N. 6 – 2007 – Note & Rassegne
Criminal liability incendiarii in ancient Roman Law
Poland
Contents: 1. Introduction.
– 2. Legal basis of
incendiarii liablility. –
3. Types of arson. – 3.1. Unintentional arson. – 3.2.
Intentional arson. – 3.3. The deeds not punishable by
law. – 4. The arson adjudication
authorities. – 5. Types of sanctions.
– 5.1. Penalties
for intentional arson. – 5.2. Crime diversity depending on
the social status of the offender. – 5.3. Liability for unintentional
fire. – 5.4. Punishment for
arson-related crimes. – 6. Conclusions.
1.
– Introduction
The question of arson in ancient Rome, including
the most famous arson that took place in 64 AD, was oftentimes took up by the
ancient writers such as Valerius Maximus, Aulus Gelluius, and others. With the
growth of the city of
That this issue was considered as a
serious one attests the following excerpt from the second volume of
Ulpian’s commentary to the pretor’s edict:
D.
2.12.3.pr. (Ulp. 2 ad ed.):
Solet etiam messis vindemiarumque tempore ius dici de rebus quae tempore vel
morte periturae sunt. morte: veluti furti: damni iniuriae: iniuriarum atrocium:
qui de incendio ruina naufragio rate nave expugnata rapuisse dicuntur: et si
quae similes sunt. item si res tempore periturae sunt aut actionis dies
exiturus est.
Court’s meeting were not convened at
holidays, harvest time, and olive harvest. However, over the years it was
established that some particular cases could be heard on such days, in
accordance with the rule of the speeding up of criminal proceedings. Arson was
included among those cases that could be considered by court during a public
holiday. This meant that an arsoner had to be tried immediately after having
been caught, no matter if he was caught red-handed or some time after commiting
the crime.
Academic works relating crimen incesionem could be divided into
two groups – one including the articles published until the year of 1972
i.e until G. MacCormack’s article, and the later ones.
Up to the 1970s, arson crimes appeared
mostly in the material part of law textbooks. These include ancient Roman Law
monographs written by W.W. Rein[1], A.W. Zumpt[2], T. Mommsen[3], G.F. Falchi[4], U. Brasiello[5].
Fire was also taken up in
Academic works published after G.
MacCormack’s article concern particular arson-related issues – e.g
G. Zanon discusses several sources dealing with arson, focusing mostly on the
authorities liable for fire security in
It is worth mentioning publications
regarding fire service organizations in
2.
– Legal basis of incendiarii
liablility
According to Gaius the XII Tables 8,6 Act
was the original legal basis for incendiarii
responsibility.
D. 47.9.9 (Gai. l. 4 ad XII tab.): Qui aedes acervumve frumenti iuxta domum
positum combusserit, vinctus verberatus igni necari (XII tabulis) iubetur, si
modo sciens prudensque id commiserit; si vero casu, id est neglegentia, aut
noxiam sarcire iubetur, aut, si minus idoneus sit, levius castigatur.
– appellatione autem aedium omnes species aedificii continentur.
According to the text, the XII Tables 8.6
Law introduced criminal and civil liability of the arsonist, that is his
liability for damages. Such legal- dogmatic construction seems not proper for
the period when this act, based upon a objective responsibility, was created.
MacCormack also expresses serious doubts, and he is probably right in thinking
that this excerpt from Gaius allows to proves that necari iubetur may come from that period. It maybe accepted an
arsonist was punished by burning alive on a stake. The remaining solutions come
from a far later period when liability was assigned on the basis of guilt. I
will return to these dogmatic deliberations in the further part of the paper.
The excerpt cited above does not prove, however, that upon the arsonist, apart
from criminal responsibility, rested the responsibility of rebuilding the burned-down
object as well. Such responsibility was placed upon an arsonist whose deed was
the result of his own carelessness.
Over the course of years criminal and
civil responsibility were regulated by lex Aqulia.
D.
9.2.27.7 (Ulp. 18 ad ed.):
Item si arbustum meum vel villam meam inceinderis, Aquiliae actione habebo.
and
Coll.
12.7.1 Item si insulam meam adusseris
vel incenderis, Aquiliae actionem habebo, idemque est, et si arbustum meum vel
villam meam.
Aquilian compensation could be allowed in case of
setting fire to a tenement house, a villa or a harvest crop. Such a option was
included in third part of the lex
Aqulia. Both texts do not prove, however,
whether criminal responsibility was linked with civil one[13].
A later law regulation within civil
responsibility for arson was the pretor edict De incendio ruina naufragio
rate nave expugnata[14].
D.
47.9.1.pr (Ulp. 56 ad ed.):
Praetor ait: "in eum, qui ex incendio ruina naufragio rate nave expugnata
quid rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur: in
quadruplum in anno, quo primum de ea re experiundi potestas fuerit, post annum
in simplum iudicium dabo. item in servum et in familiam iudicium dabo".
The pretor’s edict extended criminal
responsibility for other sorts of crimes committed along with arson. This law
targeted mainly those offender who made use of arson to loot, as was in the
case of a fencer who was forced to return the fourfold’s worth of the
stolen goods.
The claim was a yearly one, beginning from the moment
when the it was submitted. Lodging a claim was banned when other factors were
put into equation such as supernatural force or events for which a human being
was not responsible. After one year passed, the claim amounted to an original
worth of goods.
