詞源與文集 第 5 章 第 1/3 段

I. ON THE AUTHORS OF LAWS. Moses, of the Hebrew nation, was the first of all to set forth divine laws in sacred writings. Phoroneus the king first established laws and courts for the Greeks. Mercurius Trismegistus first delivered laws to the Egyptians. Solon first gave laws to the Athenians. Lycurgus first framed statutes for the Lacedaemonians by the authority of Apollo. Numa Pompilius, who succeeded Romulus in the kingdom, first issued laws for the Romans; then, when the people could not bear the seditious magistrates, he created the Decemviri to write laws, who set forth in twelve tables the laws translated from the books of Solon into the Latin tongue. Now these were they:

Appius Claudius, Genucius, Veterius, Iulius, Manlius, Sulpicius, Sextius, Curatius, Romilius, Postumius. These Decemviri were chosen to draw up the laws. As for gathering the laws into books, the consul Pompey first wished to undertake it, but did not persevere through fear of detractors. Then Caesar began to do it, but was slain before he could. Little by little, however, the ancient laws fell into disuse through age and neglect; and although there is now no use of them, yet a knowledge of them seems necessary. New laws began under Constantine Caesar and the others who succeeded, and they were intermixed and disordered.

Afterwards Theodosius the younger, the Augustus, in the likeness of the Gregorian and Hermogenian codices, arranged a codex made of the constitutions from the times of Constantine, under the proper title of each emperor, which he called the Theodosian after his own name. II. ON DIVINE AND HUMAN LAWS. Now all laws are either divine or human. Divine laws rest upon nature, human laws upon customs; and therefore these differ, since different things please different nations. Fas is divine law, ius is human law. To pass through another's field is fas (right by divine law), but not ius (right by human law). III. HOW LAW (IUS), STATUTES (LEGES), AND CUSTOMS DIFFER FROM ONE ANOTHER. Ius is the general name, but a statute (lex) is a species of ius. Ius is so called because it is just (iustum). Now all law consists of statutes and customs.

A statute (lex) is a written enactment. Custom (mos) is a usage proved by age, or an unwritten law. For a statute is named from 'reading' (legere), because it is written. But custom is a long-standing usage, drawn likewise from customs (mores). Now custom (consuetudo) is a certain law established by usages, which is received in place of a statute when a statute is lacking; nor does it matter whether it rests upon writing or upon reason, since reason also commends a statute. Furthermore, if a statute consists in reason, then everything will already be a statute that has consisted in reason, provided that it accords with religion, agrees with discipline, and is profitable for salvation. Now it is called custom (consuetudo) because it is in common (communis) use. IV. WHAT NATURAL LAW IS. Now law is either natural, or civil, or of the nations.

Natural law is common to all nations, and is held everywhere by the instinct of nature, not by any enactment: such as the joining of man and woman, the succession and rearing of children, the common possession of all things, the one liberty of all, and the acquisition of those things that are taken from the sky, the earth, and the sea. Likewise the restoration of a thing deposited or of money entrusted, and the repelling of violence by force. For this, or whatever is like this, is never unjust, but is held to be natural and equitable. V. WHAT CIVIL LAW IS. Civil law is that which each people or state establishes as proper to itself, for a human or divine cause. VI. WHAT THE LAW OF NATIONS IS.

The law of nations concerns the occupation of settlements, building, fortification, wars, captivities, servitudes, rights of return (postliminia), treaties of peace, truces, the religious inviolability of ambassadors, and the prohibition of marriages with foreigners. And it is called the law of nations (ius gentium) because nearly all nations (gentes) use that law. VII. WHAT MILITARY LAW IS. Military law is the formal procedure of waging war, the binding of making a treaty, the advance against the enemy or engagement at a given signal; likewise the retreat at a given signal; likewise the discipline of military disgrace if a post is deserted; likewise the measure of pay, the grades of rank, the honour of rewards, as when a crown or torque is bestowed; likewise the apportioning of booty, and its just division according to the qualities of persons and their labour; likewise the leader's portion. VIII.

