ENACTMENTS OF JUSTINIAN.
|~ Book XLVIII ~|
( S. P. Scott, The Civil Law, XI, Cincinnati, 1932 ).
1. Macer, On Criminal Prosecutions, Book I.
All cases in which crime is involved are not public, but only those which are derived from the laws relating to the prosecution of crimes, such as the Julian Law on Treason; the Julian Law on Adultery; the Cornelian Law on Assassins and Poisoners; the Pompeian Law on Parricide; the Julian Law on Peculation; the Cornelian Law on Wills; the Julian Law on Private Violence; the Julian Law on Public Violence; the Julian Law on the Bribery of Voters; the Julian Law on Extortion; and the Julian Law on Raising the Price of Food.
2. Paulus, On the Edict of the Praetor, Book XV.
Some criminal offences are capital, and some are not. Those which are capital entail the punishment of exile or banishment; that is to say, the interdiction of water and fire. For, by these penalties the civil rights of the delinquent are lost, for the other penalties are properly termed relegation and not exile, for then the rights of citizenship are retained. Punishments which are not capital are those where the penalty is either pecuniary or corporeal.
3. Ulpianus, On Sabinus, Book XXXV.
A criminal prosecution is annulled by the death of the defendant of either sex.
4. Paulus, On the Edict, Book XXXVII.
It sometimes happens that a criminal prosecution is prejudiced, as in the action under the Aquilian Law; in the action of theft, and the one for property taken by violence; in the interdict Unde vi and in that to compel the production of a will; for in these cases private matters are concerned.
5. Ulpianus, Disputations, Book VIII.
When anyone is accused of crime, he must prove that he is not guilty, and he cannot accuse another before he himself has been acquitted; for it is set forth in the Imperial Constitutions that a defendant must be cleared, not by accusing others of crime, but by his own innocence.
(1) It is uncertain whether anyone can bring an accusation when he has been discharged, or when he has suffered punishment; for it was decided by our Emperor and his Divine Father that he could not begin an accusation after having been condemned. I think, however, that this only refers to those who have either lost their right to citizenship or their freedom.
(2) It is clear that accusations which have been begun before conviction can be completed afterwards.
6. Marcianus, Institutes, Book XIV.
Where a person who was accused of crime dies, and the penalty is extinguished, no matter in what condition the accusation of the extinguished crime may be, the magistrate who has jurisdiction of the pecuniary interest involved can proceed with the investigation.
7. Macer, Public Prosecutions, Book II.
A sentence for every crime does not render a man infamous, but only such as have the character of public prosecutions. Hence infamy does not result from condemnation for a crime which is not the subject of public prosecution, unless the offence can be the subject of an action which, even in the case of a private judgment, brands the condemned party with infamy, as for instance, that of theft, that of robbery with violence, and that of injury.
8. Paulus, Public Prosecutions.
The order of conducting public prosecutions for capital offence is no longer in use; still the penalty prescribed by the laws exists, and the crimes are proved arbitrarily.
9. Marcianus, On Public Prosecutions, Book I.
It must be remembered that if anyone should not defend his own slave, when he is accused of a capital crime, he will not be considered as having abandoned him; and therefore if the slave should be acquitted, he will not become free, but will still remain the property of his master.
10. Papinianus, Definitions, Book II.
While the case between the accuser and the defendant is pending in court, the excuse of absence for good reasons is admitted; and although the defendant may have been called three times a day for three days, he should not be condemned; or if the accuser should be absent and the defendant present, the former ought not be convicted of malicious prosecution.
11. Marcianus, On Public Prosecutions, Book X.
A slave can be defended by an attorney appointed by his master, just as well as by his master himself.
12. Modestinus, On Punishments, Book III.
The magistrate who is about to hear the cases of prisoners should invoke the aid of the most illustrious citizens, as well as of the most eminent advocates, if they all reside in the principal city of the province where he exercises jurisdiction. It is provided by a rescript that prisoners can be examined even on feast days, so that he may dismiss such as are innocent, and continue the cases of those who are guilty, and deserve severe punishment.
13. Papinianus, Opinions, Book XV.
If the accuser should die, the case can be prosecuted by another, if the Governor of the province considers this advisable.
(1) An agent will intervene to no purpose in the prosecution of a crime; and this applies still more forcibly to the defence. The excuses of absent persons can be presented to the judges in accordance with the terms of the Decree of the Senate, and if good reasons are given, the decision will be postponed.
14. The Same, Opinions, Book XVI.
The slaves of a son-in-law having been accused by his father-in-law of administering poison, the Governor of the province decided that the father had been guilty of malicious prosecution. I gave it as my opinion that the father of the deceased should not be included among persons who are infamous, since although a criminal prosecution might be instituted by the children for the death of the daughter, the father could bring the accusation without any risk.
Concerning accusations and inscriptions .
1. Pomponius, On Sabinus, Book I.
A woman is not permitted to accuse anyone in a criminal case unless she does so on account of the death of her parents or children, her patron or patroness, and their son, daughter, grandson, or granddaughter.
2. Papinianus, On Adultery, Book I.
Women are permitted to bring a public accusation for certain causes, for instance, if they do so on account of the death of any of those persons of either sex against whom they, if unwilling, can not be compelled to appear as witnesses, under the provisions of the law relating to public testimony. The Senate arrived at the same conclusion with reference to the Cornelian Law on Evidence. Women, however, are allowed to testify publicly in a criminal prosecution concerning the will of a freedman of their father or their mother.
(1) By the law relating to testaments, the right was conceded to wards, with the advice of their guardians, to institute a prosecution for the death of their father, just as a female ward is allowed to institute one for the death of her grandfather, since the Divine Vespasian permitted wards to bring suit with reference to the will of their father; but they could proceed by means of the interdict just as if the will had not been produced.
3. Paulus, On Adultery, Book III.
The following is the form of an accusation, by inscription: "The Consul, and the date. Before So-and-So, Praetor and Proconsul, Lucius Titius declared that he accused Maevia under the Lex Julia de Adulteriis; and alleged that she committed adultery with Gaius Seius, in such-and-such a house, on such-and-such a month, during such-and-such a consulate." It is first necessary to designate the place in which the adultery occurred, as well as the person with whom it is alleged to have been committed, and the month; for this is provided by the Julian Law relating to public prosecutions, and generally speaking, it applies to all who bring an accusation against anyone. If the prosecutor is unwilling, he need not include the day or the hour.
(1) Where inscriptions are not drawn up according to law, the name of the defendant is erased, and the prosecutor has power to renew the accusation.
(2) He who presents the inscription must sign what he has stated, or another can do so for him if he does not know how to write.
(3) But if he makes an accusation of another crime, as for instance, that of having lent a house in order that a matron might use it for the purpose of debauchery, or that of having released a man caught with her in adultery, or that of having received money after having surprised the guilty parties in the act, or anything else of this description, it must be included in the document.
(4) If the accuser should die, or, for some other reason, be prevented from making the accusation, or anything of this kind occurs, the name of the defendant will be erased, if he requests this to be done. This is provided by the Julian Law relating to force, as well as by the Decree of the Senate, so that another can again begin the prosecution of the defendant. Let us see within what time this can take place. It can be done within thirty available days.
4. Ulpianus, On Adultery, Book II.
A man who has been condemned in a criminal prosecution has no right to accuse anyone himself, unless, under the terms of the decision he is authorized to institute criminal proceedings for the death of his children or his patrons, or the loss of his own property. The right of accusation is also taken away from those who have been rendered infamous on account of malicious prosecution, as well as from those who have entered the arena for the purpose of contending with wild beasts, or who follow the profession of buffoons, or keep women for prostitution, or have been convicted of prevarication or calumny, or of having received money in consideration of their accusing anyone, or injuring his business.
5. The Same, On Adultery, Book III.
There is no doubt that slaves can also be accused of adultery. Those, however, who are forbidden to accuse freemen of adultery are themselves forbidden to accuse slaves. A master, however, can, under a Rescript of the Divine Marcus, bring an accusation against his own slave for this offence. Therefore, since the promulgation of this rescript, the master is obliged to accuse his slave, but if his wife is legally married she can plead an exception in bar.
6. The Same, On the Duties of Proconsul, Book VII.
The Proconsul must hear and discuss clearly all accusations of slight importance, and either release those against whom they are brought, or whip them with rods, or, if they are slaves, scourge them.
7. The Same, On the Duties of Proconsul, Book VII.
When anyone accuses another of a crime, he must, first of all, sign the accusation. This rule has been introduced for the purpose of preventing anyone from rashly denouncing another, when he knows that his accusation, if false, will not go unpunished.
(1) Therefore, each accuser must state what crime is the subject of the accusation, and also that he will persevere in the prosecution until judgment has been rendered.
(2) The Governor should not permit the same person to be again accused of crime of which he has been acquitted. This the Divine Pius stated in a Rescript addressed to Salvius Valens. But let us see, while under this Rescript a person cannot be accused by the same individual, whether he can not be by another. Where a case has been decided so far as certain persons are concerned, this does not prejudice others, if he who now appears as an accuser prosecutes on account of some injury of his own, and proves that he did not know that the accusation had been brought by another, I think there is good reason that he should be permitted to make the accusation.
(3) If, however, he should be prosecuted for another crime by the same accuser, who in the first proceeding calumniated him, I think he who has once been convicted of malicious prosecution should not readily be permitted to make a different accusation, although the son of the prosecutor must be allowed to do so, when he brings another criminal charge against the person whom his father had accused, as the Divine Pius stated in a Rescript to Julius Candidus.
(4) The same Emperor stated in a Rescript that slaves should be punished in the place where they are alleged to have perpetrated the offence, and if their master desires to defend them, he cannot have them sent back into his province, but must undertake their defence where the illegal act was committed.
(5) The Divine Pius stated in a Rescript addressed to Pontius Proculus that, where a sacrilegious act had been committed in one province, and afterwards a less serious crime was perpetrated in another, after having taken cognizance of the offence committed in his own province, he must send the defendant into the one where he had been guilty of sacrilege.
8. Macer, On Public Prosecutions, Book II.
We will more readily understand who can bring an accusation if we know who cannot do so. Hence, certain persons are forbidden to prosecute a crime on account of their sex or their age, as women, or minors. Many are disqualified because of their oath, for instance, those who are serving in the army; others cannot be brought into court on account of their magistracy, or their power, so long as they exercise this without the commission of fraud. Others, again are forbidden as the result of their own criminality, for example, infamous persons. Some are excluded on account of dishonorable gain, such as those who have filed two accusations signed by them against two different individuals; or who have received money in consideration of accusing, or not accusing others. Some are incompetent in consequence of their condition, as, for instance, freedmen cannot proceed against their patrons.
9. Paulus, Sentences, Book V.
Others are excluded on account of the suspicion of calumny, for instance those who, having been suborned, have given false testimony.
10. Hermogenianus, Epitomes of Law, Book VI.
Some cannot bring an accusation on. account of their poverty, such as those who have less than fifty aurei.
11. Macer, On Public Prosecutions, Book II.
Still, all these persons, if they are prosecuting injuries sustained by them, or the death of near relatives, are not excluded from bringing accusations.
(1) When children and freedmen desire to protect their interests they should not be prevented from complaining of the acts of their parents and patrons; for instance, where they state that they have been forcibly expelled from possession, and do not do so for the purpose of bringing an accusation of the crime of violence, but in order that they may recover possession of the property. For, indeed, a son is not forbidden to complain of the act of his mother, if he alleges that a child has been falsely substituted by her in order that he might have a co-heir, but he will not be permitted to accuse his mother under the Cornelian Law.
(2) One person cannot accuse another who has been already accused by a third party; but anyone who has been publicly or privately acquitted, or whose accuser has desisted from prosecution, and has been removed from a number of defendants, may be accused by another.
12. Venuleius Saturninus, On Public Prosecutions, Book II.
It is not lawful to accuse the following persons, namely: the Deputy of the Emperor, that is to say, the Governor of a province; according to the decision of Lentulus, rendered during the Consulate of Sylla and Trio; nor the Deputy of a Governor, for a crime which he committed before he obtained his office; nor a magistrate of the Roman people; nor anyone who is absent on business for the State; provided he did not depart for the purpose of evading the law.
(1) Persons who are classed as offenders can make use of this privilege, if, having been discharged, they contend that they should not again be accused, which is in accordance with the Epistle of the Divine Hadrian addressed to Glabrio, Consul.
(2) It is provided by the Julian Law relating to criminal proceedings that no one can prosecute two persons at the same time, unless on account of an injury which he himself has sustained.
(3) When an accusation is brought against a slave, the same rule should be observed as if he were free, according to a Decree of the Senate promulgated when Cotta and Messala were consuls.
(4) Slaves can be accused under all laws, with the exception of the Julian Law relating to private violence; because those who are condemned under it are punished by the confiscation of the third part of their property, which penalty cannot be imposed upon a slave. The same must be said with reference to other laws, by which either a pecuniary or a capital penalty is inflicted, which does not apply to slaves, as for instance, relegation. The Pompeian Law relating to parricide is placed in this category, because the First Section includes those who have killed their parents, their blood-relatives, or their patrons; which does not apply to slaves, so far as the provisions of the law are concerned. But as their nature is similar, they are punished in the same way. Again Cornelius Sylla was the author of the decision that a slave is not included in the Cornelian Law which has reference to injuries; but he is punished arbitrarily by a more severe penalty.
13. Marcianus, On Public Prosecutions, Book I.
The Divine Severus and Antoninus stated in a Rescript that a woman should be heard by the Prefect of Subsistence on the ground of the public welfare, if she brought an accusation relating to the excessive price of provisions. There is no doubt that persons who have been rendered infamous should be permitted to institute proceedings of this kind. Soldiers, also, who cannot prosecute the cases of others, because they guard the peace, can all the more readily be permitted to bring this accusation. When slaves bring it, they should also be heard.
14. Paulus, On the Duties of Proconsul, Book II.
The Senate decreed that no one can be accused of the same crime under several laws.
15. Ulpianus, On the Edict, Book LVI.
Where anyone, having assembled a number of persons, is alleged to have committed damage with malicious intent, the plaintiff should not be compelled to abandon his civil action for the purpose of prosecuting the crime.
16. The Same, On the Duties of Proconsul, Book II.
Where several persons appear who desire to accuse the same man of a crime, the judge should select one of them to bring the accusation; that is to say, after proper cause has been shown by investigating the character, rank, interest, age, morals, or any other proper attributes of the accusers.
17. Modestinus, Differences, Book VI.
When a master defends his slave for a capital offence, he is ordered to give security for his appearance in court.
18. The Same, Opinions, Book XVII.
Titia threatened to prove the will of her brother Gaius to be forged, but did not comply with the formalities required by the accusation within the time prescribed by the Governor of the province. The latter decided a second time that she could not proceed further with the accusation of a forged will. Titia did not appeal from these decisions, but alleged that, after the time had expired, she could maintain that the will was void. As Titia did not appeal from the decision of the Governor, I ask whether she could afterwards renew the accusation that the will was forged. The answer was that it was not clearly stated for what reason she should be heard, if she instituted proceedings disputing the authority of the decision.
19. Callistratus, On Judicial Inquiries, Book V.
The Divine Brothers stated in a Rescript that the heirs of an accuser should not be compelled to prosecute the crime.
(1) Likewise, the Divine Hadrian stated in a Rescript that no one could be forced to prosecute several accused persons.
20. Modestinus, On Penalties, Book II.
Penalties involving the loss of property as the result of criminal prosecutions do not pass to the heirs, unless issue has been joined and conviction has followed; except in the cases of extortion and treason, which it has been decided can still be prosecuted even after the death of the defendants, against whom no proceedings previously had been taken, in order that their property might be confiscated to the Treasury ; with reference to which the Divine Severus and Antoninus stated in a Rescript that after anyone had committed such a crime, he could neither alienate any of his property, nor manumit any of his slaves. But so far as other offences were concerned, the penalty could begin to be inflicted upon the heir only where the accusation had been made during the lifetime of the guilty party, even though conviction did not follow.
21. Papinianus, Opinions, Book XV.
He who is accused of a capital crime is not, before judgment, forbidden to bring before the Treasury any matter in which he may be interested.
22. The Same, Opinions, Book XVI.
Anyone belonging to another province, who is accused of crime, should be prosecuted and convicted where the crime is proved to have been committed, which our most excellent Emperor stated in general terms should also be observed with reference to soldiers.
Tit. 3. Concerning the custody and appearance of dependants in criminal cases.
1. Ulpianus, On the Duties of Proconsul, Book II.
When accused persons are to be placed in custody, the Proconsul should determine whether they should be sent to prison, delivered to a soldier, or committed to the care of their sureties, or to that of themselves. This is usually done after taking into consideration the nature of the crime of which the defendant is accused, or his distinguished rank, or his great wealth, or his presumed innocence, or his reputation.
2. Papinianus, On Adultery, Book I.
Where a slave is accused of a capital offence, it is provided by the law of criminal prosecutions that he must furnish security for his appearance in court, even though his surety be a stranger. If he is not defended in this way, he should be thrown into the public prison, so that he may defend himself while under restraint.
(1) Therefore, the question is usually discussed whether the master should afterwards, by giving security, be permitted to release his slave from confinement. The Edict of Domitian, by which it is provided that releases obtained under the Decree of the Senate are not applicable to slaves of this kind, increases the already existing doubt, for the law itself forbids him to be discharged before his case has been disposed of. This interpretation, which is somewhat hard, is too severe when applied to a slave whose master is absent, or who, through poverty, was at that time unable to furnish security. For it cannot be said that a slave is left without defence whose master is present, or is ready to defend him, but is too poor to do so. This can the more readily be admitted, if too long a time to find security has not been taken.
(2) Those who are required to appear in court on account of some other crime previously committed are not included in the number of accused persons, according to a Decree of the Senate. This rule is also observed in private cases, where the parties have given sureties, unless on this account a temporary action is in danger of being extinguished through lapse of time.
3. Ulpianus, On the Duties of Proconsul, Book VII.
The Divine Pius stated in a Rescript, in Greek, to the people of Antioch, that anyone who was ready to furnish sureties for his appearance should not be placed in prison, unless it was evident that he had committed so serious a crime that he should not be entrusted to the care of any sureties, or soldiers; but that he must undergo the penalty of imprisonment before suffering that for the crime of which he is guilty.
4. The Same, On the Duties of Proconsul, Book IX.
Where anyone does not produce a person who is accused of crime, and for whom he is responsible, he is punished with a pecuniary penalty. I think, however, that if, through fraud, he does not produce him, he also should arbitrarily be condemned. But if no certain amount is mentioned in the bond or in the Decree of the Governor, and custom does not establish it, the Governor must decide what sum of money must be paid.
5. Venuleius Saturninus, On Public Prosecutions, Book II.
If the defendant has confessed, he should be thrown into prison until sentence is passed upon him.
6. Marcianus, On Public Prosecutions, Book II.
The Divine Hadrian, in a Rescript addressed to Julius Secundus, made the following statement: "It has elsewhere been set fort in a Rescript that no credit shall be given to the letters of those who send accused persons to the Governor of a province, as having already been convicted." The same thing has been provided with reference to Irenarchs, because it has been ascertained that all persons do not bring charges against others in good faith. But a Section of the Imperial Mandate is extant in which the Divine Pius, at the time when he commanded in the province of Asia, published in the form of an Edict, that when Irenarchs apprehended thieves they should question them with reference to their accomplices and associates, and that they should forward the interrogatories, reduced to writing and sealed, for the examination of the magistrate. Therefore, those who are sent under such circumstances should again be heard, even though they had been despatched with letters, or brought in by the Irenarchs. Thus, the Divine Pius and the other Emperors stated in Rescripts that proceedings should be taken as in a preliminary inquiry, even with reference to those who had been accused but not yet condemned, if anyone appeared to accuse them. Hence when an accusation is made, the Irenarch is required to appear and prosecute the charge which he has committed to writing, and if he does so diligently and faithfully, his action should be approved; but if he produces his evidence with little skill, it should be simply noted that the Irenarch had rendered an insufficient report. If, however, it should be ascertained that he has put the questions maliciously, and has not reported the answers as they were given, an example should be made of him, in order that he may not afterwards attempt anything of the same kind.
7. Macer, On the Duties of Governor, Book II.
The Governor of a province in which a crime has been committed is accustomed to write to his colleagues, where it is said that the guilty parties are, and ask them to send them to him under guard. This has also been prescribed by certain rescripts.
8. Paulus, On the Punishments of Soldiers.
If a jailor, having been corrupted with money, permits prisoners to remain in custody unchained, or allows weapons or poison to be introduced into the prison, he should be punished by the judge as a part of his official duty; and if this was done without the knowledge of the jailor, he ought to be removed from his office for negligence.
9. Venuleius Saturninus, On the Duties of Proconsul, Book I.
It is the rule that if soldiers commit a crime, they must be sent back to the officer under whom they served. The general in chief has a right to punish all soldiers under his command.
10. The Same, On the Duties of Proconsul, Book II.
To prevent anyone from dismissing prisoners without sufficient reason, it is provided as follows by the Imperial Mandates: "If you know that imprisoned persons have been released too soon, and without good cause by the magistrates, you will order them to be placed in custody, and you will fine those who released them; for when the magistrates know that they themselves will be punished if they discharge prisoners too readily, they will not do so again without proper investigation."
11. Celsus, Digest, Book XXXVII.
There is no doubt that when a man from any province is brought from prison, he who governs the province where proceedings have been instituted should take cognizance of the offence.
(1) It is customary for certain judges, when a case has been heard and a decision rendered, to send the defendant back with the papers to the officer commanding in the province from which the defendant came. This should only be done when there is good reason, for it.
12. Callistratus, On Judicial Inquiries, Book V.
If soldiers permit their prisoners to escape, they themselves are responsible, and run the risk of being punished. For the Divine Hadrian stated in a Rescript addressed to Statilius Secundus, his Deputy, that whenever anyone escapes from the custody of soldiers, if should be ascertained whether this was due to gross negligence of the soldiers, or to accident, and whether one among several, or several fled at the same time; and the soldiers should be delivered up to punishment when the prisoners escaped from their custody, if this occurred through gross negligence on their part; otherwise, a decision should be rendered in proportion to the blame attaching to them. The same Emperor stated in a Rescript to Salvius, the Governor of Aquitania, that anyone who permitted a prisoner to escape, or intentionally kept him in such a way that he could escape, should be punished. If, however, this occurred through indulgence in wine, or the laziness of the guard, he should be chastised, and degraded to the lowest military rank. But where he lost his prisoner through accident, no proceedings should be taken against him.
(1) When a prisoner escapes from the hands of civilians, I think that the same investigation should be made which I have mentioned should be done with reference to soldiers.
13. The Same, On Judicial Inquiries, Book VI.
Where persons who are confined in prison conspire to break their chains and escape, it has been decided that they must be punished without reference to the cause for which they were incarcerated. Although they may be found innocent of the crime for which they were kept in custody, still, they must be punished, and those who reveal their conspiracy should be released.
14. Herennius Modestinus, On Punishments, Book IV.
A prisoner should not readily be entrusted to a new recruit, for if he escapes, he who committed the prisoner to his care will be to blame.
(1) The custody of a prisoner should not be committed to one, but to two guards.
(2) Those who have lost their prisoners through negligence are either punished in proportion to their fault, or are reduced in rank. If the prisoner was of little importance, after the soldiers have been chastised, they shall be restored to their positions; but if anyone releases a prisoner through compassion, he will lose his rank in the army. If, however, he was guilty of fraud in letting him go, he is either punished with death, or degraded to the lowest place in the service. Sometimes he is pardoned, for when a prisoner flees with one of his guards, pardon is granted to the other.
(3) If the prisoner should kill himself, or precipitate himself from a height, the soldier will be to blame, that is to say, he will be punished.
(4) If the guard himself should kill the prisoner, he will be guilty of homicide.
(5) Therefore, if it is alleged that the prisoner died as the result of an accident, this must be proved by witnesses, and then the guard will be pardoned.
(6) In addition to this, when the prisoner escaped through the fault of his guard, if the latter still has an interest in apprehending him, it is customary, after proper cause is shown, for a certain time to be given him to look for the fugitive, after having taken another soldier with him.
(7) Where a fugitive slave, who should have been restored to his master, is allowed to escape, if the person to blame has the means to do so, Saturninus says he must pay the value of the slave to his master.
Tit. 4. On the Julian law relating to the crime of lese majesty.
1. Ulpianus, On the Duties of Proconsul, Book VII.
The crime of lese majesty may closely resemble that of sacrilege.
(1) The crime of lese majesty is committed against the Roman people, or against their safety, and he is guilty of it by whose agency measures are maliciously taken for the death of hostages, without the order of the Emperor; or when men armed with weapons or stones appear in the city, or are assembled against the State, and occupy public places or temples; or where assemblies have been called together, or men convoked for sedition; or where, by the malicious aid and advice of anyone, plans have been formed by which the magistrates of the Roman people, or other officials invested with command 6r authority may be killed; or where anyone bears arms against the government, or sends a messenger or letter to the enemies of the Roman people, or communicates to them any password; or commits any act with malicious intent by means of which the enemies of the Roman people may be assisted in their designs against the government; or where anyone solicits or inflames soldiers, in order that a sedition or a tumult may be excited against the State.
2. The Same, Disputations, Book VIII.
Or when an officer does not depart from a province when his successor arrives; or deserts from the army; or flees to the enemy as a private individual; or who, knowing a statement to be false, inserts it in the public records, or reads it after it has been placed there, for this also is included in the First Section of the Law of lese majesty.
3. Marcianus, Institutes, Book XIV.
The Law of the Twelve Tables directs that anyone who stirs up an enemy, or who delivers a citizen to him, shall be punished capitally. And the Julian Law on lese majesty provides that he who injures the dignity of the State shall be liable, just as one who has submitted to the enemy in war, or occupied a castle, or surrendered a camp. He is liable under the same law who engages in hostilities, without the order of the Emperor; or levies soldiers, or equips an army; or, when his successor arrives in the province, does not deliver the army to him, or who relinquishes his command, or deserts the military service of the Roman people; or who, being a private individual, knowingly and fraudulently performs some act of authority or magistracy; or causes any of the things above mentioned to be done.
4. Scaevola, Rules, Book IV.
He by whose malicious contrivance anyone is compelled to swear to something against the State, or the army of the Roman people has been led into ambush or betrayed to the enemy; or who, with malicious intent, has prevented the enemy from falling into the power of the Roman people; or by whose agency the enemies of the Roman people have been furnished with provisions, arms, darts, horses, money, or anything else; or who has induced friends to become enemies of the Roman people, or with malicious design, has induced the king of a foreign nation to be less obedient to the Roman people; or by his malicious schemes has caused more hostages, money, and beasts of burden to be given to the enemies of the Roman people, to the injury of his country. Likewise, he who, after the culprit has confessed his crime in court, and been placed in prison, enables the latter to escape.
(1) He who melts down statues of the Emperor which have been rejected is released from liability for this crime by the Senate.
5. Marcianus, Rules, Book V.
He does not commit the crime of lese majesty, who repairs the statues of the Emperor which have become damaged by age.
