THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. XI.
CINCINNATI THE CENTRAL TRUST COMPANY
Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME XL
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XLVII.
TITLE XIV. PAGE CONCERNING THOSE WHO STEAL CATTLE ............................ 3
TITLE XV. CONCERNING PREVARICATION ....................................... 4
TITLE XVI. CONCERNING THOSE WHO HARBOR CRIMINALS ....................... 5
TITLE XVII. CONCERNING THIEVES WHO STEAL IN BATHS ........................ 5
TITLE XVIII. CONCERNING THOSE WHO BREAK OUT OF PRISON, AND PLUNDERERS ..... 6
TITLE XIX. CONCERNING THE SPOLIATION OF ESTATES .......................... 7
TITLE XX. CONCERNING STELLIONATUS ....................................... 8
TITLE XXI. CONCERNING THE REMOVAL OF BOUNDARIES ......................... 9
TITLE XXII. CONCERNING ASSOCIATIONS AND CORPORATIONS ...................... 10
TITLE XXIII. CONCERNING POPULAR ACTIONS .................................... 12
BOOK XLVIII.
TITLE I. ON CRIMINAL PROSECUTIONS ...................................... 13
TITLE II. CONCERNING ACCUSATIONS AND INSCRIPTIONS ....................... 15
TITLE III. PAGE
CONCERNING THE CUSTODY AND APPEARANCE OF DEFENDANTS IN CRIMINAL CASES .................................................. 21
TITLE IV. ON THE JULIAN LAW RELATING TO THE CRIME OF LESE MAJESTY ....... 25
TITLE V. CONCERNING THE JULIAN LAW FOR THE PUNISHMENT OF ADULTERY .... 29
TITLE VI. CONCERNING THE JULIAN LAW ON PUBLIC VIOLENCE .................. 51
TITLE VII. CONCERNING THE JULIAN LAW RELATING TO PRIVATE VIOLENCE ........ 57
TITLE Vill.
CONCERNING THE CORNELIAN LAW RELATING TO ASSASSINS AND POISONERS ..................................................... 59
TITLE IX. CONCERNING THE POMPEIAN LAW ON PARRICIDES ..................... 64
TITLE X.
CONCERNING THE CORNELIAN LAW ON DECEIT AND THE LIBONIAN DECREE OF THE SENATE .............................................. 67
TITLE XI. CONCERNING THE JULIAN LAW ON EXTORTION ....................... 81
TITLE XII. CONCERNING THE JULIAN LAW ON PROVISIONS ....................... 82
TITLE XIII.
CONCERNING THE JULIAN LAW RELATING TO PECULATION, SACRILEGE, AND BALANCES .............................................. 83
TITLE XIV.
CONCERNING THE JULIAN LAW WITH REFERENCE TO THE UNLAWFUL SEEKING OF OFFICE .......................................... 86
TITLE XV. CONCERNING THE FAVIAN LAW WITH REFERENCE TO KIDNAPPERS ....... 87
TITLE XVI.
CONCERNING THE TURPILLIAN DECREE OF THE SENATE AND THE DISMISSAL OF CHARGES .......................................... 90
TITLE XVII.
CONCERNING THE CONVICTION OF PERSONS WHO ARE SOUGHT FOR OR ARE ABSENT ................................................ 97
TITLE XVIII. PAGE CONCERNING TORTURE ............................................ 98
TITLE XIX. CONCERNING PUNISHMENTS ....................................... 107
TITLE XX. CONCERNING THE PROPERTY OF PERSONS WHO HAVE BEEN CONVICTED ... 125
TITLE XXI.
CONCERNING THE PROPERTY OF THOSE WHO HAVE EITHER KILLED THEMSELVES OR CORRUPTED THEIR ACCUSERS BEFORE JUDGMENT HAS BEEN RENDERED ................................................... 129
TITLE XXII. CONCERNING PERSONS WHO ARE INTERDICTED, RELEGATED, AND DEPORTED. 130
TITLE XXIII.
CONCERNING PERSONS UPON WHOM SENTENCE HAS BEEN PASSED AND WHO HAVE BEEN RESTORED TO THEIR RIGHTS ................... 136
TITLE XXIV. CONCERNING THE CORPSES OF PERSONS WHO ARE PUNISHED ........... 137
BOOK XLIX.
TITLE I. ON APPEALS AND REPORTS ........................................ 137
' TITLE II. FROM WHAT PERSONS IT Is NOT PERMITTED TO APPEAL .............. 146
TITLE III. To WHOM AND FROM WHOM AN APPEAL CAN BE TAKEN .............. 147
TITLE IV. WHEN AN APPEAL SHOULD BE TAKEN, AND WITHIN WHAT TIME ....... 147
TITLE V. CONCERNING THE ACCEPTANCE OR REJECTION OF APPEALS ............ 151
TITLE VI. CONCERNING NOTICES OR APPEALS CALLED DISPATCHES ............... 152
TITLE VII. No CHANGE SHALL BE MADE AFTER THE APPEAL HAS BEEN INTERPOSED .. 153
TITLE Vill. WHAT DECISIONS CAN BE RESCINDED WITHOUT AN APPEAL ............ 153
TITLE IX. PAGE WHETHER THE REASONS FOE AN APPEAL CAN BE PRESENTED BY ANOTHER. 155
TITLE X.
WHERE A GUARDIAN, A CURATOR, OR A MAGISTRATE HAVING BEEN APPOINTED, APPEALS ............................................ 155
TITLE XI. HE WHO APPEALS SHOULD BE DEFENDED IN His OWN PROVINCE ........ 156
TITLE XII.
