THE OPINIONS OF JULIUS PAULUS.
CONCERNING CASES INVOLVING FREEDOM.
(1) Where persons, on account of extreme necessity or through want of food, sell their children, they do not prejudice their rights of freedom, for a freeman can not be valued at any price. Nor can children be pledged or hypothecated by their parents; for which reason any creditor who knowingly permits this to be done shall be deported. The services of children can however be hired.
(2) Manumission, no matter in what way it may take place, does not prejudice true and original free birth.
(3) The division of free born persons made by public authority among slaves belonging to the Treasury, cannot prejudice the right of free birth.
(4) Anyone who, through intimidation and the effect of terror of any kind, falsely declares himself to be a slave before the tribunal of the governor, does not prejudice his condition, if he subsequently defends himself.
(5) Where anyone undertakes to defend a slave, and after proceedings have been instituted to declare him free abandons the case, it has been decided that it can be entirely transferred to another defender, and the first one be judicially punished for his act in betraying the cause of freedom; for where a case involving a man's condition has been undertaken, it cannot be relinquished except under urgent necessity.
(1) We acquire possession by means of both the mind and the body, by our minds through our own exertions, by our bodies through our own exertions or those of others; we cannot, however, obtain possession by mere intention, but we can retain it in this manner, as happens in the case of winter and summer pastures.
(2) Nothing can be acquired for us by free persons who are under our control, but it has been decided that, for the sake of convenience, possession can be acquired for us by an agent. When the principal is absent, anything which is purchased is not acquired for him, unless he subsequently ratifies the act.
(3) Prescription of long time is established where the parties are present, by continuous occupation for the term of ten years; where the parties are absent, by continuous occupation for twenty years.
(4) Prescription for ten or twenty years also runs against public property, in favor of a person who had lawful possession in the beginning, and which was not in the meantime interrupted. The action of public property for damages is granted against those who have neglected to attend to matters of this kind.
(5) If, after a question as to the ownership of property has arisen, it in the meantime passes to a new owner by purchase, and he is not disturbed in its possession for twenty years, he cannot be deprived of it.
CONCERNING ACTS COMMITTED BY A CROWD.
(1) A claim for double damages, if the matter is a pecuniary one, can be brought against those who have either caused injury to anyone, or have been responsible for so doing, as members of a crowd or during the course of a sedition. If, however, any person has been injured by loss of life or limb on this account, extraordinary punishment may be inflicted.1
(2) Where any property obtained from a fire, the ruin of a building, shipwreck, or the plunder of a vessel, has been stolen or concealed, the party who concealed, stole, or took it by violence, can, within a year, be sued for fourfold damages, and, after the lapse of a year, for simple damages.
(3) Those who pillage, break into, or rob the residences or buildings of others, shall be punished with death if the act was committed by an assembled crowd armed with weapons. By the term "weapons" is understood everything by which the safety of a man can be endangered.
(4) Those who harbor the aggressors are punished with the same penalty as the robbers themselves, for the desires of the parties who are not active participants do not differ from that of those who steal, or conceal the property.
(5) Thieves and robbers of baths are generally sentenced to the mines or to labor on the public works; sometimes, however, the sentence of the judge is mitigated on account of the great number of the guilty parties.
(6) Incendiaries who intentionally set fire to property are punished with death. If, however, the fire was caused by the negligence of the occupants of a house, it has been decided that a loss of this kind must be made good by the owner of the property.
1 Cognitio extraordinaria, or extraordinary procedure, consisted in the union of the duties of the judges of law and fact in a single official, usually a magistrate of the highest rank. Much was left to his discretion, and his rulings were often arbitrary and noted for their severity in criminal cases. This violation of the ancient principle which had prevailed in Roman judicature from the time of the Republic, was largely due to the disinclination of responsible citizens to serve as judices and recuperatores, judges of fact, who to a certain extent, exercised the functions of modern jurymen in the courts of the Empire. Although the practice was not unusual when circumstances appeared to demand it, it was first legally authorized by Diocletian in 294, who conferred absolute and sole jurisdiction on the governors of provinces in the hearing of causes brought before their tribunals. This privilege, manifestly susceptible of great abuse by unscrupulous individuals, was afterwards, by a series of enactments, conferred upon the other prominent members of the Roman magistracy. ED.
(1) We suffer injuries either in our bodies or outside of them; in our bodies, by blows and through debauchery; outside of our bodies by insults, and infamous libels, the effect of which is estimated by the position of both the party who suffers it and the party who inflicts it.
(2) An insane person, as well as an infant, are legally incapable of malicious intent and the power to insult, and therefore the action for injuries cannot be brought against them.
(3) If an injury is committed against our children who are under our control, or against our wives, it is to our interest to see that punishment is inflicted; therefore an action can be brought by us, provided the party who committed the act can be shown to have done so to our injury.
(4) A corporeal injury is inflicted when anyone is struck; it is different where adultery is committed, or an accusation is brought for the offence, which is punished judicially, as the forcible violation of modesty is punished capitally.
(5) Those who solicit married women, and those also who interfere with marriages, even if they are unable to consummate their crimes, are extraordinarily punished, on account of their intention to perpetrate acts of injurious debauchery.
(6) The action for injury is based either upon law or custom, or upon both. Punishment is provided by the Law of the Twelve Tables for libellous poems, broken limbs, and fractured bones.
(7) So far as custom is concerned, this takes place whenever the damage caused by an act is estimated by the judge according to its nature, and is punished by the infliction of a suitable penalty.
(8) The action for injury arising from both law and custom is established under the Lex Cornelia, whenever anyone is beaten, or his his house is entered, not by those who are ordinarily called derectarii, and who are extraordinarily punished; so that the design of the thief who enters a house as in the case of the intentional commission of fraud is punished by the penalty of exile, or sentenced to the mines or to the public works.
(9) Anyone who is civilly convicted of having caused an injury is required to pay the damage and becomes infamous.