(1) Nor does he commit the crime of lese majesty who, having thrown a stone without aiming at anything, accidentally strikes a statue of the Emperor; and this was stated by Severus and Antoninus in a Rescript addressed to Julius Cassianus. The same Emperor stated in a rescript to Pontius that to sell the statues of the Emperor which had not yet been consecrated was not lese majesty.
6. Venuleius Saturninus, On Public Prosecutions, Book II.
Those who melt down the statues of the Emperor which have already been consecrated, or commit any other act of this kind, are liable under the Julian Law relating to lese majesty.
7. Modestinus, Pandects, Book XII.
Persons who are infamous and have no right to bring an accusation are undoubtedly permitted to bring this one.
(1) Soldiers, also, who cannot defend other causes, can act in this proceeding; for as they guard the peace, they, much more than others, should be permitted to bring this accusation.
(2) Slaves, also, should be heard as accusers in cases of this kind, even against their masters, as well as freedmen against their patrons.
(3) This accusation, however, should not be considered by judges as affording an opportunity to show their veneration for the majesty of the Emperor, for this should only be done where the charge is true; for the personal character of the accused should be taken in account, and whether he could have committed the offence, as well as whether he had previously done or planned anything of the same nature, and also if he was of sane mind, for a slip of the tongue ought not inconsiderately be held as deserving of punishment. For, although rash persons ought to be punished, still, they should be excused, just as lunatics are, when the offence is not included in the strict terms of the law; or if it should be punished, as resembling one specified by the law.
(4) The crime of lese majesty committed by defacing statues or portraits is much worse when perpetrated by soldiers.
8. Papinianus, Opinions, Book XIII.
Women are also heard in cases involving lese majesty. A woman named Julia revealed the conspiracy of Lucius Cataline, and furnished the Consul, Marcus Tullius, the evidence upon which to base the prosecution.
9. Hermogenianus, The Law, Book V.
The Divine Severus decided that the property of freedmen who have been convicted of the crime of lese majesty shall be preserved for their children, and shall be confiscated to the Treasury if no child of the convicted person should appear.
10. The Same, Epitomes of Law, Book VI.
He can be accused of lese majesty by whose aid, advice, or malicious contrivance a province or a city has been delivered to the enemy.
11. Ulpianus, Disputations, Book VIII.
He who dies while an accusation against him is pending retains his civil status unimpaired, for the crime is extinguished by death, unless he was accused of lese majesty; for if he is not cleared of this offence by his successors, his estate will be forfeited to the Treasury. It is evident that not everyone accused of lese majesty under the Julian Law is in this position, but only he who is guilty of high treason, and is animated by hostile intent against the State or the Emperor. For if anyone is accused under any other section of the Julian Law on lese majesty, he will be released from the charge by death.
Tit. 5. Concerning the Julian law for the punishment of adultery.
1. Ulpianus, On Adultery, Book I.
This law was introduced by the Divine Augustus.
2. The Same, Disputations, Book VIII.
It is provided by the Julian Law that anyone who is required to formulate an accusation of adultery, because the woman married before she was notified that she would be accused, cannot bring the charge against her until he has disposed of the case of the defendant and his case is not considered to have been disposed of, unless he has been convicted.
(1) The following exception can be pleaded against a husband who brings an accusation in that capacity, namely: "If he is said to have betrayed the law, in that, after having begun a prosecution for adultery, he has abandoned it."
(2) The crime of pandering is included in the Julian Law on Adultery, as a penalty has been prescribed against a husband who profits pecuniarily by the adultery of his wife; as well as against one who retains his wife after she has been taken in adultery.
(3) Moreover, he who permits his wife to commit this offence, holds his marriage in contempt; and where anyone who does not become indignant on account of such pollution, the penalty for adultery is not inflicted.
(4) Anyone who alleges that he has committed adultery with the assistance of the husband, desires, indeed, to lessen his crime, but an excuse of this kind is not admitted. Therefore, if the defendant should wish to denounce the husband for having acted as a pander, he shall not be heard, if he has once been accused.
(5) If a husband should attempt to prosecute his wife in a criminal case, will the allegation of having acted as her pander bar him from bringing the accusation? I think that it will not. Therefore the act of the husband in a case of this kind renders him liable, but does not excuse his wife.
(6) Hence it may be asked whether he who has cognizance of the prosecution for adultery can decide against the husband because of his having acted as a pander? I think that he can do so. For Claudius Gorgus, a most illustrious man, having accused his wife, and it having been ascertained that although he had caught her in adultery he still kept her, was condemned by the Divine Severus for being guilty of pandering, without any accuser having appeared against him.
(7) But if a stranger, after having been accused, alleges that the husband was guilty of pandering, he does not diminish his own crime, nor does he subject the husband to a penalty.
(8) If the husband and the father of the woman appear at the same time for the purpose of accusing her, the question arises, which of them should be given the preference by the Praetor? The better opinion is, that the husband should be entitled to the preference, for it may well be believed that he will prosecute the accusation with greater anger and vexation. This is so far true, that even where the father has already appeared, and filed the papers containing the accusation, if the husband has not been negligent or guilty of delay, but is himself prepared to bring the accusation, and introduce evidence, and fortify it, in order that the case may be the more easily proved before the judges, the same thing must be said.
(9) But whenever others who have the right to bring the charge after the husband and the father hasten to do so; it is stated by the law that he who has jurisdiction of the case must determine who shall be the accuser.
3. The Same, On Adultery, Book II.
Therefore, unless the father proves that the husband is infamous, or shows that he was in collusion with his wife rather than that he actually intends to accuse her, he must give place to the husband.
4. The Same, Disputations, Book VIII.
If the husband has appeared and brought the accusation, the time does not run against the father to prevent him from prosecuting it; still, until one of them institutes proceedings, the time, will run against both; but, indeed, when the husband begins to prosecute, the remaining time does not run against the person who cannot do so. This may be said with reference to anyone who begins proceedings against the adulterer or the adulteress, for the time ceases to run against the person who is not made the object of the accusation. This applies to husbands and fathers.
(1) The power of bringing the accusation after the husband and the father is granted to strangers who have a right to do so; for, after sixty days have elapsed, four months, and even available ones, are granted to strangers.
(2) If a stranger was the first one to bring the accusation, the question arises whether, if the husband appears, he can be permitted to accuse the woman. I think that the better opinion is that, in this instance, the husband should be heard if he has not been guilty of negligence. Therefore, even if the accusation has been begun by a stranger, and the woman should be acquitted, the husband ought, nevertheless, to be permitted to renew the accusation; provided he can allege good reasons by which he was prevented from bringing it previously.
5. Julianus, Digest, Book LXXXVI.
There is no doubt that a woman whom I have married can be prosecuted for adultery committed during her first marriage, as it is clearly provided by the Julian Law for the punishment of adultery that, if proceedings for this offence are brought against a woman who is a widow, the accuser has the choice of accusing either the adulterer or adulteress first, whichever he prefers; but if the woman is married, he must first prosecute the adulterer and then the woman.
6. Papinianus, On Adultery, Book I.
The Julian Law only applies to free persons who have been the victims of adultery or debauchery. With reference to female slaves, recourse can easily be had to the action authorized by the Aquilian Law, and that for injury will also lie, and the Praetorian action for the corruption of a slave will not be refused; so that the person guilty of this crime will not escape on account of the multiplicity of actions.
(1) The law promiscuously and incorrectly designates the same crime by the terms debauchery and adultery. Properly speaking, adultery is only committed with a married woman; this name having been adopted on account of the child being begotten by another than the husband. Debauchery, which the Greeks call "corruption," is committed with a virgin, or a widow.
(2) A son under paternal control, who is a husband, is not, by this law, distinguished from one who is his own master. The Divine Hadrian stated in a Rescript addressed to Rosianus Geminus, that even without the consent of his father, a son under paternal control could bring an accusation under this law.
(3) The husband, although he may be already prosecuting two persons for another crime, can, by his marital right, accuse a third party, because this case is not included among the others.
7. Marcianus, Institutes, Book X.
A man who contracts matrimony with his own female ward in violation of the Decree of the Senate is not legally married; and he who was her guardian or curator can be prosecuted for adultery if he marries a girl under twenty-six years of age who has not been betrothed to him, or destined for him, or mentioned for this purpose in a will.
(1) Marcianus, in the Second Book On Adultery, by Papinianus, states that a common accusation for incest can be brought at the same time against the two persons concerned.
8. Papinianus, On Adultery, Book II.
Anyone who knowingly lends his house to enable debauchery or adultery to be committed there with a matron who is not his wife, or with a male, or who pecuniarily profits by the adultery of his wife, no matter what may be his status, is punished as an adulterer.
(1) It is clear that by the term "house" every kind of habitation is meant.
9. Ulpianus, On Adultery, Book IV.
Anyone who lends the house of a friend is also liable.
(1) Where anyone encourages the commission of debauchery in a field, or in a bath, he should be included in the law.
(2) When, however, persons are accustomed to assemble in some house for the purpose of making arrangements to commit adultery, even if it was not committed in that place, still, the owner is considered to have lent his house for the commission of debauchery or adultery, because these offences would not have been perpetrated if these meetings had not taken place.
10. Papinianus, On Adultery, Book II.
A matron means not only a married woman, but also a widow.
(1) Women who lend their houses, or have received any compensation for debauchery which they have committed, are also liable under this Section of the law.
(2) A woman who gratuitously acts as a bawd for the purpose of avoiding the penalty for adultery, or hires her services to appear in the theatre, can be accused and convicted of adultery under the Decree of the Senate.
11. The Same, On Adultery.
A soldier who has compromised with the seducer of his wife should be released from his oath, and be deported.
(1) It has very properly been decided that a soldier who lives in concubinage with his sister's daughter, although this is not marriage, will be liable to punishment for adultery.
(2) A woman who is classed among those who have committed adultery cannot be defended in court while she is absent.
(3) A father-in-law who, in a written accusation filed with the Governor, stated that he accused his daughter-in-law of adultery, preferred to abandon the accusation and obtain her dowry. The question arises whether you think that a scheme of this kind should be permitted. The answer was, that it is a very dishonorable example for a person, after he has brought an accusation against his daughter-in-law, to desire to abandon it, and remain content with the profit obtained from her dowry, as the marriage was dissolved through the fault of the woman. Wherefore he will not be unjustly barred who was not ashamed to prefer the advantage of the dowry to avenging the honor of his house.
(4) It is clear that anyone guilty of adultery can be prosecuted within five years from the time when the crime was committed, even though the woman should be dead.
(5) A certain person desired to accuse a woman of adultery, and asked that the days which he had passed in prison should not be counted against him. I, having agreed to this, another contradicted me; and, if you approve of his opinion, I ask you to write to me after careful consideration of the question. The answer was, that both the terms and the intention of the law sustain your conclusion; for it has been decided that only available days should be counted against the accuser, that is to say, those in which he can comply with the formalities required by the accusation. Therefore, undoubtedly, when you hold that the days during which the complainant was in prison are not to be included among those available days, no reason exists for opposing your opinion.
(6) The sixty days that are counted as available and in which the husband can bring the accusation certainly include festivals, provided the accuser has the power of appearing before the Governor, because the information can be given to the latter even when he is not on the bench. If, however, he has lost this privilege, he is not prevented from filing his complaint with the judge during the other four months.
(7) The question arose whether a man could, by the right of a husband, accuse a woman who had been betrothed to him, and had afterwards been given in marriage by her father to another. The answer was, I think, that the accuser, in a case of this kind, institutes a new proceeding when he desires to bring a charge of adultery, for this reason only, that the girl who had been betrothed to him was afterwards given by her father in marriage to another.
(8) A woman can be prosecuted for adultery after the death of her husband.
(9) Should a woman who asks for delay on account of the youth of her son obtain it from the accuser, or ought she to be heard? I answered: This woman does not seem to have a just defence who offers the age of her son as a pretext for evading a legal accusation. For the charge of adultery brought against her does not prejudice the child, since she herself may be an adulteress, and the child still have the deceased for his father.
(10) When I desired to accuse a woman of adultery who, after having committed the offence, continued in the same marital relation, my position was disputed. I ask whether the opinion was correct. The answer was: "You should not have been ignorant that, during the marriage which existed when the adultery was said to have been committed, the woman could not have been prosecuted for adultery, and that during this time the adulterer himself could not have been accused."
(11) Although a woman may be alleged to have married him with whom she is suspected of having committed adultery, she cannot be accused before the adulterer has been convicted. Otherwise, husbands desiring to have marriages, which have subsequently been contracted, annulled, would have recourse to this pretext, and say that their wives had married men with whom they had committed adultery.
(12) A woman, having heard that her absent husband was dead, married another, and her first husband afterwards returned. I ask, what should be decided with reference to this woman? The answer was that the question is one of law and not of fact; for if a long time had elapsed without any proof of debauchery having been made, and the woman, having been induced by false rumors, and, as it were, released from her former tie, married a second time in accordance with law, as it is probable that she was deceived, and she can be held to have done nothing deserving of punishment. If, however, it is established that the supposed death of her husband furnished an inducement for her marrying a second time, as her chastity is affected by this fact, she should be punished in proportion to the character of the offence.
(13) I married a woman accused of adultery, and, as soon as she was convicted, I repudiated her. I ask whether I should be considered to have furnished the cause of the separation. The answer was that, since by the Julian Law you are prohibited from keeping a wife of this kind, it is clear that you should not be considered to have furnished the cause for the separation. Therefore, the law will be applied just as if a divorce had taken place through the fault of the woman.
12. Ulpianus, On Adultery, Book II.
These words of the law, namely, "In order that no one may, knowingly and fraudulently, commit debauchery or adultery," are applicable both to him who advised it, and to him who committed the act of debauchery or adultery.
13. The Same, On Adultery, Book II.
Where a wife did not commit adultery, but a concubine did, the husband cannot accuse her as such, because she is not his wife; still, he is not prohibited by law from bringing an accusation as a stranger, provided that she, in giving herself as a concubine, did not forfeit the name of a matron, as, for instance, a woman who had been the concubine of her patron.
(1) It is clear that, whether the woman is a lawful wife or not, her husband can bring the accusation against her; for Sextus Caecilius states that this law is applicable to all marriages; and he quotes the passage from Homer where he says the Atrides are not the only ones who love their wives.
(2) A husband can prosecute his wife for adultery when she has committed it publicly, although if she were a widow, debauchery could be committed by her with impunity.
(3) The Divine Severus and Antoninus stated in a Rescript, that this offence could even be prosecuted in the case of a woman who was betrothed, because she is not permitted to violate any marriage whatever, nor even the hope of matrimony.
(4) Where, however, she is a person with whom incest has been committed, or a woman who is kept as a wife, but still cannot be one in reality, it must be said that the husband cannot, as such, accuse her, but he can do so as a stranger.
(5) The judge who has jurisdiction of adultery must have before his eyes, and investigate whether the husband, living modestly, has afforded his wife the opportunity of having good morals; for it would be considered extremely unjust for the husband to require chastity for his wife, which he himself does not practice. This, indeed, may condemn the husband, but cannot afford a set-off for mutual crime when committed by both parties.
(6) If anyone wishes to accuse his wife, and alleges that she committed adultery before he married her, he cannot bring the accusation by his right as a husband, because she did not commit adultery while she was married to him. This can also be said with reference to a concubine whom the man who kept her subsequently married; or with reference to a daughter under paternal control, to whose union her father afterwards gave his consent.
(7) If anyone should openly accuse his wife of having committed adultery, while he was a prisoner in the hands of the enemy, it would be more indulgent to hold that he can accuse her by the right of a husband; but her husband cannot prosecute her for adultery, if she suffered violence from the enemy. For anyone who is violated cannot be convicted of adultery or fornication on this account.
(8) Where a girl, less than twelve years old, brought into the house of her husband, commits adultery, and afterwards remains with him until she has passed that age, and begins to be his wife; she cannot be accused of adultery by her husband, for the reason that she committed it before reaching the marriageable age; but, according to a Rescript of the Divine Severus, which is mentioned above, she can be accused as having been betrothed.
(9) If a woman who has been repudiated should afterwards be taken back by her husband, not in order to continue the first marriage, but under another which has taken place, let us see whether she can be accused of the crime which she committed during her first marriage. I think that she cannot be, for her husband, by taking her back, has done away with all the crimes of the first marriage.
(10) The same rule must be adopted, if he desires to accuse of fornication the woman whom he afterwards married; for he is too late when he bases his accusation on conduct which he approved by marrying her.
14. Scaevola, Rules, Book IV.
He who, by aid, advice, or fraud, causes a man or a woman who has been taken in adultery to be released, either in consideration of the payment of money, or on account of any kind of an agreement, shall suffer the same penalty which is imposed upon those convicted of the crime of pandering.
(1) If a husband, for the purpose of defaming his wife, provides her with an adulterer, in order that he may catch them, both the husband and the wife are guilty of the crime of adultery, according to a decree of the Senate enacted with reference to this subject.
(2) The husband, in the first place, or the father, who has his daughter under his control, is permitted to bring an accusation within sixty days of the divorce, and the power to do this is not granted to anyone else within that time, and, after it has elapsed, the desire of either party will not be considered.
(3) Those who prosecute by the right of a husband are not free from the risk of false accusation.
15. Ulpianus, On Adultery, Book II.
If the husband is a magistrate, the father can precede him in bringing the accusation, but it is not necessary for him to do so. Pomponius thinks that it should be held that, as long as the husband retains his office, action by the father should be prevented, to avoid depriving the husband of a right to which he also is entitled. Therefore the sixty days do not run against the father, as he cannot bring the accusation.
(1) It is provided by the Seventh Section of the Julian Law with reference to Adultery, that no one can include in the number of accused persons anyone who is absent on business for the State, without invalidating the judgment. For it does not seem just for a person who is absent on public business to be numbered among the accused, when he is in the employ of the government.
(2) It is necessary to add, "without invalidating the judgment." But if anyone should be absent on public business, for the purpose of avoiding prosecution, this pretext will not be of any advantage to him.
(3) If, however, anyone is present who still is considered absent, for instance, a person who belongs to the night watch, or who is serving as a soldier in the city camps, it must be said that he cannot be accused, for he is not compelled to trouble himself to appear.
(4) Generally speaking, it should be held that only the absence of those is excusable who are in another province of the country than that in which they are accused. Hence, if anyone commits adultery in a province in which he is employed, he can be accused there, unless he is a person over whom the Governor has no jurisdiction.
(5) If the father and the husband fail to accuse the woman within sixty days, will the time immediately begin to run in favor of a stranger? Pomponius thinks that a stranger can be permitted to bring the accusation as soon as the others have refused to do so. I think that his opinion should be adopted, for it can be said even more decidedly that he who has stated that he will not bring the accusation ought not afterwards to be heard.
(6) The Julian Law relating to Adultery especially prohibits accusation by certain persons, as, for instance, by a minor of twenty-five years of age, for an accuser is not considered capable who is not yet of mature age. This is correct, if he does not prosecute an injury to his own marriage. But if he desires to vindicate the honor of his own marriage, although he may bring the accusation by the right of a stranger, he should still be heard; for no prescription ought to bar anyone who avenges his own injury. And, indeed, if induced by the alacrity of youth, or inflamed by the fervor of maturity, he hastens to bring the accusation, the penalty for malicious prosecution will not hastily be inflicted upon him. We understand a minor of twenty-five years of age to be one who is in his twenty-fifth year.
(7) The prescriptions which it is customary to introduce against persons bringing the accusation of adultery are usually discussed before the party implicated has been included in the number of those accused, but when this once has taken place, he cannot plead prescription.
(8) If a woman remains in widowhood, the accuser has the right to begin with either party he wishes, with the adulterer or the adulteress.
(9) If anyone accuses the adulterer and the adulteress at the same time, the accusation is void, and he can begin again with either party whom he may select, just as if he had accused neither, because the first accusation is of no force or effect.
16. The Same, On Adultery, Book I.
Anyone who has served notice of repudiation upon his wife can also notify her not to marry Seius, and if he has notified her, he can begin with her.
17. The Same, On the Julian Law Relating to Adultery, Book II.
What should we understand the term "notify" to mean? Does it mean an application to the court, or merely an ordinary notice? I think that if application is not made to the court, it will be sufficient for him to state that he is about to bring an accusation for adultery.
(1) What then should be done, if he did not serve notice, but filed a written accusation before the woman married again; and she should marry, whether he was aware of this fact, or did not know it? I think that she should not be considered as notified, and therefore that the accuser cannot begin with her.
(2) But what if he only notified her not to marry, but did not add why; shall she be considered to be legally married? The better opinion is, to hold that the notice seems to reserve the choice for the prosecutor who brings the accusation. Therefore if he mentions the crime of adultery in the notice, even if he did not give the name of the judge, we think that the woman can be accused, just as if the notice had been served.
(3) What, however, would be the result if, in the notice, it was stated specifically with whom she had committed adultery, and the complainant should afterwards wish to accuse her of adultery with someone else? The better opinion is, that he ought not to be heard, for he does not bring the accusation for the crime mentioned in the notice.
(4) If, however, he serves notice by an agent, I think that he can bring the accusation if he desires to do so; and that the notice by the agent will be sufficient.
(5) Therefore, if he serves notice by his steward, that is to say, if a master serves notice by his slave, it will be valid.
(6) The question arises whether one person can prosecute the adulteress, and another the adulterer; so that, although both cannot be prosecuted at the same time by the same person, they can each be accused by a different individual. It is not reasonable to adopt the opinion that different accusers can be permitted to prosecute, for if the woman should marry before having been notified, she cannot be accused first; hence she must wait for the decision to be rendered with reference to the adulterer. If he should be acquitted, the woman will gain her case through him, and cannot afterwards be accused. If he should be convicted, she will not, for this reason, be condemned, but she can defend her case, and perhaps gain it either by favor, justice, or the assistance of the law. For what if the adulterer was oppressed by the efforts of an enemy, or by false testimony, or was overwhelmed by suborned witnesses before the court, or was either unwilling or unable to take an appeal, and the woman, having obtained an upright judge, defended her chastity?
(7) But if the adulterer, before he was convicted,
18. Macer, On Public Prosecutions, Book I.
Or before the accusation was brought against him,
19. Ulpianus, On the Julian Law Relating to Adultery, Book II.
Should die, it has been decided that even if he was dead, the woman could be accused without being able to plead an exception.
(1) If, however, not death, but some penalty imposed upon him should remove the defendant, we say that the woman can still be prosecuted.
(2) If at the time when the person to be prosecuted was chosen, the adulteress was not married, but was married when he was acquitted, it must be said that even if the adulterer was acquitted she could still be accused, because she was not married at the time when the adulterer was selected to be prosecuted first.
(3) If the adulterer should be acquitted, a married woman cannot be accused, even by the person who prosecuted the adulterer and was defeated, nor can she be accused by anyone else. Hence, if the accuser should be in collusion with the adulterer, and the latter is acquitted, he renders the married woman secure against prosecution brought by anyone. It is clear that she can be accused if she should cease to be married, for the law only protects a woman as long as she is married.
20. Papinianus, On Adultery, Book I.
The right is granted to the father to kill a man who commits adultery with his daughter while she is under his control. Therefore no other relative can legally do this, nor can a son under paternal control, who is a father, do so with impunity.
21. Ulpianus, On Adultery, Book I,
Hence it happens that neither the father nor the grandfather can kill the adulterer. This is not unreasonable, for he cannot be considered to have anyone under his control who has not control of himself.
22. Papinianus, On Adultery, Book I.
In this law, the natural father is not distinguished from the adoptive father.
(1) In the accusation of his daughter, who is a widow, the father is not entitled to the preference.
(2) The right to kill the adulterer is granted to the father in his own house, even though his daughter does not live there, or in the house of his son-in-law. The house should be understood to mean the residence, as in the Cornelian Law relating to injuries.
(3) He, however, who can kill an adulterer, has a much greater right to treat him with contumely.
(4) Hence the father, and not the husband, has the right to kill the woman and every adulterer; for the reason that, in general, paternal affection is solicitous for the interests of the children, but the heat and impetuosity of the husband, who decides too quickly, should be restrained.
23. Ulpianus, On Adultery, Book I.
What the law says, that is, "If he finds a man committing adultery with his daughter," does not seem to be superfluous; for it signifies that the father shall have this power only when he surprises his daughter in the very act of adultery. Labeo also adopts this opinion; and Pomponius says that the man must be killed while in the very performance of the sexual act. This is what Solon and Dracho mean by the words, "epv«."
(1) It is sufficient for the father for his daughter to be subject to his authority at the time when he kills the adulterer, although she may not have been at the time when he gave her in marriage; for suppose that she had afterwards come under his control.
(2) Therefore the father shall not be permitted to kill the parties wherever he surprises them, but only in his own house, or in that of his son-in-law. The reason for this is, that the legislator thought that the injury was greater where the daughter caused the adulterer to be introduced into the house of her father or her husband.
(3) If, however, her father lives elsewhere, and has another house in which he does not reside, and surprises his daughter there, he cannot kill her.
(4) Where the law says, "He may kill his daughter at once;" this must be understood to mean that having to-day killed the adulterer he can not reserve his daughter to be killed subsequently; for he should kill both of them with one blow and one attack, and be inflamed by the same resentment against both. But if, without any connivance on his part, his daughter should take to flight, while he is killing the adulterer, and she should be caught and put to death some hours afterwards by her father, who pursued her, he will be considered to have killed her immediately.
24. Macer, Public Prosecutions, Book I.
A husband is also permitted to kill a man who commits adultery with his wife, but not everyone without distinction, as the father is; for it is provided by this law that the husband can kill the adulterer if he surprises him in his own house, but not if he surprises him in the house of his father-in-law; nor if he was formerly a pander; or had exercised the profession of a mountebank, by dancing or singing on the stage; or had been convicted in a criminal prosecution and not been restored to his civil rights; or is the freedman of the husband or the wife, or of the father or mother, or of the son or the daughter of any of them; nor does it make any difference whether he belonged exclusively to one of the persons above mentioned, or owed services to two patrons in common, or was a slave.
(1) It is also provided that a husband who has killed any one of these must dismiss his wife without delay.
(2) It is held by many authorities to make no difference whether the husband is his own master, or a son under paternal control.
(3) With reference to both parties, the question arises, in accordance with the spirit of the law, whether the father can kill a magistrate; and also where his daughter is of bad reputation, or has been illegally married, whether the father or the husband will still retain his right; and what should be done if the husband is a pander, or is branded with ignominy for some reason or other. It may properly be held that those have a right to kill who can bring an accusation as a father or a husband.
25. Ulpianus, On the Julian Law Relating to Adultery, Book II.
It is provided as follows in the Fifth Section of the Julian Law: "That where a husband has surprised an adulterer with his wife, and is either unwilling or unable to kill him, he can hold him for not more than twenty consecutive hours of the day and night, in order to obtain evidence of the crime, and make use of his right without endangering it."
(1) I think that what has been stated with reference to the husband should be observed, so far as the father is concerned.
(2) Even if the husband should not surprise the adulterer in his house, he can hold him.
(3) Where, however, the adulterer is immediately released, he cannot be brought back.
(4) What must be done if he escapes; can he be brought back and kept under guard for twenty hours? I think that it is better to hold that he can be brought back and guarded for the purpose of obtaining evidence.
(5) The following clause, "In order to obtain evidence of the crime," means that he can introduce witnesses who will afterwards testify that the offender was taken in adultery.