Criminal responsibility of incendiary was again
regulated by Sulla in 84 BC in the lex Cornelia de sicariis et veneficis.
D. 48.6.8.1.pr (Marc. l.14 Inst.): Lege Cornelia de sicariis et veneficis tenetur, qui hominem
occiderit: cuiusve dolo malo incendium factum erit: quive hominis occidendi
furtive faciendi causa cum telo ambulaverit: quive, cum magistratus esset
publicove iudicio praeesset, operam dedisset, quo quis falsum iudicium
profiteretur, ut quis innocens conveniretur condemnaretur.
and
Coll. 12.5.1: Incendiariis
lex quidem Cornelia aqua et igni interdici iussit, se varie sunt puniti...
All the issues from Marcianus’
excerpt above were legally settled by lex Cornelia de sicariis et veneficiis.
They included deliberate arson, murder, use of dagger in committing a murder or a theft. This act was in force until the
Justinian times[15].
C. 9.1.11: Imp. Gordianus Philippus A. et Philippus C. Saturnino. Data
opera partis adversae res vestras incendio exarsas esse adseverantes crimen
Corneliae de sicariis exsequi potestis. PP. XIII k. Iul. Peregrino et Aemiliano conss. [a. 244]
In case of arsons linked with dangerous
deeds, especially when violence or a weapon was used, such crimes were tried
pursuant to lex Iulia de vi privata[16].
D. 48.6.5.pr. (Marcian. 14
Inst.): (Eadem lege
tenetur) qui coetu conversu turba seditione incendium fecerit: quique hominem
dolo malo incluserit obsederit: quive fecerit, quo minus sepeliatur, quo magis
funus diripiatur distrahatur: quive per vim sibi aliquem obligaverit, nam eam
obligationem lex rescindit.
and
Paul. Sent. 5.26.3: Lege Iulia de vi privata tenetur, qui quem
armatis hominibus possessione domo villa agrove deiecerit expugnaverit
obsederit clauserit, idve ut fieret homines commodaverit locaverit conduxerit:
quive coetum concursum turbam seditionem incendium fecerit, funerari sepelirive
aliquem prohibuerit, funusve eripuerit turbaverit: et qui eum, cui aqua et igni
interdictum est, receperit celaverit tenuerit: quive cum telo in publico
fuerit, templa portas aliudve quid publicum armatis obsederit cinxerit
clauserit occupaverit. quibus omnibus convictis, si honestiores sunt, tertia
pars bonorum eripitur et in insulam relegantur: humiliores in metallum
damnantur.
and
Paul Sent. 9.26.4: Lege
Iulia de vi privata tenetur... quive coetum concursum turbam seditionem
incendium fecerit.
The
third excerpt, from Pauli Sententiae, clearly indicates the scope of the Lex
Iulia – it dealt with arson committed during several public meetings
to intensify public commotion. The first texts above include later cases of
arson which fell under the Lex Iuila de vi private regulations[17].
3.
– Types of arson
The Latin term for the crime of arson - a
willful or malicious burning or attempting to burn - was incendium, incendii[18]. The
very conflagration was referred in the ancient sources to as incendiis arcendis[19]. Conflagration could be created incidentally si
fortuito incendium factum sit[20],…
nisi tam lata culpa fuit, ut luxuria aut dolo sit proxima[21].
Conflagrations could be created willfully – as a deliberate deed – dolus.
For a arsonist to be stand trial for the crime of
arson it was not necessary to burn down a object completely. To begin legal
proceedings, it was required that the very fact of setting fire had been
committed. Such a
conclusion can be drawn from Collatio
excerpt:
Coll.
12.7.2 Quod si dolo quis insulam exusserit, etiam capitis poena plectitur,
quasi incendiarius.
The
verb exuro- ussi denotes arson, what
results of the deed nothwithstanding. A willful intention of committing arson
could lie behind a great of motives. One of the reasons was an intention to
loot[22] - Incendiarii,
qui quid in oppido praedandi causa faciunt ... (arsonists who set a town
aflame in order to loot...)[23]. The verb praedor, praedare denotes
loot, plunder that was characterized as enmity – inimicitia.
3.1.
– Unintentional arson
Unintentional
arson were mostly associated with common human’s activity in his place of
residence – in town or country.
D.
48.19.28.12 (Call. 6 de cogn.):
....qui vero casam aut villam, aliquo lenius. nam fortuita incendia, si,
cum vitari possent, per neglegentiam eorum, apud quos orta sunt, damno vicinis
fuerunt, civiliter exercentur (ut qui iactura adfectus est, damni disceptet)
vel modice vindicaretur.
The
passage qui vero casam aut villam, aliquo lenius. nam fortuita incendia, si,
cum vitari possent, per neglegentiam eorum, apud quos orta sunt, damno vicinis
fuerunt mentions an incidental
fire without laying any blame on the offender. The perpetrator could, however,
prevent the fire, but, due to his carelessness, he did not do so. In a case
like this, legal proceedings could be institute to compensate the neighbors for
the damages sustained or the perpetrator could be tried, however the sentence
was not supposed to be severe - modice vindicaretur.
Collation
gives another case of an unintentional conflagration:
Coll.
