4. A SLAVE, DIRECTED IN THE WILL TO BECOME FREE, IS ALLEGED TO HAVE STOLEN OR DESTROYED SOMETHING AFTER THE DEATH OF HIS OWNER BUT BEFORE THEINHERITANCE HAS BEEN ACCEPTED
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BOOK FORTY-SEVEN/FREED SLAVE AS T H I E F 273 from offering resistance by modesty in his presence. 93 (92) ULPIAN,Edict, book 38: It must be remembered that now criminal proceedings for theft are common and the complainant lays an allegation. It is not a kind of public prosecution in the normal sense, but it seemed proper that the temerity of those who do such wrongs should be punishable on extraordinary scrutiny. Still if that be the party's wish, he can bring civil proceedings for theft. INCORPORATED MATERIAL 1 ULPIAN,Edict, book 37: The Law of the Twelve Tables does not allow one to extract a stolen beam from a building or to vindicate one connected with vines (the statute prudently thus effects it that buildings should not on this account be destroyed and that viniculture should not be disturbed); but the statute gives an action for twofold against one found to have made such an incorporation. 1. The term "beam" comprises any material from which buildings are constructed or which are necessary in a vineyard. Hence, some say that there are included also tiles, stones, bricks and so forth, if they be useful for buildings (for the term is derived from "covering"), so that, further, lime and sand are comprised in the definition. Again, in the case of vines, the term includes anything necessary for the vines, such as poles and supports. 2. But the action for production will also be given, for there should be no leniency for a person who built into or bound to a building something which he knows to be another's property . However, we proceed against him not as being in possession of it but as having deliberately contrived no longer to possess it. 2 ULPIAN,Sabinus, book 42: But if you assert that proceedings have been taken in respect of stolen materials incorporated into a building, there can be deliberation whether, quite separately, a vindicatio for them lies. I have no doubt that it does. 4 A SLAVE, DIRECTED IN THE WILL TO BECOME FREE, IS ALLEGED TO HAVE STOLEN OR DESTROYED SOMETHING AFTER THE DEATH OF HIS OWNER BUT BEFORE THE INHERITANCE HAS BEEN ACCEPTED 1 ULPIAN,Edict, book 38: If it be alleged that through the guile of a slave, directed to be free, something be done, after the death of his master and before acceptance of the inheritance, whereby something from the estate of the manumitter does not come into the hands of the latter's heir, an action for twofold will lie against him for a year of days on which business can be done. 1. This action, as Labeo wrote, rests on natural equity rather than on the civil equity, there being indeed no civil action; it is by nature fair that he should not go without penalty who was made the bolder by the expectation that, as he judged, he could not be punished as a slave by reason of his imminent free status nor yet be condemned as a freeman because he had stolen from the inheritance, that is, of his mistress; a master or mistress cannot have an action for theft against his or her own slave, even though he later become free or be alienated, unless he thereafter deal wrongly with something. In consequence, the praetor took the view that the cunning and effrontery of those who despoil inheritances should incur a twofold penalty . 2. A freedman will be so liable only if he be alleged to have made away with something by deliberate wrongfulness. Remissness or negligence on the slave's part is BOOK FORTY-SEVEN /FREED SLAVE AS THIEF 273 from offering resistance by modesty in his presence. 93 (92) ULPIAN, Edict, book 38: It must be remembered that now criminal proceedings for theft are common and the complainant lays an allegation. It is not a kind of public prosecution in the normal sense, but it seemed proper that the temerity of those who do such wrongs should be punishable on extraordinary scrutiny. Still if that be the party's wish, he can bring civil proceedings for theft. 3 INCORPORATED MATERIAL 1 ULPIAN, Edict, book 37: The Law ofthe Twelve Tables does not allow one to extract a stolen beam from a building or to vindicate one connected with vines (the statute prudently thus effects it that buildings should not on this account be destroyed and that viniculture should not be disturbed); but the statute gives an...