(10) An atrocious injury depends either upon the place, time, or person; upon the place, whenever it is committed in public; upon the time, when it is committed by day; upon the person, when it is committed against a senator, a Roman knight, a decurion, or any other person high in authority; and whether a plebeian, or a person of inferior rank commits the injury against a senator, a Roman knight, or a decurion, or whether a plebeian commits the injury against a magistrate, an ædile, or a judge, or against all of them.
(11) Anyone who brings the action for injury for the purpose of causing annoyance is extraordinarily punished; for it has been decided that all calumniators shall be punished by exile, by relegation to an island, or by the loss of their rank.
(12) Persons cannot bring an accusation of injury unless they are present, for the crime which is punished by the action of calumny cannot be prosecuted by others.
(13) An injury is committed against good morals, when anyone smears or bedaubs anyone with manure, filth, or mud; or defiles pipes, reservoirs, or anything else to the public injury. Persons of this kind are generally severely punished.
(14) Anyone who debauches a boy under the age of seventeen, or commits any other outrage on him, whether he is abducted by him or by a corrupt companion; or who solicits a woman or a girl, or does anything for the purpose of corrupting their chastity, or offers his house for that purpose, or gives them any reward in order to persuade them, and the crime is consummated, shall be punished with death; if it is not consummated, he shall be deported to an island, and his profligate accomplices shall suffer the extreme penalty.
(15) Anyone who composes a libellous song to the injury of another, or any poem by which the party may be recognized, shall be deported to an island by the authority of a Decree of the Senate; for it is in the interest of public order that the reputation of everyone should be protected from the infamy caused by vile poetry. He not only composes poetry of this kind who writes satires and epigrams, but also he who composes anything else of any other description.
Nothing, however, is provided with reference to a speech composed for the purpose of lawfully prosecuting anyone, or for the arraignment of the opposite party in court, as the person of our adversary should in every way be attacked, but in doing so a certain moderation and judgment should be observed for a man's reputation may also be injured in this way.
(16) A Psalterium, as a song is commonly called which is composed and publicly sung for the purpose of disgracing another, causes the infliction of extraordinary punishment upon those who sing, as well as upon those who compose it; and the punishment is the more severe if the dignity of the person should be protected from injury of this kind.
(17) Persons who purchase infamous libels for the purpose of distributing them to insult others are punished extraordinarily, even to the extent of relegation to an island.
(18) A judge should not be abused by appellants, otherwise they are branded with infamy.
(19) Curses and abuse publicly uttered call for the punishment of injury, and when this is inflicted the condemned party becomes infamous.
(20) Not only he who uttered the curses and abuse, becomes infamous if convicted, but also he by whose aid and counsel the act is alleged to have been committed.
(21) Abuse is said to be against good morals when anyone uses obscene language, or exposes the lower part of his person in the presence of a woman; and an act of this kind in consideration of good morals and on account of public virtue, demands punishment of extraordinary severity.
(22) Where a slave has perpetrated an injury or insult, which is atrocious, he shall be condemned to the mines; if, however, it is not serious, after having been scourged, he shall be restored to his master under the penalty of being confined in chains for a time.
CONCERNING THE EFFECT OF DECISIONS AND THE TERMINATION OF ACTIONS AT LAW.
(1) Actions-at-law are decided by those who have the authority and power to do so, or by the authority of persons selected by the parties themselves, and likewise by municipal magistrates up to the amount for which they have the legal right to render judgment; and by those who have been appointed by the Emperor out of the regular order.
Moreover, a judge appointed in a case involving a joint promise does not render a final decision, but if a penalty has been promised by the defendants, and the case is afterwards brought into court, the penalty can be collected under the stipulation.
(2) Debtors who have confessed their liability are considered as having judgment rendered against them, and therefore the time for payment is reckoned from the day of the confession.
(3) Anyone can acknowledge his liability in court, not only verbally but in writing, or in any other way whatsoever. He cannot be defeated, however, unless by written evidence, or by that of witnesses.
(4) The pledges of those who have acknowledged their indebtedness can be seized and sold.
(5) A defendant cannot revoke his confession a second time.
(6) A decision rendered in the absence of the other party does not obtain the force of res judicata.
(7) When a party is summoned by three letters or proclamations, or by one served for all, or by three public notices, and he does not appear before the court which notified him, or by whose letters or proclamation he was summoned, and a judgment is rendered against him as contumacious, it obtains the authority of a final decision for an appeal can by no means be taken from it.
(7a) An appeal cannot be taken from a judgment rendered against a person for contumacy, nor can it be brought up a second time.
(8) Formerly, a case which had been finally decided could not be brought into court after a long silence, nor could it be revoked on that account. A long term of silence, as in the case of long prescription, runs for ten years, where the parties are present; and is computed at twenty years, when they are absent.
(9) No person who is absent can be condemned in a capital case, nor can one who is absent either accuse or be accused by another.
(10) Where the judge has been deceived by the introduction of forged documents, the renewal of the case can be legally demanded, provided the decision was pronounced before it was proved that the crime was committed.
(11) An error in calculation frequently takes place and therefore can be reconsidered at any time, if the right is not extinguished by a prolonged silence.
TITLE V. B.
CONCERNING THE POSSESSION OF PROPERTY GRANTED BY THE AUTHORITY OF A JUDGE.
(1) Where creditors are placed in possession of the property of a minor for whom no defence is made, they are required to furnish him support until he reaches the age of puberty.
(2) The property of a person who has been captured by the enemy cannot be sold until he returns.
(1) Interdicts were introduced for the purpose of retaining possession, and by means of them we retain the possession which we already have. To this class belong the interdicts Uti Possidetis, which has reference to property attached to the soil, and Utrubi, which applies to movable property. In the case of the first, the position of that party is preferable who, at the time that the interdict was issued, had not obtained possession from his adversary, either by force, clandestinely, or by permission of the latter; and in the second, his position is preferable who has obtained possession neither by violence, nor clandestinely, nor by permission, and has retained it for the greater part of the past year.