WHERE A PARTY LITIGANT is COMPELLED TO BRING ANOTHER ACTION BEFORE THE JUDGE FROM WHOSE DECISION HE HAS ALREADY APPEALED ..................................................... 156
TITLE XIII. IF DEATH SHOULD OCCUR WHILE AN APPEAL is PENDING ............. 156
TITLE XIV. CONCERNING THE RIGHTS OF THE TREASURY ......................... 158
TITLE XV.
CONCERNING CAPTIVES, THE RIGHT OF POSTLIMINIUM, AND PERSONS RANSOMED FROM THE ENEMY ..................................... 176
TITLE XVI. CONCERNING MILITARY AFFAIRS ................................... 188
TITLE XVII. CONCERNING CASTRENSE PECULIUM ................................ 196
TITLE XVIII. CONCERNING VETERANS ........................................... 203
BOOK L.
TITLE I. CONCERNING MUNICIPAL TOWNS AND THEIR INHABITANTS ............ 204
TITLE II. CONCERNING DECURIONS AND THEIR SONS .......................... 214
TITLE III. CONCERNING THE REGISTER OF DECURIONS ........................... 219
TITLE IV. CONCERNING PUBLIC EMPLOYMENTS AND HONORS .................... 219
TITLE V. PAGE CONCERNING EXEMPTION AND EXCUSES FROM EMPLOYMENTS ......... 228
TITLE VI. ON THE RIGHT OF IMMUNITY ..................................... 232
TITLE VII. CONCERNING EMBASSIES .......................................... 236
TITLE Vill. CONCERNING THE ADMINISTRATION OF PROPERTY BELONGING TO CITIES ... 239
TITLE IX.
CONCERNING DECREES WHICH SHOULD BE RENDERED BY THE ORDER OF DECURIONS .................................................. 243
TITLE X. CONCERNING PURLIC WORKS ...................................... 244
TITLE XI. CONCERNING MARKETS ............................................ 246
TITLE XII. CONCERNING PROMISES ........................................... 247
TITLE XIII.
CONCERNING EXTRAORDINARY JUDICIAL INQUIRIES, AND WHERE A JUDGE is ALLEGED TO HAVE RENDERED A CASE His OWN ................ 251
TITLE XIV. CONCERNING BROKERS ............................................ 255
TITLE XV. CONCERNING TAXES .............................................. 256
TITLE XVI. CONCERNING THE SIGNIFICATION OF TERMS ......................... 259
TITLE XVII. CONCERNING DIFFERENT RULES OF ANCIENT LAW .................... 297
THE DIGEST OR PANDECTS.
(Continued.)
BOOK XLVIL
TITLE XIV. CONCERNING THOSE WHO STEAL CATTLE.
1. Ulpianus, On the Duties of Proconsul, Book Vill.
The Divine Hadrian, at the Council of Bsetica, stated in a Rescript relating to cattle-thieves, "When those who drive away cattle are punished most severely, they are ordinarily condemned to the sword." They are not, however, punished with the greatest severity everywhere, but only in those places where this species of offence is most frequently committed; otherwise, they are sentenced to hard labor in the public works, and sometimes only temporarily.
(1) Those are properly considered cattle-thieves who remove cattle from pastures, or from droves, and prey upon them, as it were; and they exercise this occupation of stealing cattle as a regular trade when they take horses or cattle from the droves of which they form a part. If, however, anyone should drive away an ox that is lost, or horses which have been left alone, he does not belong to this category, but is merely an ordinary thief.
(2) He, however, who drives away a sow, a she-goat, or a sheep should not be punished as severely as one who steals larger animals.
(3) Although Hadrian established the penalty of the mines, or that of labor on the public works, or that of the sword for this offence; still, those who do not belong to the lowest rank of society should not be subjected to this penalty, for they either should be relegated or expelled from their order. Those, however, who-drive away cattle, while armed, are not unjustly thrown to wild beasts.
(4) Anyone who drives away cattle whose ownership is in dispute should be subjected to a civil investigation, as Saturninus says; but this rule ought only to be adopted where no pretext for stealing the cattle is sought, but the accused person, induced by good reasons, actually believed that the cattle belonged to him.
2. Macer, Public Prosecutions, Book I.
The crime of driving away cattle is not subject to public prosecution, because it is rather to be classed as a theft; but since most offenders of this description go armed, if they are arrested, they are usually more severely punished on this account.
3. Callistratus, On Legal Investigations, Book VI. Sheep, in proportion to the number driven away, either render a man a common thief, or an appropriator of cattle. Certain authori-
ties have held that ten sheep constitute a flock, just as four or five hogs, when they are driven away from a drove; but a cattle-thief commits this crime if he steals but one horse or ox.
(1) He also should be more severely punished who drives away a tame flock from a stable, and not from a forest, or one forming part of a larger flock.
(2) Those who have often perpetrated this offence, although they may have taken only one or two animals at a time, are nevertheless, classed as cattle thieves.
(3) Those who harbor offenders of this kind should, according to an Epistle of the Divine Trajan, be punished by being banished from Italy for ten years.
TITLE XV. CONCERNING PREVARICATION.
1. Ulpianus, On the Edict of the Prietor, Book VI.
A prevaricator is a person who takes both sides, and assists the adverse party by the betrayal of his own case. This term, Labeo says, is derived from a varying contest, for he acts in this manner who, apparently being on one side, actually favors the other.
(1) A prevaricator, properly so called, is one who appears as accuser in a criminal prosecution. An advocate, however, is not correctly said to be a prevaricator. What then should be done with him if he should be guilty of this offence, in either a private or a public proceeding, that is to say, if he has betrayed his own side ? It is usual for him to be punished arbitrarily.
