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p632 Incendium

Unsigned article on pp632‑633 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

INCE′NDIUM, the crime of setting any object on fire, by which the property of a man is endangered. It was thus a more general term than the modern Arson, which is limited to the act of wilfully and maliciously burning the property of another. The crime of incendium was the subject of one of the laws of the Twelve Tables, which inflicted a severe punishment on the person who set fire to property maliciously (sciens, prudens); but if it was done by accident (casu, id est, neglegentia), the law obliged the offender to repair the injury he had committed (Dig. 47 tit. 9 s9). The punishment, however, of burning alive, which is mentioned in the passage of the Digest referred to, is supposed by modern commentators not to have been contained in the Twelve Tables, but to have been transferred from the imperial period to earlier times. In the second Punic war a great fire broke out at p633Rome, which was evidently occasioned humana fraude. The offenders were discovered and punished (animadversum est), but Livy unfortunately does not state (XXVI.27) in what manner. The crime of incendium was the subject of various enactments in the last century of the republic. Sulla, in his Lex Cornelia de sicariis, punished malicious (dolo malo) incendium, but only in the city, or within a thousand paces of it, with aquae et ignis interdictio, since it was frequently employed as a means for the perpetration of murder, which was especially the subject of this law (Dig. 48 tit. 8 s1). Cn. Pompeius, in B.C. 52, made incendium a crime of Vis by his Lex Pompeia de Vi, in consequence of the burning of the Curia and the Porcia Basilica on the burial of Clodius; and Julius Caesar also included it in his Lex Julia de Vi, which enacted that any act of incendium committed by large numbers of men, even if the object of their assembling together was not incendium, should be treated as Vis, and punished with aquae et ignis interdictio (Cic. Phil. I.9; cf. Parad. 4). The more recent Lex Julia de Vi seems to have been less severe, but it is uncertain what punishment it ordained (Paull. V.26 §3). Besides the two criminal prosecutions given by the Lex Cornelia and the Lex Julia, a person could also bring actions to recover compensation for the injury done to his property: 1. By the actio legis Aquilliae, in case of accidental incendium (Dig. 9 tit. 2 s27 § 5). 2. In the case of a person who had committed robbery or done injury during an incendium, there was a praetorian action de incendio, which compelled him to restore fourfold the amount (Dig. 47 tit. 9 ss1, 5). In the imperial period various distinctions were made in the crime. First, a distinction was made according as the act had been performed dolo, culpa, or casu. If the incendium was not malicious, but still might have been avoided by ordinary care, a person had to make compensation; but if the incendium was purely accidental, no compensation was necessary. The cognitio was extraordinaria and belonged to the Praefectus urbi, who could inflict whatever punishment he pleased, for it appears that there was no punishment fixed by law. We accordingly find mention of execution by the sword, burning alive, condemnation to the mines and to public works, deportatio, relegatio, flogging, &c., as punishments inflicted on account of incendium. (Dig. 48 tit. 19, s28 § 12; 9 tit. 2 s30 § 3; 47 9 §1; Paull. V.20 §1, V.3 §6; Coll. Leg. tit. 12). The preceding account is taken from Rein, Das Criminalrecht der Römer, pp765‑774, where all the authorities are given.


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