(2) An interdict, like an action, will lie to prevent anyone from interfering with the public highway, the care of which devolves upon the officials having charge of highways.
No one is exempt from repairing highways, still, if a person, while working, obstructs one so that those who pass to and fro are hindered, after the obstruction has been demolished he shall be condemned.
(3) Not only is an interdict available when the owner of property deprives anyone of possession, but also where his family does so; and only two slaves are sufficient to constitute a family.
(4) A person is forcibly ejected, not only where he is terrified through the oppression of a multitude of persons, or intimidated by clubs, darts, or other weapons, but also if he relinquishes possession through apprehension of violence, provided his adversary has entered on the property.
(5) Proceedings cannot be instituted under this interdict by a party who has been forcibly ejected from a ship; but an equitable action for the recovery of property, such as is granted as in the case of goods taken by violence will lie. The same rule also applies where anyone is deprived of a vehicle, or a horse, and if they are not removed, an action for injury is granted.
(6) He also is held to be forcibly ejected who is restrained by violence, and terrified upon the highway, so that he cannot approach his own land.
(7) Anyone who has obtained possession from his adversary either by violence, or clandestinely, or by his consent, can be ejected with impunity.
(8) Where possession of buildings has been obtained by violence, and any property belonging to the same is burned, or any slaves found there die; although this may have occurred without the malicious intent of the party guilty of the violence, still, he who desired to obtain property belonging to another will be condemned to pay the value of what was lost or destroyed.
(9) When water is taken from a stream forming the boundary between neighbors it should first be divided; and force is forbidden to be exerted against anyone who conducts water from those parts of the stream from which it has been customary for each one of the parties to draw his supply. A pecuniary fine is imposed upon anyone who unlawfully makes use of water belonging to another. The regulation of this matter is part of the duty of the governor.
(10) When an interdict is issued, a certain right of action arises from the fact that anyone who has possession with the consent of another must restore the property; still, a civil action will lie to recover it, as if it had been loaned for use, or especially on the ground that no one should suffer injury on account of the favor which he has granted.
(11) Anyone is considered to have possession by the consent of another, not only where he has asked that it be granted to him by a letter, or in any other way, but also where he has possession through no indication of the consent of the owner, but merely through his sufferance.
(12) The heir of the party who held possession with the consent of another, and still retains it, is considered to hold possession clandestinely, according to the better opinion; for he does not appear to have made any request to that effect, therefore the owner has always the right to claim his property, and there is no ground for an interdict.
(13) Where a tree overhangs the house of another, or the field of a neighbor, so as to obstruct the light, the owner should be notified to trim it; and if, after having been notified to do so, he refuses, the overgrowth of branches may be cut by the neighbor, and this any owner of land whosoever is not prevented from doing.
(14) An interdict as well as an action authorized by the Lex Favia, will lie against a party who places a freeman in chains, conceals him, shuts him up, or gives any assistance to enable this to be done; and proceedings under an interdict may also be instituted to compel the party who detains him to produce him under the Lex Favia, so that he also may be liable to a pecuniary penalty.
(15) The Divine Pius forbade persons living harmoniously in marriage to be separated by a father. He also forbade a freedman to be separated from his patron, or a son or a daughter from their parents, unless a question arose as to where one of the parties could live more advantageously.
(16) Where all the property which anyone has at present, or may acquire in the future, is hypothecated, neither a concubine, nor a natural son, nor a foster-child, nor any articles which he may have for daily use are included; and therefore an interdict is not issued with reference to them.
CONCERNING VERBAL OBLIGATIONS.
(1) Stipulations were introduced for the purpose of confirming obligations which are contracted merely by a form of words; and they are so called because by means of them the force of obligations is strengthened, for the ancients used the term stipulum to denote firm.
(2) Verbal obligations are contracted between present, but not between absent persons. If, however, it should be stated in an instrument in writing that anyone had made a promise, it is considered the same as if an answer had been made to a preceding interrogation.
(3) If a slave belonging to an usufructuary acquires anything by the property of the latter, or by his own labor, it will belong to the usufructuary; and, moreover, whatever he acquires from any other source, or from the property of the owner, he acquires for the owner.
(4) When, by the act of the promisor, property included in the stipulation is destroyed, an action can be brought under the stipulation just as if the said property was still in existence; and therefore the promisor is punished by being compelled to pay its value, and especially is this the case where the stipulation was entered into with any fraud on his part.
(1) Not only can we ourselves create novations with reference to what is due to us, but we can also do so through others by whom we can stipulate, for instance, through a son under paternal control, or a slave, by giving him orders, or by ratifying his act. It is settled that our attorney can also make a novation by our order.1
1 Novation, in Roman jurisprudence, meant something more than the mere extinction or renewal of an obligation, but, as the name implies, had reference to any alteration whatever which either did, or did not, increase the liability of the debtor. There were two kinds, the novatio privativa, which operated as a renewal, and disposed of the prior claim; and the novatio cumulativa, by means of which a second debt was created, leaving the already existing one in full force. When a new debtor, styled an expromissor, assumed the liability of the older one and the latter was, in consequence, released by the creditor, the proceeding was known as "delegation". Consent of the parties was absolutely essential to effect delegation; an expromissor could, however, agree to discharge the indebtedness without the knowledge or consent of the debtor.
Novation could not be created by presumption, and unless it was expressly stated that the former debt was cancelled by the new one, it was held to be cumulative, or supplementary, which, properly speaking, was not really a novation. In a transaction of this kind the animus novandi must be manifest, as its validity was entirely dependent upon the intention of the parties interested. ED.
(1) Where an heir was appointed under a condition, and is charged with the substitution of another, he can legally compel the party appointed by him to provide by stipulation that he will not diminish the property belonging to the estate by demanding prætorian possession; for, in this instance, he is compelled to pay double the amount of the profits from the day when the stipulation was entered into. The terms of this differ from those of the former one in which inquiry was made whether the property in question was worth more than a hundred sesterces, and therefore a longer time was established.