26. The Same, Disputations, Book III.
A woman cannot be accused of adultery during marriage by anyone who, in addition to the husband, is permitted to bring the accusation; for a stranger should not annoy a wife who is approved by her husband, and disturb a quiet marriage, unless he has previously accused the husband of being a pander.
(1) When, however, the charge has been abandoned by the husband, it is proper for it to be prosecuted by another.
27. The Same, On Adultery, Book III.
When an accuser demands that a slave charged with adultery shall be put to torture, whether he himself intends to be present or not, the judges shall order the slave to be appraised; and when this has been done, they must direct that he who has denounced the slave as guilty shall pay the amount of the appraisement, and as much more, to the party interested.
(1) Let us, however, consider to whom this penalty should be paid, as the law mentions the party in interest. Thus, a bona fide purchaser is such a person; and although he may have bought the slave from one who is not his owner, we can properly say that he is the party in interest.
(2) We will do well to include in the same category one who has received property in pledge; because it is to his interest that the torture should not take place.
(3) When, however, the usufruct of the slave belongs to another, his appraised value should be divided between the owner and the usufructuary.
(4) If the slave is owned in common by several persons, his estimated value should be divided among them.
(5) When a freeman, supposed to be a slave, is tortured for the reason that he himself is ignorant of his condition, Caecilius is of the opinion that he is entitled to a praetorian action against the person who falsely accused him, in order that he may not go unpunished for having subjected a freeman to torture, just as if he had been a slave.
(6) The law directs that torture shall be applied to the male or female slaves of the man or woman complained of, or to those of the parents of either of them; if the said slaves have been given to the accused by his or her parents for their own use. The Divine Hadrian stated in a Rescript addressed to Cornelius Latianus that the slaves of strangers should be tortured.
(7) The man and woman who are accused, their patrons, and the person who has brought the accusation, are ordered to be present at the torture, and the power of questioning is granted to the patrons.
(8) It is still more advisable that a slave in whom the accused person had the usufruct should be tortured, for although he was not actually his slave, he is still considered to have been in servitude; for in everything relating to torture the question of ownership is not so much involved as the fact of the service.
(9) Therefore, if a slave belonging to another serves the accused in good faith, anyone will admit that he can be interrogated while undergoing torture.
(10) Where, however, the slave is one who is entitled to his freedom under the terms of a trust, or who expects to be free on compliance with a condition, the better opinion is that he can be tortured.
(11) The law directs that slaves who have been put to the torture in this manner shall become public property; hence we confiscate a part of a slave owned in common, and the mere ownership of one in whom another enjoys the usufruct; and where the accused has only the usufruct, the better opinion is that the enjoyment of the usufruct begins to belong to the government; but we do not confiscate a slave who is the property of another. The reason for the confiscation of slaves is that they may tell the truth without fear; while, if they were apprehensive of again being brought under the power of the accused persons, they might become obdurate under torture.
(12) They are not, however, confiscated before being subjected to torture.
(13) Even if they should deny everything, they will, nevertheless, be confiscated. The reason for this is the same, as well as to prevent them from entertaining the hope of again coming under the control of their masters, if they should make denials with the expectation of being rewarded for perseverence in uttering falsehoods.
(14) Even the slaves of the accuser are confiscated, if they are put to the torture. For slaves of this kind should be taken from their masters to prevent them from lying, but those of strangers have no one to please.
(15) When the accused party of either sex is acquitted, the law provides that, if the slaves should die, the loss shall be estimated by the judges, according to what they were worth before being tortured; and if they live, to an amount in proportion to the damage caused or inflicted upon them.
(16) It must be noted that it is provided by the Ninth Section, when a slave is charged with adultery, and the accuser does not wish him to be put to torture, the law orders double his value to be paid to his master; but this is simple damages.
28. Marcianus, On Public Prosecutions, Book I.
Anything which may be due in these different cases can be recovered by a personal action derived from the law.
29. Ulpianus, On Adultery, Book IV.
The law punishes the pandering of a husband who retains his wife, after she has been surprised in adultery, and permits the adulterer to depart. For the husband should be angry against his wife who has violated her marriage vow, and he ought also to be punished when he cannot excuse his ignorance, or conceal his indifference under the pretext that his information is incredible. Therefore, the law says he "shall permit the adulterer surprised in his house to depart," because it wishes to punish the husband who caught her in such an infamous act.
(1) When the law says that anyone who marries a woman who has been convicted of adultery shall be legally liable, let us see whether this refers to fornication? The better opinion is that it does, for if the woman was condemned for any other reason under that law she could be married with impunity.
(2) He also is punished who accepts money on account of the fornication which he detected, and it does not make any difference whether the husband himself or someone else receives it, for he who accepts compensation for concealing his knowledge of fornication should be punished. The law, however, does not apply to him who keeps the secret gratuitously.
(3) Anyone who has pecuniarily profited by the adultery of his wife shall be punished; for he who acts as his wife's pander does not commit a trivial offence.
(4) A man who receives anything in consideration of the adultery of his wife is held to have received it in order that she might commit adultery; and whether he has obtained it frequently or only once, he ought not to be exempt from punishment. He is correctly said to have profited by the adultery of his wife, who accepts something in order that she may be permitted to be debauched, as prostitutes are. Where, however, he permits his wife to commit the offence, not on account of gain, but through negligence, his own fault, or a certain degree of indifference, or excessive credulity, he is considered to have been placed outside the law.
(5) The division of the six months is made as follows: in the case of a married woman, the time is computed from the day of the divorce; in the case of a widow, from the day when the offence was committed. This seems to be indicated by a rescript addressed to the Consuls Tertyllus and Maximus. Moreover, if sixty days have elapsed since the divorce, and the term of five years has passed since the day when the crime was perpetrated, it must be said that the woman cannot be accused; so that when six available months are granted, this should be understood to mean that the accusation, having been extinguished by the uninterrupted period of five years, cannot be renewed.
(6) The legislator intended that this term of five years should be observed, when either of the defendants was accused of fornication, adultery, or pandering. Therefore what ought to be done if another crime derived from the Julian Law should be pleaded as a defence, as in the case of those who lend their houses for the purpose of fornication, and of others like them? The better opinion is, that all of the offences included in the Julian Law are prescribed after the lapse of five years.
(7) Moreover, the five years must be reckoned from the day when the crime was committed to the one on which the party was prosecuted, and not to that on which the judgment for adultery was carried into execution.
(8) It was also added in the Decree of the Senate that if several persons should prosecute the same defendant, reference must be had to the date of the information of the one who persevered in the prosecution; so that he who brings the accusation may rely upon his own information, and not on those of the others.
(9) There is no doubt that anyone who has committed fornication by means of force employed against the man or woman in question can be prosecuted without reference to the above-mentioned term of five years; for there is no doubt that he has committed a criminal act of violence.
30. Paulus, On Adultery, Book I.
A father cannot prosecute, without exposing himself to the risk of a false accusation.
(1) The sixty days are computed from the time of the divorce, and in the sixty the sixtieth is itself included.
31. The Same, On Adultery, Book II.
The term of five years should be reckoned continuously, and not merely by computing the available days. But what course must be pursued if the woman was accused first, and, as the adulterer could not be prosecuted at the same time, the case having been protracted for an extended period, the term of five years should expire? What if he who began the prosecution within five years did not carry it to a conclusion, or was guilty of prevarication, and another should desire to proceed after the five years have elapsed? It is just to deduct from the five years the time which was consumed by the preceding prosecution.
32. Macer, On Public Prosecutions, Book I.
It makes no difference whether the father kills his daughter surprised in adultery first, or not, provided he kills both guilty parties; for if he kills only one of them, he will be liable under the Cornelian Law. If, however, one of them should be killed, and the other wounded, he is not released under the terms of the law; but the Divine Marcus and Commodus stated in a Rescript that he ought to be granted impunity, for the reason that, although the adulterer was killed, and the woman survived, after having received serious wounds inflicted upon her by her father, she was saved rather by accident, than intentionally; because the law requires the same indignation and the same severity to be displayed toward all those who are taken in adultery.
(1) Where a husband has selected one of two culprits who have been guilty of adultery, he cannot accuse the other before the first case is terminated; because two persons cannot be accused by the same individual at the same time. Still, the prosecutor, while proceeding against the adulterer or the adulteress, is not prevented from also accusing anyone who lent his house for the purpose, or advised that the charge be suppressed by the payment of money.
33. Marcianus, Public Prosecutions, Book I.
Where anyone alleges that adultery has been committed by his slave, with a woman whom he had for his wife, the Divine Pius stated in a Rescript that he must accuse the woman before subjecting his slave to torture to her prejudice.
(1) If anyone should not let an adulterer depart, but detains him, as, for instance, his son, accused of adultery with his stepmother, or his freedman, or slave accused with his wife, he is guilty, according to the spirit, but not according to the letter of the law. The woman, however, who is detained, shall be punished. If, however, having driven her away, he should bring her back, he is not guilty according to strict construction of the law, but he must still be considered liable in order to avoid the commission of fraud.
(2) If a woman receives the price of adultery committed by her husband, she will be punishable as an adulteress under the Julian Law.
34. Modestinus, Rules, Book I.
He is guilty of fornication who keeps a free woman for the purpose of cohabiting with her, but not with the intention of marrying her, excepting, of course, a concubine.
(1) Adultery is committed with a married woman; fornication with a widow, a virgin, or a boy.
35. The Same, Rules, Book VIII.
He who desires to bring an accusation of adultery, and makes a mistake in the information, is not forbidden to correct it; provided that the time has not passed by which the right to proceed is extinguished.
36. Papinianus, Questions, Book III.
When a minor is guilty of adultery, he will be liable under the Julian Law, because a crime of this kind can be committed after puberty.
37. The Same, Questions, Book V.
It has been decided that a son under paternal control can, without the consent of his father, accuse his wife of adultery in a public action, for he avenges his own suffering.
38. The Same, Questions, Book XXXII.
If adultery is committed at the same time as incest, for instance, with a stepdaughter, a daughter-in-law, or a stepmother, the woman shall also be punished, for this will take place even where adultery was not committed.
(1) When fornication is committed with the daughter of a sister, should it not be considered whether the penalty of adultery will be sufficient for the husband? It happens, in the present instance, that a double crime has been perpetrated, because there is a great deal of difference where an unlawful marriage is contracted by mistake, and where contempt of the law and insult to blood are combined.
(2) Wherefore, the woman must undergo the same penalty as the man, when she has committed incest prohibited by the Law of Nations; for if only the observation of our law is involved, she will not be liable for the crime of incest.
(3) Sometimes, however, in the case of males, the crime of incest, although more serious in its nature, is ordinarily treated less severely than that of adultery; provided the incest has been committed through an illegal marriage.
(4) Finally, the Imperial Brothers released Claudia from responsibility for the crime of incest, on account of her age, but they directed that the unlawful tie should be severed; although, otherwise, the crime of adultery, when committed after puberty, is not excusable on account of age. For it is stated above that women who are mistaken with reference to the law are not liable for the crime of incest; but when they commit adultery they can have no excuse.
(5) The same Emperors stated in a Rescript that after a divorce which a stepson obtained in good faith from his stepmother, the accusation of incest should not be admitted.
(6) They also stated in a Rescript to Pollio: "Incestuous marriages are not usually confirmed, and therefore if a person withdraws from such a marriage, we will remit the penalty of the past offence, if the guilty party has not yet been prosecuted."
(7) Moreover, incest committed by means of an unlawful marriage is ordinarily excused on account of sex or age, or even after separation, if it takes place in good faith, and a mistake is alleged; and the more readily if no one appears to prosecute.
(8) The Emperor Marcus Antoninus and his Son Commodus stated in a Rescript that if a husband, impelled by the violence of his grief, kills his wife surprised in adultery, he will not be liable to the penalty imposed on assassins by the Cornelian Law; for the Divine Pius made the following statements in a Rescript addressed to Appollonius: "If anyone does not deny that he has killed his wife, taken in adultery, he may be excused from suffering the extreme penalty, as it is very difficult to restrain justifiable grief; but because he has done more than he should to revenge himself, he must be punished. Therefore, if he is of inferior rank, it will be sufficient for him to be sentenced to hard labor for life; and if he is of superior station, he shall be relegated to an island."
(9) A freedman is not readily permitted to attack the reputation of his patron, but he should be permitted to do so if he desires to accuse him of adultery by the right of a husband, just as if he had suffered some other atrocious injury. Where, however, the patron is of the number of those who, if surprised in the commission of this crime, can be killed by another, and if he is caught committing adultery with his wife, it should be considered whether the freedman can kill him with impunity. This seems to us to be rather hard, for reputation, much more than life, should be respected.
(10) Anyone who occupies a position of honor, or an office in the public service, can be prosecuted, but the accusation will be postponed ; and if he furnishes a surety to appear, the case will be deferred until the expiration of his term of office. This was stated by Tiberius Caesar in a Rescript.
39. The Same, Opinions, Book XV.
The decision of the Governor of a province was that a certain woman had been violated. I held that she was not liable under the Julian Law relating to Adultery; although, for the purpose of protecting her modesty, she was prevented from immediately informing her husband of the injury which she had sustained.
(1) Even after the woman has married a second time, although her first husband may not have been prosecuted as her pander, the charge of adultery can be brought against the adulterer by a stranger.
(2) Even if the woman should die during marriage, her husband has a right to prosecute the adulterer.
(3) A woman who was married before the person who committed adultery with her has been convicted cannot be prosecuted for this offence, if notice was not served upon her at the wedding, or at her residence.
(4) I gave it as my opinion that a woman who has been exiled on account of her association with robbers could be retained in marriage without the fear of incurring a penalty, because she was not convicted of adultery.
(5) The crime of incest, joined with adultery, is not prescribed after the lapse of five years.
(6) It is settled that two persons, the man and the woman, cannot lawfully be prosecuted for adultery at the same time, even by the husband; but when both of them have been accused at once by someone who subsequently wished to desist, I hold that an acquittal will be necessary in the case of both parties.
(7) A common accusation for incest can be brought against two persons at the same time.
(8) I gave it as my opinion that where two masters were accused of incest, their slaves could only be put to the torture where the incest was alleged to have been committed by adultery.
40. Paulus, Opinions, Book XIX.
The question was asked whether a woman, whose husband had threatened to accuse her of the crime of adultery, but had not done so either in the capacity of husband or under the common law, could marry the man whom he had indicated as being guilty of adultery? Paulus answered that in the case in question there was nothing to prevent her from marrying the man whom her husband had suspected.
(1) It was likewise asked whether the same husband should be considered to have desisted, or to have acted as a pander, if he afterwards took back the same wife? Paulus answered that he who took back the same wife, after having brought an accusation of adultery against her, was considered to have desisted; and hence, under the same law, he had no longer the right to accuse her.
41. The Same, Sentences, Book I.
No delay should be granted in an accusation of adultery, unless to compel the appearance of the persons in court; or where the judge, induced by the circumstances of the case, permits it, after proper cause has been shown.
42. Tryphoninus, Disputations, Book II.
If he who has obtained the right to wear a gold ring should commit adultery with the wife of his patron; or with his patroness; or with the wife of him, or of the father of him from whom he obtained his freedom; or with the mother, or the son's wife; or with the daughter of any of these persons, shall he be punished as a freedman? And if he is surprised in adultery, can he be killed with impunity? I am inclined to think that he should be subjected to the penalty imposed upon freedmen; because, by the Julian Law for the suppression of Adultery, and with a view to the protection of marriage, it is settled that they should be considered as freedmen; and, as the result of this advantage, the case of patrons should not be rendered any worse.
43. Gaius, On the Law of the Twelve Tables, Book III.
If the notice of repudiation was not served in accordance with law, and therefore the woman is still considered to be married; yet, if anyone takes her as his wife, he will not be an adulterer. Salvius Julianus was the author of this opinion; because, as he says, adultery cannot be committed without malicious contrivance. It should, however, be held that he is guilty of malicious contrivance who knew that she had not been legally repudiated.
44. Papinianus, Opinions, Book IV.
If his mother-in-law is dead, a son-in-law can be prosecuted for incest with her, just as an adulterer can be prosecuted after the death of the woman.
Tit. 6. Concerning the Julian law on public violence.
1. Marcianus, Institutes, Book XIV.
He is liable under the Julian Law relating to Public Violence who collects arms or darts in his house, or on his land, or in a farm house, in larger quantities than is customary for the purpose of hunting, or travel by land or water.
2. Scaevola, Rules, Book IV.
Arms which anyone has for the purpose of trade, or which have descended to him by inheritance, are excepted.
3. Marcianus, Institutes, Book XIV.
Those, also, are in the same position who form the design of exciting a tumult, or sedition, and have slaves or freemen under arms.
(1) He is liable under the same law who, having arrived at puberty, appears armed in public.
(2) Those are in the same position who, offering an extremely bad example by having assembled in numbers and excited sedition, plunder country-houses, and with darts or arms commit robbery.
(3) He also is liable who, in case of fire, removes by violence anything except the materials of the building.
(4) Moreover, he who pollutes by force a boy or a woman, or anyone whomsoever, is also liable to punishment under this law.
(5) He also who goes to a fire armed with a sword or other weapon for the purpose of robbery, or to prevent the owner from saving his property, is liable to the same penalty.
(6) He is liable under the same law who, with armed men assembled in a body with a display of force, expels a possessor from his house, his land, or his ship:
4. Ulpianus, On the Edict, Book LIX.
Or has provided men for this purpose.
5. Marcianus, Institutes, Book XIV.
Anyone who, by means of an assembly, a crowd, a tumult, or a sedition, causes a conflagration; or who maltreats a man whom he has wrongfully confined; or who prevents a body from being buried, to better enable him to disperse and plunder a funeral procession; or forcibly compels someone to become obligated to him, for the law rescinds an obligation of this kind, is liable.
(1) When a question of violence and possession, or ownership is involved, the Divine Pius stated in a Rescript that the violence should be investigated before the right of ownership, which Rescript, written in Greek, was addressed to the community of the Thessalians. He also decreed that the question of violence should be examined before that of ownership or possession was decided.
(2) Anyone who has ravished a free woman, or one who is married, shall be punished with death. If her father, moved by prayers, pardons his injury, a stranger can prosecute without being barred by the prescription of five years, because the crime of rape exceeds in scope the Julian Law relating to Adultery.
6. Ulpianus, On the Duties of Proconsul, Book VII.
The Divine Pius stated in a Rescript that whoever ravishes a freeborn boy should be punished, as follows: "I have ordered the submission to me of a petition presented by Domitius Silvanus, in the name of Domitius Silvanus, his paternal uncle, who, having been influenced by his complaint, in which it is stated that his son who was freeborn, and still very young, was carried away by force, shut up, and afterwards subjected to blows and tortures, with great danger to his life. My dear brother, I request you to hear him, and, if you ascertain that these offences have been committed, punish them severely."
7. The Same, On the Duties of Proconsul, Book VIII.
Anyone who is invested with authority or power, and subjects a Roman citizen to death or scourging, or orders this to be done, or attaches anything to his neck for the purpose of torturing him, without permitting him to appeal, is liable under the Julian Law relating to Public Violence. This also applies to deputies and orators, and their attendants, where anyone is proved to have beaten them, or caused them any injury.
8. Marcianus, Public Prosecutions, Book V.
By the Julian Law relating to Public Violence, it is provided that no one can bind an accused person, or prevent him from appearing at Rome within a certain time.
9. Paulus, On the Edict, Book VII.
By "armed persons" we should understand not merely those who have darts, but also anything else with which they can cause injury.
10. Ulpianus, On the Edict, Book LXVIII.
He who fraudulently prevents the free administration of justice, or prevents the judges from deciding as they should do; or he who, being invested with power or authority, acts in any other way than the law decrees and requires that he should; and anyone who unjustly compels a person to promise, either publicly or privately, to furnish slaves, or pay money; and also anyone who, with malicious intent, appears armed in an assembly, or in a place where justice is publicly administered, with the exception of him who collects men in order to hunt wild beasts, and who is permitted to keep people for this purpose, will be liable under this law.
(1) He, also, is liable under this law, who, where men have been assembled, uses force for the purpose of striking or beating someone, even though he may not be killed.
(2) He who is convicted of having employed public violence is interdicted the use of water and fire.
11. Paulus, Sentences, Book V.
Those who have plundered the houses of others in the city or in the country, or have broken into them, or seized them, and have done so by means of a mob and with a display of armed force, shall be punished capitally.
(1) By the term "arms," is understood everything a man can make use of to cause injury.
(2) Those who carry arms in order to protect themselves are not considered to carry them for the purpose of killing anyone.
12. The Same, On the Turpillian Decree of the Senate.
Those who impose new taxes arbitrarily are liable under the Julian Law relating to Public Violence.
Tit. 7. Concerning the Julian law relating to private violence.
1. Marcianus, Institutes, Book XIV.
Anyone who is convicted of private violence is punished under the Julian Law by the confiscation of the third part of his property; and it is provided that he shall not be a Senator or a decurion; or obtain any mark of distinction, or be permitted to sit with any of the above-named officials; or be a judge; and, according to the Decree of the Senate, he shall be stripped of all his honors as a person who is infamous.
(1) Those who are liable to the penalty of the Julian Law relating to Private Violence are subjected to the same punishment if they have been guilty of fraudulently and forcibly appropriating any goods in a shipwreck.
(2) Anyone who plunders property which has been shipwrecked is punished arbitrarily under the Imperial Constitutions; for the Divine Pius stated in a Rescript that no force should be employed against sailors, and if anyone did so that he should be severely punished.
2. Scaevola, Rules, Book IV.
He is liable under this law who, by means of a crowd of men, employs force, in consequence of which some person is beaten or struck, even if no one is killed.
3. Macer, Public Prosecutions, Book I.
It makes no difference whether the crowd was convoked for the purpose of employing violence against freemen, or one's own slaves, or slaves belonging to another.
(1) Those who have been assembled are none the less liable under the same law.
(2) If, however, no persons have been assembled, and none has been beaten, but something has been unjustly taken from property belonging to others, he who did so will be liable under this law.
4. Paulus, On the Edict, Book LV.
The crime punished by the Julian Law is committed where someone is said to have assembled a crowd or a mob, to prevent a person from being produced in court.
(1) If anyone should put the slave of another to torture, Labeo says that the Edict of the Praetor relating to injuries can be resorted to, and thus greater moderation be displayed.
5. Ulpianus, On the Edict, Book LXIX.
If anyone should expel a person from his land by means of a crowd of men who are unarmed, he can be prosecuted for private violence.
6. Modestinus, Rules, Book VIII.
Under the Volusian Decree of the Senate, those who improperly assemble in order to manifest opposition to a lawsuit of others, and agree that anything obtained from the parties by condemnation shall be divided among them, are liable under the Julian Law relating to Private Violence.
7. Callistratus, On Judicial Inquiries, Book V.
Creditors, who proceed against their debtors, should demand a second time, through the judge, what they think to be due to them. Otherwise, if they enter upon the property of the debtor without permission having been given them to do so, the Divine Marcus decreed that they had no longer any right to their claims. The following are the terms of the Decree: "It is very proper, where you think that you have claims, that you should attempt to collect them by means of actions. In the meantime, the other party should remain in possession, for you are merely the plaintiff." And when Marcianus said that no force had been employed, the Emperor replied: "You think that force is only employed when men are wounded. Force is employed when anyone thinks that he can take what is due to him without demanding it a second time through the judge. I do not think that it is consistent either with your character for reserve or your dignity, to commit an act which is unauthorized by law. Therefore, whenever it is proved to me that any property of the debtor was not delivered by him to his creditor, but that the latter boldly took possession of it without being authorized by a court, and he has declared that he was entitled to the property, he will forfeit his right to the claim."
8. Modestinus, On Punishments, Book II.
Where a creditor, without judicial authority, seizes the property of his debtor, he is liable under this law, will be fined a third part of his property, and will become infamous.
Tit. 8. Concerning the Cornelian law relating to assassins and poisoners.
1. Marcianus, Institutes, Book XIV.
Under the Cornelian Law relating to Assassins and Poisoners, anyone who kills a man; or through whose malice a fire has originated; or who has gone about armed for the purpose of killing someone or committing theft; or who, being a magistrate, or presiding in a criminal case, enables false testimony to be given by which an innocent person may be prosecuted, or convicted, is liable.
(1) He also is liable who prepares poison, and administers it for the purpose of killing a man; or who, with malicious intent gives false testimony, by means of which anyone may be sentenced to death in a criminal prosecution; or any magistrate or judge who accepts money in consideration of causing someone to be accused of a crime.
(2) Anyone who has committed homicide is punished without taking into account the legal condition of the person who was killed.
(3) The Divine Hadrian stated in a Rescript that anyone who killed a man, without the intention of doing so, could be acquitted; and that anyone who did not kill a man, but wounded him for the purpose of killing him, should be convicted of homicide; and that the decision should be rendered according to the circumstances of the case, for if the aggressor drew a sword and struck him with it, there is no doubt of his having done this with the intention of killing him. Where, however, during a quarrel, he struck him with a spike, or a brass vessel used in a bath, although the article employed was of metal, still the attack was not made with the intention of killing him; and the penalty imposed upon one who in a quarrel committed homicide rather accidentally than intentionally, should be mitigated.
(4) The Divine Hadrian also stated in a Rescript that he who killed anyone who was forcibly attempting to commit an act of debauchery with himself, or with those belonging to him, should be discharged.
(5) But with regard to a husband who kills his wife surprised in the act of adultery, the Divine Pius stated in a Rescript that a lighter penalty should be inflicted upon him; and he ordered that anyone of inferior rank should be sent into perpetual exile, and that a person of distinguished position should be relegated for a certain time.
2. Ulpianus, On Adultery, Book I.
A father cannot kill his son without his having been heard; but he should accuse him before the Prefect or the Governor of the province.
3. Marcianus, Institutes, Book XIV.
Anyone who has prepared poison, or sells it, or keeps it for the purpose of killing human beings, is punished by the Fifth Section of the same Cornelian Law relating to Assassins and Poisoners.
(1) The penalty of this law is imposed upon any one who publicly sells injurious poisons or keeps them for the purpose of homicide.
(2) The expression "injurious poisons" shows that there are certain poisons which are not injurious. Therefore the term is an ambiguous one, and includes what can be used for curing disease as well as for causing death. There also are preparations called love philtres. These, however, are only forbidden by this law where they are designed to kill people. A woman was ordered by a decree of the Senate to be banished, who, not with malicious intent, but offering a bad example, administered for the purpose of producing conception a drug which, having been taken, caused death.
(3) It is provided by another Decree of the Senate that dealers in ointments who rashly sell hemlock, salamander, aconite, pine-cones, bu-prestis, mandragora, and give cantharides as a purgative, are liable to the penalty of this law.
(4) Likewise, he whose slaves, with his knowledge, have taken up arms for the purpose of obtaining or recovering the possession of property; or one who is the promoter of sedition; or who has appropriated shipwrecked merchandise; or who has represented matters which are false to be true, that an innocent person might be deceived; or who has caused this to be done; or who has castrated a man on account of debauchery, or in order to sell him, is, under the Decree of the Senate, subjected to the penalty of the Cornelian Law.
(5) The penalty of the Cornelian Law relating to Assassins and Poisoners is deportation to an island and the confiscation of all property. It is, however, at present customary to inflict capital punishment, unless the parties in question occupy such a high position that they are not amenable to the law. It is customary for persons of inferior rank to be thrown to wild beasts, and for those higher in the social scale to be deported to an island.
