A Variety of Penalties

We have got this far with hardly a mention of the fact that there were a number of different actions for theft. And we are not going to be able to do justice to the concentration of legal history behind the family of claims.

The most important distinction is between manifest and non­manifest theft. We must be supposed to have been speaking all the while of non-manifest theft, for which the Twelve Tables laid down a poena of double, duplum or duplio. That double penalty was retained in the formulary action, as we saw earlier. The penalty for manifest theft under the Twelve Tables was what Gaius, at G.3.189, calls capitalis. It affected your caput, your person and personal status. The manifest thief was flogged and adjudged to his victim, into a state of slavery or near-

slavery. If he was already a slave he was flogged and killed, by being thrown off the Tarpeian rock. All these consequences could be bought off. In the same way retaliation for bodily injury could be settled in money. In historical times the action was for a fourfold penalty. The praetor's edict was the basis of that. Having set out the old regime Gaius goes on (G.3.189, continued):

But later the harshness of the penalty was disapproved, and an action for fourfold was set up by the praetor's edict both for the case of the slave and the free thief.

It would be rash to think of this as a simple substitution of the one poena for the other. The praetor probably could not withdraw people's decemviral rights overnight. In some way what he offered was better, more attractive to plaintiffs than the old regime. And in some way the mysterious lex Aebutia helped.

To us �manifest' means �obvious' or �indisputable'. It would be good to know whether, given that �obviousness' comes from �held in the hand', it was the hand-holding of the thief which originally mattered or his hand-having the stolen thing.

Very oddly the classics seem to have been in doubt how to draw the line in their own day. Oddly, because there is nothing difficult about it. Just a question of making a choice. There are two questions. What has to be done in relation to the thief ? And, how soon? The verb used for what has to be done is deprehendere. It signifies physically arresting, as opposed to merely seeing. We use �catch' to cover both. However there are some signs of dilution from deprehendere (detain) to videre (see). And in the end Justinian seems to admit �seen' as well as �detained'. In the Digest, at D.47.2.7.1-3 (Ulpian, 41 On Sabinus), there is this passage:

In the same book [19 ex Sabino] Pomponius neatly wrote deprehensione fieri manifestum furem [To capture the neatness, perhaps one has to translate this, exaggerating the image, �by hand-holding a thief becomes hand­held', but at all events it means �It is arrest which makes a thief manifest']. So, if in fear of death you ran away while I was pilfering your house, even if you saw the theft happen, yet that is not manifest theft. 2. But Celsus adds this to �deprehension'. You saw him taking the thing and ran at him to detain him but then he threw the thing down and fled. He calls that manifest theft. 3. And he thinks it does not matter whether the owner or a neighbour or some passer-by does the catching.

In the Institutes, at J.4.1.3, Justinian sets the limits of manifest theft thus:

Further, manifest theft is to be extended in this way: so long as the thief is visus vel deprehensus (seen or detained) rem tenens (holding the thing) whether in public or in private and whether by the owner or by someone else, provided he has not yet reached the place where he had decided to take the thing and set it down. Once he has reached his destination, he is not a manifest thief, even if he is detained carrying the thing.

This passage takes us into the second question.

Some say manifest theft is one which is caught dum fit (while it is being committed); others go further, saying that it is one caught ubifit (in the place where it is being committed) so that, for example, when the theft is of olives from an orchard or grapes from a vineyard the thief is manifest so long as he is in the orchard or vineyard, or, if the theft is done in a house, so long as he is in that house; others go on again: whenever the thief is seen carrying the thing. That view has not found favour. But even another opinion has been disapproved, namely the view of those who thought the thief was manifest if caught before reaching his destination. The reason for the disapproval is the doubt whether a limit of one day or more is to be put to that test. And it matters, since thieves often plan to carry things stolen in one town either to another town or to another province. Hence one or other of the two earlier opinions is approved. Most prefer the second [i.e. deprehensio ubifit].

Why was this doubt allowed to persist? The range of controversy should not be exaggerated. Gaius rejects all but two views, between which there would be little difference. All the same Zulueta may be right in suggesting that plaintiffs did not bother to bring the actio furti manifesti for the fourfold penalty.^[50] They would have more to prove, and rarely much hope of recovery. For thieves are not often solvent. If the action had been frequent, the question would have been often asked and in a way which would have required a crisp answer. No other mechanism concentrates the mind. Hence only Zulueta’s solution accounts for continuing academic vacillation.