2. Ulpianus, On the Duties of Proconsul, Book IX. It should be remembered that, at present, those who are guilty of this offence are punished with an arbitrary penalty.
3. Macer, Public Prosecutions, Book I.
The judgment for prevarication is either public or introduced by custom.
(1) If the defendant opposes the prosecutor in a criminal case, alleging that he already has been accused of the same crime by another and acquitted, it is provided by the Julian Law relating to public prosecutions that he cannot be prosecuted until the crime charged by the first accuser and the judgment rendered with reference to it have been investigated. Therefore, the decision of cases of this kind is understood to belong to the category of public prosecutions.
(2) Where the crime of prevarication is said to have been committed by an advocate, a public prosecution cannot be instituted; and it makes no difference whether he is said to have committed it in a public or a private proceeding.
(3) Therefore if anyone is accused of having abandoned a public prosecution, the case will not be public, because no provision was made for this by any law; and a public accusation is not authorized by that
decree of the Senate which prescribes the penalty of five pounds of gold against anyone who abandons a case.
4. The Same, Public Prosecutions, Book II.
If a person against whom an action for slander cannot be brought is convicted of being a prevaricator in a criminal case, he will become infamous.
5. Venuleius Saturninus, Public Prosecutions, Book II. An accuser convicted of prevarication cannot afterwards bring an accusation under the law.
6. Paulus, On Public Prosecutions.
It was stated in a Rescript by our Emperor and his Father that, in the case of crimes which are opposed as being extraordinary, prevaricators shall be punished with the same penalty to which they would have been liable, if they themselves had violated the law by which the defendant was acquitted through their treacherous instrumentality.
7. Ulpianus, On Taxes, Book IV.
In all cases except those in which the shedding of blood is involved, anyone who corrupts the informer is considered as convicted, according to the Decree of the Senate.
TITLE XVI. CONCERNING THOSE WHO HARBOR CRIMINALS.
1. Marcianus, Public Prosecutions, Book II.
The harborers of criminals constitute one of the worst classes of offenders, for without them no criminal could long remain concealed. The law directs that they shall be punished as robbers. They should be placed in the same class, because when they can seize robbers they permit them to go, after having received money or- a part of the stolen goods.
2. Paulus, On the Punishment of Civilians.
Persons by whom a thief, who is either their connection by affinity or their blood relative, is concealed, should neither be discharged, nor severely punished, for their crime is not as serious as that of those who conceal robbers who are in no way connected with them.
TITLE XVII. CONCERNING THIEVES WHO STEAL IN BATHS.
1. Ulpianus, On the Duties of Proconsul, Book Vill.
Nocturnal thieves should be arbitrarily tried and punished when proper cause is shown, provided we take care that no greater penalty is inflicted than that of labor on the public works. The same rule ap-
plies to thieves who steal in baths. If, however, the thieves defend themselves with weapons, or if they have broken in, or have done anything of this kind, but have not struck anyone, they shall be sentenced to the mines, and those of superior social position shall be exiled.
2. Marcianus, Public Prosecutions, Book II.
If they commit theft in the daytime, they should be tried in the ordinary way.
3. Paulus, On the Punishment of Soldiers.
A soldier who has been caught stealing a bath should be dishonorably discharged from the service.
TITLE XVIII.
CONCERNING THOSE WHO BREAK OUT OF PRISON, AND PLUNDERERS.
1. Ulpianus, On the Duties of Proconsul, Book Vill.
The Divine Brothers stated in a Rescript addressed to ^milius Tiro, that persons who break out of prison should suffer death. Satur-ninus also adopts the opinion that those who have escaped from prison whether by breaking down the doors, or by conspiring with others confined with them, should be capitally punished, but if they escaped through the negligence of the guards, they should undergo a lighter penalty.
(1) Robbers, who are more atrocious thieves (for this is the meaning of the word) should be sentenced to labor on the public works either for life, or for a certain term of years; those, however, who are of superior rank should be temporarily dismissed from their order, or compelled to depart beyond the boundaries of their country; but no special penalty has been imposed upon them by the Imperial Rescripts. Therefore, where proper cause is shown, the magistrate having jurisdiction can pronounce judgment according to his discretion.
(2) In like manner, thieves who carry bags, directarii, and those who break into buildings, shall be punished in the same way. The Emperor Marcus ordered that a Roman knight who had stolen money, after having broken through a wall, should be banished from the Province of Africa from whence he came, as well as from the City, and from Italy, for the term of five years. It is, however, necessary, after proper cause has been shown, to render a decision with reference to both those who break into houses, and the other offenders above mentioned, according to the circumstances attending the crime; provided that no one shall be sentenced to a more severe penalty than that of labor on the public works, if he is a plebeian, and if he is of higher rank, shall suffer no more severe punishment than that of exile.
2. Paulus, On the Duties of the Prefect of the Night Watch. Different penalties are inflicted upon persons who break into houses, for those who break in at night are the more 'atrocious, and
hence they are usually scourged and sentenced to the mines. Those, however, who break in by day, are first whipped, and then sentenced to hard labor for life or for a specified time.
TITLE XIX. CONCERNING THE SPOLIATION OF ESTATES.
1. Marcianus, Institutes, Book III.
When anyone plunders the estate of another, it is customary for him to be punished arbitrarily, by means of the accusation of despoiling an estate, as is provided by a Rescript of the Divine Marcus.
2. Ulpianus, On the Duties of Proconsul, Book IX.
In prosecuting the crime of plundering an estate, the Governor of the province should take judicial cognizance of the same; for when the action for theft cannot be brought, recourse to the Governor alone remains.