12.7.4: Sed si stipulam in agro tuo
incenderis ignisque evagatus ad praedium vicini pervenerit et illud exusserit,
Aquilia lex locum habeat an in factum actio sit, fuit quaestio.
and
Coll. 12.7.5: Sed plerisque Aquilia lex locum habere non
videtur, et ita Celsus libro xxxvii digestorum scribit. ait enim "si
stipulam incendentis ignis effugit, Aquilia lege eum non teneri, sed in factum
agendum, quia non principaliter hic exussit, sed dum aliud egit, sic ignis
processit".
The case described above presents itself as
follows: some heaps of straw covered the field after the harvests (in the
ancient times it were mostly ears of straw that were harvested). Similarly as
modern farmers do, straw was put on fire delibarately. A gust of wind carried
the fire onto the neighboring field, which was presumably full of ungathered
crops, and destroyed them.
Such a situation creates a dillemma over the way of
compensating the damage done. According to Celsus’ opinion from the 37th
book of the Digest, there were no possibility to bring a lawsuit against the
offender under the actio ex lege Aqulia, because he did not act with the intention of creating a conflagration
and, in consequence, inflicting damages.
What was left was a possibility to bring a lawsuit
under the actio in factum, certainly in a formula processuss, on the
bases of praetor’s edict.
3.2.
– Intentional arson
A great deal of
arson was created in a willful and intentional way. Ulpian writes: Si quis dolo insulam meam
exusserit... (If one torched a rented house…...)[24]. The
same passage was virtually cited in Collatio:
Quod si dolo quis insulam exusserit,... (He who torches on purpose
someone’s rented house ...)[25].
One of
the common causes of arson was hostile approach:
D.
48.19.28.12 (Call. 6 de cogn.):
Incendiarii capite puniuntur, qui ob
inimicitias vel praedae causa incenderint intra oppidum: ...
and
Collatio
12.2.1: Qui casam aut villam
inimicitiarum gratia incenderunt...
According
to Callistratus in the first passage, a subjective factor – a hostile
approach – was very often linked to the intention of looting – praedae
causa. An economic unequality lay beneath a hostie approach, and looping
was an instrument to even out that perceived unequality.
Loot
did not have to be associated with a hostile approach towards the victim. That
was , presumably, the strategy of criminals who were “professional”
looters.
Paul.
Sent. 5.20.1 Incendiarii, qui quid in
oppido praedandi causa faciunt, capite puniuntur. (The arsonists who torch a town in order
to loot are sentenced to death.)[26]
The passage says of arsonists who torched a city in
order to loot or cover the traces after having plundered the house. What is
more, it suggests that the Roman cities
were plagued with torching and consequent
looting in the ancient times.
Callistratus Wites on looting- associated arson:
D.
48.19.28.12 (Call. 6 de cogn.): Incendiarii capite puniuntur, qui ob
inimicitias vel praedae causa incenderint intra oppidum...
Another ancient texts by Paulus, says of arson as a
gratification deed, i.e as commissioned arson and arson behind which lay
political motives[27]:
D.
1.15.1 (Paul. l.s. de off. praef.
vig.): ...fuerant et
privatae familiae, quae incendia vel mercede vel gratia extinguerent...
The
political motives need not enlarging upon. For the ones with the money factor
in it Paulus uses the term merces – edis that denoted
financial remuneration for rent and a gratification for the deed done - in the
case above - commissioned arson[28].
What
is left unexplained is the reason for the commission. It maybe surmised that incendiarius
acted on such base motives as competition or revenge, which reflected the
motives by which his employer was driven by[29].
Another
group of arsonists was the ones who forced the victims to hand over the offenders all his possessions by
means of a weapon – a sword or a dagger.
D.
48.6.3.5 (Marcian. 14 Inst.): Sed
et qui in incendio cum gladio aut telo rapiendi causa fuit vel prohibendi
dominum res suas servare, eadem poena tenetur.
Both
texts by Marcianus describe two cases which fall under the lex Julia de vi
publica. Marcianus also presents another situation – not only a
forced breaking into the victim’s house that was on fire but using a dangerous weapon
– a sword or a dagger. Besides the perpetrator no only plunders the house
but prevents the owner from salvaging his possessions. A similar case in
presented in the other Marcianus’ passage.
D. 48.6.5.pr. (Marcian. 14 Inst.): Qui coetu
conversu turba seditione incendium fecerit: quique hominem dolo malo incluserit
obsederit: quive fecerit, quo minus sepeliatur, quo magis funus diripiatur
distrahatur: quive per vim sibi aliquem obligaverit, nam eam obligationem lex
rescindit.
The passage above resolves a case of a perpetrator who
make use of a public or religious gatherings ( e.g funerals) or a incidental
meetings to create conflagration and, in consequence, a commotion. Such a
situation had to be a common one in the city of Rome, not because of the
existing legal regulation but because of large public gatherings were a perfect
occasion to commit looting, which the modern times attests was always a
powerful ally. Such deed as described above were punished in accordance with
the lex Julia de vi publica.
The
cause for arson could be an intention to cover the tracts of previously
committed crimes, of which attests Marcianus’ passage:
D. 48.6.8.1.pr (Marc. l.14 Inst.): Lege Cornelia de sicariis et veneficis
tenetur, qui hominem occiderit: cuiusve dolo malo incendium factum erit: quive
hominis occidendi furtive faciendi causa cum telo ambulaverit: quive, cum
magistratus esset publicove iudicio praeesset, operam dedisset, quo quis falsum
iudicium profiteretur, ut quis innocens conveniretur condemnaretur.