The Twelve Tables provided for one other case of manifest theft. Search after an invocation of divine help. This prompts Gaius to an interesting observation on the limits of legislative power.

The fact that the lex makes this manifest theft causes some to divide furtum manifestum between �natural’ and �statutory’. This being the statutory type; the natural, that which we have just discussed. But the truth is that there is only natural furtum manifestum. For a lex cannot turn a non-manifest thief into a manifest thief any more than it can turn into a thief one who is not a thief at all, or into an adulterer or murderer one who is neither. But certainly a lex can do this: it can make someone liable to a penalty just as though he had committed theft, adultery or homicide notwithstanding his having committed none of these.

His account of the ceremonial search shows him fascinated by the past but quite unsentimental about it. G.3.192-3:

192... The lex just provided that one who wanted to search should do so in the nude licio cinctus, lancem habens (wearing a licium, holding a lanx). If he found anything in that way the lex ordains it manifest theft. 193. The question has been asked, What is a licium? The truth is likely to be that it is a cloth of some kind used to cover the private parts. The whole thing is laughable. For someone who forbids you to search clothed is likely to forbid it nude too. All the more so when a greater penalty attaches if something is found in that way. Then, there are two explanations of the requirement for holding a lanx (a dish). The one says it is to keep the hands occupied to prevent planting, the other that it is to receive what is found; but neither works for the case in which the thing sought is not of a size or kind to be either planted or placed on a dish. Certainly there is no argument but that the lex is satisfied whatever material the lanx is made of.

We are not quite in a position to understand the force of the remark about prohibiting nude and prohibiting clothed. Because we have departed from Gaius’s own order to take this with furtum manifestum.

Recent scholarship confirms the picture which readily comes to mind of a search assisted by divine help. The licium and lanx are the routine emblems of religious ritual. The licium appears to be in the nature of a ribbon worn around the head. Which supposes the ancients less sensitive than Gaius's prudish explanation. The lanx is a bowl used in libations.

Aulus Gellius tells us that the search lance et licio was one of the antiquities which fell out of use after the passing of the lex Aebutia.10 We learn that that statute prospered the praetor's formulary procedure. But its mechanism remains obscure. Its effects were certainly profound. If it prospered the formula, which it did, that comprehensible conse­quence sprang from a not so easily understood regulation of the relationship between the ancient civil law and this newer practice of the praetor's court.

A last question on the distinction between furtum manifestum and nec manifestum: Why were the penalties different? It is crude to say that greater certainty of guilt justifies greater punishment. Ten years in prison if we are sure you did it; five years if we are nearly sure. We would not say such a thing. And we should not lightly suppose it of the ancients. One explanation is this.

In the beginning the consequence was always the same as that which the Twelve Tables kept for furtum manifestum. But composition in money was usual, the rates being dictated by the threat of the primary sanction. Perhaps the extensive power of that threat was curbed a little by customary morality. But where guilt had to be proved by human means in court the severity of the primary sanction, mixed with the routine uncertainty of all human decision-making, was oppressive to the defendant, intimidating even the innocent and thus distorting the decision whether to defend. For that case the Twelve Tables therefore cut down the uncertainty by fixing the ransom at double the value, as perhaps custom had previously indicated. With the poena fixed, defendants could know what they faced and would not be stampeded into composition by fear.

In the case offurtum manifestum there were no innocent defendants. The rate of ransom could be left to negotiation without the special danger of terrorising the innocent into submission. The imminence of the physical sanction meant that the rate of composition ran high, higher than the double fixed for furtum nec manifestum. When the praetor introduced the next reform he had to make his action

10

Aulus Gellius, Noctes Atticae, 11.18.9. advantageous to plaintiffs. So he could not ignore existing practice. Hence the decision to impose a quadruple penalty, as good at least from the plaintiff’s point of view as he could expect by way of ransom from the �capital’ sanction of the Twelve Tables.

This is guess-work. Even if it is right it only explains the beginning. The rest is inertia. Helped, just possibly, by the fact that plaintiffs did not bring actions for furtum manifestum anyhow.