(1) It is evident that the offence of plundering an estate can only be prosecuted under circumstances where the action for theft is not available, that is to say, before the estate has been entered upon, or after it has been entered upon, but before the property has been taken possession of by the heir; for it is clear that, in this instance, the action of theft will not lie, although there is no doubt that one for the production of property can be brought, if anyone desires this to be done in order to enable him to claim it.
3. Marcianus, Public Prosecutions, Book II.
The Divine Severus and Antoninus stated in a Rescript that anyone who desired to prosecute extraordinarily the crime of plundering an estate could do so either before the Prefect of the City or the Governor ; or he could demand the estate from the possessors by the ordinary course of procedure.
4. Paulus, Opinions, Book III.
The property of an estate belongs in common to all the heirs, and therefore he who brings an accusation for the crime of plundering it, and gains his case, is also considered to have benefited his co-heir.
5. Hermogenianus, Epitomes of Law, Book II.
A wife cannot be accused of the crime of plundering an estate, because the action of theft cannot be brought against her.
6. Paulus, On Neratius, Book I.
If, not knowing that certain property belongs to an estate, you take it, Paulus says that you commit a theft. Theft of property belonging to an estate is not committed any more than that of property which has no owner, and the opinion of the person who steals it does not change the character of the action in any respect.
TITLE XX. CONCERNING STELLIONATUS.
1. Papinianus, Opinions, Book I.
The action of Stellionatus is not included in public prosecutions or in private actions.
2. Ulpianus, On Sabinus, Book Vill.
A judgment for this offence does not brand anyone with infamy, but it is followed by extraordinary punishment.
3. The Same, On the Duties of Proconsul, Book HI.
The accusation of Stellionatus comes within the jurisdiction of the Governor.
(1) It must be remembered that those who have committed any fraudulent act can be prosecuted for this crime, that is to say, if there is no other of which they can be accused, for what in private law gives rise to an action for fraud is the basis for a criminal prosecution in an accusation of Stellionatus. Hence, whenever where the offence lacks a name, we designate it Stellionatus. Especially, however, does this apply to anyone who exchanges or gives property in payment through deceit, where the property has been encumbered to another, and he conceals the fact; for all instances of this kind include stellion-atus. And, where anyone has substituted some article for another; or has put aside goods which he was obliged to deliver, or has spoiled them, he is also liable for this offence. Likewise, if anyone has been guilty of imposture, or has been in collusion to bring about the death of another, he can be prosecuted for Stellionatus. And, generally speaking, I should say that where the name of any crime is wanting, an accusation for this offence can be brought, but it is not necessary to enumerate the different instances.
(2) No punishment, however, is legally prescribed for Stellionatus, since, under the law, it is not a crime. It is, however, customary for it to be punished arbitrarily, provided that, in the case of plebeians, the penalty inflicted is not more severe than that of condemnation to the mines. But, in the case of those who occupy a higher position, the sentence of temporary exile, or expulsion from their order should be imposed.
(3) Anyone who has fraudulently concealed merchandise can be specially prosecuted for this crime.
4. Modestinus, On Punishments, Book III.
When anyone swears in a written instrument that property pledged belongs to him, thereby committing perjury, it becomes Stellionatus, and therefore the culprit should be sent into temporary exile.1
1 Stellionatus was aptly defined by an eminent French commentator on the Digest of Justinian, to be "Omnis atrox dolus qui proprio nomine caret." As ex-
TITLE XXI. CONCERNING THE REMOVAL OF BOUNDARIES.
1. Modestinus, Rules, Book Vill.
The penalty for the removal of boundaries is not a pecuniary fine, but should be regulated according to the social position of the guilty parties.
2. Callistratus, On Judicial Inquiries, Book III.
The Divine Hadrian stated the following in a Rescript. There can be no doubt that those who remove monuments placed to establish boundaries are guilty of a very wicked act. In fixing the penalty, however, its degree should be determined by the rank and intention of the individual who perpetrated the crime, for if persons of eminent rank are convicted, there is no doubt that they committed the act for the purpose of obtaining the land of others, and they can be relegated for a certain time, dependent upon their age; that is to say, if the accused is very young, he should be exiled for a longer time; if he is old, for a shorter time.
Where others have transacted their business, and have furnished their services, they shall be chastised and sentenced to hard labor on the public works for two years. If, however, they removed the monuments through ignorance, or accidentally, it will be sufficient to have them whipped.
isting under the Scottish Law, and made a crime by an Act having reference to a fraudulent agreement to convey or rent the same land to different persons, it is thus described:
"The heart of man is deceitful above all things, and such as have been conversant in business and Courts of Justice have found that cheats do amongst men multiply, and vary themselves into so many formes, that Legislators were forced to invent this general name of Stellionat; under which they might range all cheats."
"The disponing duties of rents of Lands to several persons, shall be accompted Stellionatus; and therefore whatever was punished as Stellionat by the Civil Law may be punished as such by ours; not only a pari, or by extension, but by approbation; the Roman Law having by the allowance of that Act become ours; and therefore the making of double assignations or dispositions of lands, or for anything else besides Rents mentioned expressly in that Act, is punished as Stellionat in our practique."
"Whosoever makes double Disposition of Lands, he shall be called at the Kings instance, and punisht at the Kings will."
"The punishment then of this crime could not be certain and determinat, seing the crime is various in its own nature, but it is arbitrary and punishable at the discretion of the Judge, according to the circumstances, and measures of the fraud committed. And it is called Stellionat, from a Serpent called Stellio, which is beautified by Starry spots, stellatis guttis distinetum, and is the most subtile of all Serpents, Plin. Lib. 30, Nat. Histor., Cap. 10." (Mackenzie, The Laws and Customes of Scotland in Matters Criminal, I, XXVIII.) The stellio of Pliny, above mentioned, was a lizard, and not a serpent, perhaps the chameleon.