(6) It is permitted to kill deserters, just as if they were enemies, wherever they may be found.
4. Ulpianus, On the Duties of Proconsul, Book VII.
He is liable under the Cornelian Law relating to Assassins who, while occupying the position of magistrate, commits some act involving the life of a man which is not authorized by law.
(1) When a man, through mere wantonness, causes the death of another, the decision of Ignatius Taurinus, Proconsul of Bsetica, who relegated the guilty party for a term of five years, was confirmed by the Divine Hadrian.
(2) The Divine Hadrian also stated the following in a Rescript: "It is forbidden by the Imperial Constitutions that eunuchs should be made, and they provide that persons who are convicted of this crime are liable to the penalty of the Cornelian Law, and that their property shall with good reason be confiscated by the Treasury. "But with reference to slaves who have made eunuchs, they should be punished capitally, and those who are liable to this public crime and do not appear, shall, even when absent, be sentenced under the Cornelian Law. It is clear that if persons who have suffered this injury demand justice, the Governor of the province should hear those who have lost their virility; for no one has a right to castrate a freeman or a slave, either against his consent or with it, and no one can voluntarily offer himself to be castrated. If anyone should violate my Edict, the physician who performed the operation shall be punished with death, as well as anyone who willingly offered himself for emasculation."
5. Paulus, On the Duties of Proconsul, Book II.
Those also who render persons impotent are, by a Constitution of the Divine Hadrian addressed to Ninius Hasta, placed in the same class with those who perform castration.
6. Venuleius Saturninus, On the Duties of Proconsul, Book I.
He who delivers a slave to be castrated shall be punished by a fine of half his property, under a decree of the Senate enacted during the Consulate of Neratius Priscus and Annius Verus.
7. Paulus, On Public Prosecutions.
Under the Cornelian Law, the degree of fraud depends upon the act, but by this law gross negligence is not considered fraud. Wherefore, if anyone precipitates himself from a height and falls upon another and kills him, or if a man trimming trees throwns down a branch and does not give warning, but kills a passer-by, he will not be liable to punishment under this law.
8. Ulpianus, On the Edict, Book XXXIII.
If it should be proved that a woman has employed force upon her abdomen for the purpose of producing abortion, the Governor of the province shall send her into exile.
9. The Same, On the Edict, Book XVIII.
If anyone kills a thief at night, he can only do so with impunity, when he could not have spared him without placing himself in jeopardy.
10. The Same, On the Edict, Book XVIII.
If anyone should maliciously burn my house, he shall suffer capital punishment as an incendiary.
11. Modestinus, Rules, Book VI.
By a Rescript of the Divine Pius, Jews are permitted to circumcise only their own children, and anyone who performs this operation upon persons of a different religion will incur the penalty for castration.
(1) If a slave, without having been sentenced, is thrown to wild beasts, not only he who sold him, but also he who purchased him will be liable to punishment.
(2) Since the passage of the Petronian Law and the Decrees of the Senate having reference to it, masters are deprived of the power of giving up their slaves, whenever they please, for the purpose of fighting wild beasts. A master, however, can produce his slave in court, and if his complaint is well founded, the slave can be subjected to the penalty,
12. The Same, Rules, Book VIII.
When an infant or an insane person commits homicide, he is not liable under the Cornelian Law; for absence of intention protects the one, and his unhappy fate excuses the other.
13. The Same, Pandects, Book XII.
By a decree of the Senate it is ordered that anyone who offers sacrifices for the purpose of causing misfortune shall be subjected to the penalty of this law.
14. Callistratus, On Judicial Inquiries, Book VI.
The Divine Hadrian stated the following in a Rescript: "In the perpetration of crime, the intention, and npt the event, is considered."
15. Ulpianus, On the Lex Julia et Papia, Book VIII.
It makes no difference whether one actually kills another, or is merely the cause of his death.
(1) He who orders another to be killed is considered a homicide.
16. Modestinus, On Punishments, Book III.
Those who voluntarily or maliciously commit murder are usually deported, if they are of high rank; but if they are of inferior station they are punished with death. This, however, is more excusable in decurions, where they have previously consulted the Emperor, and acted by his order; unless the tumult could not otherwise have been suppressed.
17. Paulus, Sentences, Book V.
If a man after having been struck in a quarrel dies, the blow given by each of the persons assembled should be investigated.
Tit. 9. Concerning the Pompeian law on parricides.
1. Marcianus, Institutes, Book XIV.
It is provided by the Pompeian Law relating to Parricides that if anyone kills his father, his mother, his grandfather, his grandmother, his brother, his sister, his paternal uncle, his paternal aunt, his maternal uncle, his maternal aunt, his cousin of either sex, his wife, her husband, his son-in-law, his father-in-law, his stepfather, his stepson, his stepdaughter, his patron, or his patroness, or causes this to be done with malicious intent, he shall be liable to the penalty prescribed by the Cornelian Law relating to Assassins. A mother, who kills her son or her daughter, is also liable to the penalty of this law, as well as a grandfather who kills his grandson. Again, anyone who purchases poison for the purpose of administering it to his father is liable, even if he does not give it to him.
2. Scaevola, Rules, Book IV.
A brother of the guilty party, who was aware of the plan, and did not warn his father, was relegated, and the physician subjected to punishment.
3. Marcianus, Institutes, Book XIV.
It must be remembered that cousins are included in the Pompeian Law, but those are not equally implicated who are in the same, or a nearer degree. Also, mothers-in-law and women who have been betrothed are omitted; they are, however, included in accordance with the meaning of the law.
4. The Same, On Public Prosecutions, Book I.
Just as the fathers and mothers of married persons are embraced in the designation fathers and mothers-in-law, so the husbands of the children are embraced in the term sons-in-law.
5. The Same, Institutes, Book XIV.
It is said that the Divine Hadrian, in a case where a certain man had, while hunting, killed his son who had committed adultery with his stepmother, caused him to be deported to an island, on the ground that he killed him rather as a thief than by asserting his right as a father; for paternal authority should rather be influenced by affection than by cruelty.
6. Ulpianus, On the Duties of Proconsul, Book VIII.
The question may be asked whether those who kill their parents, or know of the crime, should be punished for parricide. Msecianus says that not only parricides, but also their accomplices, should undergo this penalty. Hence the accomplices, even if they are strangers, are punished in the same way.
7. The Same, On the Edict, Book XXIX.
When money has been furnished for the commission of a crime, with the knowledge of a creditor, where, for instance, it has been given to purchase poison, or paid to robbers or assassins for the purpose of killing his father, he who obtained the money will be liable to the penalty for parricide, as well as those who lent it, or took measures to have it used in this way.
8. The Same, Disputations, Book VIII.
Where anyone accused of parricide dies before being convicted, even if he kills himself, he should have the Treasury as his successor, or if not, anyone whom he appointed by his will. If he should die intestate, he will have as heirs those who are designated by law.
9. Modestinus, Pandects, Book XII.
The penalty of parricide, as prescribed by our ancestors, is that the culprit shall be beaten with rods stained with his blood, and then shall be sewed up in a sack with a dog, a cock, a viper, and an ape, and the bag cast into the depth of the sea, that is to say, if the sea is near at hand; otherwise, it shall be thrown to wild beasts, according to the Constitution of the Divine Hadrian.
(1) Those who kill other persons than their father and mother, their grandfather and grandmother, whom we have stated above, are punished according to the custom of our ancestors, either suffer a capital penalty, or are sacrificed to the gods.
(2) When anyone, while insane, kills his parents, he shall go unpunished, as the Divine Brothers stated in a Rescript with reference to a man who, being insane, killed his mother; for it is sufficient for him to be punished by his insanity alone, but he must be guarded with great care, or else be kept in chains.
10. Paulus, On the Penalties of All Laws.
The accusation of those who are liable to the penalty of parricide is always permitted.
Tit. 10. Concerning the Cornelian law on deceit and the Libonian Decree of the Senate.
1. Marcianus, Institutes, Book XIV.
The penalty of the Cornelian Law is inflicted upon anyone who, with malicious intent, has suborned false witnesses, or caused spurious evidence to be introduced.
(1) Likewise, anyone who receives money, or makes an agreement to receive it, for the purpose of fraudulently obtaining legal assistance or evidence, or forms a conspiracy to render innocent persons liable, is punished by the Decree of the Senate.
(2) Moreover, anyone who receives money for the production or the suppression of witnesses, and the giving or withholding of testimony, is punished by the Cornelian Law; and also anyone who corrupts a judge, or takes any steps for the purpose of corrupting him.
(3) If, however, a judge neglects to enforce the Imperial Constitutions he will be punished.
(4) Those who have been guilty of deceit with reference to accounts, wills, public documents, or anything else which is not sealed, or have fraudulently appropriated property, shall be punished for these crimes, just as if they had committed forgery. It was for just such an offence that the Divine Severus condemned the Prefect of Egypt, under the Cornelian Law relating to Deceit, because during the time when he governed the province he had falsified his own records.
(5) He who opens the will of a person who is living is liable to the penalty of the Cornelian Law.
(6) He who alleges that documents deposited with another have been delivered by him to his adversaries can be prosecuted for deceit.
(7) The Decree of the Senate applies to military wills, and by its terms anyone is liable under the Cornelian Law who has written the bequest of a legacy or a trust for his own benefit.
(8) There is this difference between the drawing up of a will by a son, a slave, or a stranger; for, so far as the stranger is concerned, if the signature of the testator is made, accompanied by the statement: "I dictated this to So-and-So, and I have read it over," the penalty will not be incurred, and the bequest can be claimed. In the case of a son or a slave, however, a general signature will be sufficient both for the purpose of avoiding the penalty, and of obtaining the bequest.
(9) Guardians, as well as curators, who, after their term of office has expired, do not render their accounts of the guardianship or curatorship, are liable to the penalty of this law—as was decided by the Divine Severus and Antoninus—and they cannot contract with the Treasury; but if anyone, in violation of this law, secretly makes an agreement with the Treasury, he shall be punished just as if he had committed forgery.
(10) This Constitution, however, does not apply (as the Emperors themselves have stated in Rescripts), to those who, before undertaking the guardianship, have transacted business of this kind. For they are held to have given excuses, but not to have been guilty of fraud.
(11) The same Emperors stated in a Rescript that anyone who has not yet rendered an account of his guardianship or curatorship should not contract with the Treasury while he whose guardianship has been administered is living; but if the latter should die, he can legally contract with it, although he may not yet have rendered his account to the heir.
(12) Where, however, the guardian or curator has succeeded by hereditary right to a contract made with the Treasury, even if this occurs before an account has been rendered, I do not think that there will be ground for the infliction of a penalty; although the person whose guardianship or curatorship has been administered may still be living.
(13) The penalty for forgery, or quasi-forgery, is deportation, and confiscation of all property. When a slave commits any of these crimes, he shall be condemned to death.
2. Paulus, On Sabinus, Book III.
He who has fraudulently appropriated a will, or concealed it, or taken it by force, or erased or defaced it, or substituted another for it, or unsealed it; or anyone who has forged a will, or sealed it, or fraudulently published it; or anyone through whose fraudulent acts these things have been done, shall suffer the penalty of the Cornelian Law.
3. Ulpianus, Disputations, Book IV.
Anyone who, not knowing that a will is forged, either enters upon an estate or accepts a legacy, or acknowledges it in any way whatsoever, is not barred from declaring in court that the will is forged.
4. The Same, Disputations, Book VIII.
Where anyone who caused a legacy to be fraudulently inserted into a will for his own benefit dies, his heir can be deprived of it.
(1) Hence where a certain person, who had been appointed heir by his father, had torn up a codicil, and then died, the Divine Marcus held that the Treasury could claim the estate, to the amount to which the heir would have been deprived by the codicil; that is to say three-fourths of the estate.
5. Julianus, Digest, Book LXXXVI.
The Senate remitted the penalty in the case of a person charged with the payment of legacies who had taken them away by a codicil written in his own hand. But because this had been done by the order of his father, and he was under twenty-five years of age, he was also permitted to take the estate.
6. Africanus, Questions, Book III.
When anyone writes a bequest of a legacy to himself, he is liable to the penalty of the Cornelian Law, although the legacy is void; for it is established that he is liable who writes a bequest of a legacy to himself in a will which is afterwards broken, even if it was not legally executed in the beginning. This, however, is only true when the will is perfect, for if it should not be sealed, the better opinion is that the Decree of the Senate will not apply; just as there would be no ground for an interdict to compel the production of the will; for it is necessary, in the first place, that there should be a will of some kind, even if it was not drawn up according to law, in order for the Decree of the Senate not to be applicable. For in order that a will may be properly designated as forged, it is essential that, after the forgery has been removed from it, it still can properly be called a will. Therefore, in like manner, a will is said to be made contrary to law in which, if all the regular formalities had been observed, it could be said that it was legally executed.
(1) If the appointed heir has written the disinheritance of a son, or of any other persons, mentioning them by name, he will be liable under the Decree of the Senate.
(2) In like manner he who, with his own hand, has deprived the testator's slave of freedom, and, above all, if he is charged with the payment of legacies, or the execution of a trust, he will be liable under the Decree of the Senate.
(3) If a patron should write the bequest of a legacy in his own favor in the will of his freedman, and, after having obtained pardon for doing so, he has been ordered to relinquish the legacy, can he obtain the benefit of praetorian possession contrary to the provisions of the will? The better opinion is that he cannot do so. It does not, however, result from this that if a wife should include the bequest of her dower for her benefit in a will, or a creditor writes a bequest of what is due to him at a certain time, for his own benefit; and, in like manner, having been pardoned, they are ordered to surrender the legacies, an action for her dowry should not be refused to the woman, as well as one for his claim to the creditor, in order that neither of them may be deprived of that to which they are actually entitled.
7. Marcianus, Institutes, Book II.
Slaves cannot, under any circumstances, appear against their masters in court, as they are not considered persons by either the Civil, the Praetorian Law, or in extraordinary proceedings; except where, by way of favor, the Divine Marcus and Commodus stated in a Rescript that when a slave complains that a will in which freedom was granted him has been suppressed, he should be allowed to file an accusation for suppressing it.
8. Ulpianus, On the Duties of Proconsul, Book VII.
Anyone who scrapes gold coins, or stains them, or makes them, if he is a freeman, shall be thrown to wild beasts; if he is a slave, he shall undergo the extreme penalty.
9. The Same, On the Duties of Proconsul, Book VIII.
It is provided by the Cornelian Law that anyone who adds any alloy to gold, or who makes base silver coins, is liable to punishment for forgery.
(1) He also is liable to the same penalty who, when he was able to prevent these things, did not do so.
(2) It is provided by the same law that no one shall fraudulently purchase or sell coins made of lead, or of any other base metal.
(3) The penalty of the Cornelian Law is inflicted upon him who knowingly and fraudulently seals, or causes to be sealed, any other written instrument than a will; as well as upon anyone who, with fraudulent intent, has brought together persons for the purpose of giving false testimony, or who produces any false evidence on one side or the other.
(4) Anyone who has suborned an informer in a case in which pecuniary interests are involved is liable to the same penalty as those who have received money for the sake of causing litigation.
10. Macer, Public Prosecutions, Book I.
Nothing is provided by the Decrees of the Senate with reference to a person who has written something for the benefit of one who has control of him, or of another who is under the same control. But the law is violated also in this instance, because the profit derived from the act will belong to the father or the master, who would be entitled to it if the son or the slave had written the instrument for his own benefit.
(1) It is established that where anyone writes the bequest of a legacy for the benefit of a stranger, even though he may afterwards, during the lifetime of the testator, begin to have him under his control, there will be no ground for the application of the Decree of the Senate.
11. Marcianus, On Public Prosecutions, Book I.
If a father should write anything for the benefit of his son, who is a soldier, and under his control, and with whom he himself is serving, and he knows this to be the case, for the reason that nothing is acquired by the father, he will not be liable to punishment.
(1) Where a son had written a clause for the benefit of his mother, the Divine Brothers stated in a Rescript that as he had done this by order of the testator, he should go unpunished, and that his mother was entitled to the bequest.
12. Papinianus, Opinions, Book XIII.
Where anyone accused of fraud dies before the accusation of the crime has been filed, or judgment has been rendered, the Cornelian Law does not apply, because what was acquired by the crime is not left to the heir.
13. The Same, Opinions, Book XV.
The solemn assertion of a false name or surname is punished with the penalty of forgery.
(1) An advocate having been degraded for ten years from his rank of decurion, because he read a forged document in the presence of the Governor while hearing a case, I gave it as my opinion that he would recover his rank after the expiration of the time, as he did not come within the terms of the Cornelian Law, having read, but not drawn up a forged document. For the same reason, when a plebeian is punished with temporary exile for the same cause, he can legally be created a decurion after his return.
14. Paulus, Questions, Book XXII.
An emancipated son, while writing his father's will by the order of the latter, drew up the bequest of a legacy to a slave owned in common by himself and Titius. I ask how this question should be decided. The answer was, you have combined several questions; and under the Decree of the Senate by which we are forbidden to write the bequest of a legacy to ourselves or to those whom we have under our control, the said emancipated son will be liable to the same penalty, even though he wrote the bequest by the order of his father; for he is considered to be excused who is under the control of another, just as is the case with a slave, provided the order of the testator is evident from his signature; for I have ascertained that this was the intention of the Senate.
(1) The next question is, as it has been decided that anything that is unlawfully written is considered not to have been written at all, shall what was inserted for the benefit of a slave owned in common by the writer and another be considered as not written at all; or only that which has reference to the person who did the writing, so that the entire amount will be due to the other joint-owner? I found that Marcellus had made a note on Julianus, for as Julianus has stated, if someone inserted a clause for the benefit of Titius and himself, or for that of a slave owned in common, and it should be considered as not inserted at all, it would be very easy to ascertain how much was acquired by Titius and his joint-owner. Marcellus added that the other joint-owner would be entitled to the amount, just as if the name of the slave had been omitted on account of its being false. This rule should be observed in deciding the present question.
(2) A husband manumitted a dotal slave, and in his will inserted the bequest of a legacy to him. The question arose, what could the woman recover under the Julian Law? I answered that it must be said that the patron, as well as the emancipated son, was liable to the penalty of the Edict of the Divine Claudius, although if they should die, praetorian possession of their estates could be demanded. Hence, if the patron did not obtain anything from the estate of the freedman, he would not be liable to an action by the woman. But would he be liable for the reason that it was added in the law, "Or committed any fraudulent act to prevent it from coming into his hands"? He, however, did not commit any fraud against the woman, for merely to have formed this design was not doing anything to her disadvantage. Therefore, should we not grant an action to the woman, as the husband will be obliged to make restitution? But if he who wrote the bequest of the legacy by order of the testator had also, at the same time, by the order of the testator, entered into an agreement to deliver it to another, the Senate directed that he must, nevertheless, relinquish his legacy, and that it should remain in the hands of the heir, together with the charge of the trust.
15. Callistratus, Questions, Book I.
The Divine Claudius ordered by an Edict that the following should be added to the Cornelian Law: "If anyone, while writing the will or the codicil of another, should insert with his own hand the bequest of a legacy to himself, he shall be liable, just as if he had violated the Cornelian Law; and no pardon shall be granted to those who pretend to have been ignorant of the severity of the Edict." Not only one who has drawn up the bequest of a legacy for his own benefit, with his own hand, is considered to have done so; but also he who, through the agency of his slave, or his son who is under his control, is honored by a legacy at the dictation of the testator.
(1) It is clearly provided by the Imperial Constitutions that if a testator specifically states, over his signature, that he has dictated to a slave belonging to anyone, that a legacy should be paid the master of the latter by his own heirs, the bequest will be valid; but the general signature of the testator will not avail against the authority of the Decree of the Senate, and therefore the bequest will be considered as not having been written, and the slave who wrote it for his own benefit should be pardoned. I think, however, that it would be safer for pardon to be asked from the Emperor, of course after the parties interested have relinquished their claim to what was left to them.
(2) The Senate likewise decreed that if a slave, by the order of his master, should write the bequest of his own freedom in a will or a codicil, for the very reason that it is written with his own hand he will not become free; but freedom can be granted to him under the terms of a trust, provided that, after the writing had been done, the testator signed the will or the codicil with his own hand.
(3) And as only the kind of freedom acquired by means of a trust was embraced in this Decree of the Senate, the Divine Pius stated in a Rescript that the spirit of the Decree, rather than the letter of the same should be followed; for when slaves obey their masters, they are excused through the necessity of the power to which they are subjected; but when the authority of the master is added, he having stated over his signature that he had dictated and read what had been written, he says that it is considered to have been written by the hand of the master himself, when this had been done by his desire. This, however, should not be extended so as to include free persons over whom the testator has no right. Still, it must be ascertained whether the same necessity for obedience did not exist, and whether those who did not comply had an honorable excuse when they failed to do what was not permitted.
(4) It was decided that pardon for violating the Cornelian Law should also be granted to a mother, for whose benefit the bequest of a legacy had been written by her slave at the dictation of her son.
(5) The Senate also made the same decision with reference to a daughter who, at the dictation of her mother, through ignorance of the law, wrote a bequest to herself.
(6) If anyone, after having appointed two heirs, should add that if either one of them died without leaving children, the estate should be given to the survivor, if he had children, but if both should die without any, the estate (what follows was written in another hand) should be given to the person who wrote the will: it is held that he who wrote the will should be released from the penalty of the Cornelian Law; but it would be more beneficent to permit him to acquire what has been mentioned above.
16. Paulus, Opinions, Book III.
Answered that the offence of having purloined written instruments is not a cause for public prosecution, unless it is proved that the will of someone has been stolen.
(1) Paulus gave it as his opinion that all those who sealed any forged instrument whatsoever, with the exception of wills, were liable to the penalty of the Cornelian Law.
(2) And also others who have made false entries in registers, public documents, or anything else of the kind, without sealing them, or, in order to prevent the truth from being known, have concealed or stolen anything, or made a substitution, or unsealed a paper, there is no doubt that it is customary for them to be punished with the same penalty.
17. The Same, Trusts, Book III.
When anyone writes a bequest of a slave for his benefit, with his own hand, and is requested to manumit him, the Senate decided that he should be manumitted by all the heirs.
18. The Same, Sentences, Book III.
We are not forbidden to write a bequest for the benefit of a wife in another's will.
(1) He who appoints himself the testamentary guardian of a minor child of the testator, although he is considered liable to suspicion for the reason that he seems to have aimed at the guardianship, still, if he is approved as being suitable, he should be appointed guardian, not under the will but by a decree of the magistrate; nor should any excuse given by him be accepted, because he is held to have consented to the wishes of the testator.
19. The Same, Sentences, Book V.
Those who have struck counterfeit money, but have not seemed disposed to entirely finish it, shall be released where evidence of a true repentance has been manifested.
(1) The accusation of having introduced a supposititious child is not barred by any prescription; and it makes no difference whether the woman alleged to have made the substitution is dead, or not.
20. Hermogenianus, Epitomes of Law, Book VI.
Those also are punished with the penalty of forgery of wills who have accepted money for the purpose of causing litigation by means of legal assistance, or the production of witnesses; or have caused obligations to be contracted, or agreements to be made; or have formed an association; or have taken any measures to enable this to be done.
21. Paulus, On the Turpillian Decree of the Senate.
Anyone who has sold the same entire property to two different persons under separate contracts is punished with the penalty for forgery of wills; and this was decided by the Divine Hadrian. He also is placed in the same category who has corrupted a judge; but it is usual to punish such persons less severely, as they are relegated for a certain time, and are not deprived of their property.
22. The Same, On the Libonian Decree of the Senate.
A child under the age of puberty should not be said to come within the scope of this Edict, for he can hardly be liable for the crime of forgery, as he is not capable of criminality at that age.
(1) If a father writes a bequest for the benefit of his son, who is in the hands of the enemy, it must be said that on his return his father will be liable to the penalty of the Decree of the Senate; but if he had died in captivity, his father would have been considered innocent.
(2) If, however, he should write a bequest for the benefit of his emancipated son, he can do this legally; and the same rule applies to a son given in adoption.
(3) Likewise, if he has written one for the benefit of his slave, to whom he is in default in granting freedom under the terms of a trust, it must be said that he is not liable under the terms of the Decree of the Senate, as it is established that everything acquired by means of a slave of this kind must be delivered to him after he has been manumitted.
(4) If he has written a bequest for the benefit of a slave who is serving him in good faith, he is guilty so far as his intention is concerned; because he wrote it for the benefit of one who he thought belonged to him. But as neither a legacy nor an estate is acquired by a bona fide possessor, we hold that he should be exempt from the penalty.
(5) Where a master writes a bequest for the benefit of his slave, "when he shall become free," we say that the master is not affected by the Decree of the Senate, as he in no way had his own interests in view. The same rule applies to a son subsequently emancipated.
(6) Anyone who confirms a codicil, made before a will, in which a legacy was bequeathed to him, comes within the terms of the Decree of the Senate; as Julianus, also, has stated.
(7) A person becomes liable to the penalty by taking anything away, just as he does when he gives anything to himself; for instance, where a slave was bequeathed to him, and also was manumitted, he deprives him of his liberty with his own hands. This is the case, even if he deprives him of it in accordance with the wish of the testator, for if he is ignorant of the fact, the grant of freedom will be valid. The same rule will apply if, having been asked to pay a legacy with which he was charged, he erases the clause creating the trust!
(8) Anyone who, with his own hand, writes the assignment of a freedman, is liable, not according to the letter, but according to the spirit of the Decree of the Senate.
(9) In like manner, a slave who writes a bequest of freedom to himself, under a trust, in the will of another, is not included in the terms of the Decree of the Senate. A doubt may arise on this point, however, for (as we stated above), the Senate only remits the penalty in the case of a slave who has written a bequest of freedom for himself under a trust, in the will of his master, when the latter has stated the fact over his signature. And, indeed, there is still more reason to hold that he violates the Decree of the Senate to a greater extent than he who writes the bequest of a legacy to himself, as, under no circumstances, will he be entitled to his freedom, but he can acquire the legacy for his master.
(10) If the person who writes the will should grant freedom under a trust to his own slave, let us see whether he is not free from the penalty, as he obtains no advantage, unless he did this in order that the slave might be purchased from him at an exorbitant price, in order to be manumitted.
(11) He, also, who, when a tract of land was devised to Titius, added with his own hand, as a condition, that money should be paid to him, comes within the terms of the Decree of the Senate.
(12) He who, with the consent of his father, disinherits himself, or deprives himself of a legacy, is not liable, either according to the letter or the spirit of the Decree of the Senate.
23. The Same, On the Penalties of Civilians.
The question is asked, what is a forgery? It is held to occur where anyone imitates the handwriting of another, or omits anything from a document, or an account, when he copies it; and not where a false result is given in a calculation, or an account.
