An explanation sometimes given for this distinction is based on a supposed Roman notion of causation.106 This is impossible. First, the distinction does not appear in the early law, but only in the Empire.107 Secondly, the distinction is not found in the criminal action for murder. Thirdly, we have the express testimony of Julian in D. .. pr.: The vital words at the moment are: occidisse dicitur vulgo quidem qui mortis causam quolibet modo praebuit: sed lege Aquilia is demum teneri visus est qui adhibita vi et quasi manu causam mortis praebuisset tracta videlicet interpretatione vocis a caedenda et a caede. “A person is commonly said to have killed if he furnished a cause of death, but he is to be held liable under the lex Aquilia only if he furnished a cause of death by A slave who had been wounded so gravely that he was certain to die of the injury was appointed someone’s heir and subsequently was killed by a further blow from another assailant. The question is whether an action under the lex Aquilia lies against both assailants for killing him. The answer was given as follows: A person is generally said to have killed if he furnished a cause of death in any way whatsoever, but so far as the lex Aquilia is concerned, there will be liability only if the death resulted from some application of force, done as it were by one’s own hand, for the law depends on the interpretation of the term fromcaedendo and fromcaede.. Furthermore, it is not only those who wound so as to deprive at once of life who will be liable for a killing in accordance with the lex but also those who inflict an injury that is certain to prove fatal. Accordingly, if someone wounds a slave mortally and then after a while someone else inflicts a further injury, as a result of which he dies sooner than would otherwise have been the case, it is clear that both assailants are liable for killing. 106 See, e.g., Dieter Nörr, ‘Causam Mortis Praebere,’ inThe Legal Mindedd. Neil MacCormick and Peter Birks (Oxford, 1986), pp. 203 ff. 107 See Alan Watson, The Law of Obligations in the Later Roman Republic(Oxford, 1965), pp. 241 ff. physically injured in climbing up or down, of if one throws another’s slave into a river from a bridge or bank and he is drowned, though in this case there would be no difficulty in seeing an infliction of damage with the defendant’s body in the act of throwing.
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