Stellionatus, as a distinct offence, is not recognized by the Common or Statutory Law of England.—ED.
3. The Same, On Judicial Inquiries, Book V.
A pecuniary penalty was established by the agrarian law which Gaius Caesar enacted against those who fraudulently removed monuments beyond their proper place, and the boundaries of their land; for it directed that they should pay to the Public Treasury fifty aurei for every boundary mark which they took out or removed, and that an action should be granted to anyone who desired to bring it.
(1) By another agrarian law, introduced by the Divine Nerva, it is provided that if a male or female slave, without the knowledge of his or her master, commits this offence with malicious intent, he or she shall be punished with death, unless his or her master or mistress prefers to pay the fine.
(2) Those, also, who change the appearance of the place in order to render the location of the boundaries obscure, as by making a shrub out of a tree; or plowed land out of a forest; or who do anything else of this kind, shall be punished in accordance with their character and their rank, and the violence with which their acts were committed.1
TITLE XXII.
CONCEENING ASSOCIATIONS AND CORPORATIONS.
1. Marcianus, Institutes, Book HI.
By the Decrees of the Emperors, the Governors of provinces are directed to forbid the organization of corporate associations, and not even to permit soldiers to form them in camps. The more indigent soldiers, however, are allowed to put their pay every month into a
1 The Bible invoked a curse upon him who removed his neighbor's landmark. (Deuteronomy XXVII, 17.)
Among many ancient nations this was a capital crime; with some it entailed other penalties of greater or less severity.
These monuments were invested with peculiar sanctity by the Babylonians. An account or description of the tract whose limits they defined was frequently inscribed upon them, imperishable historical memorials of incalculable value to subsequent generations containing information nowhere else to be found. Every available method, both religious and secular, of exciting fear was employed to . prevent interference with boundary-stones. The anathemas of king and priest were denounced against whoever meddled with them. The offender was placed in the same category as an obstructor of the highway, and rendered himself liable to be hanged upon a gallows erected over his own residence. (Johns, Babylonian and Assyrian Laws, Contracts and Letters, Chap. XVIII, Pages 191, 192.)
The Law of Wales also inflicted the penalty of death.
"There are three other stones, which if any man remove, he shall be indicted as a thief; the boundary stone, the white stone of convention, and the guide stone; and he that destroys them shall forfeit his life." (The Ancient Laws of Cambria: Triads of Dyvnwal Moelmud 100.) The Visigoths exacted a fine of twenty solidi from a freeman who designedly removed a landmark; a slave received fifty lashes. In every instance, restoration of the monument to its former position was compulsory. "Qui studio pervadendi limites complanaverit, aut terminos fixos fuerit ausus evellere; si ingenuus est, per singula signa vel notas XX, solidos, mi fraudem fecit, cogatur inferre: et si servus est, per singula signa L. flagella suscipiat, et limitem et terminum restituat." (Forum Judicum, X, III, II.)—ED.
common fund, provided they assemble only once during that time, for fear that under a pretext of this kind they may organize an unlawful society, which the Divine Severus stated in a Rescript should not be tolerated, not only at Rome, but also in Italy and in the provinces.
(1) To assemble for religious purposes is, however, not forbidden if, by doing so, no act is committed against the Decree of the Senate by which unlawful societies are prohibited.
(2) It is not legal to join more than one association authorized by law, as has been decided by the Divine Brothers. If anyone should become a member of two associations, it is provided by a rescript that he must select the one to which he prefers to belong, and he shall receive from the body from which he withdraws whatever he may be entitled to out of the property held in common.
2. Ulpianus, On the Duties of Proconsul, Book VII.
Anyone who becomes a member of an unlawful association is liable to the same penalty to which those are subject who have been convicted of having seized public places or temples by means of armed men.
3. Marcianus, Public Prosecutions, Book II.
If associations are illegal, they will be dissolved by the terms of Imperial Mandates and Constitutions, and Decrees of the Senate. When they are dissolved, the members are permitted to divide among themselves the money or property owned in common, if there is any of this kind.
(1) In a word, unless an association or any body of this description assembles with the authority of the Decree of the Senate, or of the Emperor, this assembly is contrary to the provisions of the Decree of the Senate and the Imperial Mandates and Constitutions.
(2) It is also lawful for slaves to be admitted into associations of indigent persons, with the consent of their masters; and those who have charge of such societies are hereby notified that they cannot receive a slave into an association of indigent persons without the knowledge or consent of his master, and if they do, that they will be liable to a penalty of a hundred aurei for every slave admitted.
4. Gaius, On the Law of the Twelve Tables, Book IV.
Members are those who belong to the same association which the Greeks call Iraipia. They are legally authorized to make whatever contracts they may desire with one another, provided they do nothing in violation of the public law.
The enactment appears to have been taken from that of Solon, which is as follows: "If the people, or brothers, or those who are associated together for the purpose of sacrifice, or sailors, or those who are buried in the same tomb, or members of the same society who generally live together, should have entered, or do enter into any contract with one another, whatever they agree upon shall stand, if the public laws do not forbid it."
TITLE XXIII. CONCERNING POPULAR ACTIONS.
1. Paulus, On the Edict, Book Vill.
We call that a popular action which protects the rights of the party who brings it, as well as those of the people.
2. The Same, On the Edict, Book I.
Where several persons bring a popular action at the same time, the Praetor shall select the most suitable one of them.
