4 - The thief in the night

Summary

The streets of Rome at night were unlit and dangerous for travellers. One night, a wayfarer, carrying a leaded whip perhaps for self-protection, picks up a torch from a shop fronting the street. The owner sees him, gives chase and seizes him by the arm. The traveller retaliates with his whip, a fight breaks out and the traveller is blinded in one eye. The traveller then sues the shopkeeper (Alfenus, Digest at D. 9.8.52.1). The opinion of the learned expert was that the outcome of the case would depend on the answer to the question of fact: who had started the brawl?

This imaginary but highly plausible case described by a legal commentator in the first century bc provides an illustration of the workings of the law on damages and injury. The context itself encourages insecurity: the traveller is benighted; the dark streets are the haunts of muggers. But the aggrieved owner of the torch has his rights too and he tries to enforce them through the traditional Roman methods of self-help. The thief is unknown to him and an action for theft for so small an item unviable. In the end it is the partially blinded traveller who seeks redress, through the legal remedy established by the law on criminal damage, the Lex Aquilia, a plebiscite passed in the third century in or sometime after 287 bc (R. Zimmermann 1996: 955–7).