate, worth such and such a sum or more, was committed against Aulus Agerius by Numerius Negidius or with the help of Numerius Negidius, for which matter Numerius Negidius ought-at- civil-law to settle the loss as a thief,

for the value of that thing when the theft was committed, in money and doubled, let the judge condemn Numerius Negidius to Aulus Agerius. If it does not appear, let him absolve.

The next four sections of this survey will be concerned with that part of the allegation in the first clause which can be cut down to this outline: If it appears that theft of a golden plate was committed by Numerius Negidius (Si paret a №'N°furtum factum esse paterae aureae). That omits all reference to helping and to the plaintiff. Those matters can come back in later.

Chance might have made the allegation different. In particular, instead of saying furtum factum esse, it might have broken down the notion offurtum into its ingredients. It could have run: �If it appears that Numerius Negidius fraudulently carried off... ' That would have had the effect of settling the shape of the discussion, if only by fixing the vocabulary. The questions for the jurists would have been as to the meaning of �fraudulently’ and �carried off’, but that these together constituted theft would have been beyond dispute. The formulation which was used, simply Had theft happened?, left the whole shape of furtum to the jurists. There was room for disagreement and develop­ment as to the very nature of theft and the main terms of the proper analysis.

2.