WHAT PUBLIC LAW IS. Public law is concerned with sacred rites, with priests, and with magistrates. IX. WHAT THE LAW OF THE QUIRITES IS. The law of the Quirites is proper to the Romans, by which none are bound except the Quirites, that is, the Romans, as concerning lawful inheritances, formal acceptances (cretiones), guardianships, and usucapions; which laws are found among no other people, but are proper to the Romans and constituted for them alone. Now the law of the Quirites consists of statutes and plebiscites, of the constitutions of princes and of edicts, or of the responses of the learned. X. WHAT A STATUTE IS. A statute (lex) is an enactment of the people, by which the elders together with the commons have sanctioned something. XI. WHAT THE DECREES OF THE PLEBS ARE. Decrees (scita) are those things which the plebs alone establish;

and they are called scita because the plebs knows (sciat) them, or because it is inquired (sciscitatur) and asked that it be done. XII. WHAT A SENATE-DECREE IS. A senate-decree (senatusconsultum) is that which the senators alone decree by consulting for the peoples. XIII. WHAT A CONSTITUTION AND AN EDICT ARE. A constitution or edict is what a king or emperor establishes or proclaims. XIV. WHAT THE RESPONSES OF THE LEARNED ARE. Responses are those which the jurisconsults are said to give to those consulting them; whence they are called the Responses of Paulus. For there were certain learned men and arbiters of equity who published compiled institutions of civil law, by which they might quiet the suits and contentions of those in dispute. XV. ON CONSULAR AND TRIBUNICIAN LAWS.

Certain laws are also named from those who established them, such as consular, tribunician, Julian, and Cornelian laws. For under Octavian Caesar the substitute consuls Papius and Poppaeus brought forward a law, which is called from their names the Papia Poppaea, containing rewards for fathers for the begetting of children. Under the same emperor also, Falcidius, tribune of the plebs, made a law that no one should bequeath more to strangers by testament than would leave a fourth part remaining to the heirs; from his name the Falcidian Law is named. Aquilius likewise established a law, which to this day is called the Aquilian. XVI. ON THE SATURA LAW. A satura law is one which speaks of several matters at once, named from the abundance of matters and, as it were, from fullness (saturitas);

whence 'to write saturae' is to compose varied poems, like those of Horace, Juvenal, and Persius. A new law (novella). XVII. ON THE RHODIAN LAWS. The Rhodian laws are those of naval commerce, named after the island of Rhodes, on which in antiquity there was a practice of merchants. XVIII. ON PRIVILEGES. Privileges (privilegia) are laws of private persons, as it were private laws; for a privilege is so named because it is brought forward in a private matter (in privato). XIX. WHAT A LAW CAN DO. Now every law either permits something, as: 'Let the brave man seek a reward'; or forbids, as: 'Let it be lawful for no one to seek the marriage of sacred virgins'; or punishes, as: 'Whoever commits murder, let him be punished with death.' For human life is governed by its reward or its penalty. XX. WHY A LAW IS MADE.

Now laws are made so that human boldness may be restrained by fear of them, and that innocence may be safe among the wicked, and that among the impious themselves the power of doing harm may be curbed by the dread of punishment. XXI. WHAT KIND A LAW OUGHT TO BE. A law shall be honourable, just, possible, according to nature, according to the custom of the country, suited to place and time, necessary, useful, and also clear, lest through obscurity it contain anything for entrapment, written with no private advantage, but for the common utility of the citizens. XXII. ON CAUSES (LEGAL ACTIONS). Pragma is a Greek word, which in Latin is called 'cause' (causa); whence pragmatic affairs are so called, and a pleader of causes and affairs is called a pragmaticus. XXIII. ON WITNESSES.