(2) The double profits are computed from the day when issue was joined by the party who instituted proceedings, and security was given for costs and damages. Both those who give and receive security and their heirs, attorneys, agents, and sponsors, are included in the same stipulation, as well as the other parties in whose name the promise is made.
(3) Whenever security is given in a stipulation for the payment of a judgment and an action is not brought under it, this does not prevent prosecution under the judgment.
(4) If emancipated children who have been passed over, desire to meddle with the estate of their father, and they remain with those who are still under paternal control, and desire to have the estate of their common father divided before demanding prætorian possession; they should give security for placing all the property in a mass. If they cannot furnish security, they should be immediately compelled to faithfully bring all the property in confusion,1 with the exception of any peculium castrense which may exist.
1 Confusio, or merger of obligations, caused them to be extinguished by operation of law when the same person through force of circumstances, came to occupy the position of debtor as well as creditor, and hence the rights of both coincided. This might occur in the inheritance of an estate, where either became the heir of the other, or when the creditor succeeded to the surety, or vice-versa. Where the principal alone was affected, the surety was at once released; but if the confusion had reference to the person of the latter it is obvious that the obligation, as far as the liability of the principal was concerned, was not extinguished. ED.
CONCERNING AUTHORITY FOR MAKING CONTRACTS.
(1) One neighbor should give security to another to provide against impending damage, and sponsors should be added with reference to the damage which might take place.
(2) For the sake of convenience, it should be observed with reference to a party wall, that he whose interest it is to build it ought to do so, but the other joint owner should be compelled to contribute his share of the expense.
(1) Where articles, over and above the dowry, are presented by the mother, in honor of the marriage, to her son-in-law in the presence of her daughter, they are considered to have perfected the donation.
(2) The proof that possession has, or has not been delivered, does not consist so much in law, as in fact; and therefore if I actually have the property in my hands it will be sufficient evidence.
(3) If a father donates anything to his son under paternal control and does not change his mind before he dies, the donation will vest at the death of the father.
(4) Where a donation of the same thing is made to two persons, he has the preference to whom the article was delivered; nor does it make any difference who received it last, or first, or whether certain persons are excepted or not.
(5) A donor who is unwilling, is not compelled to promise with reference to the eviction of the property donated, nor is he rendered liable on this account if he did promise; because the possessor of property which benefits him is barred from bringing the action of eviction by the reason of the law itself.
(6) Any amount can be donated to a person who has rescued another from robbers, or the enemy, provided the donation is not called a reward for extraordinary exertion; because it has been decided that no limit can be placed upon the preservation of safety.
CONCERNING THE RIGHT OF THE TREASURY AND THE PEOPLE.
(1) The property of one who kills himself on account of the commission of some atrocious crime, is confiscated to the Treasury. If, however, through weariness of life, or shame for indebtedness contracted, or inability to endure suffering caused by disease, he commits this offence, his property is not interfered with, but passes to his heirs by the ordinary rules of succession.
(2) He is deprived of an estate as being unworthy, who prevents anyone from making a will who is connected with, or related to him, and to whom he would succeed if he should die intestate; or intentionally interferes with his rights.
(3) Where a father or a master alleges that a will by which his son or slave is appointed an heir, or is entitled to a legacy, is false, and he does not prove his case, there is ground for confiscation by the Treasury.
(4) It is customary to come to the relief of a minor for the amount that he has lost where he alleges that a will is forged and he does not gain his case, and this is especially true where the action was brought by the advice of a guardian or a curator.
(5) A person is forbidden to hold any office connected with the Treasury in the province in which he was born, in order that he may not appear to favor or oppress his neighbor.
(6) Whenever officials take possession of the property of others, or publish it for sale, or place it under guard without authority of court, the Imperial Steward can be applied to, the wrong redressed, and those responsible for the act sent to the prætorian prefecture to be punished.
(7) A right of action can not be donated to the Treasury to the injury of private persons, nor, if donated, can it be accepted by it.
(8) It is odious to appoint the Emperor an heir for the purpose of litigation, for the power of causing annoyance should not be assumed by Imperial Majesty.
(9) No cause of action arises from a mere promise, and therefore the property of one who boasts that he is going to make the Emperor his heir cannot be confiscated by the Treasury.
(10) It is the privilege of the Treasury to hold the first place among all creditors.
(11) Anyone who is sued by the Treasury should not be summoned by the judge under a copy of any document, but under the original, so that the terms of the contract can be shown. It is settled, however, that an instrument intended to cause vexatious litigation cannot have the force of a just claim in court.
(12) The property of one who is alleged to have counterfeited money is confiscated to the Treasury. If, however, slaves are said to have done this without the knowledge of their master, they shall be put to death; but their master shall not be deprived of any property, for the reason that slaves cannot cause the condition of their master to become worse, unless he happened to know what they were doing.
(1) All persons are specially prohibited from accusing others, and bringing pecuniary cases to the notice of the Treasury; nor does it make any difference whether those who do this are males or females, slaves, freeborn persons, or freedmen; or whether they denounce their own relatives or strangers; for they, by all means, shall be punished.
(2) Slaves belonging to the Treasury who give information and notice to their owner are not considered to have denounced anyone.
Persons who have been suborned are compelled to betray the culprit, in order to prevent a party who cannot denounce anyone himself from doing it through another. Suborners are punished in the same way as informers.
(3) Slaves who have been condemned, and confess the crimes of their masters before or after they have been sentenced, shall under no circumstances be heard; unless they accuse them of high treason.
CONCERNING THE INFLICTION OF TORTURE.
(1) Torture is employed in the detection of crime, but a beginning should not be made with its application; and, therefore, in the first place, evidence should be resorted to, and if the party is liable to suspicion, he shall be compelled by torture to reveal his accomplices and crimes.