24. Scaevola, Digest, Book XXII.
Aithales, a slave, to whom freedom and a portion of his estate was left by the will of Vetitus Callinicus, his master, under the terms of a trust, with which the heirs appointed to eleven-twelfths of the estate were charged; stated to Maximilia, the daughter of the testator, who was appointed heir to a twelfth of the estate, that he could produce evidence to show that the will of Vetitus Callinicus was forged; and, having been interrogated by Maximilia before a magistrate, he declared that he would prove in what way the will had been forged. Maximilia signed an accusation of forgery against the writer of the will and Proculus, her co-heir, and the case having been heard, the Prefect of the City decided that the will was not forged, and ordered that the twelfth of the estate belonging to Maximilia should be forfeited to the Treasury. The question arose whether Aithales was entitled to his freedom, and if the trust should be executed after this decision. The answer was that, in accordance with the facts stated, this was the case.
25. Ulpianus, On the Edict, Book VII.
He who is alleged to have given forged letters in the name of the Praetor, or to have promulgated a forged Edict, is liable to a penal action in factum, even though he may have been prosecuted under the Cornelian Law.
26. Marcellus, Digest, Book XXX.
Where anyone has destroyed the will of his father, and acts as heir at law, just as if his father had died intestate, and then himself dies, it is perfectly just that the entire estate of his father should be taken from his heir.
27. Modestinus, Rules, Book VIII.
He declares that those who have given conflicting evidence between themselves are liable under the terms of the law as having committed forgery.
(1) It was also decided that he who gives false testimony against his own seal, is liable to the penalty for forgery. With reference to the impudence of a person who has testified differently in favor of two persons, and whose faith is so double and vacillating, there is no doubt whatever that he is liable for the crime of forgery.
(2) He who falsely represents himself to be a soldier, or makes use of decorations to which he is not entitled, or travels under a forged permit, should be severely dealt with, according to the nature of the offence committed.
28. The Same, Opinions, Book IV.
If an older date than the correct one is stated by a debtor in the obligation of a pledge, there will be ground for an accusation for crimen falsi.
29. The Same, On Select Cases.
Where anyone deceives the Governor of a province either by means of documents, or filing of petitions, it will be of no advantage to him; and moreover, if he is prosecuted, he must pay the penalty of his rashness, just as if he had committed forgery. There are rescripts extant on this point. It is sufficient for the sake of proof to give a single instance, which is as follows: "Alexander Augustus to Julius Maryllus. If your adversary, in the petition which he filed, did not assert what was true in the request made by him, he cannot avail himself of the instrument which he signed; and, moreover, if he is accused, he must suffer the penalty."
30. The Same, Pandects, Book XII.
He who makes or carves a false seal is liable under the Cornelian Law relating to Wills.
(1) In case of the substitution of a child, the parents alone, or those who have an interest in the matter, are entitled to bring the accusation, but none of the people can institute a public prosecution.
31. Callistratus, On Judicial Inquiries, Book III.
The Divine Pius stated in a Rescript addressed to Claudius: "Any persons who introduce instruments into court which cannot be proved shall be punished according to the nature of each offence; or, if they seem to have deserved a more serious penalty than can be imposed upon them under this jurisdiction, the facts may be stated to the Emperor, in order that he may determine what punishment shall be inflicted upon them." The Emperor Marcus, along with his Brother, however, influenced by feelings of humanity, mitigated this punishment; so that if, (as frequently happens), such documents should be produced by mistake, those who did anything of this kind may be pardoned.
32. Modestinus, On Punishments, Book I.
At present, those who fraudulently alter any Edicts which have been promulgated are punished with the penalty of forgery.
(1) If a vendor or a purchaser changes any measures used for wine, grain, or anything of this kind which have been publicly approved, or, with malicious intent, commits any other fraudulent act, he shall be condemned to pay double the value of the property; and it was provided by a Decree of the Divine Hadrian that those who used false weights or measures should be relegated to an island.
33. The Same, On Punishments, Book III.
If anyone should make use of forged constitutions, without giving any authority for doing so, he will be forbidden the use of water and fire under the Cornelian Law.
Tit. 11. Concerning the Julian law on extortion.
1. Marcianus, Institutes, Book XIV.
The Julian Law on Extortion has reference to money received by someone who holds the position of magistrate, or who is invested with some degree of power, or administration, or with the office of Deputy, or any other public employment or occupation whatsoever; and also applies to the attendants of the above-mentioned dignitaries.
(1) The law excepts those from whom it is permitted to receive money, for instance, from cousins, from near relatives, and from a wife.
2. Scaevola, Rules, Book IV.
Under this law, an action is granted against heirs, but only within a year after the death of the person who was accused.
3. Macer, Public Prosecutions, Book I.
He is liable under the Julian Law relating to Extortion who, while invested with any authority, accepts money for rendering a judgment or decree;
4. Venuleius Saturninus, Public Prosecutions, Book III.
Or for doing more or less than he was obliged to do in the performance of his official duty.
5. Macer, Public Prosecutions, Book I.
The attendants of judges can also be prosecuted under this law.
6. Venuleius Saturninus, Public Prosecutions, Book I.
Those are liable under the same law who receive money either for testifying, or for not testifying.
(1) He who is convicted under this law is forbidden to testify in public, or to be a judge, or to prosecute a crime.
(2) It is provided by the Julian Law relating to Extortion that: "No one shall take money for the purpose of enlisting or discharging a soldier, nor shall anyone accept money for giving his opinion in the Senate or in a public council, or to accuse, or not to accuse anyone; and city magistrates must abstain from all kinds of corruption, and not receive in gifts or presents more than a hundred aurei during the entire year."
7. Macer, Public Prosecutions, Book I.
The Julian Law on Extortion prescribes that: "No one shall receive anything as an inducement to render a judgment or a decree, or for changing his opinion; or to prevent him from rendering a decision; or to throw a person into prison, or put him in chains; or order him to be chained, or delivered from his chains; or to convict or acquit a man; or to appraise the amount of a judgment; or to sentence anyone to a capital or a pecuniary penalty, or to refrain from doing so."
(1) It is, however, apparent that the law permits all those, excepting such as have been excepted, to receive money without limit; but those enumerated in this Section are not allowed to receive anything from anybody.
(2) It is also provided: "That no public work which is to be constructed shall be accepted as completed, nor any public provisions which are to be distributed held to be transferred or obtained, nor any buildings considered as repaired, before they have been finished, accepted, and delivered according to law."
(3) Persons guilty of extortion are at present arbitrarily dealt with by the law, and they are generally punished with exile, or even more severely, according to the crime which they have committed. What, however, should be done if they accept money as a reward for killing a man? Or even if they do not accept it, but, impelled by rage, they kill an innocent person, or one whom they should not punish? They should undergo a capital penalty, or be deported to an island, as indeed most of them are.
8. Paulus, On the Edict, Book LIV.
When anything is donated to a Proconsul or a Praetor, in violation of the law on extortion, he cannot acquire it by usucaption.
(1) The same law provides that: "Sales or leases made for a greater or a less price than is just are for this reason void, and usucaption is prevented before the property comes into the hands of him who had it, or his heir."
9. Papinianus, Opinions, Book XV.
Those who, in consideration of money paid to them, relinquish a public employment, are criminally prosecuted for extortion.
Tit. 12. Concerning the Julian law on provisions.
1. Marcianus, Institutes, Book II.
A criminal action can be brought by a slave against his master, if the former alleges that his master has committed fraud with reference to provisions belonging to the public.
2. Ulpianus, On the Duties of Proconsul, Book IX.
By the Julian Law relating to Provisions a penalty is prescribed against him who commits any act, or forms any association by means of which the price of provisions may be increased.
(1) It is provided by the saine law that no one shall detain a ship or a sailor, or maliciously commit any act by which delay may be caused.
(2) The penalty prescribed is a fine of twenty aurei.
3. Papirius Justus, On the Constitutions, Book I.
The Emperors Antoninus and Verus stated in a Rescript: "It is anything but just for decurions to sell grain to their fellow citizens at a lower price than the supply of provisions requires."
(1) They likewise asserted that the magistrates of any city had no right to fix the price of grain which was imported.
(2) They also stated the following in a Rescript: "Although it is not customary for women to give this kind of information, still, if you promise that you can furnish information which will be to the benefit of the Department of Subsistence, you can communicate it to the prefect of that branch of the public service."
Tit. 13. Concerning the Julian law relating to peculation, sacrilege, and balances.
1. Ulpianus, On Sabinus, Book XLIV.
It is provided by the Julian Law on Peculation, that: "No one shall intercept, or appropriate for his own use, or do anything, by means of which another can remove, intercept, or employ for his own benefit, any money derived from sacred, religious, or public sources, unless he is authorized to do so by law; and no one shall add to, or mix anything with, gold, silver, or copper belonging to the government; or knowingly and fraudulently commit any act by means of which anything may be added to, or mixed with, the same, through which its value may be diminished."
2. Paulus, On Sabinus, Book XI.
He is liable under the Julian Law relating to Balances who retains any public money destined for a certain use, and does not employ it for that purpose.
3. Ulpianus, On Adultery, Book I.
The penalty for peculation originally was the interdiction of water and fire, for which, at present, deportation has been substituted. Moreover, anyone who is placed in this position loses not only all his former rights but also his property.
4. Marcianus, Institutes, Book XIV.
He is liable under the Julian Law relating to Peculation who removes or appropriates any money destined for sacred or religious purposes.
(1) He is also liable to the penalty for peculation who abstracts anything which has been donated to Immortal God.
(2) Moreover, it is provided by the Imperial Mandates relating to sacrilege that the Governors of provinces shall search for all sacrilegious persons, robbers, and kidnappers, and punish them according to the gravity of their offences; and it is provided by the Imperial Constitutions that sacrilege shall be punished arbitrarily, by a penalty proportioned to the crime.
(3) He is liable under the Julian Law relating to Balances who retains in his hands any public money received from leases or purchases, the disposal of provisions or of anything else.
(4) Moreover, he who has received public money destined for any purpose, and retains it, and does not employ it for that purpose, is liable under this law.
(5) Anyone convicted under this law is punishable by a fine of a third more than what he owes.
(6) A place does not become religious in which a treasure is found; for, even though it may be found in a tomb, it is not seized as being religious. For what anyone is forbidden to inter cannot render a place religious, and money cannot be buried, as is provided by the Imperial Mandates,
(7) But when any public property is stolen, it is provided by the Constitutions of the Emperors Trajan and Hadrian that the crime of peculation is committed. This is the present practice.
5. The Same, Rides, Book IV.
The Divine Severus and Antoninus stated in a Rescript addressed to Cassius Festus that if the property of private individuals deposited in a temple should be stolen, an action for theft, and not one for sacrilege should be brought.
6. Ulpianus, On the Duties of Proconsul, Book VII.
The Proconsul should inflict the penalty for sacrilege either with greater or less severity or clemency, in accordance with the rank and condition of the culprit, taking into consideration the time, as well as his or her age and sex. I know that several magistrates have sentenced persons guilty of sacrilege to be thrown to wild beasts, others to be burned alive, and still others to be hanged on a gallows. The penalty, however, should be regulated by having those thrown to wild beasts who, with an armed band, have broken into a temple, and carried away the gifts of the gods by night; but where a person takes something of trifling value from a temple, he should be punished by being sentenced to the mines, or if he was born in a superior position, he should be deported to an island.
(1) Those who make public money, or stamp it with a public die, and manufacture it for themselves outside of the mint, or steal it after it has been stamped, are not considered to have counterfeited it, but as having committed a theft of the common coin which resembles the crime of peculation.
(2) If anyone should steal any gold or silver belonging to the State, he shall, according to an Edict of the Divine Pius, be punished with exile, or sentenced to the mines according to his rank. Anyone who lends his stamp to a thief is considered to have been convicted of manifest theft, and becomes infamous. He who has unlawfully extracted gold from a mine, and melted it, is condemned to quadruple damages.
7. Venuleius Saturninus, Public Prosecutions, Book II.
The crime of peculation cannot be prosecuted after the lapse of five years.
8. The Same, Public Prosecutions, Book III.
Anyone who removes the brazen tablet of the law containing the boundaries of fields or anything else, or changes it in any way, is liable under the Julian Law relating to Peculation.
(1) He who erases anything from the public registers, or inserts anything therein, is liable under this law.
9. Paulus, On Public Prosecutions.
Persons convicted of sacrilege shall be punished with death.
(1) Persons guilty of sacrilege are such as purloin sacred articles belonging to the public. Those who appropriate sacred property belonging to persons, or chapels which are unguarded, deserve a more severe penalty than thieves, and a less severe one than sacrilegious persons. Therefore, careful consideration should be given to what is sacred, and to any acts which may be included in the crime of sacrilege.
(2) Labeo, in the Thirty-eighth Book of his Last Works, defines peculation to be the theft of public or sacred money, not made by him at whose risk it was at the time; and therefore the guardian of a temple, to whom property of this kind has been entrusted, does not commit peculation.
(3) In the same chapter, lower down, he says that not only the appropriation of public money, but also that of money belonging to private individuals, constitutes the offence of peculation, when anyone receives funds due to the Treasury pretending that he is the creditor of the latter; even though he may have taken, as his own, money belonging to a private person.
(4) He, also, who receives money for the purpose of transportation, or anyone else who assumes responsibility for money, does not commit peculation.
(5) The Senate ordered that those should be liable under the law against peculation who, without the order of the official in charge, permitted the examination and copying of public registers.
(6) He, also, who retains any public money destined for a certain use and does not employ it for that purpose is liable under this law; so Labeo says in the Thirty-eighth Book of his Last Works. Anyone who, departing from the province where he has held office, renders an account to the Treasury of the money remaining in his hands, and holds it, is not liable to an action to recover the balance, for the reason that he is a private individual indebted to the Treasury, and therefore should be classed among debtors; and he who is invested with authority can collect it from him, either by seizing his property, arresting him, or imposing a fine; but the Julian Law orders that, after the lapse of a year, this money shall be classed as a balance due.
10. Marcianus, Public Prosecutions, Book I.
He is liable under this law who enters upon the public registers a smaller amount than the proceeds of a sale or a lease, or who commits any other offence of this kind.
(1) The Divine Severus and Antoninus, having ascertained that a young man of very illustrious lineage had a small chest placed in a temple, and, after the temple was closed, emerged out of the chest and stole many things belonging to the temple, and afterwards again shut himself up in the chest, deported him to an island, after his conviction.
11. Ulpianus, On the Edict, Book LXVIII.
Anyone who perforates the wall of a temple, or steals anything by this means, is liable to the action for peculation.
(1) Whoever enters a sanctuary by day or by night, and removes any sacred property therefrom, shall be blinded; and anyone who removes anything outside the sanctuary or any other part of the temple shall be scourged, have his head shaved and be sent into exile.
12. Marcellus, Digest, Book XXV.
I am by no means guilty of peculation if I collect money from someone who is indebted to me as well as to the Treasury; for the money which I receive from the debtor of the Treasury is not misappropriated by me, because he still remains indebted to the Treasury.
13. Modestinus, On Punishments, Book II.
He who steals booty taken from the enemy is liable under the law relating to peculation, and shall be sentenced to pay quadruple damages.
14. Papinianus, Questions, Book XXXVI.
Public prosecutions for peculation, as well as those for appropriating balances, and for extortion, can also be brought against an heir; and this is not unreasonable, as the principle question involved has reference to the stolen money.
Tit. 14. Concerning the Julian law wlth reference to the unlawful seeking of office.
1. Modestinus, On Punishments, Book II.
This law is not at present in force at Rome, because the creation of magistrates is part of the duty of the Emperor, and does not depend upon the favor of the people.
(1) If anyone in a municipality should violate this law by soliciting either a political or a sacerdotal office, he is by a Decree of the Senate punished by a fine of a hundred aurei, and infamy.
(2) If anyone condemned under this law convicts another, he shall be entirely restored to his rights, but his money will not be returned.
(3) Likewise, he who establishes a new tax is liable to this penalty by the Decree of the Senate.
(4) If either an accused person, or an accuser, enters the house of his judge, he commits an unlawful act according to the Julian Law relating to Judges; that is to say, he will be ordered to pay a hundred aurei to the Treasury.
Tit. 15. Concerning the Favian law with reference to kidnappers.
1. Ulpianus, Rules, Book I.
Anyone who knowingly purchases a freeman incurs liability for a capital offence under the Favian Law against kidnapping; and the vendor also can be prosecuted under it if he sold the man being aware that he was free.
2. The Same, On the Duties of Proconsul, Book IX.
It must be remembered that the Favian Law does not relate to those who, having in their hands absent slaves, sell them; for it is one thing to be absent, and another to be in flight.
(1) Again, it does not apply to a person who has ordered his fugitive slave to be pursued and sold; for he did not sell a fugitive slave.
(2) It can further be said that if anyone orders Titius to arrest a fugitive slave, and, if he should do so, to hold him as purchased, the Decree of the Senate does not apply. Masters who have sold their slaves when in flight are also liable under this Decree of the Senate.
3. Marcianus, Public Prosecutions, Book I.
A bona fide possessor is not liable to the penalty imposed by the Favian Law for having wrongfully withheld a slave; that is to say, if he did not know that the slave belonged to another, or if he thought that he acted with the consent of his master. And the law itself is framed in this way with reference to a bona fide possessor, for there is added, "If he did this knowingly and fraudulently." It has very frequently been decided by the Emperors Severus and Antoninus that bona fide possessors are not liable under this law.
(1) It should not be forgotten that, as under the Aquilian Law, if the person on whose account the Favian Law was violated should die, the accusation and the penalty prescribed by the Favian Law will continue to exist, as the Divine Severus and Antoninus stated in a Rescript.
4. Gaius, On the Provincial Edict, Book XXII.
He is liable under the Favian Law who either donates, or gives by way of dowry, a man whom he knows to be free; likewise, anyone who, knowing a man to be free, accepts him under such circumstances, should be included in the same class to which a vendor and a purchaser belong. The same rule will apply where property is given in exchange for such a man.
5. Modestinus, Opinions, Book XVII.
Gave it as his opinion that he who is alleged to have received a fugitive slave belonging to another, and to have concealed him, even if he asserts that he is his property, can, by no means, escape the penalty, if he is proved to be guilty.
6. Callistratus, On Judicial Inquiries, Book VI.
He does not forthwith become a kidnapper who is guilty of theft, on the ground of withholding slaves belonging to another, for the Divine Hadrian stated in a Rescript: "He who has solicited or appropriated the slaves of another gives rise to the question whether he is, or is not liable for the crime of kidnapping, of which he is accused; and therefore it is not necessary to consult me on this point. The judge, however, in a case of this kind must decide what he knows to be perfectly true, for it is evident that he must be aware that a person can be guilty of the crime of theft with reference to slaves taken from others, and not necessarily for that reason, be considered guilty of kidnapping."
(1) The same Emperor stated in a Rescript with reference to the same matter: "Where one or more fugitive slaves is found in the possession of anyone who has hired their services in consideration of their maintenance, and the said slaves had previously performed labor for others, no one can properly say that the above-mentioned person has appropriated them."
(2) It is provided by the Favian Law that: "A freeman who conceals one who is freeborn or a freedman, against his will; or has kept him in fetters, and has knowingly and fraudulently purchased him; or has been associated with anyone in a transaction of this kind; or has persuaded the male or female slave of another to run away from his or her master or mistress; or has concealed such a slave without the knowledge or consent of his or her master or mistress; or has kept him or her chained; or knowingly and fraudulently has purchased the slave, or has been implicated in any of these crimes, shall suffer the penalty of the law."
7. Hermogenianus, Epitomes of Law, Book VI.
The pecuniary penalty prescribed by the Favian Law has now ceased to be imposed; for those who are convicted of this crime are punished in proportion to its gravity, and are usually sentenced to the mines.
Tit. 16. Concerning the Turpillian Decree of the Senate and the dismissal of charges.
1. Marcianus, On the Turpillian Decree of the Senate.
The recklessness of accusers is detected in three ways, and is punished by three penalties; for they either calumniate, prevaricate, or withdraw.
(1) To calumniate is to bring false accusations. To prevaricate is to conceal true crimes. To withdraw is to entirely abandon a charge.
(2) Punishment is inflicted upon calumniators by the Remmian Law.
(3) He who does not prove what he alleges is not immediately considered to be a calumniator, for the investigation of the offence is left to the judge, having jurisdiction of the case; who, if the defendant is acquitted, begins to inquire into the intention of the accuser, and why he was induced to bring the accusation; and if he finds this was due to a just mistake, he must discharge him. If, however, he should ascertain that he evidently has been guilty of calumny, he must inflict upon him the penalty of the law.
(4) The decision of either of these points is disclosed by the words of the judgment. For if it is as follows, "You have not proved your allegations," he spares the defendant; but ff he says, "You are guilty of calumny," he condemns him; and even though he may add nothing with reference to the penalty, still the power of the law will be enforced against him. For (as Papinianus held), the question of fact depends upon the discretion of the court, but the infliction of the punishment is not left to his will, but is reserved for the authority of the law.
(5) It may be asked, if the judge should make the following statement, "Lucius Titius appears to have brought a rash accusation," should he be considered to have pronounced him a calumniator? Papinianus says that rashness affords a ground for pardon, and that unrestrained anger lacks the vice of calumny, and on this account no penalty need be incurred.
(6) We have shown him to be a prevaricator who is in collusion with the defendant, and who relinquishes his post as accuser, in order that he may conceal his evidence, and permit the false excuses of the defendant to be advanced.
(7) If, however, anyone desists from prosecuting the accusation without having it dismissed, he is punished.
(8) The dismissal of a case is usually asked for, and granted by the Governors of provinces. The application for it is made to the magistrate while presiding in court, and not elsewhere; and if he is present he cannot leave the investigation to another.
(9) If one person has accused the same individual of several offences, he should apply for the dismissal of each of them, otherwise he will suffer the penalty prescribed by the Decree of the Senate for each offence omitted.
(10) He who brings an accusation which can be barred by prescription, as, for instance, that of adultery, when five continuous years have elapsed since its commission by the man, or after six available months from the day of the divorce, in case of the woman; can there be any doubt whatever that, if he desists, he should be punished under this Decree of the Senate? A difficulty arises here for the reason that this accusation almost becomes of no effect when a period of time, or some defect in the person exists, which will render the defendant secure from fear and danger. On the other hand, when an accusation has once been brought, it cannot be dismissed at the wish of the accuser, but this must be done by the authority of the magistrate having cognizance of the case, and he is considered to be more worthy of odium who rashly brings such a disgraceful charge. Therefore, the better opinion is that he, also, of whom we spoke, should come within the terms of the Decree of the Senate. Papinianus, however, gives it as his opinion that if a woman who was not competent to bring an accusation of forgery, because she was not prosecuting an injury inflicted upon herself, or her family, should desist, she ought not be punished under the Turpillian Decree of the Senate. Would he have given the same opinion in other cases? For what difference does it make if an accusation is not permitted to be brought on account of the weakness of sex; the baseness of one's condition; or the lapse of time? There is much more reason that persons should be exempt from punishment under such circumstances, because the accusation of the woman can at least be effective on account of her own injury, while the accusation of the others is nothing but the sound of a voice. However, the same authority has stated elsewhere that no one can accuse both persons, that is the man and the woman, of adultery at the same time; and still, if he did accuse both of them simultaneously, he should ask for the dismissal of the case against both, in order to avoid becoming liable under this Decree of the Senate. Moreover, what difference will it make if the accusation should prove to be void, for the reasons above mentioned, or if it could not stand on account of the number accused? Or if there is some distinction to be made where anyone has full power to bring an accusation, but is prevented from doing so because of the joinder of the two individuals; or he is not qualified to accuse them according to the strict construction of the law? Hence it is reasonable to hold that all persons (with the exception of women and minors), when they do not ask for a dismissal of the case, will come within the scope of this Decree of the Senate.
(11) The accusation of a suspected guardian can only be heard in open court, and no one but the Governor of the province can render a decision in such a case; and, nevertheless, anyone who desists from prosecution will not incur the penalty of the Decree of the Senate.
(12) Likewise, where anyone is accused of having incurred the penalty of the Turpillian Decree of the Senate, it is the duty of the Governor of the province to take cognizance of the matter; and the penalty of the Decree of the Senate will not be enforced against the party who abandons the charge, for he who says that someone has incurred the penalty of this Decree of the Senate is not an accuser.
(13) He comes within the terms of this decree who provides an accuser, or instigates, directs, or induces anyone to bring a capital accusation, by furnishing evidence, and by formulating charges. This is reasonable, for by failing to prove the accusation which he was instrumental in having brought, and by attempting to free himself from the danger of calumny by abandoning the case, he should certainly be subjected to punishment for those offences; unless the accuser, who had been suborned, can prove the crime which he undertook to establish. Nor does it make any difference whether he brought the charge himself, or directed it to be brought by another. Papinianus gave it as his opinion that if it was true that anyone had used means of this kind for the bringing of an accusation, he should be punished, not according to the letter, but according to the spirit of the law; for the accuser who took the place of the person who employed him is liable under the same Decree of the Senate; that is to say, he is punished for that alone which he did as the agent of another, who himself was afraid to act.
(14) A defendant who had been convicted, appealed, and his accuser afterwards desisted; did he come within the terms of the Decree of the Senate? He seems to have very nearly done so, because by the remedy of the appeal the decision of conviction was extinguished.
2. Paulus, On the Penalties of All Laws.
Anyone who desists from prosecuting a crime is prevented from subsequently bringing an accusation.
3. The Same, Sentences, Book I.
And even in the cases of accusation for private and ordinary breaches of the law, all calumniators are arbitrarily punished in proportion to the gravity of the offences committed.
4. Papinianus, Opinions, Book XV.
A woman who institutes a prosecution for forgery, as an injury to herself, and, having desisted, abandons it, is not considered to have incurred the penalty of the Turpillian Decree of the Senate.
(1) After a case has been dismissed, the same charge cannot again be brought by the same accuser against the same defendant.
5. Paulus, Opinions, Book II.
Where a man presented a petition to the Emperor and threatened to bring an accusation for forgery, but did not do so, the question arose whether he was liable to the penalty imposed by the Turpillian Decree of the Senate? Paulus answered that the party in question was not included in the terms of the Turpillian Decree of the Senate.
6. The Same, Sentences, Book I.
He has desisted from the accusation who has spoken with his adversary with reference to the disposal of the criminal charge which he had attempted to prosecute.
(1) He intentionally abandons an accusation who renounces the desire and intention of bringing it.
(2) He is held to have desisted, who does not prosecute the defendant within the time prescribed by the Governor to prove the charge.
(3) Those who serve notice in writing of their intention to prosecute are ordered to substantiate their allegations by the production of the notices.
(4) Those are punished for false accusations who, for the purpose of injuring another, are alleged to have searched for, written, or produced in court any book or other evidence to his prejudice.
7. Ulpianus, Disputations, Book VIII.
If anyone should wish to revive a criminal accusation after it has been publicly dismissed, he can do so with the same right which he had when he first brought it; for prescriptions cannot legally be pleaded against him which were not pleaded before the discharge of the defendants. This the Divine Hadrian stated in a Rescript.
(1) Where anyone brings an accusation for stellionatus, or for the crime of plundering an estate, and then desists, he will not be subjected to the penalty of the Turpillian Decree of the Senate, even if theft or injury is involved, but his fault will be punished by the judge.
8. Papinianus, On Adultery, Book II.
The dismissal of a criminal case is either made publicly on account of some memorable occasion, or because of some public rejoicing,
9. Macer, Public Prosecutions, Book II.
Or by reason of the fortunate result of some transaction,
10. Papinianus, On Adultery, Book II.
Or privately, at the request of the accuser. There is a third kind of dismissal made in accordance with law, that is, when the accuser dies, or is prevented by some good reason from bringing the accusation.