Witnesses [are those by whom the truth is sought in a trial]. Each party binds these to himself by agreements before the trial, lest afterwards anyone be free either to dissemble or to withdraw himself; whence they are also called 'the bound' (alligati). Likewise they are called witnesses (testes) because they are wont to be employed in a testament, just as signatories (signatores) because they seal (signant) a testament. XXIV. ON LEGAL INSTRUMENTS. 'Will' (voluntas) is the general name of all legal instruments; and because such a thing proceeds not by force but by will (voluntas), it received this name. A testament is so called because, unless the testator has died, it can neither be confirmed nor can it be known what is written in it, since it is closed and sealed; and hence it is called a testament (testamentum), because it is not valid except after the testator's tomb (monumentum), whence also the Apostle (Heb.

9.17) says: 'A testament is confirmed among the dead.' Yet in the Holy Scriptures a testament is not called only that which is not valid except when the testators are dead, but they called every pact and covenant a testament. For Laban and Jacob made a testament, which surely would be valid even between the living; and in the Psalms it is read (83.6): 'They have arranged a testament against you,' that is, a pact; and there are countless such instances. The tablets of a testament are so called because, before the use of paper and parchment, not only testaments but also the addresses of letters were written on hewn tablets (tabulae); whence too the carriers of these were called tabellarii. A testament of the civil law is one confirmed by the subscription of five witnesses.

A testament of the praetorian law is one sealed with the seals of seven witnesses: but the former is made among the citizens, hence 'civil'; the latter before the praetors, hence 'of praetorian law.' Now to seal (signare) a testament is to mark it, that is, that what is written may be known (notum). A holograph testament is one wholly written out and subscribed by the hand of its author; whence it took its name, for the Greeks call the whole HOLON, and a letter GRAPHE. An invalid testament is one where he who made the testament has suffered loss of civil status (capitis diminutio), or where it was not made in due form. An undutiful testament (inofficiosum) is one which, with the children disinherited to no purpose and without the duty of natural affection, has been transferred to outside persons.

A testament is called 'broken' (ruptum) for this reason: because, when a posthumous child is born who has been neither expressly disinherited nor instituted as heir, it is broken apart. A 'suppressed' testament is one which, in fraud of the heirs, legatees, or freedmen, has not been openly produced; and even if it is not hidden, yet if it is not produced to the aforesaid persons, it is still deemed to be suppressed. A nuncupation (nuncupatio) is that which the testator recites over the tablets and wax, saying: 'As these things are written on these tablets and wax, so I declare, so I bequeath: and therefore, you citizens of Rome, bear witness for me'; and this is called a nuncupation, for to nuncupate is to name openly and to confirm. The right of children (ius liberorum) is the mutual writing-up of spouses without children, each in place of pledges, for the inheritance of the other.

A codicil, as the ancients say, is without doubt named from the author who instituted this kind of writing. It is a writing requiring no solemnity of words, but only the testator's will expressed by the signification of any sort of writing. By its benefit it is agreed that the wishes of the deceased are provided for, on account of the difficulty of legal words, or certainly on account of the necessity of employing solemnities; so that whoever writes the heading of that same writing calls it a codicil. And just as a codicil stands in place of a testament, so a letter stands in place of a codicil.

Cretio is a fixed number of days within which the instituted heir either enters upon the inheritance, or, when the time of the cretio is finished, is excluded, nor is he any longer free to take up the inheritance. Cretio is so called as though 'decretio,' that is, to decree or to determine; as for instance: 'Let so-and-so be my heir'; and there is added: 'and let him formally accept within so many days.' Now the hundredth day was appointed as the term for entering upon inheritances for which no cretio had been added. A fideicommissum (trust) is so called so that what is entrusted (committitur) by the deceased may be done; for 'faith' (fides) is so named because it is done (fiat); yet this is demanded not in direct words, but in words of entreaty. A pact (pactum) is called a writing agreeing between the parties out of peace (pax), approved by laws and customs;

