Digesta 9.2.52: guilty?

Normally juridical prose is boring and hermetic for me – I hasten to say that this does not count for the couple of friends of mine who have studied law – but what is interesting are the anecdotes illustrating certain principles of law. The following example is taken from the Digesta and treats the question of liability for maltreatment. The Digesta or Pandectae are a compendium of Roman law, compiled under Justinian I (530–533). The amount of Roman juridical writing was so overwhelming that a coherent and systematic compendium had to be made. The result was that the works of many Roman jurists are just known by excerpts in the Digesta. One of these is Alfenus Varus, who lived in the first century BC. The following fragment is taken from the second book of Digesta by Alfenus: a shop-keeper tries to take back stolen property from a thief. He is beaten off by this thief, but resumes his pursuit and while fighting he scratches one of the thief’s eyes out. Apparently he was charged for maltreatment by the thief and therefore asked Alfenus for his opinion as lawyer.

Digesta 9.2.52

Alfenus libro secundo digestorum.

1. Tabernarius in semita noctu supra lapidem lucernam posuerat: quidam praeteriens eam sustulerat: tabernarius eum consecutus lucernam reposcebat et fugientem retinebat: ille flagello, quod in manu habebat, in quo dolor inerat, verberare tabernarium coeperat, ut se mitteret: ex eo maiore rixa facta tabernarius ei, qui lucernam sustulerat, oculum effoderat: consulebat, num damnum iniuria non videtur dedisse, quoniam prior flagello percussus esset. Respondi, nisi data opera effodisset oculum, non videri damnum iniuria fecisse, culpam enim penes eum, qui prior flagello percussit, residere: sed si ab eo non prior vapulasset, sed cum ei lucernam eripere vellet, rixatus esset, tabernarii culpa factum videri.

tabernarius: shop-keeper

semita: narrow street, path

noctu: at night (irregular abl. of nox)

lapis lapidis (m.): stone

praeter-eo: to pass by

tollo sustuli sublatum (-ere): to take away

lucerna: oil-lamp

consequor consecutus: to follow, go after

reposco (-ere): to ask back

ille: the thief

flagellum: whip

dolor: pain, i.e. iron had been attached to the end of the whip

verbero: to lash, whip

ut se mitteret: so that he (the shop-keeper) let him (the thief) go

ex eo: there upon

rixa: quarrel, strife (maiore rixa facta: abl. abs.)

effodio effodi effossum: to dig out, to scratch out (oculum)

damnum do: to inflict harm

injuriā: unjustly

operam do: to give attention (data opera, abl. abs. `attention being given’ i.e. on purpose)

domnum facio = damnum do

penes (+ acc.): in the possession of, with

vapulo: to be beaten

eripio eripui ereptum: to snatch away

rixor rixatus: to quarrel

culpa  abl.

Translation by Samuel P. Scott ( Cincinnati, 1932, note that it is sometimes more a paraphrasis.)

 (1) The keeper of a shop placed his lantern on a stone in a street at night, and a passer-by took it away; the shopkeeper followed him and demanded the lantern, and detained the party as he was trying to escape. The latter began to strike the shopkeeper with a whip which he held in his hand and to which an iron was attached, in order to compel him to release his hold. The struggle having become more serious, the shopkeeper knocked out the eye of the party who had taken away his lantern, and he asked for an opinion whether he could not be considered not to have inflicted unlawful damage, as he had been first struck with a whip? I answered that unless he had knocked out his eye designedly he would not be considered to have caused unlawful damage, because the party who first struck him with the whip was to blame; but if he had not first been beaten, but had fought with the party who is trying to take the lantern from him, the shopkeeper must be held to be responsible for the act.