The murdered set fire to cover the tracks. The arson
was a measure to hide the murder he had committed specifically.
3.3.
– The deeds not punishable by law
Apart from unintentional or
intentional arson, there was a third group of criminal activities for which the
offender was not hold accountable before a court:
Coll.
12.1.1: Si exierit ignis et invenerit
spinas et conprehenderit areas vel spicas aut campum, aestimationem restituet
ille qui succendit ignem.
The
passage above describes a situation where the perpetrator unintentionally sets
fire in the open space, e.g a bonfire, but, due to the wind or the spread of
the fire, a neighboring house catches fire, devouring the crops on the field,
farm buildings, such as barn, in which ears pf straw were amassed. In such a
case the perpetrator of the arson was not held accountable as an incendiaries
in judicial proceedings but, however, bore civil responsibility and compensated
the victim for the damage sustained.
In the
ancient
C.
8.11.14 Arcad./Honor. AA. Severo pu.: Aedificia, quae vulgo parapessia nuncupantur, vel
si qua alia opera moenibus vel publicis operibus sociata cohaerent, ut ex his incendium vel
insidias vicinitas reformidet aut angustentur spatia platearum vel minuatur
porticibus latitudo, dirui ac prosterni praecipimus. D. v
id. Oct. Constantinopoli Honorio A. IIII et Eutychiano conss. [a.
398]
The 389 AD constitution says of small buildings
similar to modern leans-to, added to a private or public house. Such building
development, erected presumably without any authorities’ permit, created
a clear and present fire danger or, at least, led to jamming the traffic. For
these reason the Caesar Arcadius decided to pull down these constructions. The
389 AD constitution also draw attention to the fact that creating a fire hazard
per se was not liable to prosecution
and there was not any mention of bail or other security. These buildings had to
demolished once an executive order was served.
4. – The arson adjudication authorities
Late
ancient writer Lawery Paulus in his work concerning the functioning of the praefectus
vigilum office presented the history and original law regulations with
regard to the crime of arson:
D.
1.15.1 (Paul. l.s. de off. praef.
vig.): Apud vetustiores incendiis arcendis triumviri praeerant, qui
ab eo, quod excubias agebant nocturni dicti sunt: interveniebant nonnumquam et
aediles et tribuni plebis. erant autem familia publica circa portam et muros
disposita, unde si opus esset evocabatur: fuerant et privatae familiae, quae
incendia vel mercede vel gratia extinguerent, deinde divus Augustus maluit per
se huic rei consuli.
D. 1.15.2 (Ulp. l.s. de
off. praef. vig.): pluribus uno
die incendiis exortis.
The
passage above describes the history of the authorities empowered to adjudicate
cases of arson. Characteristic of the authorities presented in the passage is
that they exercised both executive
and judicial powers. Originally the persons responsible for such cases were the
Triumvires who were entrusted with control, including protecting against
arson, over the city of
Livius
writes on the scope of their responsibilities.
Liv.
39.14.9-10: ... triumviris
capitalibus mandatum est, ut vigilias disponerent per urbem, servarentque, ne
qui nocturini coetus fierent, utique ab incendiis caveretur.
Tresiviris’
competences within the crimes of arson differed from those of ediles and Tribunes of the People. Ediles were
responsible for road and public places security. The Tresviri nocturni’ duties were only complementary to ediles’
ones at night. The former exercised their powers within the crimes of arson
only at night whereas the latter both at night and during the daytime.
An
increase in the amount of setting fire to private and public houses in the city
of
Paulus
states the reasons and ways of organization of fire security in
D.
1.15.3.pr. (Paul. l.s. de off.
praef. vig.): nam salutem rei publicae tueri nulli magis credidit
convenire nec alium sufficere ei rei, quam Caesarem. itaque septem cohortes
oportunis locis constituit, ut binas regiones urbis unaquaeque cohors tueatur,
praepositis eis tribunis et super omnes spectabili viro qui praefectus vigilum
appellatur.
Cesar
August introduced a reorganization
of fire security in
The
next Paulus’ passage says about discharging duties by the praefectus
vigilum and his subordinated service.
D.
1.15.3.3-4 (Paul. l.s. de off.
praef. vig.): Sciendum est
autem praefectum vigilum per totam noctem vigilare debere et coerrare calciatum
cum hamis et dolabris, ut curam adhibeant omnes inquilinos admonere, ne
neglegentia aliqua incendii casus oriatur. praeterea ut aquam unusquisque
inquilinus in cenaculo habeat, iubetur admonere.
The passage cited above raises some doubts
because the verb adhibeant is used in
the plural and there is no concord with the term praefectus vigilumthat, which is in the singular.
J. Gebhardt explains this inconsistency in
the following way: «Es ist
unwahrscheinlich, dass der Präfekt allein Patrouille gehen sollte, um die
Hausbewohner zu ermahnen, auf ihre Feuerstellen acht zu geben. Vielmehr werden
die vigiles den Präfekten auf seinen nächtlichen Patrouillen
begleitet haben»[35].