A 'pact' (pactum) is so called as though made out of 'peace' (pax), from the verb 'to make peace' (paco), whence also 'he has covenanted' (pepigit). Likewise a 'plea' (placitum) is named from 'that which is pleasing' (placeat). Others say that a pact is what a person does willingly, whereas a plea a man is compelled to accept even unwillingly, as when someone is bound to appear in court to answer a charge; no one can call this a pact, but rather a plea. A 'mandate' (mandatum) is so called because in former times, when a matter was entrusted, one party 'gave his hand' (manum dabat) to the other. A thing is 'ratified' (ratum), as it were 'reasonable' (rationabile) and right; whence he who makes a promise says, 'I declare it ratified,' that is, firm and lasting forever. To do a thing 'duly' (rite) is not to do it rightly, but according to custom. Bond (chirographum). Surety (cautio). Buying and selling is the exchange of goods and a contract arising from mutual agreement.

'Buying' (emtio) is so called because a thing passes 'from me to you' (a me tibi); 'selling' (venditio) is as it were 'a taking to market' (venundatio), that is, from the 'market days' (nundinae). A 'donation' (donatio) is the transfer of any thing whatever. They say that a donation is named as it were 'the giving of a gift' (doni actio), and a 'dowry' (dos) as it were 'I likewise give' (do item). For, the donation coming first at a wedding, the dowry follows. For there was an ancient marriage rite in which husband and wife purchased one another mutually, lest the wife should seem a bondservant, as we find in the law. Hence it is that, the husband's gift coming first, the wife's dowry follows. A donation is called 'usufructuary' because the donor still retains from it the use and enjoyment, while the right is reserved to the one to whom the gift is made. A donation is called 'direct' because both by right and by use it passes at once to the other, and nothing thereafter reverts from it to the donor's right.

'Conditions' (condiciones) properly belong to witnesses, and they are called condiciones from 'agreeing together' (condicere), as it were 'joint declarations' (condiciones), because in this matter not one witness alone takes oath, but two or more. For every word stands not in the mouth of one, but of two or three witnesses. Again they are called condiciones because the testimony of the witnesses agrees among itself, as it were 'joint sayings' (condictiones). A 'stipulation' (stipulatio) is a promise or pledge; whence those who make promises are also called 'stipulators' (stipulatores). The stipulation is named from 'straw' (stipula). For the ancients, when they promised each other anything, holding a straw would break it, and by joining it together again would acknowledge their pledges [or because Paulus the jurist called stipulum something firm]. An 'oath' (sacramentum) is the pledge of a solemn undertaking;

and it is called sacramentum because to violate what one promises is an act of treachery. XXV. ON PROPERTY. An 'inheritance' (hereditas) is property that comes to someone at another's death, whether bequeathed by will or retained by possession. It is called hereditas from 'goods entered upon' (res aditae), or from 'bronze money' (aes), because he who possesses a field also pays the tax; hence too 'property' (res). 'Property' (res) is that which stands within our right. 'Rights' (iura) are those things which are justly possessed by us and are not another's. A thing (res) is named from 'holding rightly' (recte habere), a right (ius) from 'possessing justly' (iuste possidere). For that is possessed by right which is possessed justly, and that justly which is possessed well. But what is possessed wrongly is another's. And he possesses wrongly who either misuses his own or seizes what is another's. But he possesses justly who is not ensnared by greed.

But he who is held fast by greed is the possessed, not the possessor. 'Goods' (bona) belong to honorable or noble men, and are called bona for this reason, that they should have no base use, but that men should use them for good ends. A 'peculium' properly belongs to persons of lesser standing or to slaves. For a peculium is what a father or master allows his son or slave to handle as though it were his own. And peculium is named from 'cattle' (pecudes), in which the whole substance of the ancients consisted. 'Possession of goods' (bonorum possessio) is a right of possession, acquired in a fixed order and by a fixed title. An 'intestate inheritance' is one that is not set down in a will, or, if it is set down, has nevertheless in no way been legally entered upon. It is thereupon called 'lapsed' (caduca), because its heirs have 'fallen away' (ceciderunt).