(1) When a dismissal is made in accordance with a public decree, the husband, in bringing the charge a second time, will not forfeit any of his rights.
(2) The Divine Hadrian stated that the thirty days prescribed for reviving an accusation should be understood to be available days, that is to say they should be computed from the date on which the festivals terminated. The Senate decreed that these days began at the time when anyone could resume the prosecution of the defendant. This time to revive the case does not begin to run except where the accuser can institute proceedings.
11. The Same, On Adultery.
The question was asked whether those who had been excluded from bringing an accusation by lapse of time come within the scope of the Turpillian Decree of the Senate. The answer was that there is no doubt that persons who are prevented by prescription from bringing a charge of adultery can be punished for calumny.
12. Ulpianus, On Adultery, Book II.
Where a public dismissal of a criminal case has occurred under the Decree of the Senate, as ordinarily happens; or on account of some public rejoicing; or to honor the Imperial House; or for some reason for. which the Senate decreed that the defendants should be discharged, and the accuser did not renew the accusation within the prescribed time, it must be said that the Turpillian Decree of the Senate does not apply, for he is not held to desist who does not accuse a person that is exempt from criminal liability. He, however, becomes exempt from prosecution by the discharge of the defendants.
13. Paulus, On Adultery, Book III.
We understand a person to have desisted who has entirely abandoned the intention of prosecuting, and not he who has only postponed the accusation. Anyone who, by permission of the Emperor, desists from prosecuting a criminal charge, is not liable to punishment.
14. Ulpianus, On the Duties of Proconsul, Book VII.
The Divine Hadrian stated in a Rescript addressed to Salvius Carus, Proconsul of Crete, that where a guardian had filed an accusation in the name of his ward, and the latter, in whose behalf he had filed it, had died, he should not be compelled to proceed with the accusation.
15. Macer, Public Prosecutions, Book II.
Those come within the scope of the Turpillian Decree of the Senate who substitute accusers in their places; or who, having done so, bring the accusation without prosecuting the defendants; or desist from the prosecution in some other manner than by the dismissal of the case, as well as such as have filed some written document, or have entered into some agreement for the purpose of accusing another. It must be said that these words, "Bring the accusation without prosecuting the defendants," are applicable to all the persons above mentioned.
(1) The question arises whether the Decree of the Senate applies to those who, at present, have extraordinary jurisdiction of public offences. The present law, based upon the Imperial Constitutions, is that it does apply; hence each penalty will be imposed in each individual case.
(2) If those who are not permitted to bring an accusation for calumny desist, they will not be liable to the penalty of this Decree of the Senate. This has been provided by the Constitutions.
(3) If, on account of the death of the defendant, the accuser should desist, he cannot be held liable under this Decree of the Senate; because the prosecution is extinguished by the death of the accused, unless the crime is such that its prosecution can be continued against the heirs, as, for instance, that of high treason. The same rule applies where an accusation is brought for extortion, because this also is not extinguished by death.
(4) Moreover, if the defendant should die after the accuser has desisted from the prosecution, the offence of the accuser will not, for this reason, be lessened. For if he who has once desisted should afterwards be ready to renew the accusation, Severus and Antoninus have decreed that he shall not be heard.
(5) Those who, after having filed a written accusation, have permitted one or two years to elapse, for the reason that they could not prosecute on account of their various occupations as Governors, or because they were prevented by the requirements of civil office, do not come within the terms of the Decree of the Senate.
(6) If anyone has accused a person in the first place, and, after the case has been dismissed, but before the defendant is again accused, a second dismissal should occur, the thirty days should be computed, not from the first, but from the second dismissal of the case.
16. Paulus, On Adultery.
Domitian stated in a Rescript that what is provided with reference to festivals, and the discharge of defendants, does not apply to slaves who, having been accused, are ordered to be placed in chains until the case is decided.
17. Modestinus, Opinions, Book XVII.
Lucius Titius accused Seius of forgery, and before he prosecuted him, the accusations of all defendants were dismissed by the indulgence of the Emperor. I ask, if the prosecution should not afterwards be resumed whether the accuser would be subject to the penalty of the Turpillian Decree of the Senate. Herennius Modestinus answered that the discharge of defendants, granted by public favor, does not apply to this kind of crime.
18. Papirius Justus, On the Constitutions, Book I.
The Emperors Antoninus and Verus stated in a Rescript to Julius Verus that, as the case had been continued for a considerable time, the latter could not obtain its dismissal against the consent of his adversaries.
(1) They also stated in a Rescript that, unless it was clearly proved that the adversary had given his consent, dismissal should not be granted.
(2) They also stated in a Rescript that, where the dismissal of an accusation for a capital crime had been applied for, as in a case involving a sum of money, the prosecution might, nevertheless, be renewed; so that if the complainant could not prove what he alleged he should not go unpunished.
Tit. 17. Concerning the conviction of persons who are sought for or are absent.
1. Marcianus, Public Prosecutions, Book II.
The Divine Severus and Antoninus stated in a Rescript that no one who is absent should be punished, and it is the present law that absent persons shall not be condemned; for the rule of equity does not suffer anyone to be convicted without being heard.
(1) If anyone is liable to severe punishment, for instance, if he may be condemned to labor in the mines, or to a similar penalty, or to a capital one, in this case the penalty must not be inflicted upon an absent person, but anyone who is absent and is sought for is recorded as being present.
(2) The Governors of provinces should follow this course with reference to defendants who are sought for, and noted as being present ; namely, they should order them by Edicts to appear in order that those who have been mentioned as being present should become aware of the fact. They should also write to magistrates where the parties live, in order that, by their agency, those who are being sought for may ascertain that they have been recorded as being present.
(3) A year is computed from this date to enable them to purge themselves of contempt.
(4) And even Papinianus, in the Sixteenth Book of Opinions, says that he who is sought for, and noted as being present, must appear before the Governor of the province within twelve months, and furnish security; and that there is no reason to order that his property shall be confiscated to the Treasury, for if he should die within the year, the accusation of the crime will be extinguished, and come to an end, and the property of the party accused will be transmitted to his successors.
2. Macer, On Public Prosecutions, Book II.
The term of a year is fixed for the purpose of seizing the property of anyone who is sought for and noted as being present.
(1) If, however, the Treasury does not seize his property for twenty years, it will be barred from doing so subsequently, if prescription should be pleaded either by the defendant himself, or by his heirs.
3. Marcianus, On Public Prosecutions, Book II.
Any claim made by the Treasury is prescribed by a silence of twenty years, when there is no other prescription, as was established by the Divine Emperors.
4. Macer, On Public Prosecutions, Book II.
The year is computed from the time when the notification was publicly made, either by means of an Edict or by letters sent to the magistrate.
(1) Therefore, the term of twenty years is reckoned for the Treasury, from the moment when the notice was published.
(2) In a word, it should be remembered that he who is sought for and notified is not barred from undertaking his defence by any prescription of time.
5. Modestinus, Pandects, Book XII.
It is provided by the Imperial Mandates that the property of persons who are sought for shall be sealed up during the year, and if they return, and offer proper excuses, they shall have it restored to them. If, however, they do not answer, and no one appears to defend them, after a year has elapsed, their property shall be confiscated to the Treasury.
(1) And, during the intermediate year, any movable property belonging to them may be sold, in order to prevent it being spoiled by delay, or destroyed, and the proceeds thereof shall be deposited; as authorized by the Divine Severus and Antoninus.
(2) The Divine Trajan stated in a Rescript that crops also are considered movable property.
(3) Care, however, should be taken that the fugitive shall, in the meantime, be paid nothing by his debtors, lest by this means his flight may be aided.
Tit. 18. Concerning torture.
1. Ulpianus, On the Duties of Proconsul, Book VIII.
It is customary for torture to be applied for the purpose of detecting crime. Let us see when, and to what extent, this should be done. A beginning ought not to be made by the actual infliction of the question, and the Divine Augustus decided that confidence should not unreservedly be placed in torture.
(1) This is also contained in a letter of the Divine Hadrian addressed to Sennius Sabinus. The terms of the Rescript are as follows: "Slaves are to be subjected to torture only when the accused is suspected, and proof is so far obtained by other evidence that the confession of the slaves alone seems to be lacking."
(2) The Divine Hadrian also stated the same thing in a Rescript to Claudius Quartinus, and in this Rescript he decided that a beginning should be made with the person who was most suspected, and from whom the judge believed that the truth could most easily be ascertained.
(3) Those whom the accuser produces from his own house should not be tortured, for it is not easy to believe that a substitution has been made for one whom both parents consider their dear daughter; as is stated in a Rescript of the Divine Brothers addressed to Lucius Tiberianus.
(4) They also stated in a Rescript to Cornelius Proculus, that confidence should not be reposed in the torture of a single slave, but that the case should be investigated after the evidence has been given.
(5) The Divine Antoninus and the Divine Hadrian stated in a Rescript to Sennius Sabinus that where it was alleged that slaves, in company with their master, had carried away gold and silver, they should not be interrogated against their master, and not even anything which they may have said when not under torture will prejudice him.
(6) The Divine Brothers stated in a Rescript addressed to Lelianus Longinus that torture should not be applied to a slave belonging to the heirs, to obtain information with reference to the estate, even though it was suspected that the heir had obtained the ownership of the property by means of a fictitious sale.
(7) It has frequently been stated in Rescripts that a slave belonging to a municipality can be tortured when citizens are accused, because he is not their slave, but the slave of the community. The same thing should be stated with reference to the slaves of other corporations, for a slave is not considered to belong to several masters, but to the corporate body.
(8) When a slave is serving me in good faith, even though I do not have the ownership of him, it may be said that he can not be tortured to obtain evidence against me. The same rule applies to a freeman who is serving in good faith as a slave.
(9) It has also been established that a freedman cannot be tortured in a case where his patron is accused of a capital crime.
(10) Our Emperor, together with his Divine Father, stated in a Rescript that one brother could not be put to the question on account of another; and added as the reason that he should not be tortured to obtain evidence to implicate one against whom he could not be compelled to testify, if he was unwilling to do so.
(11) The Divine Trajan stated in a Rescript to Servius Quartus that the slave of a husband could be tortured to obtain evidence to convict his wife.
(12) He also stated in a Rescript to Mummius Lollianus that the slaves of a person who had been convicted could be tortured to obtain evidence against him, because they had ceased to be his.
(13) When a slave has been manumitted to prevent him from being put to torture, the Divine Pius stated in a Rescript that he could be tortured, provided this was not done to obtain evidence against his master.
(14) But where a slave belonged to another at the time when the investigation was begun, but afterwards became the property of the defendant, the Divine Brothers stated in a Rescript that he could, nevertheless, be tortured in the case in which his master was involved.
(15) If anyone should allege that a slave has been purchased at a sale which was void, he cannot be tortured before it has been established that the sale was not valid. This our Emperor, with his Divine Father, stated in a Rescript.
(16) Severus also stated in a Rescript to Spicius Antigonus: "As the torture of slaves should not be inflicted against their masters, and, if this has been done, as it cannot be used to influence the decision of the judge about to render it, still less should the statements of slaves against their masters be admitted."
(17) The Divine Severus stated in a Rescript, that the confessions of accused persons should not be considered as proofs of crime, if no other evidence is offered to influence the sense of duty of the judge who is to decide the case.
(18) When anyone is ready to deposit the price of a slave, in order that he may be tortured to give evidence against his master, our Emperor, with his Divine Father, did not permit this to be done.
(19) Where slaves are tortured as accomplices in a crime, and they confess something in court which involves their master, the Emperor Trajan stated in a Rescript that the judge should render his decision as circumstances demand. It is shown by this Rescript that masters can be implicated by the confessions of their slaves, but more recent constitutions indicate that it is no longer in force.
(20) When tributes, which no one doubts are the sinews of the republic, are concerned, consideration of the danger which menaces with capital punishment a slave who is the accomplice of a fraud should cause his statements to be rejected.
(21) The magistrate in charge of the torture ought not directly to put the interrogation whether Lucius Titius committed the homicide, but he should ask in general terms who did it; for the other way rather seems to suggest an answer than to ask for one. This the Divine Trajan stated in a Rescript.
(22) The Divine Hadrian stated the following in a Rescript addressed to Calpurnius Celerianus: "Agricola, the slave of Pompeius Valens, may be interrogated concerning himself; but if, while undergoing torture, he should say anything more, it will be considered as proof against the defendant, and not the fault of him who asked the question."
(23) It was declared by the Imperial Constitutions that while confidence should not always be reposed in torture, it ought not to be rejected as absolutely unworthy of it, as the evidence obtained is weak and dangerous, and inimical to the truth; for most persons, either through their power of endurance, or through the severity of the torment, so despise suffering that the truth can in no way be extorted from them. Others are so little able to suffer that they prefer to lie rather than to endure the question, and hence it happens that they make confessions of different kinds, and they not only implicate themselves, but others as well.
(24) Moreover, faith should not be placed in evidence obtained by the torture of enemies, because they lie very readily; still, under the pretext of enmity, its employment should not be rejected.
(25) After the case has been duly investigated, it can be decided whether confidence is to be placed in torture, or not.
(26) When anyone has betrayed robbers, it is stated by certain rescripts that no confidence should be placed in those who betrayed them. In others, however, which are more specific, it is provided that the evidence should not be entirely rejected, as is usual in similar cases; but, after proper consideration, it should be determined whether it is entitled to credit or not. For the majority of such persons, who fear that those who have been arrested may mention them, are accustomed to betray the latter for the purpose of themselves obtaining immunity, because accused persons who denounce those who have betrayed them are not readily believed; nor should immunity indiscriminately be granted to them as a reward for betrayals of this kind; nor should their allegations be believed, when they say that they have been accused by the others for having given them up, for this weak proof based on mendacity or calumny ought not to be considered against them.
(27) If anyone voluntarily confesses a crime, faith should not always be reposed in him; for sometimes one makes a confession through fear, or for some other reason. An Epistle of the Divine Brothers addressed to Voconius Saxa declares that a man who had made a confession against himself, and whose innocence was established, must be discharged after his conviction. The terms of the Epistle are as follows: "It is in compliance with the dictates of prudence and humanity, my dear Saxa, that, where a slave was suspected of having falsely confessed himself guilty of homicide, through fear of being restored to his master, you condemned him, still persevering in his false statement, with the intention of subjecting to torture his alleged accomplices, whom he had also accused falsely, in order that you might render his statements with reference to himself more certain. "Nor was your judicious intention in vain, as it was established by the torture that the persons referred to were not his accomplices, but that he had accused himself falsely. You can then set aside the judgment, and order him to be officially sold, under the condition that he never shall be returned to the power of his master, who, having received the price, will certainly be very willing to be rid of such a slave." The Rescript indicates that, when a slave is condemned, if he should subsequently be discharged from liability, he will belong to the person whose property he was before his conviction. The Governor of the province, however, cannot restore anyone whom he has condemned to his original condition, as he cannot even revoke a decision in which money is involved. What then should be done? He should have recourse to the Emperor when anyone who at first appeared to be guilty, afterwards has his innocence established.
2. Ulpianus, On the Edict, Book XXXIX.
Slaves forming part of an estate cannot be put to the torture to obtain evidence against their masters, as long as it is uncertain to whom the property belongs.
3. The Same, On the Edict, Book LVI.
It was established by a Constitution of Our Emperor and the Divine Severus that a slave belonging to several owners cannot be subjected to torture against any of them.
4. The Same, Disputations, Book III.
In a case of incest (according to the opinion of Papinianus, which is also set forth in a Rescript), slaves are not liable to torture, because the Julian Law relating to Adultery does not apply.
5. Marcianus, Institutes, Book II.
Where anyone debauches a widow or a woman married to another, with whom he could not legally have contracted matrimony, he should be deported to an island, as the crime is a double one; incest, because, contrary to Divine Law, he has violated a woman related to him, and has added adultery or fornication to this offence. Finally, in a case of this kind, slaves can be tortured for the purpose of obtaining evidence against their masters.
6. Papinianus, On Adultery, Book II.
When a father or a husband brings an accusation of adultery, and a demand is made that the slaves of the party accused be put to the question, if an acquittal should result, after the case has been argued, and the witnesses produced, an estimate must be made of the value of the slaves who have died; but if a conviction should be obtained, the surviving slaves shall be confiscated.
(1) When the case is one involving a forged will, the slaves belonging to the estate can be tortured.
7. Ulpianus, On Adultery, Book III.
The judges must determine the measure of torture, and therefore it should be inflicted in such a way that the slave may be preserved either for his acquittal, or his punishment.
8. Paulus, On Adultery, Book II.
The Edict of the Divine Augustus, which he published during the Consulate of Vivius Avitus and Lucius Apronianus, is as follows: "I do not think that torture should be inflicted in every instance, and upon every person; but when capital and atrocious crimes cannot be detected and proved except by means of the torture of slaves, I hold that it is most effective for ascertaining the truth, and should be employed."
(1) The slave who is to be free under a condition may be subjected to torture, because he is the slave of the heir, but he will still retain his hope of freedom.
9. Marcianus, On Public Prosecutions, Book II.
The Divine Pius stated in a Rescript that torture could be inflicted upon slaves in cases where money was involved, if the truth could not otherwise be ascertained, which is also provided by other rescripts. This, however, is true to the extent that this expedient should not be resorted to in a pecuniary case, but only where the truth cannot be ascertained unless by the employment of torture is it lawful to make use of it, as the Divine Severus stated in a Rescript. Hence it is permitted to put the slaves of others to the question if the circumstances justify it.
(1) In cases in which torture should not be inflicted upon slaves to obtain evidence against their masters they cannot even be interrogated, and still less can the statements of slaves against their masters be admitted.
(2) Torture should not be inflicted upon one who is deported to an island, as the Divine Pius stated in a Rescript.
(3) Nor should it be inflicted, in a pecuniary case, upon a slave who is to be free under a condition, unless the condition fails to be fulfilled.
10. Arcadius, Charisius, On Witnesses.
Torture should not be inflicted upon a minor under fourteen years of age, as the Divine Pius stated in a Rescript addressed to Caecilius Jubentinus.
(1) All persons, however, without exception, shall be tortured in a case of high treason which has reference to princes, if their testimony is necessary, and circumstances demand it.
(2) It may be asked whether torture cannot be inflicted upon slaves belonging to the castrense peculium of a son in order to obtain evidence against his father. For it has been established that a father's slave should not be tortured to obtain evidence against his son. I think that it may be properly held that the slaves of a son should not be tortured to obtain evidence against his father.
(3) Torture should not be applied to the extent that the accuser demands, but as reason and moderation may dictate.
(4) The accuser should not begin proceedings with evidence derived from the house of the defendant, when he calls as witnesses the freedmen or the slaves of the person whom he accuses.
(5) Frequently, also, in searching for the truth, even the tone of the voice itself, and the diligence of a keen examination afford assistance. For matters available for the discovery of truth emerge into the light from the language of the witness, and the composure or trepidation he displays, as well as from the reputation which each one enjoys in his own community.
(6) In questions where freedom is involved, it is not necessary to seek for the truth by the torture of those whose status is in dispute.
11. Paulus, On the Duties of Proconsul, Book II.
Even if a slave should be returned under a condition of the sale, he shall not be tortured to obtain evidence against his master.
12. Ulpianus, On the Edict, Book LIV.
When anyone, to avoid being tortured, alleges that he is free, the Divine Hadrian stated in a Rescript that he should not be put to the question before the case brought to decide his freedom has been tried.
13. Modestinus, Rules, Book V.
It is established that a slave can be tortured after he has been appraised, or the required stipulation has been entered into.
14. The Same, Rules, Book VIII.
.A slave who is to be free under a condition, and who has been convicted of crime, will be entitled to the privilege of expecting his liberty, so that on account of the uncertainty of his status he will be punished as a freeman, and not as a slave.
15. Callistratus, Judicial Inquiries, Book V.
It is not necessary to inflict torture in the case of a freeman, where his testimony is not vacillating.
(1) In the case of a minor under fourteen years of age, the Divine Pius stated in a Rescript to Msecilius that torture should not be inflicted to obtain evidence against another, especially as the accusation was by no means established by other evidence, since it did not result that the minor should be believed, even without the application of torture; for he says that age, which appears to protect persons against the harshness of torture, renders them also more suspected of falsehood.
(2) He who has given security to another claiming a slave should be considered as the master; and therefore such slaves cannot be put to torture to obtain evidence against him. The Divine Pius stated the following in a Rescript: "You must prove your case by other testimony, for torture should not be inflicted upon slaves, when the possessor of an estate has given security to a claimant, and in the meantime, is considered as the master."
16. Modestinus, On Punishments, Book III.
The Divine Brothers stated in a Rescript that torture could be repeated.
(1) The Divine Pius stated in a Rescript that one who has made a confession implicating himself, shall not be tortured to obtain evidence against others.
17. Papinianus, Opinions, Book XVI.
Again, when a stranger brings an accusation, it has been established that slaves can be tortured to obtain evidence against their masters; a rule which the Divine Marcus, and afterwards the Emperor Maximus, followed in rendering their decisions.
(1) Slaves are not tortured against their master where a charge of fornication is made.
(2) In a case of fraudulent birth, if a person whom the other children assert is not their brother claims the estate, torture shall be applied to slaves belonging to the estate, for the reason that it is not employed against the other children as masters, but in order to determine the succession of the deceased owner. This agrees with what the Divine Hadrian stated in a Rescript, for when a man was accused of having murdered his partner, the Emperor decreed that a slave owned in common could be put to the question, because this appeared to be done in behalf of his master who had been killed.
(3) I gave it as my opinion that where a slave has been sentenced to the mines, he should not be tortured to obtain evidence against the person who had been his master, and that it made no difference if he had confessed that he had been the perpetrator of the crime.
18. Paulus, Sentences, Book V.
Where several persons are accused of the same offence, they should be heard in such a way as to begin with the one who is the most timid, or appears to be of tender age.
(1) An accused person who is overwhelmed with conclusive evidence can be tortured a second time; especially if he has hardened his mind and body against the torments.
(2) In a case in which nothing has been proved against the defendant, torture should not be applied without due consideration; but the accuser should be urged to confirm and substantiate what he has alleged.
(3) Witnesses should not be tortured for the purpose of convicting them of falsehood, or to ascertain the truth; unless they are alleged to have been present when the deed was committed.
(4) When a judge cannot otherwise obtain reliable information concerning a family, he can torture the slaves belonging to the estate.
(5) No confidence should be placed in a slave who voluntarily makes charges against his master, for the safety of masters must not be left to the discretion of their slaves.
(6) A slave cannot be interrogated to obtain evidence against his master, by whom he has been sold, and whom for some time he served as a slave, in remembrance of his former ownership.
(7) A slave should not be interrogated, even if his master offers to have him put to the torture.
(8) It is clear that every time an inquiry is made whether slaves should be interrogated to obtain evidence against their masters, it must first be ascertained that the latter are entitled to their ownership.
(9) A Governor who is to take cognizance of a criminal accusation must publicly appoint a day when he will hear the prisoners, for those who are to be defended should not be oppressed by the sudden accusation of crime; although, if at any time the defendant requests it, he should not be refused permission to defend himself, and on this account, the day of the hearing, whether it has been designated or not, may be postponed.
(10) Prisoners can not only be heard and convicted in court, but also elsewhere.
19. Tryphoninus, Disputations, Book IV.
He who is entitled to freedom under the terms of a trust cannot be tortured as a slave, unless he is accused by others who already have been subjected to torture.
20. Paulus, Decisions, Book III.
A husband, as the heir of his wife, brought suit against Surus for money which he alleged the deceased had deposited with him during his absence, and, in proof of it, he produced a single witness, the son of his freedman. He demanded before the Agent of the Treasury that a certain female slave should be put to torture. Surus denied that he had received the money, and stated that the testimony of one man should not be admitted; and that it was not customary to begin proceedings with torture, even though the female slave belonged to another. The Agent of the Treasury caused the female slave to be tortured. The Emperor decided, on appeal, that torture had been unlawfully inflicted, and that the testimony of one witness should not be believed, and therefore that the appeal had been properly taken.
21. The Same, On the Punishments of Civilians.
The Divine Hadrian stated in a Rescript that no one should be condemned because he was liable to be subjected to torture.
22. The Same, Sentences, Book I.
Those who have been arrested without having any accusers, can not be tortured, unless well-grounded suspicion is attached to them.
Tit. 19. Concerning punishments.
1. Ulpianus, Disputations, Book VIII.
In every case of crime, it has been decided that the person convicted shall not suffer the penalty which his condition admitted at the time when judgment was rendered against him, but that which he would have undergone if he had been sentenced when he committed the offence.
(1) Hence, when a slave commits a crime, and it is alleged that he afterwards obtained his freedom, he must suffer the penalty which he would have suffered if he had been sentenced at the time when he perpetrated the offence.
(2) On the other hand, if his condition would be rendered worse, he must undergo the penalty which he would have undergone if he had remained in his former condition. Generally speaking, it has been decided that, with reference to the laws relating to public prosecutions or private offences of which Prefects or Governors have extraordinary jurisdiction, poor persons, who escape pecuniary penalties, are liable to arbitrary punishment.
2. The Same, On the Edict, Book XLVIII.
We should understand a person who has been convicted of a capital crime to be found guilty of an offence which entails death, the loss of civil rights, or servitude.
(1) It is established that after deportation has been substituted for the interdiction of water and fire, the defendant does not lose his citizenship until the Emperor has decided that he shall be deported to an island. For there is no doubt that the Governor cannot deport him, but the Prefect of the City has a right to do so, and he is considered to have lost his citizenship immediately after the sentence of the Prefect has been pronounced.
(2) We understand him to have been condemned who has not appealed; if, however, he should appeal, he is not yet considered to be convicted. But if he should be found guilty of a capital crime by someone who had not the right to do so, the result will be the same, for a person is only convicted whose condemnation stands.
3. The Same, On Sabinus, Book XIV.
The execution of the penalty imposed upon a pregnant woman should be deferred until she brings forth her child. I, indeed, am well aware of the rule that torture must not be inflicted upon her as long as she is pregnant.
4. Marcianus, Institutes, Book XIII.
Persons who are relegated or deported to an island should avoid forbidden places; and it is the law that one who has been relegated shall not depart from the place to which he was assigned, otherwise he who has been relegated for a time will be condemned to perpetual exile. He who is relegated for life is sent to an island; he who is relegated to an island is deported; and he who is deported to an island is subjected to the penalty of death. This is the case whether the convicted person did not go into exile within the time that he should have done so, or whether he did not obey the other rules of exile, for his obstinacy increases his penalty, and no one can effect the transfer of return of an exile except the Emperor for some good reason.
5. Ulpianus, On the Duties of Proconsul, Book VII.
The Divine Trajan stated in a Rescript addressed to Julius Frontonus that anyone who is absent should not be convicted of crime. Likewise, no one should be convicted on suspicion; for the Divine Trajan stated in a Rescript to Assiduus Severus: "It is better to permit the crime of a guilty person to go unpunished than to condemn one who is innocent." Persons, however, who are contumacious and do not obey either the notices or the edicts of Governors, can, even though absent, be sentenced, as is customary in private offences. Anyone can safely maintain that these things are not contradictory. What, then, should be done? With reference to parties who are absent it is better to decide that pecuniary penalties, or those which affect the reputation, even to the extent of relegation, can be imposed if they, having been frequently notified, do not appear through obstinacy; but if any more serious punishment should be inflicted, as, for instance, hard labor in the mines, or death, it cannot be imposed upon the parties while they are absent.
