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

/i64 FURTUM. FUSTUAR[UM.:a thing, therefore, had not necessarily this action. The object of the furti actio was to get a penalty
A creditor might have this action even against the as to the thing stolen the owner could recover it
owner of a thing pledged, if the owner was the either by a vindicatio, which was available against
thief. A person to whom a thing was delivered in any possessor, whether the thief or another, or by
order to work upon it, as in the case of clothes a condictio, which was available against the thief
given to a tailor to mend, could bring this action or his heres, though he had not the possession.
*against the thief, and the owner could not, for the (Inst. 4. tit. 1. ~ 19.)
owner had an action (locati) against the tailor. The strictness of the old law in the case of
But if the tailor was not a solvent person, the owner actions of theft was graduaily modified, as already
had his action against the thief, for in such case the shown. By the law of the Twelve Tables, if
owner had an interest in the preservation of the theft (/firtemo) was committed in the night, the
thing. The rule was the same in the case of cornm- thief, if caught in the act, might be killed: and
mnodatum [COMMODIATTJM]. But in a case of de- he might also be killed in the daytime, if he was
positum, the depositee was under no obligation for caught in the act and defended himself with anly
the safe custody of the thing (custodiam praestare), kind of a weapon (telurn); if he did not so defend
and he was under no liability except in the case of himself, he was whipped and became addictus, if
dolus; consequently, if the deposited thing was a freeman (as above stated); and if a slave, he
stolen, the owner alone had the actio furti. A was whipped and thrown down a precipice.
-bona fide purchaser might have the actio furti, The following are peculiar kinds of actiones
even if the thing had not been delivered to him, furti: (1) Actio de tigno juncto, against a person
and he were consequently not dominns. who employed another person's timber in his
An impubes might commit theft (obligateur rimzine building; (2) Actio arborum furtim caesarum,
f~t'ri), if he was bordering on the age of puberty, against a person who secretly cut wood on another
and consequently of sufficient capacity to under- person's ground; (3) Actio fuirti adversus nautas
stand what he was doing. If a person who was et caupones, against nautae and caupones [EXERin the power of another committed furtum, the CITOR], who were liable for the acts of the men in
actio furti was against the latter. their employment.
The right of action died with the offending per- There were two cases in which a bona fide posonll. If a peregrinus committed furtum, he was sessor of another person's property could not obtain.made liable to an action by the fiction of his being the ownership by usucapion; and one of them was
a Roman citizen (Gaius, iv. 37); and by the same the case of a res furtiva, which was provided for
fiction he had a right of action, if his property in the Twelve Tables. The Roman Law as to
was stolen. Furttnm underwent changes, as appears from what
He who took the property of another by force has been said; and the subject requires to be
was guilty of theft; but in the case of this delict, treated historically in order to be fully understood.
the praetor gave a special action Vi bonorum rap- The work of Rein (Das Criminialrecht dew R'ime-r)
torum. The origin of the action Vi bonorum rap- contains a complete view of the matter.
torum is referred by Cicero to the time of the civil (Gaiss, iii. 183-209, iv. 1; Gellius, xi. 18;
wars, when men had become accustomed to acts of Dig. 47. tit. 2; Inst. 4. tit. 1; Dirksen, Ueberviolence and to the use of arms against one another. sicht, &c, pp. 564-594; Heinec. SynZtaCg. ed. HauAccordingly, the Edict was originally directed bold; Rein, Das Runm. Privatrecht, p. 345; Rein,
against those who with bodies of armed men Das Criminali'echt der Rirmer, p. 293.) [G. L.]
(homis2ibuts armaztis coactisque) did injury to the FUISCINA (rpiaoia),a trident; more commonly
property of another or carried it off (quid aut called tridens, meaning tridens stimulus, because it
rapuerint aut damni dederfint). With the estab- was originally a three-pronged goad, used to incite
Jishment of order under the empire the prohibition horses to greater swiftness. Neptune was supposed
against the use of arms was less needed, and the to be armed with it when he drove his chariot, and
word arnmatis is not contained in the Edict as cited it thus became his usual attribute, perhaps with an
in the Digest (47. tit. 8). The application of the allusion also to the use of the same instrument in
Edict would however have still been very limited, harpooning fish. It is represented in the cut onl
if it had been confined to cases where numbers p. 276. (HIom. II. xii. 27, Od. iv. 506, v. 292;
were engaged in the violence or robbery; and ac- Virg. Georg. i. 13, Aen. i. 138, 145, ii. 610
cordingly the jurists discovered that the Edict, Cic. tde NAot. Deor. i. 36; Philost. Inzcg. ii. 14.)
when properly understood, applied also to the case The trident was also attributed to Nereus (Virg.
of a single person committing damnumn or carrying yIen, ii. 418) and to the Tritons. (Cic. de Nat.
off property. Originally the Edict comprehended Deor. ii. 35; Mart. Spect. xxvi. 3.)
both damnum and bona rapta, and, indeed, damnum In the contests of gladiators the Retisarius was
which was effected vi homninibus armatis coac- armed with a trident. (Juv. ii. 148, viii. 203.)
tisque, was tha/t kind of violence to the repression [GLADIATOR.] [J. Y.]
of which the Edict was at first mainly directed. FUSTUA'RIUM (uXoico-,ria) was a capital
Under the empire the reasons for this part of the punishment inflicted upon the Roman soldiers foi
Edict ceased, and thus we see that in Ulpian's desertion, theft, and similar crimes, It was adtime the action was simply called " vi bonorum iministered in the following mannerl - When a
raptornm." In the Institutes and Code the action soldier was condemned, the tribune touched hiim
applies to robbery only, and there is no trace of the slightly with a stick, upon which:all the soldiers ot
other part:ofthe Edict. This illstructive illustration the legion fell upon him with sticlks and stories,
of the gradual adaptation, even of the Edictal law, and generally killed him upon the spot. If howyto circumstances is given by Savigny (Zeitschrif?, ever he escaped, for he was allowed to fly, he cou'd
vol. v. Ueber Cicero Pro Tullio und die Actio vi bo- not return to his native country, nor did-any of his
norum Raptorum), who has also given the masterly relatives dare to receive him into their houses.
emendation of Dig. 47. tit. 8. s. 2, ~ 7, by Ieise. (Polyb. vi. 37; compare Liv. v. 6.) This punish