(2) Where several culprits are implicated in the same offence, they should be examined in such a way as to begin with the one who appears to be more timid than the others, and of tender age.
(1) It has been decided that witnesses who are suspected of partiality, and especially, such as the accuser produces from his own household, or whose low station in life renders them of bad repute, should not be interrogated; for in the case of witnesses, their social position, as well as their dignity, should be considered.
(2) Witnesses cannot be examined with reference to anyone related to them by either marriage or blood.
(3) Neither parents, children, patrons, nor freedmen should be admitted to testify against one another, if they are unwilling to do so; for the near relationship of persons generally destroys the truth of evidence.
(4) Witnesses cannot be interrogated against documentary evidence unless its genuineness has previously been alleged to be doubtful.
(5) Witnesses who have testified falsely, or in different ways or have betrayed either party in the case, are either sent into exile, relegated to an island, or dismissed from the curia.
(6) Torture is not applied in pecuniary matters, unless when an investigation is made with reference to property belonging to an estate; other things, however, are established by oath, or by the evidence of witnesses.
CONCERNING THE TORTURE OF SLAVES.
(1) The rule of equity plainly shows that a slave can be interrogated with reference to his own acts, and against himself; for no obstacle should be placed in the way of him who lends or deposits anything by a slave without obtaining security.
(2) A judge having jurisdiction of guardianship, as well as the Centumviri, can apply torture to slaves belonging to an estate if they cannot otherwise obtain information concerning the property of the estate, or the honor of the family.
(3) A slave belonging to one master cannot be tortured against the person of another, unless this is done separately; and it is not permitted if his owner is unwilling, unless the informer, who has an interest in proving what he claims, is ready to pay the value of the slave to the amount estimated by his owner, or to make good any deterioration which he may be undergone by the slave.
(4) No attention shall be paid to a slave who voluntarily makes any confession with reference to his master, for where matters are in doubt, it is not proper that the safety of masters should depend upon the discretion of their slaves.
(5) Slaves cannot be interrogated against their masters by governors or public prosecutors, either in pecuniary or capital cases.
(6) A slave owned in common cannot be tortured in a case involving the life of either of his masters.
(7) Where anyone purchases a slave in order to prevent his being tortured to obtain evidence against him, the slave can be interrogated after the purchase money has been returned.
(8) A slave cannot be interrogated in a case involving the life of the master by whom he was sold, and in whose service he was for some time, through respect for his former master.
(9) When a slave has been manumitted in order to avoid his being put to the torture, this can still be done.
(10) No faith should be placed in the evidence obtained by the torture of a robber, whom someone has offered as having made a confession with reference to himself; unless this is shown to have been done for the purpose of concealing the guilty knowledge of the crime which he shared with the defendant.
(11) An accuser cannot bring an accusation by another, nor can one accused person be defended by another; unless a patron accuses his freedman of ingratitude, or a defence is made during the absence of the party accused.
(12) If a defendant is alleged to have been acquitted on account of money paid to the judge, and this should be proved against him, he shall be sentenced to the same penalty to which the defendant could have been sentenced.
(13) It should be determined by the nature of the crime which has been committed, whether a person who has been convicted may, or may not, be tortured.
(14) Accusers should be compelled to notify defendants of what crimes they are accused; for it is necessary that they should know for what offences they will be required to answer.
(1) An acquittal is the destruction, oblivion, or extinction of an accusation.
(2) After a public acquittal a defendant can again be prosecuted by his informer within thirty days, but after that time this cannot be done.
(3) Extreme punishments are crucifixion, burning alive, beheading; the penalties for less serious offences are condemnation to the mines, contests with gladiators, deportation; the mildest punishments are relegation, exile, labor on the public works, confinement in chains. Those who are sentenced to death must be executed within a year.
CONCERNING CATTLE THIEVES.
(1) Cattle thieves are those who drive away one horse or two mares, or the same number of oxen, or ten sheep or goats, or five hogs. Anyone who drives away an animal within the aforesaid number shall be sued for double or quadruple its value, according to his rank, as a penalty for theft; or, after having been beaten with rods, he shall be sentenced to labor on the public works for a year; or, if he is a slave, he shall be restored to his master to be placed in chains.
(3) If anyone drives away cattle, the ownership of which is in litigation, he shall be brought into court, and if convicted, shall be sentenced to pay double or quadruple their value as a thief.
1 Original manuscript illegible.
(1) Persons who break into a temple at night for the purpose of robbery and plunder, shall be thrown to wild beasts; where, however, during the day they steal anything from a temple which can be easily carried off, if they are of high rank, they shall be deported, if of inferior station, they shall be sentenced to the mines.
(1) Any persons who cause fires in a town for the purpose of plunder shall be punished with death.
(2) Those who set fire to a house or country residence through enmity, if they are of low rank, shall be sentenced to the mines or to labor on the public works; those of higher rank shall be relegated to an island.
(3) Where fires are accidental, or where, through the neglect of the person who starts them, they are carried by the wind, and spread to the fields of a neighbor, and growing grain, vines, olives, or fruit trees are destroyed, the estimated damage which has been caused must be made good.
(4) If a slave started the fire, and his master is responsible, the damage shall be made good through his surrender by way of reparation.
(5) Those who maliciously set fire to growing crops of grain, or vines, or olive trees, if of inferior station, shall be sentenced to the mines, if of superior rank, shall be relegated to an island.
(6) Those who cut down fruit trees at night are generally sentenced to labor on the public works for a term of years, or, if they are of superior rank, are either compelled to make good the damage, or are expelled from their curia, or relegated.
CONCERNING SOOTHSAYERS AND ASTROLOGERS.
(1) It has been decided that soothsayers who assume the characteristics of divinity, shall be expelled from the city to prevent public morals from being corrupted through human credulity entertaining faith in anything of this kind, for there is no doubt that the popular mind is disturbed by these things. Therefore, such persons, after having been beaten with rods, are driven from the city; and if they continue to practise their arts, they are either publicly placed in chains, or deported to an island, or relegated.