Paulus in the abovementioned passage
writes hat vigiles were armed with
fire hooks and axes. They were to patrol public places, roads and squares. It
may be surmised from the passage that within their competences lay executing
night searchs of private houses. Such a surmise flows from the fact that the praefectum vigilum was entitled
to verbally admonish those who were careless with fire.
To state the existing condition, the praefectum vigilum had to carry out a
thorough inspection of the place, presumably following the previous report of a
crime. A house search was necessary to examine if there was enough amount of
water appropriate in case of a fire on each floor of the house.
In the times of the Severus Dynasty, the
Caesars Marcus Aurelius and Lucius Aurelius expressed their opinions on the praefectus
vigilum’s powers:
D.
1.15.4 (Ulp. l.s. de off. praef.
urb.): Imperatores Severus et Antoninus Iunio Rufino praefecto
vigilum ita rescripserunt: "Insularios et eos, qui neglegenter ignes apud
se habuerint, potes fustibus vel flagellis caedi iubere: eos autem, qui dolo
fecisse incendiium convincentur, ad Fabium Cilonem praefectum urbi amicum
nostrum remittes:... ."
This
act intended for the praefectus vigilum Iunion Rufinus. The official had the power to punish
those who carelessly played with fire. The passage also suggests that those who
were not responsible for fire but might contribute to it could be
punished.
Such executive measures were typical of
security forces. Only an intentional conflagration allowed the case to be
shifted onto the city’s praefect. This lead
G. Zanon to claim that «Sebbene
il frammento nulla dica in proposito e’, a mio parere, verosimile pensare
che avanti a quest’ultimo magistrato si sarebbe svolto un vero e proprio
processo criminale; l’elemento soggettivo verrebbe in altre parole a
distinguere un’ipotesi di illecito soltanto “amministrativo”
– come tale ben sussumibile nella categoria dei “levia
crimina” – da un reato in senso proprio, la cui persecuzione doveva
avvenire secondo le regole tradizionali»[36].
Since
the Wespasianus times, vigiles and
their commander praefectus vigilum were subjected to the city’s
praefect:
D. 1.15.3.1 (Paul. L .s. de off. praef. vig.):
Cognoscit praefectus vigilum de
incendiiariis effractoribus furibus raptoribus receptatoribus, nisi si qua tam
atrox tamque famosa persona sit, ut praefecto urbi remittatur.
According
to Paulus, all cases related to the crimes of arson were within the remit
of the praefectus vigilum
who heard them. He could mete out a physical punishment of the lash or to only
admonish the defendant verbally, reminding that a similar deed is punishable by
the lash in the future.
It is
worth mentioning that the passage states that most of the crimes of arson were
committed unintentionally in
In
case of two categories of arsonists - tam atrox tamque famosa – the
cases had be heard before the city’s praefect court of the first
instance. The first group constituted the persons called atrox – those who committed bodily injuries –
assault and battery or a threat of AAB[37]. In case of arson a similar
case constituted persons who used a sword or dagger in order to create
commotion among the people who were trying to put fires, or persons who spread
panic in a crowd in order to loot.
Famosae was a person with a unsavory
reputation – either because of his immoral conduct, an infamy complaint
or a court sentence that put infamy on the defendant[38]. In
this case it meant the offenders who had a reputation of arsonists.
Paulus describes a case when a fire broke
out due to the carelessness of the household members.
D.
1.15.3.1 (Paul. l .s. de off.
praef. vig.): .... et quia plerumque incendiia culpa fiunt
inhabitantium, aut fustibus castigat eos qui neglegentius ignem habuerunt, aut
severa interlocutione comminatus fustium castigationem remittit.
Further
Paulus says about the powers of the praefectum
vigilum to determine who the culprit was and even inflicting flogging
punishment. According to J. Gebhardt castigatio
back in the republican times entailed not only a corporal punishment but also a
verbal admonition – admonitio, severa interlocutio[39].
Without
doubt, in the later period, the Cesar tribunal was entitled to hear cases of
intentional arson.
Paul. Sent.
5.3.6: Incendiarii, qui consulto incendium inferunt, summo supplicio
adficiuntur. Quod si per incuriam ignis evaserit, dupli compendio damnum
eiusmodi sarciri placuit.
In the passage above
there is a clear distinction between intentional and unintentional arson. The
former were heard before the Caesar. The Caesar, presumably, tried such cases
as court of the second instance, as an appellation court, including
citizens’ cases. The Caesar Caracalla deprived cives romanorum of the right to appellate to the Caesar in cases
punishable by capital punishment. Since then such cases from the first instance
court were heard before the city’s praefect or the province governor[40].
5.
– Types of sanctions
5.1.
– Penalties for intentional arson
The XII Tab. 10,8 Act makes a distinction
between two cases that were differently regulated. The first is intentional
arson, the other one is unintentional arson. Both cases were subjected to
different punishment:
D. 47.9.9 (Gai. l. 4 ad XII tab): Qui aedes acervumve frumenti iuxta domum positum combusserit, vinctus
verberatus igni necari (XII tabulis) iubetur, si modo sciens prudensque id
commiserit; si vero casu, id est neglegentia, aut noxiam sarcire iubetur, aut,
si minus idoneus sit, levius castigatur.
Intentional arson was subjected to burning
alive of the perpetrator preceded by his flogging. Such a practice in the Roman
Law dated back to the ancient times. Burning alive was seen as retribution law
used in the period when XII Tables Act was in force. In intentional arson cases
the perpetrator bore the civil liability and was forced to pay the increased
worth of the damage sustained by the victim.