'Estate to be partitioned' (familia herciscunda) is the division of an inheritance among heirs. For herciscunda was among the ancients the term for 'division.' An action 'for dividing common property' (communi dividendo) lies among those who hold a thing in common, an action which, at the request of the parties, orders an arbiter to be appointed by whose judgment the property is divided. The action 'for regulating boundaries' (finium regundorum) is so called because by it the boundaries of both parties are regulated, lest they be obliterated, provided that the dispute does not concern a strip narrower than five feet. A 'lease' (locatio) is a thing given for use with a fixed rent stipulated. A 'hire' (conductio) is a thing received for use with a rent settled. A 'thing lent on credit' (res credita) is one so brought into obligation that from the time the contract was made it is certain that it is owed. 'Interest' (usura) is the increase of a loan, named from the 'use' (usus) of the money lent.

A 'loan for use' (commodatum) is that which is of our own right and is transferred to another temporarily, with a measure of time set for how long it remains with him; whence too it is called commodatum ('with a measure'). A 'precarious tenure' (precarium) is when the creditor, entreated by prayer, permits the debtor to remain in possession of the estate pledged to him and to take its fruits therefrom. And it is called precarium because it is approached by prayer (prece), as though precadium, the letter R being changed for D. A 'loan for consumption' (mutuum) is so named because what is given by me to you 'becomes yours from mine' (ex meo tuum fit). A 'deposit' (depositum) is a pledge entrusted for a time, as though 'placed for long' (diu positum). And someone is seen to make a deposit when, for fear of theft, fire, or shipwreck, he places something with another for safekeeping. But there is a difference in usage of speech between a pledge (pignus) and earnest-money (arra).

For a 'pledge' (pignus) is what is given on account of a thing lent on credit, and when this is repaid, the pledge is at once taken back. But 'earnest-money' (arra) is what, in a contract of good faith for a thing first bought, is given in part, and afterward completed. For earnest-money is to be completed, not taken back; whence he who holds earnest-money does not give it back like a pledge, but looks for the full payment; and arra is named from the 'thing' (res) for which it is handed over. Likewise there is this difference between a pledge, a fiduciary conveyance, and a hypothec. For a pledge is what is bound on account of a thing lent on credit, of which thing the creditor obtains only possession for a time. But the ownership remains with the debtor. A 'fiduciary conveyance' (fiducia) is when some thing, for the sake of receiving a loan of money, is either formally conveyed or ceded before the magistrate.

A 'hypothec' (hypotheca) is when a thing is pledged without the handing over of a pledge, only an agreement or a written surety intervening. A 'moment' (momentum) is named from the brevity of time, so that whatever is claimed back may be restored at once, without harm to the matter, and ought not to be drawn out into any delay; just as there is no interval to a 'moment,' whose span of time is so short that it can in no way be drawn out into any delay. An 'instrument' (instrumentum) is that with which we construct something, such as a knife, a pen, an adze. The 'furnishing' (instructum) is what is accomplished by an instrument, such as a staff, a book, a writing-tablet. 'Use' (usus) is that whereby we make use of a furnished thing, as leaning upon a staff, reading in a book, playing on a tablet; but the very produce of fields, because we use it, is also called 'use.' These are those three things.

'Usufruct' (usus fructus) is so called because its fruit is held by use alone, while the right remains with another. 'Usucaption' (usucapio) is the acquisition of ownership through the continuation of lawful possession, whether for two years or for some other period. 'Mancipation' (mancipatio) is so called because the thing is taken 'by hand' (manu). Whence it is fitting that he who receives by mancipation should grasp the very thing that is given him by mancipation. A 'cession' (cessio) is the yielding of one's own property, as in this expression: 'I cede by right of kinship.' For we say 'to cede' (cedere) as though 'to concede' (concedere), that is, the things that are our own; for what belongs to another we 'restore,' not 'cede.' For to 'cede' is properly said of one who against the truth agrees with another, as Cicero (Pro Ligario 7.22) says:

