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the name of an instrument of punishment. It was a piece of wood in the form of the letter A, which was placed upon the shoulders of the offender, who>ge hands were tied to it. Slaves were frequently punished in this way, and were obliged to carry about the furca wherever they went (Donat. ad Ter. Andr. iii. 5. 12 ; Pint. CorioL 24 ; Plant. Cas. ii. 6. 37) ; whence the appellation of furcifer was applied to a man as a term of reproach. (Cic. in Vatin. 6.) The furca was used in the ancient mode of capital punishment among the Romans ; the criminal was tied to it, and then scourged to death. (Liv. i. 26 ; Suet. Ner. 49.) Thepatibulum was also an instrument of punishment, resembling the furca ; it appears to have been in the form of the letter n. ( Plaut. Mil. ii. 4. 7, MostelL i. 1. 53.) Both the furca and patibulum were also employed as crosses, to which criminals were nailed (infurca suspendere. Dig. 48. tit. 13. s. 6' ; tit. 19. s. 28. § 15 ; tit. 19. s. 38). See Lipsius, de Cruce.
FURTI ACTIO. [FuHTiTM.]
FURTUM, " theft," is one of the four kinds of delicts which were the foundation of obligationes ; it is also called " crimen," Moveable things only could be the objects of furtum ; for the fraudulent handling (contrectatio fraitdulosa) of a thing was furtum, and contrectatio is defined to be " loco movere." But a man might commit theft without carrying off another person's property.- Thus ifc was furtum to use a thing which was deposited (depositum). It was also furtum to use a thing which had been lent for use, in a waiy different from that which the lender had agreed to ; but with this qualification, that the borrower must believe that he was doing it against the owner''s consent, and that the owner would not consent to such use if he was aware of it ; for dolus mains was an essential ingredient in furtitm. Another requisite of furtum (Dig. 47. tit. 2. s. 1) is the " lueri faeiendi gratia," the intention of appropriating the property. This was otherwise expressed bj saying that furtum consisted in the intention (furtum ex affectu consistit; or,sme q^ectufurandinoncommittitur^G^in^ ii. 50). It was not necessary, in order to constitute furtum, that the thief should know whose property the thing was. A person who was in the power of another might be the object of furtum. (Inst. 4. tit. 1. § 9.) A debtor might commit furtum by taking a thing which he had given as a pledge (pignori) to a creditor ; or by taking his property when in tke possession of a boim fide possessor. Thus there might be furtum either of a moveable thing itself, or of the use of a thing, or of the possession, as it is expressed. (Inst. 4. tit. !.§•!.)
The definition of furtum in the Institutes is rei contrectatio fraudulosa, without the addition of the word " alienae." Accordingly the definition comprises both the case of a man stealing the property of another, and also the case of a man stealing his own property, as when a man fraudulently takes a moveable thing, which is his property, from a person who has the legal possession of it. This latter case is the " furtum possessionis." The definition in the Institutes is not intended as a classification of theft into three distinct kinds, but only to show by way of example the extent of the meaning of the term Furtum, This is well explained by Vangerow,
Pandekten, &c. iii. p. 550. See also Rein, Das CriminalrecJit der Romer^ p. 304.
A person might commit furtum by aiding in a furtum, as if a man should jostle you in order to give another the opportunity of taking your money; or drive away your sheep or cattle in order that another might get possession of them: but if it were done merely in a sportive way, and not with a view of aiding in a theft, it was not furtum, though there might be in such case an actio utilis under the Lex Aquilia, which gave such an action even in the case of culpa. [damnum.]
Furtum was either Manifestum or Nee Manifes-tum. It was clearly manifestum when the person was caught in the act ; but in various other cases there was a difference of opinion as to whether the furtum was manifestum or not. Some were of opinion that it was furtum manifestum so long as the thief was engaged in carrying the thing to the place to which he designed to carry it: and others maintained that it was furtum manifestum if the thief was ever found with the stolen thing in his possession ; but this opinion did not prevail. (Gams, iii. 184 ; Inst. 4. tit. r. § 3.) That which was not manifestum was nee manifestum. Furtum conceptum and oblatum were not species of theft, but species of action. It was called conceptum, furtum xvhen a stolen thing was sought and found, in the presence of witnesses, in the possession of a person, who, though he might not be the thief, was liable to an action called Furti Concepti. If a man gave you a stolen thing, in order that it might be found (conciperetur) in your possession,rather than in his, this was called Furtum Oblatum, and you had an action Furti Oblati against him, even if he was not the thief. There was also the action Prohibit! Furti against him who prevented a person from searching for a stolen thing (furtum) ; for the word furtum signifies both the act of theft and the thing stolen.
The punishment for furtum manifestum by the law of the Twelve Tables was capitalis, that is, it affected the person's caput: a freeman who had committed theft was flogged and consigned (addic-tus) to the injured person ; but whether the thief became a slave in consequence of this addictio, or an adjudicatuSj was a matter in dispute among the ancient Romans. The Edict subsequently changed the penalty into an actio quadrupli, both in the case of a slave and a freedman. The penalty of the Twelve Tables,- in the case of a furtum nee manifestum, was duphnn^ and this was retained in the Edict: in the case of the conceptum and oblatum it was triplum, and this also was retained in the Edict. In the case of Pro-hibitumt the penalty was quadruplum, according to the provisions of the Edict; for the law of the Twelve Tables had affixed no penalty in this case, but merely enacted that if a man would search for stolen propertj^, he must be naked all but a cloth round his middle, and must hold a dish in his hand. If he found any thing, it was fartum manifestum. The absurdity of the law, says Oaf its, is apparent ; for if a man would not let a person search in his ordinary dress, much less would he allow him to search undressed, when the penalty would be so much more severe if any thing was found. (Compare Grimm, Van der Poesie in Reclit, Zeitschrift, vol. ii. p. 91.)
The actio furti was given to all persons who had an interest in the preservation of the tiling stolen (cujus interest rem salvam esse)^ and the owner of
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