The XII Tables Act presented also a third
situation when it was impossible to determine who the culprit was whether his
deed intentional or unintentional. In such a case the perpetrator ought to be aut,
si minus idoneus sit, levius castigator – punished lightly.
Unfortunately there are none sources left
to see what it meant in practice. The whole casuistry was developed later.
Despite the fact that the way the crime was punished was still in force in the
later period, what did change was the way how capital punishment and lighter
sentences were executed.
The lex Cornelia de sicariis et veneficiis
shows a new way of punishing of arsonists:
Coll.
12.5.1 (Ulp. l. 8 de off. procon.):
sub titulo de naufragiis et incendiariis: Incendiariis lex quidem Cornelia
aqua et igni interdici iussit, sed re varie sunt puniti. nam qui data opera in civitate
incendium fecerunt, si humillimo loco sunt, bestiis subici solent, si in aliquo
gradu et Romae id fecerunt, capite puniuntur: aut certe ...... adficiendi sunt,
qui haec committunt.
Ulpian’s
passage from Collatio seems to
correspond with the original text, to which point out a mention in the Lex Cornelia that does not exist in the Digest passages[41]. The
authors of the compilation of the texts did not find the mention useful in the
light of the new Ceasarian regulations within the crimes of arson.
An
arsonist was punished by throwing as
bestiis, a punishment that existed along with burning alive. Such was the
punishment mete out to humiliores – those who live the lives of the
lowest circles of society – si humillimo loco sunt, anf not
only si humiliore loco sint[42], as
it is attested by the passage from Collatio.
In
other cases the perpetrators of arson were also sentenced to death but in a
more humanitarian way. The criminals could also deported to an island but the
source does not specify what sort of people were liable to this type of
punishment. It may be hypothesized that it included belonging to the lowest
classes of society[43].
Callistratus affirms burning alive of incidendiarii:
D.
48.19.28.12 (Call. 6 de cogn.):
Incendiarii capite puniuntur, qui ob inimicitias vel praedae causa
incenderint intra oppidum: et plerumque vivi exuruntur. qui vero casam aut
villam, aliquo lenius. nam fortuita incendia, si, cum vitari possent, per
neglegentiam eorum, apud quos orta sunt, damno vicinis fuerunt, civiliter
exercentur (ut qui iactura adfectus est, damni disceptet) vel modice
vindicaretur.
The
passage says of sentencing arsonists to death. Intentional arson stems from
enmity –inimicitas, intention of loot or loot linked with
armed robbery – praedae
causa.
However,
such punishment is meted out to criminals who intentionally commit arson. There
are other cases, certainly. The passage above says of a house ( casa) or a
villa ( villam) burned down. Callistratus claims that it is the owner of the
house who is responsible for
setting his house on fire e.g
to built a new one. Such an act was also punishable by law, but not by
capital punishment but by lighter sentences.- qui vero casam aut villam,
aliquo lenius. They were not, however, specified in the passage.
Further
Callistratus says of uintentional arson. The transgressor could have prevent
the wrong, but he had not done so due to his carelessness. Neighbors could
bring a civil lawsuit against him and claim damages or he could be tried in a
criminal court, but the sentence was moderate - modice vindicaretur.
There was a close relationship in ancient
A judge
could choose between these two types of punishment, but it does not flow the
passage that he could burden the wrongdoer with civil liability and
simultaneously inflict flogging on him. J. Gebhardt tends to take a similar
line of reasoning[44].
Tenement houses – insulae – often fell pray to
intentional arson.
D.
48.8.10 (Ulp. 18 ad ed.): Si
quis dolo insulam meam exusserit, capitis poena plectetur quasi incendiarius.
and
Coll.
12.7.2: Quod si dolo quis insulam
exusserit, etiam capitis poena plectitur, quasi incendiarius.
The
passages above show that setting fire to tenement houses was always treated similary to torching
other buildings such as casae, villae or aedificia. In the
course of years even these cases were punishable, so an arsonist was also
called incendiarius. The very term quasi
incendiarius reflects previous discussion over including setting fire to a
tenement house into arson category. Eventually it was ruled that such cases
fell under the crime of arson and arsonist ought to be punished by capital
punishment.
Over
the course of time the crimes of arson were divided into arson in and outside
of a city:
Paul.
Sent. 5.20.1: Incendiarii, qui quid in
oppido praedandi causa faciunt, capite puniuntur.
The
passage says about arsonist who torch a city in order to loot. The offender is
punished by death. An analogous passage may be found in Collatio Incendiari-
qui quid in oppido praedandi causa faciunt, facile capite puniuntur[45].
Outside the city an arsonist could set
fire to crops or other forms of farming activity[46]:
Paul. Sent. 5.26.5: Messium sane per dolum incensores, vinearum
olivarumve aut in metallum humiliores damnatur, aut honestiores in insulam
relegantur.
Coll.
12.3.2 includes the same passage. Both extracts are characterised by punishment
diversity depending on the social status of the perpetrator. Humiliores were sentenced to in mettallum,
and honestiores were expelled to an
island. In later period a new form of capital punishment emerged – forced
labor in mines – in metallum.
5.2.