'He yielded,' he says, 'to the authority of that most distinguished man, or rather he obeyed it.' An 'interdict' (interdictum) is what is pronounced by a judge not permanently, but for the time being, in order to restore the state of affairs, while the presentation of one's action is preserved intact. A 'price' (pretium) is so called because we give it 'first' (prius) so that in return for it we may be entitled to possess the thing we seek. 'Commerce' (commercium) is named from 'wares' (merces), by which name we call goods for sale. Whence a 'market' (mercatus) is called the gathering of many men who are accustomed to sell or buy goods. 'Restitution in full' (integri restitutio) is the repairing of a cause or of a thing. A cause is set right again when it has not been carried through by force of authority. A thing is set right again when it has been taken away and wrested from one by force of authority. XXVI. ON THE CRIMES SET DOWN IN LAW. 'Crime' (crimen) takes its name from 'lacking' (carere):

such as theft, forgery, and the rest, which do not kill but bring infamy. A 'misdeed' (facinus) is named from 'doing' (facere) an evil that harms another. A 'shameful deed' (flagitium) is named from 'craving' (flagitare) the corruption of lust, whereby a man harms himself. These are the two kinds of all sins. 'Force' (vis) is the might of power, by which a cause or a thing is either taken away or wrested. 'Private force' is when someone before trial, with armed men, throws another out of his own property or drives him from it. 'Public force' is when someone kills a citizen appealing before the people or a judge or the king, or tortures, beats, or binds him. 'Fraud' (dolus) is craftiness of mind, from the fact that it 'deceives' (deludat). For it does one thing and pretends another. Petronius judges otherwise, saying: 'What, judges, is fraud?

Surely it is where something has been done that grieves the law. You have fraud; now receive its evil.' 'Calumny' (calumnia) is the wrangling of another's suit, named from 'deceiving' (calvere), that is, tricking. 'Falsehood' (falsitas) is named from 'speaking' (fari) something other than what is true. 'Injury' (iniuria) is injustice. Hence in the comic poets (cf. Plautus, Miles Gloriosus 436) there is: 'You do injury (iniuria's)'; he who dares anything against the order of law. 'Sedition' (seditio) is called a discord of citizens, because some go 'apart' (seorsum) to others. For these especially delight in the disturbance of affairs and in tumult. 'Sacrilege' (sacrilegium) properly is the theft of sacred things. Later this name attached also to the worship of idols. 'Adultery' (adulterium) is the violation of another's marriage, which, because it has defiled 'another's' (alterius) bed, has received the name of adulterium. Debauchery (stuprum).

'Ravishment' (raptus) is properly unlawful intercourse, named from 'corrupting' (corrumpere); whence he who 'gains possession by seizure' (rapto potitur) enjoys debauchery. The word 'homicide' (homicidium) is compounded of 'man' (homo) and 'slaughter' (caedes). For him who had been found to have wrought slaughter upon a man the ancients called a homicide. The action for 'parricide' (parricidium) was granted not only against him who had slain a parent, that is, either father or mother, but also against him who had killed a brother; and it is called parricidium as it were 'the slaughter of a parent' (parentis caedes). A 'capital charge' (internecivum iudicium) was granted against him who had made a false will and on that account had killed a man. Possession of his goods followed for the accuser. And the meaning of internecivum is, as it were, a kind of 'killing' (enectio) of a man. For they used to put the preposition 'inter' for 'e.' Naevius (Tragedies 52):

'to drink up (interbibere) the sea'; and Plautus (fragment 87): 'to wash out (interluere) the sea': that is, to drink dry and to rinse away. 'Theft' (furtum) is the secret handling of another's property, named from 'dark' (furvus), that is, dusky, because it is done in the dark. Theft was among our ancestors a capital crime before the penalty of the fourfold restitution. 'Plundering' (pervasio) is the open seizure of another's property. Theft is committed of those things which can be transferred from place to place; but plundering both of those things that are moved and of those that are immovable. 'Denial' (infitiatio) is the denial of a debt owed, when it is demanded by the creditor. The same is also 'disavowal' (abiuratio), that is, the denial of a thing lent on credit. The action for 'bribery' (ambitus) is against him who, by lavish gifts, obtains and 'canvasses' (ambit) office, and is to lose the dignity which he invades by his gift.