(1) It must be said that where an accuser is absent, heavier penalties are sometimes imposed than that prescribed by the Turpillian Decree of the Senate.
(2) A distinction must be made in more serious crimes, that is whether they have been committed intentionally, or accidentally. And, indeed, in all offences, this distinction should either induce a penalty to be inflicted in strict compliance with the law, or admit of moderation in this respect.
6. The Same, On the Duties of Proconsul, Book IX.
When anyone, to avoid being subjected to punishment, alleges that he has something to communicate to the Emperor which concerns his safety, let us see whether he should be sent to him. There are many Governors who are so timid that, even after they have passed sentence for a crime, they suspend its execution, and do not dare to do anything else. Others do not permit defendants to say anything of this kind. Others again, sometimes, but not always, send them to the Emperor, but they inquire what it is they wish to communicate to him, and what they have to say with reference to his safety; after which they either defer the infliction of the penalty, or execute it; which course seems to be reasonable. Besides, in my opinion, after the defendants once have been convicted, no attention should be paid to them, no matter what they say. For who can entertain any doubt that they have had recourse to this pretext for the purpose of escaping punishment? And there is even more reason that they should be punished for having so long failed to mention what they boast they have to disclose concerning the safety of the Emperor, for they should not keep such important information to themselves for so long a time.
(1) If a Proconsul ascertains that any of his attendants, or any of those of his Deputy is a criminal, should he punish him, or reserve him for his successor? is a question which may be asked. But there are many examples which show that they have punished not only the slaves of their officers, and of their subordinates, but their own as well. This, indeed, is what should be done, in order that, having been terrified by the example, they may commit fewer offences.
(2) Now we must enumerate the different kinds of penalties which Governors can inflict upon various culprits. These are such as take away life, or impose servitude, or deprive a person of citizenship, or include exile or corporeal punishment:
7. Callistratus, On Judicial Inquiries, Book VI.
Such as castigation with rods, scourging, and blows with chains,
8. Ulpianus, On the Duties of Proconsul, Book IX.
Or condemnation with infamy, or degradation from rank, or the prohibition of some act.
(1) Life is taken away, for instance, where anyone is sentenced to be put to death by the sword, for the punishment must be inflicted with a sword, and not with an ax, a dart, a club, a noose, or in any other way. Hence Governors have not free power to grant the choice of death, and even less the right to inflict it by means of poison. Still, the Divine Brothers stated in a Rescript that they are permitted to select the mode of death.
(2) Enemies, as well as deserters, are subjected to the penalty of being burned alive.
(3) No one can be condemned to the penalty of being beaten to death, or to die under rods or during torture, although most persons, when they are tortured, lose their lives.
(4) There are penalties which deprive a person of his liberty, as where anyone is sentenced to the mines, or to some work connected with them. There are a great number of mines. Some provinces have them and some have not; and those which have none send culprits who have been sentenced into the provinces which have.
(5) By a Rescript of the Divine Severus, addressed to Fabius Cilo, the right to sentence persons to the mines is exclusively reserved to the Prefect of the City of Rome.
(6) The difference between those who are sentenced to the mines, and those who are sentenced to labor in the mines, is only a matter of chains; for those who are sentenced to the mines are oppressed with heavier chains, and those who are sentenced to work connected with the mines wear lighter ones. The result of this is that those who escape from labor connected with the mines are sentenced to the mines; and those who escape from the mines themselves are punished even more severely.
(7) Moreover, anyone sentenced to labor on the public works and escapes is usually condemned to serve double time; but only that time should be doubled which remained for him to serve when he escaped, and that should not be doubled which he passed in prison after having been arrested. If he was sentenced to serve ten years, his punishment should be made perpetual, or he should be transferred to the labor of the mines. Where he was sentenced to serve ten years, and immediately afterwards escaped, let us see whether his time should be doubled, or be made perpetual, or whether he should be transferred to the labor of the mines. The better opinion is, that he should either be transferred, or sentenced to serve for life. For, generally speaking, it is said that when double the time exceeds the period of ten years, the penalty should not be limited.
(8) Women are usually sentenced to the service of those working in the mines, for life or for a term, just as is the case with reference to the salt-pits. Where they are sentenced for life, they are considered penal slaves; but if they are sentenced for a prescribed term, they retain their civil rights.
(9) Governors usually sentence criminals to be confined in prison, or to be kept in chains; but they should not do this, for penalties of this kind are forbidden, as a prison should be used for the safe-keeping of men, and not for their punishment.
(10) They are also accustomed to sentence them to chalk-pits, and sulphur-pits, but these punishments are rather included in that of the mines.
(11) Let us see whether those who are sentenced to the amusement of hunting, become penal slaves; for the younger ones are ordinarily subjected to this penalty. Therefore it must be considered whether such persons become penal slaves, or whether they retain their freedom. The better opinion is that they also become slaves, for the only way in which they differ from others is that they are instructed in hunting, or dancing, or in some other art, for the purpose of acting in pantomime, and other theatrical exhibitions for the entertainment of audiences.
(12) There is no doubt that slaves are usually sentenced to the mines, to labor connected with the mines, or to the amusement of hunting. When this is done they become penal slaves, and no longer belong to him whose property they were before they were convicted. Finally, when a certain slave who was sentenced to the mines was released from punishment through the indulgence of the sovereign, the Emperor Antoninus very properly stated in a Rescript that, for the reason that he having become a penal slave, and on that account having ceased to belong to his master, he should not afterwards be restored to him.
(13) Where a slave has been sentenced to perpetual, or temporary confinement in chains, he continues to be the property of him to whom he belonged before he was convicted.
9. The Same, On the Duties of Proconsul, Book X.
It is not unusual for Governors to forbid persons to act as advocates, sometimes for life, and sometimes for a certain term of years, or for the time during which they rule the province.
(1) Anyone can also be forbidden to assist certain persons.
(2) Anyone can be forbidden to accuse another before the tribunal of a Governor, and still he cannot be forbidden to do so before his Deputy, or the Agent of the Treasury.
(3) If, however, he is forbidden to prosecute before the Deputy, I think that, in consequence of this, he will not retain the power to do so before the Governor.
(4) Sometimes a person is not forbidden to act as advocate, but to practice law. The latter penalty is more severe than the prohibition of appearing as an advocate, since, by means of it, a person is not permitted to transact any legal business whatever. It is customary to interdict in this manner students of law, advocates, notaries, and other members of the legal profession.
(5) It is also customary to prohibit them from drawing up any instrument, petition, or deposition whatever.
(6) It is also customary to prohibit them from stopping in places where public documents are deposited, for instance, in the archives, or wherever such papers are stored.
(7) It is also customary to prohibit them from formulating wills, or writing, or sealing them.
(8) The penalty of being prohibited from conducting any public business is also imposed; for a person of this kind can transact private business, and still be forbidden to attend to any that is public; as occurs in cases where sentence is pronounced to abstain from all public matters.
(9) There are also other penalties, as where anyone is ordered to abstain from any negotiation; or from having anything to do with the contracts of those who lease property belonging to the public; or with the public taxes.
(10) It is customary for anyone to be forbidden to transact any special matter, or any business in general; but let us see whether he can be sentenced to transact some business. These penalties, indeed, if anyone wishes to discuss them in a general way, are contrary to the Civil Law, for a man cannot be ordered, against his consent, to do something that he is unable to perform; but, in particular instances, good reason exists for compelling him to attend to certain negotiations. When this is the case, the sentence must be executed.
(11) The following are the penalties which are ordinarily inflicted. It must, however, be remembered that distinctions exist between them, and that all persons should not be subjected to the same punishment. For, in the first place, decurions cannot be sentenced to the mines, nor to work connected with the mines, nor to the gallows, nor to be burned alive; and if any of these sentences should be imposed upon them, they must be released. He who pronounced the sentence, however, cannot do this, but it ought to be referred to the Emperor, who, by his authority, will either commute the penalty or discharge the party in question.
(12) The parents and children of decurions also enjoy the same privilege.
(13) We should understand by the term "children," not only the sons but all the offspring.
(14) But are only those born after the office of decurion has been obtained, exempt from these penalties; or are all the children, even those born in a plebeian family, excepted? is a question which should be considered. I am inclined to believe that all are entitled to the privilege.
(15) It is clear that if the father has ceased to be a decurion, any child born while he holds the office will enjoy the privilege of not being subjected to these penalties; but if, after he became a plebeian again, he should have a son, the latter, having been born a plebeian, should be punished in this manner.
(16) The Divine Pius stated to Salvius Marcianus in a Rescript that a slave, who is to become free under a condition, should be punished just as if he were already free.
10. Macer, On Public Prosecutions, Book II.
The rule is observed with reference to slaves, that they shall be punished as persons of the lowest rank, and in cases where a freeman is whipped, a slave should be scourged, and ordered to be restored to his master; and where a freeman, after having been whipped, is sentenced to labor upon the public works, a slave, under the same circumstances, after having been kept in chains for a certain period of time, and scourged, is ordered to be restored to his master. Where a slave, after having undergone the punishment of chains, is ordered to be restored to his master, but is not received by him, he shall be sold; and if he does not find a purchaser, he shall be sentenced to labor on the public works for life.
(1) Those who, for some cause, have been sentenced to the mines and afterwards commit some offence, ought to be judged as having been condemned to the mines, although they may not yet have been taken to the place where they will be compelled to work; for they change their condition just as soon as sentence has been passed upon them.
(2) It has been decided with reference to plebeians as well as decurions, that where a more severe penalty than is authorized by law has been inflicted upon anyone, he does not become infamous. Therefore, if a man has been sentenced to labor for a specified term, or only beaten with rods, although this may have been done in an action which implied infamy, as, for instance, one of theft, it must be said that the accused does not become infamous, because blows with a rod constitute a more severe penalty than a pecuniary fine.
11. Marcianus, On Public Prosecutions, Book II.
It is the duty of the judge to be careful not to impose a sentence which is either more or less severe than the case demands; for neither a reputation for harshness, or the glory of clemency should be his aim; but, having carefully weighed the circumstances of the case, we should decide whatever the matter requires. It is clear that in cases of minor importance, judges should be inclined to lenity; and where heavier penalties are involved, while they must comply with the stern requirements of the laws, they should temper them with some degree of indulgence.
(1) Domestic thefts, if of trifling importance, should not be made the subject of public prosecutions; and an accusation of this kind ought not to be permitted when a slave is presented for trial by his master, or a freeman by his patron in whose house he lives, or a laborer by anyone who hires his services; for those are called domestic thefts which slaves commit against their masters, freedmen against their patrons, or hired laborers against those for whom they work.
(2) Moreover, a crime is committed either deliberately, or upon a sudden impulse, or by chance. Robbers commit a crime deliberately when they organize. Persons act by sudden impulse when they resort to violence, or to the use of weapons, through drunkenness. A crime is committed by chance, if one man kills another while hunting, when he aims a dart at a wild beast.
(3) To be thrown to wild beasts, or to suffer or be sentenced to similar punishments, are capital penalties.
12. Macer, On the Duties of Governor, Book II.
With reference to the civil condition of persons who have been convicted, it makes no difference whether the prosecution was public or not; for the sentence, and not the kind of crime, is alone considered. Therefore, those who are ordered to be punished in other ways, or who are delivered up to wild beasts, instantly become penal slaves.
13. Ulpianus, On Appeals, Book I.
It is lawful, at present, when anyone has extraordinary jurisdiction of a crime, to inflict any sentence which he may desire, either a more severe or a lighter one; provided that, in neither instance, he exceeds the bounds of reason.
14. Macer, On Military Affairs, Book II.
Certain offences, if committed by a civilian, either entail no penalty at all, or merely a trifling one, while in the case of a soldier, they are severely punished; for if a soldier follows the calling of a buffoon, or suffers himself to be sold in slavery, Menander says that he should undergo capital punishment.
15. Venuleius Saturninus, On the Duties of Proconsul, Book I.
The Divine Hadrian forbade those included in the order of decurions to be punished capitally, unless they had killed one of their parents. It is, however, very clearly provided by the Imperial Mandates, that they should suffer the penalty of the Cornelian Law.
16. Claudius Saturninus, On the Penalties of Civilians.
Acts such as theft or homicide; verbal statements, such as insults, or betrayal by advocates; written ones, such as forgeries and criminal libels; and advice such as is given in conspiracies and the agreements of thieves are punished, for it is the same as a crime to assist others by persuasion.
(1) These four kinds of offences should be considered under seven different heads; namely, the cause, the person, the place, the time, the quality, the quantity, and the result.
(2) The cause, in the case of blows which are unpunished when inflicted by a master or a parent; for the reason that they seem to be given rather for the purpose of correction than injury. They are punishable when anyone is beaten by a stranger in anger.
(3) The person is considered from two points of view: first, that of him who committed the act; and second, that of him who suffered it; for otherwise slaves would be punished differently from freedmen for the same offences. And anyone who dares to attack his master or his father is punished differently from one who raises his hand against a stranger, a teacher, or a private individual. In the discussion of this subject age should also be taken into account.
(4) The place renders the same act one either of theft or sacrilege, and determines whether it should be punished with death or with a penalty of less severity.
(5) The time distinguishes a person temporarily absent from a fugitive, and a housebreaker or a daylight thief from one who commits the crime by night.
(6) The quality, when the act is either more atrocious or less grave, as manifest thefts are usually distinguished from those that are non-manifest; quarrels from highway robberies; pillage from ordinary theft; impudence from violence. On this point Demosthenes, the greatest orator of the Greeks, said: "It is not the wound but the disgrace which causes the insult, for it is not a wicked act to strike a freeman, but it becomes such when this is done by way of insult; for Athenians, he who strikes does many things which he who suffers them cannot properly communicate to others, by his bearing, his aspect, or his voice, when he smites with every evidence of contumely, as if he were an enemy, whether he strikes with a rod, or delivers a blow in the eye. These things are productive of annoyance, and cause men who are not accustomed to be insulted to become beside themselves."
(7) The quantity distinguishes a common theft from one who drives away a herd of cattle, for anyone who steals a sow shall be punished merely as a thief; and he who drives away a number of animals shall be punished as a cattle stealer.
(8) The result should also be considered even when it is brought about by a man of the most amiable character; although the law does not punish with less severity a person who was provided with a weapon for the purpose of killing a man than him who actually killed him. Therefore, among the Greeks, crimes committed by accident were expiated by voluntary exile, as was stated by the most eminent of poets: "When I was small, Menetius of Opontus conducted me into your house, on account of a sad homicide; when on that day, I unintentionally and unwillingly enraged over a game of dice, killed the son of Amphidamantus."
(9) It happens that the same crimes are more severely punished in certain provinces; as, for instance, in Africa, those who burn harvests ; in Mysia, those who burn vines; and counterfeiters, where mines are situated.
(10) It sometimes happens that the punishments of certain malefactors are rendered more severe whenever an example is necessary, as for the suppression of many persons engaged in highway robbery.
17. Marcianus, Institutes, Book I.
Where anything is left by will to certain penal slaves, such as those who have been condemned to the mines, and to work connected with the mines, it is considered as not having been written, and as having been left, not to a slave of the Emperor, but to a penal slave.
(1) Likewise, some persons, such as those who have been sentenced to hard labor on the public works for life, or deported to an island, are deprived of citizenship, so that they no longer enjoy any privileges derived from the Civil Law, but retain whatever rights they are entitled to by the Law of Nations.
18. Ulpianus, On the Edict, Book III.
No one suffers a penalty for merely thinking.
19. The Same, On the Edict, Book LVII.
If slaves are not defended by their masters, they should not, for this reason, immediately be conducted to punishment, but should be permitted to defend themselves, or be defended by another; and the judge who hears the case shall inquire as to their innocence.
20. Paulus, On Plautius, Book XVIII.
When a penalty is inflicted upon anyone, it is provided by a legal fiction that it shall not be transmitted to his heir; the reason for which seems to be that punishment is established for the correction of man, and when he is dead against whom it is held to have been established, it ceases to be applicable.
21. Celsus, Digest, Book XXXVII.
We understand the extreme penalty to mean only death.
22. Modestinus, Differences, Book I.
Where persons are sentenced to the mines, and, through illness or the infirmities of age, they become incapable of performing labor, according to a Rescript of the Divine Pius, they can be discharged by the Governor, who shall decide whether they shall be released; provided they have relatives or connections, and have served not less than ten years of their sentence.
23. The Same, Rules, Book VIII.
When anyone is condemned to the mines without a definite time being stated, because of the ignorance of the judge who imposed the sentence, the term of ten years will be understood to have been intended.
24. The Same, Pandects, Book XI.
We must remember that the statues of those who have been relegated, or deported for high treason, should be removed.
25. The Same, Pandects, Book XII.
If anyone remains for a long time under an accusation, his punishment should, to some extent, be mitigated; for it has been decided that those who have been accused for a considerable time should not be punished as severely as those who have been tried and convicted without delay.
(1) No one can be sentenced to be thrown down from a rock.
26. Callistratus, On Judicial Inquiries, Book I.
The crime or the punishment of a father can place no stigma upon his son; for each one is subjected to fate in accordance with his conduct, and no one. is appointed the successor of the crime of another. This was stated by the Divine Brothers in a Rescript addressed to the people of Hierapolis.
27. The Same, On Judicial Inquiries, Book V.
The Divine Brothers stated in a Rescript to Harruntius Silo, that the Governors of provinces were not accustomed to rescind judgments which they themselves had rendered. They also stated in a Rescript addressed to Vetina of Italica, that no judge could change his own decision, and that this was an unusual thing to do. Where, however, anyone was falsely accused, and did not have at first the documents to establish his innocence, which he afterwards found, and was subjected to punishment, there are some Imperial Rescripts extant by which it is provided that the penalty of such persons shall either be lessened, or that they shall be entirely restored to their former condition. This, however, can only be done by the Emperor.
(1) It is provided by the Imperial Mandates with reference to Decurions, and civil officials who have been guilty of capital crimes, that if anyone appears to have committed an offence for which he should be relegated to an island outside of the province, the facts, together with the sentence imposed, should be submitted to the Emperor in writing by the Governor.
(2) In another Section of the Imperial Mandates, it is provided as follows: "When any of the officials of a town have committed robbery, or any other crime which seems to deserve capital punishment, you shall place them in chains, and write to me, and also state what crime each of them has perpetrated."
28. The Same, On Judicial Inquiries, Book VI.
The following is the gradation of capital crimes. The extreme penalty is considered to be sentence to the gallows, or burning alive. Although the latter seems, with good reason, to have been included in the term "extreme penalty," still, because this kind of punishment was invented subsequently, it appears to come after the first, just as decapitation does. The next penalty to death is that of labor in the mines. After that comes deportation to an island.
(1) Other penalties have reference to reputation, without incurring the danger of death; as, for instance, relegation for a certain term of years, or for life, or to an island; or sentence to labor on the public works; or where the culprit is subjected to the punishment of whipping.
(2) It is not customary for all persons to be whipped, but only men who are free and of inferior station; those of higher rank are not subjected to the penalty of castigation. This is specially provided by the Imperial Rescripts.
(3) Some persons who are ordinarily called young are, in some turbulent cities, accustomed to encourage the clamors of the mob. If they have not done anything more than this, and have not previously been warned by the Governor, they are punished by being whipped, or are even forbidden to be present at exhibitions. If, however, after having been corrected in this way they are again detected committing the same offence, they should be punished with exile, and sometimes with death; that is to say, when they have frequently acted in a seditious or turbulent manner, and, having been arrested several times, and treated with too much clemency, they have persevered in their bold designs.
(4) Slaves who have been whipped are usually restored to their masters.
(5) And, generally speaking, I should say that all those whom it is not permitted to punish by whipping are persons that should have the same respect shown them that decurions have. For it would be inconsistent to hold that anyone whom the Emperors have, by their Constitutions, forbidden to be whipped, should be sentenced to the mines.
(6) The Divine Hadrian stated in a Rescript: "No one should be condemned to the mines for a specified term, but anyone who is sentenced for a term, and performs labor connected with the mines, ought not to be understood to be condemned to the mines; for his liberty continues to exist as long as he is not condemned to labor for life." Hence, women sentenced in this way have children who are free.
(7) It is forbidden to seek sanctuary at the statues or portraits of the Emperor, in order to cause another injury; for as the laws afford equal security to all men, it seems reasonable that he who takes refuge at the statues or the portraits of the Emperor does so rather in order to injure another than to provide for his own safety, unless someone who was confined in chains or in prison by persons more powerful than himself has recourse to this safeguard; for such persons ought to be excused. The Senate decreed that no one shall flee for refuge to the statues or portraits of the Emperor; and the Divine Pius stated in a Rescript that anyone who carried before him an image of the Emperor, for the purpose of incurring the hatred of another, should be punished by being placed in chains.
(8) All offences committed against a patron or the son of a patron, a father, a near relative, a husband, a wife, or other persons to whom anyone is nearly related, should be punished with more severity than if they were committed against strangers.
(9) Poisoners should be punished with death, or if it is necessary to show respect to their rank, they should be deported.
(10) Highwaymen, who pursue this occupation for the sake of booty, are regarded as greatly resembling thieves; and when they make an attack and rob while armed, they are punished with death, if they have committed this crime repeatedly and on the highways; others are sentenced to the mines, or relegated to islands.
(11) Slaves who have plotted against the lives of their masters are generally put to death by fire; sometimes freemen, also, suffer this penalty, if they are plebeians and persons of low rank.
(12) Incendiaries are punished with death when, either induced by enmity or for the sake of plunder, they have caused a fire in the interior of a town; and they are generally burned alive. Those also who have "burned a house or a hut, in the country, are punished a little more leniently. For if accidental fires could have been avoided, and were caused by the negligence of those on whose premises they originated, and resulted in injury to the neighbors; the responsible parties are prosecuted civilly to enable anyone who has suffered loss to recover damages, or they may be subjected to moderate punishment.
(13) A graduated scale of penalties with reference to exiles was established by an Edict of the Divine Hadrian, so that if anyone who was relegated for a term returned before it expired, he should be relegated to an island; and if one who was relegated to an island left it, he should be deported to an island; and if anyone, after having been deported, escaped, he should be punished with death.
(14) The same Emperor stated in a Rescript, that a certain gradation should be observed with reference to prisoners, that is to say, those who were sentenced for a certain term should, under similar circumstances, be sentenced for life; those who had been sentenced for life should be condemned to the mines; and when those have been condemned to the mines committed such an act, they should suffer the extreme penalty.
(15) It has been held by many authorities that notorious robbers should be hanged in those very places which they had subjected to pillage, in order that others might be deterred by their example from perpetrating the same crimes, and that it might be a consolation to the relatives and connections of the persons who had been killed that the penalty should be inflicted in the same place where the robbers committed the homicides. Some also condemned them to be thrown to wild beasts.
(16) Our ancestors, in inflicting every penalty, treated slaves more harshly than persons who are free; and they punished those who are notorious with greater severity than men of good reputation.
29. Gaius, On the Lex Julia et Papia, Book I.
Those who have been sentenced to death immediately lose both their citizenship and their freedom. Therefore, this condition attaches to them while living, and sometimes affects them for a long time; which happens to those who are condemned to be thrown to wild beasts, for they are frequently kept after having been sentenced, in order that they may be tortured to obtain evidence against others.
30. Modestinus, On Penalties, Book I.
If anyone should do something by which weak-minded persons are terrified through superstition, the Divine Marcus stated in a Rescript that men of this kind should be relegated to an island.
31. The Same, On Punishments, Book III.
The Governor should not, in order to obtain the favor of the people, discharge persons who have been condemned to be thrown to wild beasts. If, however, the culprits have strength or skill worthy of being used for the benefit of the Roman people, he should consult the Emperor. The Divine Severus and Antoninus stated in a Rescript, that it was not permitted to transfer persons who have been sentenced, from one province to another, without the consent of the Emperor.
32. Ulpianus, On the Edict, Book VI.
If a Governor or a judge should make the statement: "You have committed violence," in proceedings under an interdict, the defendant shall not be branded with infamy, nor shall the penalty of the Julian Law be inflicted. When, however, this is done during the prosecution of a crime, it is another thing. What would be the rule if the Governor should not make a distinction in the application of the Julian Law relating to Public Offences, and that relating to private ones? It must then be held that proceedings have been instituted for the punishment of a crime. But, if the defendant is accused of offences under both laws, the one which is less severe, that is to say, the one relating to private violence should be followed.
33. Papinianus, Questions, Book II.
The Imperial Brothers stated in a Rescript that slaves who have been condemned to chains for a term could, after having served it, receive either their freedom, an estate, or a legacy; because a temporary punishment based from a judgment is equivalent to an annulment of the penalty. If, however, the benefit of freedom comes to them while in chains, the reason of the law and the words of the constitution are opposed to freedom. It is evident that if freedom was granted by a will, and that when the estate was entered upon, the time of the sentence had expired, the slave is understood to have been lawfully manumitted ; not otherwise than if a debtor should manumit a slave given by way of pledge, and the estate should be entered upon after the pledge had been released.
34. The Same, Opinions, Book XVI.
A slave cannot be sentenced to perpetual labor on the public works; and, with much more reason, he cannot be sentenced to labor dn them for a term. Therefore, in a case where one who was condemned to the public works for a term, through mistake, I gave it as my opinion that, after the time had expired, the slave should be restored to his master.
(1) I also gave it as my opinion that, according to the Decree of the Senate, those persons are liable to the penalty of informers who, by the intervention of a third party, caused an informer to commit the offence.
35. Callistratus, Questions, Book I.
It is provided by the Imperial Mandates, which are communicated to Governors, that no one shall be sentenced to chains for life; and this was also stated by the Divine Hadrian in a Rescript.
36. Hermogenianus, Epitomes, Book I.
Those who are condemned to the mines, or to the service of the criminals who labor there, become penal slaves.
37. Paulus, Sentences, Book I.
It has been held that dardanarii who make use of false measures shall, for the purpose of protecting the welfare of the people with reference to food, be punished arbitrarily, according to the nature of the crime.
38. The Same, Sentences, Book V.
Where anyone has stolen any metal or money belonging to the Emperor, he shall be punished with the penalty of the mines and with exile.
(1) Deserters who go over to the enemy, or who reveal our plans, shall either be burned alive, or hanged on a gallows.
(2) Instigators of sedition and of tumult, which result in the uprising of the people, shall, in accordance with their rank, either be hanged upon a gallows, thrown to wild beasts, or deported to an island.
(3) Any persons who corrupt virgins that are not yet marriageable, if of low rank, shall be sentenced to the mines; if of more exalted station, shall be relegated to an island, or sent into exile.
(4) Anyone who cannot prove that he was purchased with his own money cannot demand his freedom; and he will besides be restored to his master under the penalty of being confined in chains; or if the master himself prefers he shall be sentenced to the mines.