3. Ulpianus, On the Edict, Book I.
If suit is brought several times for the same cause, when the same act is involved, the ordinary exception of res judicata can be pleaded.
(1) In popular actions, the party in interest is given the preference.
4. Paulus, On the Edict, Book III.
A popular action is granted to a person whose rights are unimpaired, that is to say, to one who can bring suit under the Edict.
5. The Same, On the Edict, Book Vill.
Where anyone is sued in a popular action, he can appoint an attorney to defend him, but he who brings the suit cannot appoint one.
6. Ulpianus, On the Edict, Book XXV.
Popular actions are not granted to women and minors, unless they are interested in the matter.
7. Paulus, On the Edict, Book XLI.
Popular actions do not pass to him to whom an estate has been restored under the Trebellian Decree of the Senate.
(1) The person entitled to bring these actions is not considered to be pecuniarily benefited on this account.
8. Ulpianus, On the Edict, Book I.
All popular actions are not granted against heirs, nor is the right to bring them extended beyond the term of a year.
THE DIGEST OR PANDECTS. BOOK XLVIII.
TITLE I. ON CRIMINAL PROSECUTIONS.
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 Prxtor, 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.1
3. Ulpianus, On Sabinus, Book XXXV.
A criminal prosecution is annulled by the death of the defendant of either sex.2
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.
1 The term "capital," as applicable to punishments among the Romans, while including the extreme penalty, also had reference to any event affecting the "caput," or status of the person in question, that involved a loss of rights, the consequence of which was civil death. Among these was the forfeiture of citizenship resulting from captivity by the enemy, the conviction of some atrocious crime for which the interdiction of water and fire was imposed, reduction to servitude, sentence to hard labor in the mines, and exile. Conviction of crime for which these punishments were inflicted, ipso facto, entailed infamy, and affected a forfeiture of civil rights.—ED.
2 "Crimen morte rei extinguitur."—ED.
5. Ulpianus, Disputations, Book Vill.
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 ex-. tinguished 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.
TITLE II. 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,
1 The inseriptio at Civil Law was a formal denunciation of crime against a person, accompanied by the agreement of the accuser, in case he should fail to substantiate the truth of his allegations, to voluntarily undergo the penalty to which the defendant would have been liable had his guilt been established. (Vide Code, IX, II, 16.) This was an ancient proceeding, designed, of course, to impress the magistrate with the sincerity of the accuser and his ability to produce the necessary evidence, as well as to remove all suspicion of calumnia, or malicious prosecution.
The libellus accusationis, corresponding to our information, another ancient method of filing accusations of crime, or indictments, was also frequently employed. It is still in use in Scotland. (Vide Erskine, Principles of the Law of Scotland, Pages 660, 661, 662.)—ED.
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 Msevia under the Lex Julia de Adulter-iis; 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
C
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 HI.
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. Marciamis, 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.
TITLE III.
CONCERNING THE CUSTODY AND APPEARANCE OP 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 fortK 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,1 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
1 The irenarch was a guardian of the peace, or an official charged with the maintenance of public order, under the Byzantine Empire. He resembled our policeman, but his functions were much more extensive, as he was also invested with a certain degree of magisterial authority. The office was unknown to the ancient Romans by this designation.—ED.
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.
TITLE IV.
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 Vill.
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. Scsevola, 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 Vill.
He who dies while an accusation against him is pending retains his civil status unimpaired, for the crime is extinguished by death, un-
less 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.1
1 The various forms of attack upon national sovereignty, both direct and indirect, were not distinguished or classified by the ancient Romans. Its impersonal character, existing only in the abstract, was not readily conceived by the mass of the community, which naturally would seek for an individual as the supreme representative of the power of the State, against whom any violence or menace to the public welfare would appear to be actually, or presumably directed. Moreover, the original penal system, embracing the lex talionis, and a regular series of fines graded according to the seriousness of the injuries sustained, formulated under the Republic, and largely founded upon the customs and traditions of past ages, was, to all intents and purposes, merely a means for the revenge of private wrongs. Centuries elapsed before the idea of lese majesty, as now understood, came, with the advent of imperialism, to be recognized as a general principle of Roman polity. In those remote ages the term perduellio, mentioned in the Law of the Twelve Tables (Tab. IX, Lex. VII), and afterwards exclusively employed to designate the crime of high treason known as crimen Isesse majestatis, was applied indiscriminately to every grave offence tending to disturb the public peace, the destruction of public order by means of sedition, or interference with the discharge of their functions by any official of the government and the betrayal of the interests of the State in general, and the impairment of national sovereignty, rather than to attacks made directly against the ruler in person as the representative of magisterial and popular power. This doctrine subsequently extended to include all disparaging or insulting remarks aimed at the sovereign or at his subordinates to whom was deputed the exercise of his authority, and the protection of his honor and dignity, has survived in full force to the present day. Perduellio, a term originally adopted to denote any serious breach of the law which incurred the penalty of death, thus afterwards became synonymous with the most aggravated form of lese majesty; and, by its commission, the culprit, ipso facto, was transferred from the condition of a Roman citizen to that of an enemy of the State, involving not only forfeiture of all civil rights, but also, by the interdiction of fire and water, subjecting him to the fatal consequences of outlawry.
The Romans restricted the word duellum, or bellum, exclusively to contests with foreign nations, and considered it inapplicable to any other species of conflict; domestic disturbance or rebellion not being classed as "warfare"; and the Twelve Tables, while declaring perduellio to be punishable with death (capital cstod; capite punitur), did not prescribe the method of inflicting it. Traitors were at first thrown from the Tarpeian Rock, and afterwards subjected to scourging; and, as above stated, to the penalty aquee et ignis interdictio, or practical ostracism and deprivation of the means of existence.