– Crime diversity depending on the social status of the offender
In the imperial times, with the division of the Roman society into humiliores and honestiores, a process of crime diversification for the same
criminal deed was initiated, also with regard to arson.
D. 47.9.12.1 (Ulp. 8
de off. procons.)[47]: Qui data opera in civitate incendium fecerint, si
humiliore loco sint, bestiis obici solent: si in aliquo gradu id fecerint,
capite puniuntur aut certe in insulam deportantur.
The passage above is not very much clear and differs
from the well – known, even in the principate period dichotomy, humiliores- honestiores.
Ulpian mentions three groups towards which various sentences needed to be
passed. For humiliores the proper
treatment was death sentence in the form of their fight with wild animals on
the arena –ad bestias.
The second group is called aliquo gradu by
Ulpian – of different rank, which probably meant a higher social class.
This passage does not allow to clearly identify the group. Such a term does not
also exist in other ancient legal sources. It may be surmised that Ulpian had
middle social classes on his mind.
If an arsonist belonged to the middle class, he was
sentenced to death but not in the form if fighting with wild animals but by
having his head cut off. The highest social classes were punished by sending
into banishment– relegatio.
The society division into two groups is seed in
another excerpt from Ulpian.
D.
48.22.6.2 (Ulp. 9 de off. procons.):
Decuriones civitatium propter capitalia crimina
deportandos vel relegandos divi fratres rescripserunt. denique Priscum in
homicidio et incendio nominatim ante quaestionem confessum in insulam deportari
iusserunt.
Ulpian
texts need to understood in the context of the Caesarian lawmaking. It is a
fragment of a Caesar’s rescript sent to a province governor, referring to
a Priscus, who was only known as a Roman citizen and held office as a decurion. His residence remained
unknown. Priscus was accussed of arson and murder. Presumably the arson was an
attempt to cover the tracks of a murder he previously had committed.
Decurions’ social position was delicate, because the Caesar Antonius Pius
had forbidden to torture people who belonged to higher classes, if they
committed confession during the investigation[48].
This
privilege stemmed from the fact that during the Sever’s dynasty a
province governor did not enjoy ius gladii towards municipal officials, and decurion criminal cases had to be
heard by the Caesar only. This lay behind the fact of issuing the Priscus
rescript[49].
Pauli Sententiae mention crime diversification for reasons
of social background.
Paul. Sent. 5.20.2: Qui casam aut villam inimicitiarum gratia
incenderunt, humiliores in metallum aut in opus publicum damnantur, honestiores
in insulam relegantur.
and
Paul. Sent. 5.26.3: ... quibus omnibus convictis, si honestiores sunt,
tertia pars bonorum eripitur et in insulam relegantur: humiliores in metallum
damnantur.
Caesar Augustus already made a distinction between
punishment for honestiores i humiliores. Honestiores, representants of higher social classes, instead of
being sentenced to death, were sentenced to relegatio-
a milder form of banishment. This type of punishment was also associated with
loss of part their property [50], which the second part of the Pauli
Sententiae prove. A similar punitive action was meted out to arsonist who
committed the crime outside the city.
Paul.
Sent. 5.26.5: Messium sane per dolum
incensores, vinearum olivarumve aut in metallum humiliores damnatur, aut
honestiores in insulam relegantur[51].
and
Coll. 12.2,1: Qui casam aut villam inimicitiarum gratia
incenderunt, humiliores in metallum aut in opus publicum damnantur, honestiores
in insulam relegantur.
5.3. – Liability for unintentional fire
Generalny speaking,
unintentional fire perpetrators were liable for suffering damages to the amount
of the wrong committed upon the victim’s property.
Psent.
5.3.6: Incendiarii, qui
consulto incendium inferunt, summo supplicio adficiuntur. Quod si per incuriam ignis
evaserit, dupli compendio damnum eiusmodi sarciri placuit.
Civil responsibility dis not absolve, however, from
criminal liability in case of unintentional arson. In some cases the
perpetrator could receive pardon.
D.
47.9.11 (Marcian. 14 Inst.): Si fortuito incendium factum sit, venia
indiget, nisi tam lata culpa fuit, ut luxuria aut dolo sit proxima.
The terms of venia indiget denote pardon from a Caesar. The Ceaser had the right
to pardon because the crimes of arson fell under his authority. The sentences
were passed in his name by the city’s praefect. Because such cases were
heard by court regardless of guilt,
so in case of unintentional fire the perpetrator could be pardoned.
Coll.
12.5.2 (Ulp.8 off.): Sed eis qui non
data opera incendium fecerint plerumque ignoscitur, nisi in lata et incauta
neglegentia vel lascivia fuit.
According
to O. Lenel both authors - Ulpian i Marcianus - gained knowledge from the same
source[52].
Marcianus’ text poses some interpretative problems, which raises
questions over its authenicity. No doubt, both authors differentiate between
the causes of the fire for practical reasons.
It is
hard to believe that there existed only one group of intentional and unintentional
arsonist. The crime of arson must have included various other cases that
differed from each other depending on the extent of the guilt.
Both
texts include a number of occurrences for which the owner of the house or a
residence could not have been
blamed. According to Marcianus venia indiget – i.e he is liable
for pardon by the Ceasar. Ulpian says of plerumque ignoscitur – i.e many were pardonem by the Caesar. The
wording of the texts suggest that in case of a fire a lawsuit was brought
against a person who was legally occupying the house. If a judge found the defendant innocent,
such a person was acquitted. It did not mean, however, dropping civil charges-
this, at least, may be drawn from the texts[53].