(5) Those who administer a beverage for the purpose of producing abortion, or of causing affection, although they may not do so with malicious intent, still, because the act offers a bad example, shall, if of humble rank, be sent to the mines; or, if higher in degree, shall be relegated to an island, with the loss of a portion of their property. If a man or a woman should lose his or her life through such an act, the guilty party shall undergo the extreme penalty.
(6) A will which is void by law can be suppressed with impunity; for there is nothing which can be claimed under it, or can actually exist.
(7) Anyone who opens the will of anyone who is still living, and reads and reseals it, is liable to the penalty of the Cornelian Law; and, as a rule, persons of inferior rank are condemned to the mines, and those of superior station are deported to an island.
(8) If anyone should prove that the documents relating to his suit have been delivered by his attorney to his adversary, the said attorney, if of inferior rank, shall be sentenced to the mines, and if of higher station, shall be relegated for life, and deprived of half his property.
(9) When anyone, who holds documents deposited with him, transfers them to a third party in the absence of him who deposited them, or delivers them to the adversary of the latter, he shall either be sentenced to the mines, or deported to an island, according to his legal condition.
(10) Where judges are alleged to have been corrupted by money, their names are usually erased by the Governor from the records of the court; or they are sent into exile, or relegated for a term.
(11) The soldier who, having been given a sword, escapes from prison, is punished with death. He who deserts with one whom he was appointed to guard is liable to the same penalty.
(12) A soldier who has attempted to kill himself, and did not succeed, shall be punished with death, unless he committed the act through being unable to endure suffering, disease, or grief of some kind, or for some other good reason; otherwise, he should be dishonorably discharged.
39. Tryphoninus, Disputations, Book X.
Cicero, in his oration for Cluentius Avitus, said that when he was in Asia, a certain Milesian woman, having received money from certain substituted heirs, produced an abortion on herself, by means of drugs, and was sentenced to death. If, however, any woman, after a divorce, should commit a violent act upon her viscera, for the reason that she was pregnant and did not wish to bear a son to her husband, whom she hated, she ought to be punished by temporary exile; as was stated by our most excellent Emperors in a Rescript.
40. Paulus, Decrees, Book III.
It was decided that Metrodorus, for having knowingly harbored a fleeing enemy, should be deported to an island; and that Philoctetis, who was aware that he was concealed, and kept the fact secret for a long time, should be relegated to an island.
41. Papinianus, Definitions, Book II,
The sanction of the laws, which, in the last section, impose a certain penalty upon those who do not obey their precepts, is not held to apply to those cases in which a penalty is specifically added by the law itself, and there is no doubt that in every law the species is subordinated to the genus. Nor is it probable that one crime should be punished by different penalties under the same law.
42. Hermogenianus, Epitomes, Book I.
By the interpretation of the laws, penalties should rather be mitigated than increased in severity.
43. Paulus, Opinions, Book I.
The Emperor Antoninus stated in a Rescript addressed to Aurelius Atilianus: "A Governor cannot forbid anyone the use of his trade for a longer time than that included in his administration."
(1) He also said that, "Anyone who, by the commission of some offence, has lost the honor of being a decurion, cannot claim the privileges of the son of a decurion in order to escape the infliction of a penalty."
Tit. 20. Concerning the property of persons who have been convicted.
1. Callistratus, On the Rights of the Treasury and the People, Book I.
In consequence of conviction, property is confiscated either when life or citizenship is forfeited, or a servile condition is imposed.
(1) Even those who have been conceived before conviction and born afterwards are entitled to portions of the estates of their convicted parents.
(2) This portion, however, is not granted to children unless they are born in lawful marriage.
(3) No share is given to the children of one who has only been deprived of half his property. This was stated by the Divine Brothers in a Rescript.
2. The Same, On Judicial Inquiries, Book VI.
It is not necessary to strip a person of his clothing when he is placed in prison, but only after he has been sentenced. This was stated by the Divine Hadrian in a Rescript.
3. Ulpianus, On the Edict, Book XXXIII.
Under five laws, the dowry of a convicted woman is confiscated, namely, for high treason, public violence, parricide, poisoning, and assassination.
4. Papinianus, On Adultery, Book II.
Every husband is always entitled to actions against the Treasury.
5. Ulpianus, On the Edict, Book XXXIII.
If, however, the woman is punished with death under some other law which does not confiscate her dowry, for the reason that she first becomes a penal slave, it is true that her dowry passes to her husband just as if she were dead.
(1) Marcellus says that if a daughter under paternal control is deported, her marriage is not dissolved by the mere fact of her deportation, and this opinion is correct; for, as the woman remains free, nothing prevents the husband from retaining his marital affection, or the woman from retaining her affection as a wife. Therefore, if the woman has the intention of leaving her husband, Marcellus says that the father can then institute proceedings to recover her dowry. If, however, she is the mother of a family, and is deported during the existence of the marriage, the dowry will remain in the hands of the husband; but if the marriage is subsequently dissolved, she can bring her action, just as if, through considerations of humanity, the right to do so had recently been acquired.
6. The Same, On the Duties of Proconsul, Book X.
The Divine Hadrian stated in a Rescript to Aquilius Bradua: "It is evident that, by the name itself, one ought to understand what is meant by clothing. For no one can reasonably say that under this term is included the property of persons who have been condemned, for if anyone is wearing a girdle, no one should claim it on this ground; but any clothing which he wears, or any small sums of money which he may have in his possession for the purpose of living, or any light rings, that is to say, any which are not worth more than five aurei, can be demanded. "Otherwise, if the convicted person should have on his finger a sardonyx, or any other precious stone of great value, or have in his possession any note calling for a large sum of money, this can, by no right, be retained as part of his clothing." Clothing of which a man can be stripped are those things which he brought with him when he was placed in prison, and with which he is attired when he is conducted to punishment, as the name itself indicates. Hence, neither the executioners nor their assistants can claim these things as spoils at the moment when the culprit is executed. Governors should not appropriate these articles for their own benefit, or suffer assistants or jailors to profit by this money, but they ought to preserve it for expenditures which Governors have the right to make; as, for instance, for paper for the use of certain officials; or as donations for soldiers who have distinguished themselves by their courage; or to be presented to barbarians belonging to an embassy; or for some other purpose. Frequently, moreover, Governors have paid into the Treasury sums of money which they had collected, which is a manifestation of too great diligence, as it will be sufficient if they do not appropriate it to their own use, but permit it to be employed for the benefit of their office.
7. Paulus, On the Shares Granted to the Children of Persons Who Have Been Convicted.
As natural reason, which is a certain kind of tacit law, grants to children the estates of their fathers, calling them to the succession in the same way as to a debt, oh this account the name of direct heirs has been conferred upon them by the Civil Law; so that, as they cannot be removed from the succession by the will of their parents, unless for a good reason, it has been thought to be perfectly just that, in cases in which the conviction of a parent deprives him of his property as a penalty, the children should be taken into consideration, for fear they may suffer a more severe penalty for offences committed by others, whose guilt did not involve them, by subjecting them to the greatest poverty. It was decided that, under such circumstances, a certain degree of moderation should be displayed; so that those who would have been entitled to the entire estate by the right of inheritance might have some portion of the same conceded to them.
(1) When a freedman is punished, any of his property which his patron would have been entitled to if his freedman had died a natural death should not be taken from him; but the remaining part of the estate which had no reference to his manumission shall be forfeited to the Treasury.
(2) It is just that certain portions of the property of persons who have been condemned should be given to adopted, as well as to natural children, if the adoption was not fraudulently made. An adoption is considered to be made for the purpose of fraud where anyone adopts a child, although he has not yet been accused, but, aware of the desperate condition of his affairs, is influenced by the fear of an impending accusation, in order that a part of the property which he thinks he is about to lose may be saved.
(3) Where the condemned person has several children, examples have been adduced in which all of his estate has been granted to several children. The Divine Hadrian stated in a Rescript: "The number of the children of Albinus causes me to look favorably upon their case, as I prefer that my empire should be increased by the addition of men, rather than by that of money; therefore I wish the property of their father to be given to them, which so many possessors will render evident, especially if they should obtain all of his estate."
(4) Again, any property which the convicted person has acquired by crime does not increase the share of the children; for instance, if he has caused a relative of his to be killed, and enters upon his estate, or obtains praetorian possession of the same; for this was established by the Divine Pius in a Rescript. Consequently, where a son under paternal control had been convicted of killing, by means of poison, a person by whom he had been appointed heir; the above-mentioned Emperor rendered the decision that, although he had entered upon the estate by the order of his father, under whose control he was at the time, it should be forfeited to the Treasury.
(5) If the person whose property has been confiscated has been relegated, anything acquired by him after conviction shall belong to his testamentary heirs or to his heirs at law; for anyone who has been relegated to an island enjoys the right to make a will, as well as all other rights. If, however, he has been deported, he cannot have an heir, because he has lost his citizenship; and any property subsequently acquired will be forfeited to the Treasury.
8. Marcianus, Book.
The right of patrons is preserved unimpaired for their children, so far as the property of a freedman of their father, whose property has been confiscated, is concerned. If the son of the patron appears, the Treasury can claim nothing of the share to which he is entitled.
(1) Where, however, there is a son of the patron, and a son of the freedman as well, the former will be excluded; and there will still be more reason for us to hold that there will be no ground for forfeiture to the Treasury, as children of the freedman exclude those of the patron, and those of the patron exclude the Treasury.
(2) But even if the son of the patron does not desire to demand praetorian possession of the estate, it is established that the Treasury will be excluded from that portion of the property of the freedman of his father to which he is entitled.
(3) The property of a person who has been relegated is not confiscated, unless this is expressly done by the terms of the sentence; but the rights of freedmen cannot be taken away by a special sentence, because the Emperor alone can deprive a relegated person of them.
(4) When a father, who has given a dowry for his daughter, is convicted, nothing is forfeited to the Treasury, even if the daughter should die afterwards during marriage, in which case the profecticial dowry will revert to the father. Therefore it will remain in the hands of her husband.
9. Callistratus, Book.
Unless it is proved that the father, through apprehension of conviction, and in order to defraud the Treasury, has consulted the interests of the children.
10. Marcianus, Book.
Even if the father has promised a dowry for his daughter, and has been convicted, an action to recover the dowry from the estate of the father will be granted to the husband against the Treasury.
(1) Where a father has been convicted, after the dissolution of the marriage of the daughter, and, indeed, after the daughter has given her consent for him to have the dowry, the Treasury can recover it from the husband; but, before she gives her consent, the daughter herself will have a right to recover her dowry.
11. The Same, Book.
When anyone who has been convicted appeals, and dies while the appeal is pending, his property is not confiscated; for even a second will, if he should make one, will be valid. The same must be said even if the appeal is rejected.
(1) A defendant, except when accused of high treason, can administer his own property, pay his debts, and receive what is due to him, if it is paid in good faith; but every alienation which he has made for the purpose of defrauding the Treasury after his conviction can be set aside.
Tit. 21. Concerning the property of those who have either killed themselves or corrupted their accusers before judgment has been rendered.
1. Ulpianus, Disputations, Book VIII.
It was decreed by the Emperors that where capital crimes were involved, he who corrupts his adversary is not liable to punishment, except in such cases as incur the penalty of death; for it was their opinion that they who desire to save the life of a blood relative by any means whatever should be excused.
2. Macer, Public Prosecutions, Book II.
The Emperors Severus and Antoninus to Julius Julianus: Those who are said by robbers to have corrupted their accuser, and are dead, are considered to have confessed their crime, and hence to have left no defence to their heirs.
(1) Where anyone, concerning whose punishment a communication has been sent to the Emperor, for instance, because he was a decurion, or should have been deported to an island, and he dies before the Emperor has sent his reply, it may be asked whether he should be considered to have died before judgment. This question may be said to have been settled by a Decree of the Senate, which was enacted with reference to persons who were transferred to Rome, and died before judgment was rendered. The terms of this decree are as follows: "As no one can be considered to have been condemned during this year, before judgment in his case has been rendered and made public at Rome; no property belonging to a deceased person shall be confiscated before judgment in his case has been made public at Rome; and his • heirs can take possession of his estate."
3. Marcianus, On Informers.
Persons who have been accused, or have been caught while committing a crime, and, through fear of impending accusation, kill themselves, have no heirs. Papinianus, nevertheless, in the Sixteenth Book of Opinions, says that where persons who have not yet been accused of crime, lay violent hands on themselves, their property shall not be confiscated by the Treasury; for it is not the wickedness of the deed that renders it punishable, but it is held that the consciousness of guilt entertained by the defendant is considered to take the place of a confession. Hence, the property of those who ought to be accused, or have been caught committing a crime, or who have killed themselves, should be confiscated.
(1) Moreover, as the Divine Pius stated in a Rescript, the property of anyone who kills himself after he has been accused should be confiscated by the Treasury only where he was accused of a crime for which, if he were convicted, he could be punished with death or deportation.
(2) He also stated in a Rescript that anyone who is charged with a theft of little importance, although he may have put an end to his life while the accusation was pending, should not be considered to be in a position that would justify his heirs being deprived of his estate; as he himself would not have been deprived of it if he had been found guilty of theft.
(3) Therefore, in conclusion, it should be said that the property of him who has laid violent hands on himself should be forfeited to the Treasury, if he was implicated in the crime to such an extent that he would have lost his property if he had been convicted.
(4) If, however, anyone, through weariness of life, or incapacity to suffer pain, or, for any other reason, should put an end to his life, the Divine Antoninus stated in a Rescript that he could have a successor.
(5) Moreover, where a father laid violent hands on himself because he was said to have killed his son, he was considered to have done so rather on account of grief for the loss of his child, and hence, as the Divine Hadrian stated in a Rescript, his property should not be confiscated.
(6) A distinction should be made in these cases, for it makes a difference for what reason a person commits suicide, just as when the question is asked whether he who did so and did not succeed should be punished as having imposed sentence upon himself; for, by all means, he should be punished, unless he was compelled to take this step through weariness of life, or because he was incapable of enduring pain of some description. This is reasonable, for he should be punished if he laid violent hands on himself without any cause, as he who did not spare himself would still less spare another.
(7) It is, however, provided by the Imperial Mandates that the property of those who die either while in confinement or at liberty under bond shall not be confiscated, as long as the result of their cases is uncertain.
(8) But, where anyone has committed suicide without having a just cause for doing so, and dies after an accusation has been filed, and his heirs are ready to defend his case and show that he was innocent, let us see whether they should be heard, and whether his property should be confiscated to the Treasury before the crime has been proved, or if it should be confiscated under all circumstances. The Divine Pius stated in a Rescript addressed to Modestus Taurinus that when the heirs are prepared to undertake the defence, the property should not be confiscated unless the commission of the crime is proved.
Tit. 22. Concerning persons who are interdicted, relegated, and deported.
1. Pomponius, On Sabinus, Book IV.
The beginning of the Rescript of the Divine Trajan to Didius Secundus is as follows: "I am aware that the property of persons who have been relegated has been confiscated to the Treasury by the avarice of former ages, but a different course is agreeable to my clemency, as I wish to give this additional example to show that I have favored innocence during my reign."
2. Marcianus, Institutes, Book XIII.
The Divine Pius stated in a Rescript that anyone who has been deported cannot be manumitted.
3. Alfenus, Epitomes, Book I.
He who has lost his citizenship does not deprive his children of any rights, except those which would pass to them from him if he should die intestate while in the enjoyment of his citizenship; that is to say, his estate, his freedmen, and anything else of this kind that can be found. Whatever, indeed, is not derived from their father but from their family, from their town, and from the nature of things, will remain theirs entirely. Therefore, brothers who are legitimate will become heirs to one another, and will be entitled to the guardianship and estates of agnates, for not their father, but their ancestors, gave them these rights.
4. Marcianus, Institutes, Book II.
Persons who have been relegated to an island retain their children under their control, for the reason that they retain all their other rights, as they are only forbidden to leave the island; and they also retain all their property, except that which has already been taken from them, for those who are either sent into perpetual exile or relegated can, by the sentence, be deprived of a portion of their property.
5. The Same, Rules, Book I.
Exile is of a threefold nature; interdiction of certain places, or of secret flight; or all places are forbidden except one which is designated ; or confinement to one island is prescribed, that is to say, relegation to a single island.
6. Ulpianus, On the Duties of Proconsul, Book IX.
Among the penalties is also included deportation to an island, which deprives the person of Roman citizenship.
(1) The right of deportation to an island is not granted to the Governors of provinces, although it is granted to the Prefect of the City, for this is stated in an Epistle of the Divine Severus to Fabius Cilo, Urban Prefect. Therefore, whenever the Governor of a province thinks that anyone ought to be deported to an island, he should notify the person himself, and also send his name to the Emperor, in order that he may be deported; and then write to the Emperor stating his opinion fully, so that the latter may determine whether his sentence should be executed, and the culprit be deported to an island; and, in the meantime, until the answer is given, he must order him to remain in prison.
(2) The decurions of cities (as was stated by the Divine Brothers in a Rescript), should be either deported or relegated on account of capital crimes. And, in fact, they ordere3 Priscus, who, before being tortured, confessed that he had committed homicide and arson, to be deported to an island.
7. The Same, On the Duties of Proconsul, Book II.
There are two kinds of relegated persons; first, those who are merely relegated to an island; and second, others who are forbidden to enter the provinces, but to whom no island is assigned.
(1) The Governors of provinces can relegate persons to an island, iprovided they have under their control one that belongs to the province over which they have jurisdfction; and they can specifically designate this island, and relegate the culprit to it. But if they have not such an island under their control, they can sentence the guilty party to be relegated to an island, and then write to the Emperor in order that he can assign one to them. They cannot, however, sentence anyone to an island which does not form part of the province over which they have jurisdiction. In the meantime, until the Emperor assigns an island, the person who is relegated is placed in charge of the military.
(2) The following difference exists between persons who are deported, and those who are relegated, that is to say, anyone can be relegated to an island for a certain term, or for life.
(3) When anyone is relegated for a certain term or for life, he retains the right of Roman citizenship, and does not lose the power to make a will.
(4) It is established by certain rescripts, that neither all, nor even a portion of their property, can be taken from persons who have been relegated for a certain term; and judgment depriving persons relegated of a part or of all of their property have been censured, but not to the extent of invalidating such judgments.
(5) A certain kind of relegation, like that to an island, exists in the Province of Egypt, that is to say, relegation to an oasis.
(6) However, as no one can relegate a person to an island not under his control, so, he has no right to relegate him to a province which is not in his jurisdiction; as, for example, the Governor of Syria cannot relegate anyone to Macedonia.
(7) He can, however, relegate him outside of his province.
(8) Likewise, he can relegate anyone to remain in a certain specified part of his province; for instance, he may forbid him to leave a certain city, or a certain district.
(9) I am aware that Governors are accustomed to relegate persons to the most desert parts of their provinces.
(10) Anyone can forbid a person to live in the province which he governs, but he cannot do so in another. This was stated by the Divine Brothers in a Rescript. The result of this was, that anyone who was relegated from the province in which he had his domicile could go and live in that in which he was born. Our Emperor and his Divine Brothers, however, provided for this contingency; for they stated in a Rescript addressed to Probus, the Governor of the Province of Spain, that: "Anyone can be forbidden to remain in the province in which he had been born by the official who governs the province where the person had his domicile." Still, it is just that those who are not residents of the province in which they committed the offence should be judged in accordance with the terms of this Rescript.
(11) It has been doubted whether anyone can prohibit another from remaining in the province in which he was born, when he himself governs the province in which the person lives, and he does not forbid him to remain in his own province; as Governors are accustomed to make Italy the object of the interdiction, and do not forbid the culprits to enter their own country; or whether it consequently appears that even the province in which they govern has been interdicted. This latter opinion should be adopted.
(12) On the other hand, he who governs the province where the party in question was born has no right to forbid him to dwell in the province which he now inhabits.
(13) Where anyone confesses a judgment, so that he who has committed an offence in one province can be relegated by the Governor of that province, the result will be that the person relegated must avoid the three provinces, except Italy; that is, the one in which he committed the offence; the one in which he lives; and the one in which he was born. If, either on account of his condition or that of his parents or patrons, he is considered to have had his origin in different provinces, we should say that he has, in consequence, been forbidden several provinces.
(14) Nevertheless, certain Governors have been permitted to interdict several provinces, as for instance, the Governors of Syria and of Dacia.
(15) It has been decided that anyone who has been forbidden to reside in his native province should also remain away from Rome; and, on the other hand, if anyone has been forbidden to reside at Rome he will not be considered to have been forbidden to live in his own country. This has been provided by several constitutions.
(16) If it is clear that not one's native country, but some particular city has been forbidden him, let us see if we cannot say that his native province, as well as the City of Rome, have also been forbidden him, which is the better opinion.
(17) A day should be fixed by the Governor for the departure of persons who have been relegated, and this is usually done; for it is customary to render the decision as follows: "I relegate So-and-So from this province, and from these islands, and he must depart before such-and-such a day."
(18) The Divine Brothers stated in a Rescript that a person who had been relegated is certainly entitled to present a petition to the Emperor.
(19) Moreover, the sentence usually prohibits persons from residing in the territory of their native province or city, or within the walls of the latter, or from leaving it, or from stopping in certain suburbs of the same.
(20) It is customary to forbid decurions to enjoy the privileges of their order, either temporarily or permanently.
(21) Likewise, the penalty can be imposed upon anyone not to accept any honor, and this does not have the effect of causing him to cease to act as decurion; as, indeed, anyone may be a decurion, and still not be permitted to accept any honors, for anyone can be a Senator, and still not be able to demand any.
(22) Anyone can also be forbidden to receive a single honor, in such a way, however, that he who is forbidden to do so can not only obtain this particular honor, but also those which are greater; for it would be extremely ridiculous for a person who was prohibited by way of penalty from receiving inferior honors to be able to aspire to greater ones. Nevertheless, one who has been prohibited from receiving certain honors is not prevented from seeking those which are inferior ; but if anyone is forbidden to accept an office by way of penalty, the sentence will be void, for a penalty cannot bestow immunity. Therefore, if someone is deprived of honors, by way of penalty, it can be said that where the said honors include an office involving great expense, the infamy of the convicted person will not benefit him on this account.
8. Marcianus, Public Prosecutions, Book II.
But I think that when he is deprived of the honor, he should be compelled to pay the expenses.
9. Ulpianus, On the Duties of Proconsul, Book X.
A Governor can sentence anyone not to leave his own house.
10. Marcianus, Book.
But not avoid incurring necessary expenses.
11. Ulpianus, Book.
Sometimes persons who have been relegated are sentenced to pay a fine.
12. Marcianus, Book.
A man who has been relegated from his town, and does not depart, shall be relegated from his province for a certain time.
13. Paulus, Book.
Anyone who has been manumitted by a person who has been relegated cannot go to Rome, because his patron is not permitted to do so.
14. Ulpianus, Book.
A person who is relegated is one who is forbidden temporarily or perpetually to remain in a province, or at Rome, or in the region surrounding it.
(1) A great difference exists between deportation and relegation, for deportation deprives a person of his rights as a citizen, as well as of his property. Relegation does not deprive him of either, unless his property is, for some special reason, confiscated.
(2) Anyone can be relegated by the Emperor, the Senate, the prefects, and the Governors of provinces, but not by the Consul.
(3) Anyone who has lost his rights of citizenship, but retains his property, is liable to praetorian actions.
15. Marcianus, Book.
A person who is deported loses his rights as a citizen, but not his freedom; and, indeed, he cannot enjoy any special right derived from citizenship, but he can enjoy a right of nations; for he can purchase and sell, hire and lease, exchange property, lend money at interest, and do everything of this kind; and he can also give and pledge any property which he may subsequently acquire, unless he encumbers it in order to defraud the Treasury, which will succeed to him after his death; for he cannot alienate any property which has been confiscated.
(1) Anyone who has been deported by a Governor, without the sanction of the Emperor, can become an heir and receive legacies left to him by will.
16. The Same, Book.
Ulpianus Damascenus petitioned the Emperor to allow him to leave to his mother what was necessary for her support, and his mother, through her freedman, to permit him to leave something to her deported son; whereupon the Emperor Antoninus addressed to them a Rescript as follows: "Neither an estate, nor a legacy, nor a trust can be left to persons of this kind, in violation of custom and public law, nor should the condition of such persons be changed. But as you have made the request on account of affection, I will permit you to leave by your last will sufficient for their support and their other necessities, and they can take whatever is bequeathed to them on this account."
17. Pomponius, Book.
Anyone who has been relegated is not excluded from being honored by means of statues and paintings.
18. The Same.
A person who has been relegated retains his condition, as well as the ownership of his own property, and his paternal authority, unimpaired; whether he has been relegated for a specified time, or for life.
(1) Deportation, however, is not for time.
Anyone who has been relegated cannot remain at Rome, although this may not have been included in the sentence, because it is the country of all persons. Nor can he remain in the city in which the Emperor lives, nor in one through which he passes, because those only are permitted to look upon the Emperor who can enter Rome, as the Emperor is the father of his country.
(1) When sentence is passed upon men who are free, by which their property is confiscated, such, for instance, as deportation to an island, as soon as it has been imposed, they change their former condition, and are delivered up to their punishment; unless something of the nature of high treason is involved, which requires the penalty to be increased.
Tit. 23. Concerning persons upon whom sentence has been passed and who have been restored to their rights.
1. Ulpianus, On the Edict, Book XXXVIII.
A patron who has been deported, and afterwards restored to his civil rights, is admitted to the succession of a freedman.
(1) If, however, a person has been condemned to the mines, does his penal servitude extinguish his right as a patron, even after his restoration? The better opinion is that penal servitude does not extinguish his rights as a patron.
2. The Same, Opinions, Book V.
When a person who has been deported and restored regains his rank by the indulgence of the Emperor, but does not recover all his property, he can neither be sued by his creditors nor by the Treasury. When, however, the power of recovering his property also is offered him by the Emperor, and he prefers to relinquish it, he cannot avoid any actions brought against him before he was sentenced.
3. Papinianus, Opinions, Book XVI.
The Treasury retained the property of a man who was deported to an island, after his punishment had been remitted. It is established that creditors before his conviction have no rights of action against him who was their former debtor. If, however, he recovers his property with the restitution of his rank, praetorian actions will not be necessary, for direct actions will lie.
4. Paulus, Questions, Book XVII.
A woman sentenced to the mines brought forth a child which she had previously conceived, and was afterwards restored to her rights by the Emperor. It is more humane to hold that the rights of relationship were also restored to her.
Tit. 24. Concerning the corpses of persons who are punished.
1. Ulpianus, On the Duties of Proconsul, Book IX.
The bodies of those who are condemned to death should not be refused their relatives; and the Divine Augustus, in the Tenth Book on his life, said that this rule had been observed. At present, the bodies of those who have been punished are only buried when this has been requested and permission granted; and sometimes it is not permitted, especially where persons have been convicted of high treason. Even the bodies of those who have been sentenced to be burned can be claimed, in order that their bones and ashes, after having been collected, may be buried.
2. Marcianus, Public Prosecutions, Book II.
If anyone has been deported to an island or relegated, his punishment continues to exist even after his death, for it is not permitted for him to be taken elsewhere and buried, without the consent of the Emperor; as Severus and Antoninus repeatedly stated in Rescripts, and they frequently granted this as a favor to many persons who requested it.
3. Paulus, Sentences, Book I.
The bodies of persons who have been punished should be given to whoever requests them for the purpose of burial.