The embodiment and concentration of the authority of the entire mass of citizens in the occupant of the Imperial throne, which were the natural and necessary consequences of the establishment of the Empire, gave rise to the doctrine of liesa majestas, which originally promulgated by Augustus has, as an indispensable concomitant of all monarchial institutions, and extended and magnified during subsequent ages, been stigmatized by the legislative power as the most heinous and unpardonable of crimes, punishable with the severest penalties that could be devised. "Crimen lassze majestatis omnia alia crimina excedit quoad pcenam."
During the reign of Arcadius, the rule was extended to include plotting not only against the life of the Emperor, but also against that of his ministers; a regulation which has subsequently been productive of deplorable abuses in the exercise of regal and judicial authority. The extent to which the legal construction
TITLE V.
CONCERNING THE JULIAN LAW FOR THE PUNISHMENT OP
ADULTERY.
1. Ul^nanus, On Adultery, Book I.
This law was introduced by the Divine Augustus.
2. The Same, Disputations, Book Vill.
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
of this offence, either directly or by implication, was carried by the Emperors and the Roman jurists, of itself presents an instructive commentary upon the unbridled despotism, tyranny, and merciless character of the majority of the Cassara. In addition to being capital, the crime involved confiscation of property and corruption of blood. Even the death of the culprit did not release him from the form of trial and conviction; the eternal stigma of infamy attached to his reputation; and his descendants for generations were declared incapable of holding property, enjoying civil rights, or associating with their fellow-creatures upon any other footing than that of outcasts shunned and despised by all mankind. The intolerable hardship and injustice of visiting the sins of the parent upon his innocent offspring is thus referred to by the most able and eloquent of Roman orators: "Nee vero me fugit quam sit aeerbum, parentum scelera, filiorum poenis lui; sed hoc prxclare legibus comparatum est, ut caritas liberorum amiciores parentes reipublica redderet." (Cicero, Ad Brutum 12.) The proscription of the descendants of the persons convicted was in direct contravention of the rule generally applicable to the criminal acts of ancestors: "Poena ex delicto defuncti, hieres teneri non debet." This disability, introduced by the Norman conquerors into England, as an incident of feudalism, was not recognized by the ancient Saxons, among whom treason, in the ordinary acceptation of the term, denoting an offence against the State, did not exist; redress being obtained, as in the case of all offences, by means of the lex talionis, enforced by the relatives of the injured party in accordance with the right of private revenge, or by the payment of a final sum set forth in the established schedule of penalties for injuries to person and property; all offences being considered as subject to reparation by the payment of a pecuniary mulct, whose amount depended upon the rank and authority of the victim, as well as upon the reverence with which he was popularly regarded. A specific punishment for treason, which was also applicable to the lord of the guilty vassal, was first prescribed by the laws of Alfred. "If anyone plot against the king's life, of himself, or by harbouring of exiles, or of his men; let him be liable in his life and in all that he has. If he desires to prove himself true, let him do so according to the king's 'wer-gild.' So also we ordain for all degrees, whether 'ceorl' or 'eorl.' He who plots against his lord's life, let him be liable in his life to him and in all that he has; or let him prove himself true according to his lord's 'wer.' " (Ancient Laws and Institutes of England, Alfred's Dooms, 4.)
The great legal compilation of Alfonso X accepts the division of treason by the Civil Law into Lxsie Majestatis Crimen and Perduellio. The first of these is subdivided into many heads; the second stands alone, and is defined as an offence against the King for which punishment could be inflicted after death; which was not the case with Lsesa Majestas. "Crimen perduellionis en latin, tanto quiere dezir en romance, como trayzion que se faze contra la persona del Rey, o contra la pro comunal de toda la tierra; e esta traycion es de tal natura, que maguer muera el que la fizo, ante que sea acusado, puedenlo acusar aun despues de su muerte." (Las Siete Partidas, VII, II, III.) Death, with confiscation of property
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 in-
and corruption of blood, was the penalty imposed for the commission of either. (Ibid., II, II.)
During the infancy of the English law, high treason was a crime much more limited in scope than it eventually became under the manifold refinements of subsequent legislation. "Ipsum accusatum machinatum fuisse vel^ aliquid fecisse in mortem Regis vel seditione Regni, vel exercitus, vel consensisse, vel consilium didiscisse, vel authoritatem prestitisse." (Glanvil, Tractatus de Legibus ConsuetU-dinibus Anglise, XIV, I.)
"Habet enim crimen Isesie majestatis sub se multas species, quarum vna est, vt si quis ausu temerario machinatus sit in mortem domini regis, vel aliquid egerit vel agi procurauerit ad seditionem domini regis vel exercitus sui, vel procuranti-bus auxilium & consilium prasbuerit vel consensum, licet id quod in volutate hab-uerit non parduxerit ad effectum." (Bracton, De Legibus et Consuetudinibus Angliai, III, 118.)
Numerous acts declared to be treasonable were subsequently enumerated by the Statute de Proditionibus. (25 Edw. Ill, st. 5, chap. 2.) "To compass or imagine the Death of the King, Queen, or Prince; to violate the Queen, the King's eldest Daughter unmarried, or the Prince's Wife; to levy War against the King, or adhere to his Enemies within the Realm, giving them Aid or Comfort within the Realm, or elsewhere; to Counterfeit the King's Great Seal or Privy Seal, or his Money; to bring false Money into this Realm, counterfeit according to the Money of England (knowing the said Money to be false) to Merchandize or make Payment with it; to kill the Chancellor, Treasurer, or any Justice of either Bench, Justices in Eyre, Justices of Assize, or any other justices assigned to hear and determin, being in their Places doing their Offices; is by this Statute declared to be High Treason; and in the said Cases that ought to be adjudged Treason, which extends to the King, or his Royal Majesty." To these provisions have since been added others relating to the succession, the marriage of the Queen Regnant, and the intimidation of the House of Parliament. It is indispensable for the intention to commit the crime to be accompanied by some overt act, in order for criminal liability to be incurred. The flagrant abuses growing out of prosecutions for alleged acts of treason, practiced and encouraged by tyrannical and unscrupulous princes in the gratification of private animosity, the indulgence of religious prejudice, and the furtherance of unjustifiable ambition, are a blot on the jurisprudence of England.