(2) Those who introduce new religious doctrines which are unknown to use or reason, and by which the minds of men are influenced, if they are of higher rank, shall be deported, if of inferior station, they shall be punished with death.
(3) Those who consult astrologers, male or female soothsayers, or diviners, with reference to the life of the Emperor or the safety of the State, shall be punished with death, together with the party who answered their questions.
(4) Every one should abstain not only from divination but also from the books teaching that science. If slaves consult a soothsayer with reference to the life of their master, they shall be subjected to extreme punishment, that is to say, to crucifixion; and if those who are consulted give any answer, they shall either be sentenced to the mines, or deported to an island.
CONCERNING SEDITIOUS PERSONS.
(1) The authors of sedition and tumult, or those who stir up the people, shall, according to their rank, either be crucified, thrown to wild beasts, or deported to an island.
(2) Those who dig up, or plow out landmarks, or overturn trees used for that purpose; if they are slaves, and commit the act voluntarily, shall be sentenced to the mines; persons of inferior rank shall be sentenced to labor on the public works; those of higher rank, after having been deprived of the third part of their property, shall be relegated to an island, or exiled.
(3) Roman citizens who permit either themselves or their slaves to be circumcised in accordance with the Jewish rite, after having had their property confiscated, shall be relegated to an island for life; and the physicians who performed the operation shall be put to death.1
(4) If Jews circumcise slaves whom they have purchased and who belong to another nation, they shall either be deported or capitally punished.
1 The rite of circumcision is of remote antiquity, and is a purely hygienic measure, whose observance was compelled by its intimate association with religion. It is supposed to have first been practised by the Phoenicians, from whom the Egyptians and other nations derived it. So important was it considered by the denizens of the Valley of the Nile that foreigners, even residing temporarily in Egypt, were forced to submit to its performance. Its practice is one of the cardinal precepts of Islamism, and was well known to the people of pagan Arabia. Abraham was ninety-nine years old when the Lord ordered him to be circumcised. (Genesis XVII, 24) ; and so strictly was the custom observed by his descendants that during mediæval times, when Jews occasionally apostatized to Christianity, their coreligionists circumcised them after death. The rite is wide spread and extends to the savage and semi-barbarous nations of Africa, Asia, America, and Australia. Its adoption as a sanitary precaution, confirmed by the experience of ages, is to-day recommended by all well-informed and intelligent physicians. It was severely punished by the Canon Law, and has always been a favorite subject of ecclesiastical reprobation.
The extreme penalty was denounced by the Visigoths against Jews who either performed the ceremony of circumcision, or permitted it to be done. (For. Jud. XII, II, 7.) It was not specifically punishable at Common Law. ED.
ON THE LEX CORNELIA HAVING REFERENCE TO ASSASSINS AND POISONERS.
(1) The Lex Cornelia imposes the penalty of deportation upon anyone who kills a man, if he does so with a weapon for the purpose of stealing his property; or if he has in his possession, sells, or prepares poison for the purpose of killing another; or if he gives false testimony through which anyone might lose his life, or which might afford occasion for his death. It has been decided that persons of superior rank who commit crimes of this kind shall be capitally punished, and those of inferior rank shall be crucified, or thrown to wild beasts.
(3) A man who kills another is sometimes acquitted, and one who does not kill is convicted of homicide; for the advice of everyone, and not his mere act should be punished. Therefore, a person who intends to kill another, but fails to perpetrate the crime on account of some fortuitous circumstance, is punished as a homicide, and he who accidentally, and negligently kills a man by throwing a weapon is acquitted.
(8) It has been decided that a person who kills a robber making an attack upon him, or any person whomsoever who attacks him for the purpose of committing the crime against nature, cannot be punished ; for one of them defends his life, and the other his chastity from a public crime.
(10) A judge who accepts money for a decision against the life or property of anyone, after having been deprived of his possessions, shall be deported to an island.
(11) The instigators of a murder are punished as homicides.
(12) If a person who is trimming a tree throws down a branch, and does not give warning so that it may be avoided, and a passer-by is killed by being struck with it, although the party responsible may not strictly come within the provisions of the law, he shall still be sentenced to the mines.
(13) Any one who castrates, or procures the castration of a man against his consent, either for the purpose of debauchery, or for reward, whether he is a slave or a freeman, shall be punished with death. Persons of higher rank shall be deported to an island, after their property has been confiscated.
(14) Persons who administer potions for the purpose of causing abortion, or love philtres, even if they do not do so maliciously, still, because the act affords a bad example, shall if of inferior rank, be sentenced to the mines; if of superior rank, they shall be relegated to an island, after having been deprived of their property. Where, however, the man or the woman loses his or her life in consequence of their act they shall undergo the extreme penalty.
(15) Persons who celebrate, or cause to be celebrated impious or nocturnal rites, so as to enchant, bewitch, or bind anyone, shall be crucified, or thrown to wild beasts.
(16) Anyone who sacrifices a man, or attempts to obtain auspices by means of his blood, or pollutes a shrine or a temple, shall be thrown to wild beasts, or, if he is of superior rank, shall be punished with death.
(17) It has been decided that persons who are addicted to the art of magic, shall suffer extreme punishment; that is to say they shall be thrown to wild beasts, or crucified. Magicians themselves shall be burned alive.
(18) No one shall be permitted to have books on the art of magic in his possession, and when they are found with anyone, they shall be publicly burnt, and those who have them, after being deprived of their property, if they are of superior rank shall be deported to an island, and if they are of inferior station shall be put to death; for not only is the practice of this art prohibited, but also the knowledge of the same.
(19) If a man dies from the effects of a drug which is administered for the preservation of health, or as a remedy for disease, and the party who administered it is of superior rank, he shall be relegated to an island, and if he is of inferior station, he shall be punished capitally.
