8. GOODS TAKEN BY FORCE AND ON TUMULT
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BOOK FORTY-SEVEN/GOODS TAKEN BY FORCE GOODS TAKEN BY FORCE AND ON TUMULT 1 PAUL,Edict, book 22: A person who forcibly takes something is liable for both nonmanifest theft for twofold and for taking goods by force for fourfold. If the action for taking by force be brought first, the action for theft will be refused; but if the action for theft be brought first, the other will lie to recover the balance available. 2 ULPIAN,Edict, book 56: The praetor says: "If any loss be said to have been inflicted with deliberate wrongfulness by armed men on someone or if his goods be said to have been forcibly taken, I will grant an action against the person alleged to have done this. And if a slave be said to have done it, I will grant a noxal action against his master ." 1. By this edict, the praetor makes provision against what is done by force. For if someone can show that he has been subjected to force, he can initiate a public prosecution for force; and there are those who think that a public prosecution should not be prejudiced by a private action. It seemed more advantageous, however, that although it be prejudicial to the lex Julia de vi, nonetheless, the action should not be refused to those preferring to seek private redress. 2. A person can act with deliberate wrongfulness (the words of the edict) not only when he seizes something himself but also when with premeditation he gathers about him armed men for the purpose of inflicting damage or of committing robbery. 3. Hence, whether the men he uses for robbery be gathered by himself or by someone else, a man is held to act with deliberate wrongfulness . 4. We must understand by "gathered men" men so gathered to do harm. 5. Nothing further is specified, such as of what type, whether freemen or slaves. 6. We use the plural even if only one man has been engaged. 7. Again, if you assert that only one person did harm, I do not think that the expression is incorrect; we should interpret the words to cover a man who uses force alone or with a gang and, in the latter case, whether they be armed or not, so that he is liable under this edict. 8. The mention of deliberate wrong here includes force; for a person who uses force acts deliberately; but a person who acts deliberately does not always use force. Hence, in the present case, deliberation includes force; and even if something be done by guile without force, it is equally covered. 9. The praetor says: "loss"; this term covers all loss, including that effected clandestinely. I do not think, however, that clandestine activity is meant, but loss which is accompanied by violence. It has also been rightly spelled out that if one person alone do something without force, he is not covered by this edict while, if anything be done with a gang, even without force but with intent, that is what concerns this edict. 10. Neither the action for theft nor those of the lex Aquilia are made available in this edict, although they sometimes lie also with this BOOK FORTY-SEVEN IGOODS TAKEN BY FORCE 8 GOODS TAKEN BY FORCE AND ON TUMULT 279 1 PAUL, Edict, book 22: A person who forcibly takes something is liable for both nonmanifest theft for twofold and for taking goods by force for fourfold. If the action for taking by force be brought first, the action for theft will be refused; but if the action for theft be brought first, the other will lie to recover the balance available. 2 ULPIAN, Edict, book 56: The praetor says: "Ifany loss be said to have been inflicted with deliberate wrongfulness by armed men on someone or ifhis goods be said to have been forcibly taken, I will grant an action against the person alleged to have done this. And if a slave be said to have done it, I will grant a noxal action against his master ." 1. By this edict, the praetor makes provision against what is done by force. For if someone can show that he has been subjected to force, he can initiate a public prosecution for force; and there are those who think that a public prosecution should not be prejudiced by a private action. It seemed more advantageous, however, that although it be prejudicial to the lex Julia de vi...