Attainder and felony which always followed sentence of death in cases of treason, was, for centuries, encouraged by the authorities, as affording a profitable source of wealth through the forfeiture of estates, regardless of the suffering entailed upon the innocent family of the criminal. (Vide Pike, A History of Crime in England, I, Pages 229, 488, 500.)
The king alone could, in former times, remove the disabilities of children resulting from the taint attaching to the conviction of a parent guilty of high treason. "Qusere sil pleist al roy de pardoner loffendour, si ceo voile toller le corrup-
dignant 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.
tion del sangue, de ceux queux sount nees & procreates deuant le pardon, auxi auaunt la, come il fait de ceux queux sont procreates puis le pardo." (Staund-forde, Les Plees del Cor on, III, 34.) Attainder, corruption of blood, and forfeiture of every description, in cases of conviction for treason and felony, were absolutely abolished by Stat. 32, 33, Vict., c. 23.
The barbarity of the ancient sentence for high treason in England has probably never been exceeded anywhere, certainly not among civilized nations. The convicted traitor was dragged to the place of execution; he was then hanged and cut down before death ensued; he was disembowelled and his entrails and private parts burned before his face; he was finally beheaded and quartered; and his remains placed at the disposal of the King, who generally ordered them to be suspended from a gibbet, as a solemn warning to other malefactors. "Le iudgement dun home qui est conuict de haut treason est destre reamesne al lieu dont il vyent, & de la destre trahe fur vn hurdle, iesque al lieu dexecution, & la destre pendus per le colle, & viue destre decoupe, et ces intrailes & priuy members, destre excises de son corps, & combures deins son vieu, & son teste destr' abscise, & s9 corps deuide in quater parts, a disponer al voluntie le Roye." (Staundforde, Les Plees del Coron III, 19.)
The most deplorable and unjust consequence of a conviction of treason at Common Law was attainder, which not only involved the forfeiture of all the property of the culprit to the King, but imposed lasting disability upon his heirs and other members of his family, excluding them from the rights of inheritance, retention, and transfer of estates; incapacitating them from holding office; and forever subjecting them to public execration.
The punishment of women at Common Law was somewhat less severe. "The judgment of a woman for high treason is to be drawn and burnt." (Coke, Institutes, III, 101.)
The original cruel sentence for high treason was abolished in 1814; but the body of the traitor could still be mutilated after death. (Vide Stephen, Commentaries on the Laws of England, Vol. IV, Page 144.)
Under what is known as the Forfeiture Act, passed in 1870, hanging is now the penalty for treason, for which the king, in the exercise of his discretion, can substitute decapitation.
"Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." (Constitution, Art. 3, Sec. 3.) It is a remarkable fact, often referred to by legal writers, that this is the only offence of which a definition is given by the Constitution of the United States. It was adopted bodily from Stat. 25, Edw. Ill, cap. 3, enacted about the middle of the Fourteenth Century, and which forms the basis of all subsequent English legislation on the subject.
The doctrine that, in cases of treason, all conspirators are principals, is not unqualifiedly admitted by the Constitution, as the mere advice or suggestion to levy war by one or more of them, when no overt act takes place in consequence,
(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 Prsetor ? 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 Vill.
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
does not constitute the offence; and even if war should result, it must be shown that it ensued directly by reason of such advice. Various conditions which have arisen since the adoption of the Constitution have modified and extended the application of the term treason in this country, as is disclosed by supplementary enactments and the trend of judicial decisions. (Vide Wharton, A Treatise on Criminal Law, Secs. 2138, 2139.)
In the United States, the penalty for treason is death, or imprisonment for not less than five years and a fine of not less than ten thousand dollars, at the discretion of the court. Conviction also involves disability to hold office. (Barnes, Federal Code, Sec. 9672.)
While the Constitution authorizes the attainder and forfeiture of property of anyone found guilty of treason, this only applies during the life of the culprit, and
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.
corruption of blood is expressly prohibited. (Art. Ill, Sec. 3.) No bill of attainder can be passed. (Art. II, Sec. 9.)
The nations of continental Europe, in general, make the same distinction between treason perpetrated against the person of the sovereign, and conspiracy, or attempt to overthrow the government, as laid down by the Roman jurists; imposing a graduated scale of penalties dependent upon the guilt of the accused. (Allgemeines Strafgesetz, Arts. 58-66 (Austria); Strafgesetzbuch fur das Deutsche Reich, Arts. 80-91 (Germany) ; Wetbock van Strafrecht, Arts. 92-114 (Holland) ; Almindelig borgerlig Straffelov, Secs. 71-116 (Denmark) ; Sveriges Hikes Lag, Kap. Vill, IX (Sweden) ; Code Penal de France, Arts. 75-113; Codigo Penal de Espana, Arts. 136-187, Codice Penale del Regna d'ltalia, Arts. 104-127; Code des Lois Pennies Beiges, Arts. 113-136; Codigo Penal Portuguez, Arts. 141-182.)—ED.
(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.