1 Original manuscript illegible.
ON THE LEX POMPEIA RELATING TO PARRICIDES.
(1) He who kills his father, his mother, his grandfather, his grandmother, his brother, his sister, his paternal or maternal uncle or aunt, his male or female cousin, a wife, a husband, a son-in-law, a mother-in-law, a stepfather, a step-son, a step-daughter, a patron or a patroness, is liable under the Lex Pompeia having reference to parricides. Anyone who kills his or her father or mother, grandfather or grandmother, brother or sister, patron or patroness, although they were formerly sewed up in a sack and thrown into the sea, are at present burned alive, or abandoned to wild beasts.
ON THE LEX CORNELIA HAVING REFERENCE TO WILLS.
(1) Anyone who knowingly and maliciously writes or reads publicly, substitutes, suppresses, removes, re-seals, or erases a will, or any other written instrument; and anyone who engraves a false seal, or makes one, or impresses it, or exhibits it; and anyone who counterfeits gold or silver money, or washes, melts, scrapes, spoils, or adulterates any coin bearing the impression of the face of the Emperor, or refuses to accept it, unless it is counterfeit, shall, if of superior rank, be deported to an island, and if of inferior station, be sentenced to the mines, or punished capitally. Slaves if manumitted after the crime has been perpetrated, shall be crucified.
(2) Anyone who receives or pays money for the purpose of giving false testimony, or to suppress that which is true; or who corrupts, or attempts to corrupt, a judge, in order to induce him either to render, or to not render a decision, shall, if of inferior station, be punished with death; and if of superior rank, shall be deported to an island, along with the judge, after the confiscation of their property.
(4) A judge who renders a decision in opposition to an Imperial Constitution, or contrary to a public law which was read in his presence, shall be deported to an island.
(5) Anyone who knowingly and maliciously, and for the purpose of defrauding another, erases, changes, substitutes, or signs any register, decree, petition, public record, attestation, bond, note, or letter; or anyone who covers brass with gold or silver, or while melting silver or gold, substitutes brass or tin for it, shall be punished with the penalty for forgery.
(6) The Senate decreed that tablets containing either public or private contracts should be signed by the witnesses summoned, in such a way that having been perforated from the upper margin to the centre, they should be fastened with a triple cord; and that wax seals should be impressed upon the cord so that the writing contained therein might be preserved unimpaired. Where a tablet is produced which is sealed in any other way it has no force or effect.
(7) Anyone who opens, reads publicly, or reseals, the will of a person who is still living, is liable to the penalty imposed by the Lex Cornelia; and, in general, persons of inferior station who are guilty of this offence are condemned to the mines, and those of higher rank are deported to an island.
(8) When anyone proves that the contents of a legal instrument belonging to him has been betrayed to his adversary, either by his attorney or his agent, the said attorney or agent, if of inferior station, shall be condemned to the mines, and if of superior rank, shall be deprived of half his property, and relegated for life.
(9) If anyone should reveal the contents of, or deliver any written instrument deposited with him for safe keeping to the other party or adversary in the case during the absence of the owner, the culprit shall either be condemned to the mines, or relegated to an island, according to his condition.2
(10) Anyone who knowingly and maliciously makes use of forged instruments, decrees, letters, or rescripts, shall be punished with the penalty for forgery; that is to say, if he is of inferior station, he shall be condemned to the mines, and if he is of superior rank, he shall be deported to an island.
(11) Anyone who assumes a false name, race, or parentage, for the purpose of appropriating and possessing property belonging to another, shall be punished under the Lex Cornelia relating to forgery.
(12) Those who make use of the insignia of a higher rank than that to which they are entitled, or pretend to belong to the army for the purpose of terrifying or oppressing anyone; if they are of inferior station, shall be punished with death, and if they are of superior rank shall be deported to an island.
(13) Where anyone by means of false representations of his friendship or intimacy with a judge, sells his decisions, or pretends to do so anything in his name, he shall after conviction be either relegated or executed, according to the gravity of his offence.
1 Original manuscript illegible.
2 The betrayal of secrets by one to whom they had been entrusted was punished by the Partidas with perpetual exile and the confiscation of property. (Las Siete Partidas VII, VII, I, 6.) The laws of the nations of Continental Europe on this question generally relate to privileged communications. (Cód. Pénal de France, Art. 378; Cód. Pénal de España, Arts. 512, 513; Cod. Penale, d'ltalia, Art. 161; Strafgesetzbuch für das Deutsche Reich, Art. 300; Wetboek van Strafrecht, Art. 272.) ED.
ON THE LEX JULIA RELATING TO PUBLIC AND PRIVATE VIOLENCE.
(1) Anyone invested with authority who puts to death or orders to be put to death, tortures, scourges, condemns, or directs a Roman citizen who first appealed to the people, and has now appealed to the Emperor to be publicly placed in chains, shall be condemned under the Lex Julia relating to public violence. The punishment of this crime is death, where the parties are of inferior station; deportation to an island, where they are of superior rank.
(2) Those are excepted from the operation of this law who exercise the art of actors, together with those who have been tried and have acknowledged their guilt, and persons who are ordered to be placed in prison because they did not obey the magistrate who stated the law; and individuals who commit acts against the public welfare; as well as military tribunals, and the commanders of fleets and of the wings of the army, so that military offences may be punished by them without any impediment arising from the Lex Julia.
(3) Anyone who, with the assistance of armed men, ejects or forcibly deprives another of the possession of a villa, or a field, or besieges or shuts him up therein, or, in order that this may be done, either employs, hires, or leads a body of men; or sets fire to property while in a crowd, an assembly, or a mob or during a sedition; or forbids the funeral rites or burial of anyone to take place; or interferes with, or disturbs funeral ceremonies; or receives, conceals, or harbors anyone interdicted from water and fire; or who, appearing armed in public and in company with armed men, besieges, surrounds, closes, or occupies, any temple, gate, or other public property; is liable under the Lex Julia relating to public and private violence. All persons convicted of this offence, if they are of superior rank, shall be deprived of the third part of their possessions and relegated to an island; if they are of inferior station, they shall be condemned to the mines.
