Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

FURTUM. - FURTUM. 5.63
the name of an instrument of punishment. It was Pandektei, &c. iii. p. 550. See also Rein, Das
a piece of wood in the form of the letter A, which Crinzinalh'echt der lomer, p. 304.
was placed upon the shoulders of the offender, whose A person might commit furtuum by aiding in a
hands were tied to it. Slaves were frequently furtum, as if a mlan should jostle you in order to
punaished in this way, and were obliged to carry give another the opportunity of taking your money;
about the furca wherever they went (Donat. ad or drive away your sheep or cattle in order that
Ter. Alndr. iii. 5. 12; Plut. Coriol 24; Plaut, another might get possession of them: but if it
GCas. ii. 6. 37); whence the appellation of furc'fer were done merely in a sportive way, and not with
was applied to a man as a term of reproach. (Cic. a view of aiding in a theft, it was not furtum,
in Vatie. 6.) The furca was used in the ancient though there might be in such case an actio ultilis
mode of capital punishment among the Romans; under the Lex Aquilia, which gave such an action
the criminal was tied to it, and then scourged to even in the case of culpa. [DAMNUM.]
death. (Liv. i. 26; Suet. Nes. 49.) The patibulum Furtum was either Manifestum or Nec Manifeswas also an instrument of punishment, resembling tum. It was clearly manifestum when the person
the furca; it appears to have been in the form of was caught in the act; but in various other cases
the letter l1. (Plaut. MJil. ii. 4. 7, llostell. i. 1. 53.) there was a difference of opinion as to whether the
Both the furca and patibulum were also employed furtum was manifestum or not. Some were of
as crosses, to which criminals were nailed (infurca opinion that it was furtum manifestum so long as
suspendere, Dig. 48. tit. 13. s. 6; tit. 19. s. 28. the thief was engaged in carrying the thing to the
~ 15; tit. 19. s. 38). See Lipsius, de Cruce. place to which he designed to carry it: and others
FU'RCIFER. [FuRcA.] maintained that it was furtum manifestum if the
FURIO'SUS. [CURATOR.] thief was ever found with the stolen thing in his
FURNUS. [FORNAX.1 possession; but this opinion did not prevail.
FUROR. [CURATOR.] (Gaius, iii. 184; Inst. 4. tit. 1: ~ 3.) That which
FURTI ACTIO. [FU RTVM.] was not iranifestum was nec manifestum. Fnurtum
FURTUM, " theft," is one of the four kinds of conceptum and oblatum were not species of theft,
delictg which were the foundation of obligationes; but species of action. It was called conceptumn
it is also called " crimen." Moveable things only furtuin when a stolen thing was sought and found.
could be the objects of furtum; for the fri'dulent in the presence of witnesses, in the possession of a
handling (contreeltatio fseacsdulosa) of a thing was person, who, though he might not be the thief, was
furtum, and contrectatio is defined to be "loco liabletoan action calledFurti Concepti. If a man
movere." But a man might commit theft without gave you a stolen thing, in order that it might be
carrying off another person's property, Thlus it found (conciperetur) in your possession, rather than in
was furturn to use a thing which was deposited his5 this was called Furtum Oblatum, and you had
(siepositum). It was also furtum to use a thing an action Furti Oblati against him, even if he was
which had been lent for use, in a way diffe ent not the thief. There was also the action Prohibiti
from that which the lender had agreed to; bist Furti against him who prevented a person from
with this qualification, that the borrower must be- searching for a stolen thing (furtzelm); for the
licve that he was doing it against the owner's con- word furtum signifies both the act of theft and the
sent, and that the owner would not consent to such thing stolen.
use if he was aware of it; for dolus malus was an The punishment for furtum manifestumn by the
essential ingredient in furtum. Another requisite law of the Twelve Tables was capitalis, that is, it
of furtum (Dig. 47. tit. 2. s. 1) is the-" lueri faciendi affected the person's caput: a freeman who had
gratia," the intention of appropriating the property. committed theft was flogged and consigned (addicIThis was otherwise expressed by saying that furtum tus) to the injured person; but whether the thief
consisted in the intention (fuaturn ex affscts consistit; became a slave in consequence of this addictio, or
or,sinze alctsujirandi noncoznittitur, Gains, ii. 50). an adjudicatus, was a matter in dispute among the
It was not necessary, in order to constitute furtum, ancient Romans. The Edict subsequently changed
that the thief should know whose property the thing the penalty into an actio quadrupli, both in the case
was. A person who was in the power of another of a slave and a freedman. The penalty of the
might be the object of furtum. (Inst. 4. tit. i. ~ 9.) Twelve Tables, in the case of a furtum nec maniA debtor might commit furtum by taking a thing festum, was duplnmn and this was retained in the
which he had given as a pledge (pignoeri) to a cre- Edict: in the case of the conceptumn and oblatum
ditor; or by taking his property whens in the pos- it was triplum, and this also was retained in the
session of a bmna fide possessor. Thaus there might Edict. In the case of Prohibitum, the penalty was
be furtum either of a moveable thing itself, or of quadruplum, according to the provisions of the
tile use of a thing, or of the possession, as it is ex- Edict; for the law of the Twelve Tables had afpressed. (Inst. 4. tit. 1. ~ 1.) fixed no penalty in this case, but merely enacted
The definition of furtum in the Institutes is rei that if a man would search for stolen property, he
contrectatio fraudulosa, without the addition of the must be naked all but a cloth round his middle,
word" alienae." Accordingly the definition com-. and must hold a dish in his hand. If he found
prises both the case of a man stealing the property any thing, it was furtum manifestum. The abof another, and also the case of a man stealing his surdity of the law, says Gains, is apparent; for if
own property, as when a man fraudulently takes a a man would not let a person search in his ordinary
moveable thing, which is his property, from a per- dress, much less would he allow him to search unson who has the legal possession of it. This latter dressed, when the penalty would be so much more
case is the " furtum possessionis." The definition severe if any thing was found. (Compare Grimm,
in the Institutes is not intended as a classification TVon der Poesie in Recist, Zeitschrift, vol. ii. p. 91.)
of theft into three distinct kinds, but only to show The actio furti was given to all persons who had
by way of example the extent of the meaning of the an interest in the preservation of the thing stolen
term Fartsszn. This is well explained by Vangerow, (cd2jus interest Deas salvaers esse), and the owner of
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