The action for 'embezzlement of public funds' (peculatus) is granted against those who commit fraud against the treasury and divert public money. For peculatus is said to be named from 'money' (pecunia). The theft of public property is not judged in the same way as that of private property. For the former is judged like a sacrilegious man, because he is a thief of sacred things. He is accused of 'extortion' (repetundae) who has taken moneys from allies. In this trial, if the defendant dies beforehand, judgment is rendered against his estate. The action for 'incest' (incestum) is established against consecrated virgins or those near of blood. For those who mingle with such are held 'incestuous' (incesti), that is, 'unchaste' (incasti). By the charge of 'treason' (maiestas) are held those who have injured or violated the royal majesty, or who have betrayed the commonwealth or conspired with the enemy.

An 'expiable offense' (piaculum) is so called for the reason that it can be expiated; for those deeds are 'committed' (commissa) which were to be expiated in whatever manner. XXVII. ON THE PENALTIES ESTABLISHED IN LAWS. 'Evil' (malum) is spoken of in two ways: one, which a man does; the other, which he suffers. What he does is 'sin' (peccatum); what he suffers is 'punishment' (poena). Evil is full when it is both past and impending, so that there is both grief and fear. 'Punishment' (poena) is so called because it 'punishes' (puniat). It is an epithet-noun, and without an addition it does not have a full sense: you add 'penalty of prison,' 'penalty of exile,' 'penalty of death,' and you fill out the sense. 'Capital punishment' (supplicium) is properly said not of one who is punished in any manner whatever, but is so condemned that his goods are consecrated and brought into the public treasury. For 'supplications' (supplicia) used to be called 'offerings' (supplicamenta).

And it is called supplicium because from his condemnation something is offered to God; whence also 'to supplicate' (supplicare). Tullius (Cicero) writes that eight kinds of penalties are contained in the laws: that is, fine, chains, flogging, retaliation, ignominy, exile, servitude, and death. For by these penalties every sin committed is avenged. A 'fine' (damnum) is named from the 'diminution' (diminutio) of property. 'Chains' (vincula) are named from 'binding' (vincire), that is, 'constricting' (artare), because they bind fast and hold; or because they 'bind by force' (vi ligant). 'Fetters' (compedes) are so called because they 'hold the feet' (continent pedes). 'Foot-traps' (peducae) are snares by which the feet are ensnared, named from 'catching the feet' (pedes capiendi). 'Chains' (catenae) are so called because by 'catching' they hold both footprints, lest one advance. Again, catenae, because they hold themselves by catching with very many knots.

'Manacles' (manicae) are bonds by which the hands are caught; though the sleeves of tunics are also called manicae. Sinew-cords (nervi). A 'collar' (boia) is a torque for the condemned, being, as it were, a yoke like that on an ox, of the class of bonds. A 'prison' (carcer), in which the guilty are kept. And it is called carcer because in it men are confined and shut up, as though arcer, from 'shutting off' (arcere). The place in which the guilty are kept we call carcer in the singular number only; but where the four-horse chariots are let out, we call carceres ('starting-gates') in the plural number only. 'Lashes' (verbera) are so called because, when they are wielded, they 'beat the air' (aerem verberant). Hence 'scourges' (flagra) and 'blows' (plagae) and 'whips' (flagella), because with a gust and a crack they resound on the body. For plagae is as it were flagae; but plagae and flagra are of the primary form, whereas flagella are said as a diminutive.