(4) If a creditor, whose claim is in writing, should, without the order of the governor, forcibly seize as a pledge any property of his debtor which was not encumbered to him; he violates the Lex Julia relating to private violence. A creditor, however, without invoking the authority of court, is not prevented from claiming and seizing any property which was pledged or hypothecated, and deposited with him.
ON THE LEX JULIA RELATING TO PECULATION.
(1) If anyone appropriates, steals, exchanges, or converts to his own use money belonging to the Public Treasury, he shall be condemned to pay fourfold the amount which he took.
ON THE LEX JULIA RELATING TO EXTORTION.
(1) Where judges are said to have been corrupted with money, they are generally either removed by the governor from their curia, or sent into exile, or relegated for a certain time.
ON THE LEX JULIA RELATING TO TREASON.
(1) He by whose aid or advice arms have been taken up against the Emperor or the State, or an army is led into an ambuscade; or where anyone, without the order of the Emperor, carries on war, or enrolls, or prepares an army, or solicits soldiers to desert the Emperor, is liable under the Lex Julia relating to treason. Formerly, persons of this kind were interdicted from water and fire for life; but now those of inferior station are thrown to wild beasts, or burned alive, and those of superior rank are capitally punished. This crime is not only perpetrated by the act itself, but is aggravated by the utterance of impious words and maledictions.
(2) In the trial of anyone accused of treason inquiry should first be made with what resources, as a member of what faction, and through the instigation of what persons, he committed the offence; for a person accused of the crime should be punished, not under the pretext of flattering anyone, but on account of what he himself has done; hence, when he is examined his rank will not exempt him from torture.
TITLE XXX. A.
ON THE LEX JULIA RELATING TO CORRUPT INTRIGUING FOR OFFICE.
(1) Where anyone desiring to obtain the office of magistrate or priest of the province, collects a mob to secure their votes, or assembles slaves, or calls together any other crowd of persons, he shall, if convicted, be deported to an island as a person guilty of having employed public violence.
TITLE XXX. B.
ON THE LEX FAVIA.
1 Original manuscript illegible.
CONCERNING MILITARY PUNISHMENTS.
(1) If a soldier, through having received money, released a prisoner, he shall be punished with death; and inquiry should certainly be made of what offence the party released was accused.
(2) Anyone who by means of superior force releases a prisoner from the custody of a soldier shall be capitally punished.
WHEN AN APPEAL CAN BE TAKEN.
(1) Whenever an oath is demanded, an appeal should be taken at the time when it is tendered, and not when it is made.
CONCERNING THE SECURITIES AND THE PENALTIES OF APPEALS.
(1) In order that no one may have full and free right to retract and revoke an opinion rendered, both a penalty and certain requirements with reference to time have been imposed upon appellants. To avoid improper appeals from being taken, the term of five days has been prescribed for the purpose of furnishing security for the payment of a penalty in an appeal. Therefore, a party who resides in the place where he appealed, should furnish security so that five continuous days may be reckoned from the day when the order was received; and if he should be at a distance from that place, five days are allowed for the journey, and are computed in addition to the one on which he received the order.
(2) In order that no one may be taken unawares by the words employed in furnishing security, it is very desirable that the penalty itself, or some other property in its stead should be deposited; for it is not necessary that the party should have a sponsor, or give a guarantor or a surety, or even be present, but if judgment is rendered against him, he will lose what he deposited.
(3) Whenever security is given for a penalty in an appeal, one or more sureties who are solvent may be furnished; for it is sufficient for even one who is solvent to be provided to insure the payment of the penalty.
(4) Where several parties appeal one bond is sufficient, and if only one person furnishes security he provides for all.
(5) Where an appeal is taken from several decisions separate bonds are required, and security should be furnished for each penalty.
(6) The amount of the penalty for which each party must furnish security should be expressly stated in the bond, so that each one may know who is bound by the stipulation; otherwise, security will not be considered to have been legally given.
(7) If a defender appeals, he should provide security for the third of the amount involved in the case.
(8) The better opinion is that, in all pecuniary cases, security must be furnished for the third of the sum in question.
CONCERNING PROCEEDINGS SENT UP ON APPEAL.
(1) Notice of proceedings sent up on appeal is served by the party who takes the appeal on him who should be notified; which notice is commonly called a summons, and acceptance of the same should be officially made within five days.
(2) A party who does not demand or receive notice of the case sent up on appeal, or make the proper return, is barred by prescription from proceeding further, and is compelled to pay the penalty of the appeal.
CONCERNING THE RETURN OF CASES WHICH HAVE BEEN APPEALED.
(1) We can only ourselves, in person, prosecute an appeal taken for the purpose of establishing the condition of a party in a capital case; for no one who is absent can either be reduced to slavery, or condemned to death.
(2) It has been decided that appeals made for the purpose of delay, and those taken by avengers, and persons who have confessed, cannot be received.
(3) The party who appeals should not do so with abuse of the judge who decided the case; and therefore, when it is done in this way, it shall be punished in the discretion of the Emperor.
WHAT SHOULD BE OBSERVED AFTER AN APPEAL.
(1) It is settled that whenever a party in possession takes an appeal the mesne profits shall be deposited. If, however, the plaintiff appeals the profits shall not be deposited, nor can security for them legally be demanded.
(2) Where an appeal is taken with reference to urban estates or slaves their hire or wages, and the freight also (if the proceedings relate to a ship) are usually deposited.
CONCERNING THE MERITS OF APPEALS.
(1) It should by all means be established that, where an appeal is decided to be unjust, not the mere amount, but fourfold the expenses incurred by the adversary in defending the case, should be paid by the other party.
END OF THE OPINIONS OF PAULUS.