The
situation took a different turn when it was established that the person charged
with setting fire to the house was its legal occupant. In such a case both
excerpts use various terms to determine to the extent of defendant’s
guilt. Macianus mentions lata culpa fuit, ut luxuria aut dolo sit proxima,
and Ulpian - lata et incauta neglegentia vel lascivia fuit. Both cases
refer to culpa lata, a similar
situation to dolus –
intentional deed. Culpa lata needs to be carefully examined when fire was at
stake. The result was that both texts involved non-legal terms such as luxoria
– riotus life, intemperance or similar foul behavior, and the term lascivus
denoting a dissolute person. Marcianus and Ulpian referred to situations that took place
in tenement houses or roman villas which often witnessed “binges”.
The participants of such “parties” often lost their control over
their behavior and this led to carelessness – custodia – and a fire threat. This was the reason why the
person legally residing in a building was held accountable for the fire[54].
This
line of reasoning is confirmed by Paulus’ excerpt located in Collatio.
Coll.
12,6,1 (Paul poen.) Incendiarii, qui in oppido praedae causa id
admiserint, capite puniantur: qui casu insulam aut villam, non ex inimicitiis
incenderint, levius. Fortuita enim incendia ad
forum remittenda sunt, ut damnum vicinis sarciatur.
According
to Paulus fire broke out in an intentional way, which should lead to death
sentence to the perpetrator, or in an unintentional way.
In
unintentional arson the person accountable for the burned-down object was not a
culprit, and the fire broke out for no malicious intention on the part of the
perpetrator - non ex inimicitiis
incenderint
Paulus
does not discuss the extent to which the wrongdoer was guilty; he does not go
into the duty of watching the fire. He focuses on the civil liability of the
person accused. The statement Fortuita enim incendia ad forum remittenda
sunt, ut damnum vicinis sarciatur proves that a case of fire always came
before the court even if the person
liable for the fire did nor do in deliberately. The case had to be heard in
order to determine the amount of due compensation to the neighbors or residents
of a tenement house.
Civil
liability was not always connected with criminal responsibility.
Coll. 12.1.1
Si exierit ignis et invenerit spinas
et conprehenderit areas vel spicas aut campum, aestimationem restituet ille qui
succendit ignem.
Unintentional arson could lad to criminal
liability, but civil liability was dropped when the perpetrator himself
redressed for the wrong done.
5.4.
– Punishment for arson-related crimes
The looters of the site of the fire could
be fined, and the multiplied amount of the property stolen.
D.
47.9.1.pr (Ulp. 56 ad ed.): Praetor
ait: " in eum, qui ex incendio ruina naufragio rate nave expugnata quid
rapuisse recepisse dolo malo damnive quid in his rebus dedisse dicetur: in
quadruplum in anno, quo primum de ea re experiundi potestas fuerit, post annum
in simplum iudicium dabo. item in servum et in familiam iudicium dabo".
In the
edict the people who found themselves in a difficult situation were taken into
praetor’s protection. Those who were responsible their predicament were
reviled. If a person made use of a fire and took away the property belonging to
the victim, a fence, for example, of the fire, such a criminal was forced to
return the fourfold’s worth of the property stolen.
The complaint was a yearly one, beginning from the
moment when lodging a complaint was legally binding. Filing a complaint could
be hampered if a supernatural force and other non-human occurrences came into
play. After one year passed, the claim was equal to the original amount of the
property.
Paul. Sent. 5.3.2 Quidquid ex incendio ruina naufragio navique
expugnata raptum susceptum suppressumve erit, eo anno in quadruplum eius rei,
quam quis suppresserit celaverit rapuerit, convenitur, postea in simplum.
This text deals with possibile crimes of the perpetrator who could
forcibly take away property from the site of fire (raptum), taking away while passing by the site of fire (susceptum) or appropriate (suppressum). The last term is somewhat
general and denotes any other appropriation. It it not used explicitly in the
text but a different terms is used – celaverit
that means hiding the stolen property by the fence.
The other arson-related crime was
slaves’ or the plebs residence within the limit sof the a city.
Paul. Sent. 5.6.1: Neque muri neque portae habitari sine permissu
principis propter fortuita incendia
possunt.
Imposing such a rule was dictated by the fact that the
city was furnished with many wooden defensive structures. Slaves and the plebs
often used fire to prepare a meal whoch could lead to setting a fire.
6. – Conclusions
In the ancient Roman times setting fire
was severely punished as evidenced by the XII Tables Act. The Act provided for
capital punishment for the crime of arson. The original rule of objective
liability, based upon causality, was
with time substituted by guilty- based liability. With the course of years the
ancient lawyers learned to make a distinction between various cases and since
than sentences matched particular cases.
The most important distinction was
distinguishing between intentional and unintentional fire. No less important
legal regulations concerned the deeds for which the perpetrator was not liable
and the deed committed when fire was raging – e.g theft.
The source analysis proves quite a
comprehensive legal system that dealt with arson, perpetrators of which could
not count on leniency from judges unless they descended from honestriores – in such a case
capital punishment or equally harsh sentences were substituted by
banishment.