[ULPIANUS libro quinquagensimo sexto ad edictum. ] §47.8.2.prPraetor ait: 'Si cui dolo malo hominibus coactis damni quid factum esse dicetur siue cuius bona rapta esse dicentur, in eum, qui id fecisse dicetur, iudicium dabo.
[ULPIANUS on the Edict, book 56] The praetor says: 'If it is alleged that any damage has been done to anyone by malice aforethought with gathered men, or if anyone's goods are alleged to have been snatched by force, I will grant an action against him who is alleged to have done it.
item si seruus fecisse dicetur, in dominum iudicium noxale dabo'. §47.8.2.1Hoc edicto contra ea, quae ui committuntur, consuluit praetor.
Likewise, if a slave is alleged to have done it, I will grant a noxal action against his master.' By this edict, the praetor has provided against things committed by force.
nam si quis se uim passum docere possit, publico iudicio de ui potest experiri, neque debet publico iudicio priuata actione praeiudicari quidam putant: sed utilius uisum est, quamuis praeiudicium legi Iuliae de ui priuata fiat, nihilo minus tamen non esse denegandam actionem eligentibus priuatam persecutionem.
For if anyone can show that he has suffered violence, he can seek a remedy by a public trial for violence, and some think that a public trial ought not to be prejudged by a private action; but it has seemed more useful that, although prejudice may be caused to the Julian law on private violence, nevertheless, the action ought not to be denied to those who choose a private prosecution.
§47.8.2.2'Dolo' autem 'malo facere' potest (quod edictum ait) non tantum is qui rapit, sed et qui praecedente consilio ad hoc ipsum homines colligit armatos, ut damnum det bonaue rapiat.
Moreover, 'to act with malice aforethought' (as the edict says) can be done not only by him who snatches by force, but also by him who, with a prior plan, gathers armed men for this very purpose, so that he may cause damage or snatch goods.
§47.8.2.3Siue igitur ipse quis cogat homines siue ab alio coactis utitur ad rapiendum, dolo malo facere uidetur.
Therefore, whether someone gathers the men himself or uses those gathered by another for the purpose of plundering, he is deemed to act with malice aforethought.
§47.8.2.4Homines coactos accipere debemus ad hoc coactos, ut damnum daretur.
We ought to understand 'gathered men' as men gathered for this purpose, namely, that damage might be done.
§47.8.2.5Neque additur, quales homines: qualescumque siue liberos siue seruos.
Nor is it added what kind of men they are: they may be of any kind, whether free men or slaves.
§47.8.2.6Sed et si unus homo coactus sit, adhuc dicemus homines coactos.
But even if only one person has been gathered, we shall still say 'gathered men'.
§47.8.2.7Item si proponas solum damnum dedisse, non puto deficere uerba: hoc enim, quod ait 'hominibus coactis', ut siue solus uim fecerit siue etiam hominibus coactis, sic accipere debemus etiam hominibus coactis uel armatis uel inermibus hoc edicto teneatur
Likewise, if you suppose that a person alone has caused damage, I do not think the words are lacking; for as to this which it says, 'with gathered men', we ought to understand it in such a way that whether he committed violence alone, or also with gathered men, he is held under this edict, whether the gathered men are armed or unarmed.
§47.8.2.8Doli mali mentio hic et uim in se habet.
The mention of malice aforethought here also includes violence in itself.
nam qui uim facit, dolo malo fecit, non tamen qui dolo malo facit, utique et ui facit.
For he who commits violence acts with malice aforethought, yet he who acts with malice aforethought does not necessarily also act with violence.
ita dolus habet in se et uim: et sine ui si quid callide admissum est, aeque continebitur.
Thus, malice includes violence within itself; and if anything is committed craftily without violence, it will equally be covered.
§47.8.2.9'Damni' praetor inquit: omnia ergo damna continet et clandestina.
The praetor says 'of damage'; therefore, it includes all damage, even clandestine damage.
sed non puto clandestina, sed ea, quae uiolentia permixta sunt.
But I do not think it includes clandestine damage, but rather that which is mixed with violence.
etiam quis recte definiet, si quid solus admiserit quis non ui, non contineri hoc edicto, et si quid hominibus coactis, etiamsi sine ui, dummodo dolo sit admissum, ad hoc edictum spectare.
Also, one will rightly define that if anyone alone has committed something not by force, it is not contained in this edict, but if anything is done with gathered men, even if without force, provided it is committed with malice, it pertains to this edict.
§47.8.2.10Ceterum neque furti actio neque legis Aquiliae contributae sunt in hoc edicto, licet interdum communes sint cum hoc edicto: nam Iulianus scribit eum qui ui rapit furem esse improbiorem, et si quid damni coactis hominibus dederit, utique etiam Aquilia poterit teneri.
Furthermore, neither the action for theft nor that under the Aquilian law is merged in this edict, although sometimes they are concurrent with this edict; for Julian writes that he who snatches by force is a more wicked thief, and if he has caused any damage with gathered men, he can certainly also be held liable under the Aquilian law.
§47.8.2.11'Uel cuius bona rapta esse dicuntur'. quod ait praetor 'bona rapta', sic accipiemus: etiam si una res ex bonis rapta sit.
'Or whose goods are alleged to have been snatched by force.' What the praetor says, 'goods snatched', we shall understand in this way: even if a single thing from the goods has been snatched by force.
§47.8.2.12Si quis non homines ipse coegerit, sed inter coactos ipse fuerit et quid aut rapuerit aut damni dederit, hac actione tenetur.
If anyone has not gathered the men himself, but was himself among those gathered and either snatched something or caused damage, he is held liable under this action.
sed utrum hoc solum contineat edictum, quod dolo malo hominibus a reo coactis damnum datum sit uel raptum, an uero quod dolo malo rei raptum uel damnum datum sit, licet ab alio homines sint coacti, quaeritur.
But it is asked whether this edict contains only this, namely, that damage was caused or robbery committed with malice aforethought by men gathered by the defendant, or indeed whether it also covers where robbery was committed or damage caused by the malice of the defendant, even though the men were gathered by another.
et melius esse dicitur etiam hoc contineri, ut omnia haec contineantur et quod ex coactis ab alio damnum datum sit, ut et is qui coegit et is qui coactus est contineri uideatur.
And it is said to be better that this also is covered, so that all these are included, and even that damage caused by those gathered by another is covered, so that both he who gathered them and he who was gathered seem to be included.
§47.8.2.13In hac actione intra annum utilem uerum pretium rei quadruplatur, non etiam quod interest.
In this action, within an available year, the true value of the thing is quadrupled, but not also the interest.
§47.8.2.14Haec actio etiam familiae nomine competit, non imposita necessitate ostendendi, qui sunt ex familia homines qui rapuerunt uel etiam damnum dederunt.
This action is also available in the name of a household, without any necessity being imposed of showing who of the household are the persons who snatched the goods or also caused the damage.
familiae autem appellatio seruos continet, hoc est eos, qui in ministerio sunt, etiamsi liberi esse proponantur uel alieni bona fide nobis seruientes.
Moreover, the designation 'household' includes slaves, that is, those who are in service, even if they are supposed to be free men, or are the slaves of another serving us in good faith.