Callistratus, On Judicial Inquiries, Book I. Generally speaking, whenever the Emperor issues a Rescript referring any matter to the Governor of a province, as for instance, when he says: “You can apply to him who presides over the province,” or with this addition, “He will consider what his duty requires”, no obligation is imposed upon the Proconsul or his Deputy to take cognizance of the case; but even where the words “He will consider what his duty requires” are not added, he must make up his mind whether he will hear it himself or appoint a judge to do so.

Callistratus, On Judicial Inquiries, Book I. He who administers justice must be careful to be easy of access, but not permit anyone to treat him disrespectfully, for which reason it is stated in their directions: “That the Governors of provinces must not admit provincials to great familiarity with them”; for contempt of rank arises from equality of intercourse. 1But, in the trial of cases, it is not proper for an official to become inflamed against those of whom he thinks ill, or be moved to tears by the supplications of the unfortunate; for it is not the part of a resolute and upright judge to let his countenance disclose the emotions of his mind. In a word, he should so administer justice as to increase the authority of his rank by the force of his mental qualities.

Callistratus, Judicial Inquiries, Book I. Nor can those who are attending a funeral be summoned, which appears to be established by a Rescript of the Divine Brothers.

Callistratus, Inquiries, Book I. Sometimes hearings are postponed for good reasons and on account of certain parties; as, for instance, where documents relating to a case are said to be in possession of persons who will be absent on public business. Therefore the Divine Brothers stated the following in a Rescript: “Humanity demands that postponement should be granted on account of accidental misfortunes; for example, where a father who was a party to the case has lost his son, or his daughter; or a wife her husband; or a son his parent; and in similar cases the hearing should be postponed for a reasonable time.” 1Where a Senator voluntarily undertakes to attend to the affairs of another in a province, he can not refuse to defend an action on the ground of business transacted; and Julianus says that he must defend the action, since he voluntarily assumed this obligation.

Callistratus, On Judicial Inquiries, Book I. The crime or the punishment of a father can place no stigma upon his son; for each one is subjected to fate in accordance with his conduct, and no one. is appointed the successor of the crime of another. This was stated by the Divine Brothers in a Rescript addressed to the people of Hierapolis.

Callistratus, On Judicial Inquiries, Book I. The Governors of provinces have jurisdiction over all the inhabitants which any towns claim as their own; but still, where anyone denies that he is a resident, he must bring suit before the Governor of the province in whose jurisdiction the town, by which he is called to discharge a public employment, is situated, and not before the Governor of the one where he himself alleges that he was born. This the Divine Hadrian stated in a Rescript with reference to a woman who married in another place than the one in which she was born. 1It has been decided that freedmen can hold public office where their patron is, or where they themselves have their domicile. 2It should be remembered that women who form an illegal connection with men can only discharge public duties where they themselves have been born, and not where their husbands are. This the Divine Brothers stated in a Rescript.

Callistratus, Judicial Inquiries, Book I. Not only those who are of tender years but also aged persons are forbidden to become decurions. The former are, as it were, unable to protect the interests of the State, and are temporarily excused, but the latter are perpetually excluded; still, persons of advanced age should not be excused except for good reasons, lest those who are younger, through their elders not having been chosen, will be left alone to sustain all the public responsibilities of government; for minors under twenty-five years of age cannot be created decurions unless for some good cause, nor are those eligible who have passed their fifty-fifth year. Sometimes, long-established custom should be considered in this matter; for our Emperors, having been consulted by the people of Nicomedia as to whether persons of that age could be elected to the order, stated in a Rescript that this could be done.

Callistratus, Judicial Inquiries, Book I. Municipal honor is the administration of public affairs, with the title of the office, whether the payment of expenses is required or not. 1An employment is either public or private. A public employment is one in which we undertake to administer public affairs, with the payment of expenses, and without the title of dignity. 2The collection of expenses for repairing the highways and of taxes on land are not personal, but local employments. 3When a question arises with reference to municipal honors and the administration of public employments, the person upon whom the honor or the employment is conferred must be taken into consideration, together with the origin of his birth, and whether his means are sufficient to enable him to administer the employment entrusted to him; and also the law, in accordance with which every one should discharge his official duties. 4A plebeian son under paternal control holds his office at the risk of the person who nominated him. Our Emperor, Severus, stated the following on this point in a Rescript: “If your son is a plebeian, you should not be compelled, against your will, to be responsible for his administration of the magistracy, because you cannot exercise your right of paternal authority to resist his appointment, but his administration will be at the risk of him who nominated him.” 5The power of administering a public office is not a promiscuous one, but a certain order should be observed; for no one can discharge the higher functions of the magistracy before having discharged those of a lower degree, nor can anyone continue to perform the duties of a public office at any age. 6It is provided by many Imperial Constitutions that, where there are no others to hold the office, those who had it previously can be compelled to continue to administer it. The Divine Hadrian stated in a Rescript with reference to continuance in office: “If there are no others who are competent to perform the duties of the office, I consent that they shall be chosen from those who already have performed them.”

Callistratus, On Judicial Inquiries, Book I. Old age has always been greatly venerated in our City. For our ancestors treated old men with almost the same reverence as magistrates, and the same honor was granted to old age with reference to municipal obligations which were required to be performed. Anyone, however, who became rich in his old age, and had not previously exercised the functions of any public employment, cannot be said to be exempt from such a charge by the privilege of his years, and especially if the administration of the office imposed upon him does not require corporeal exertion as much as the payment of money, because it is not easy to find men enough properly qualified in the City to discharge public duties. 1It is also necessary to take into consideration the custom of every place, and see whether any immunities are expressly granted, and also whether anything is mentioned with reference to the number of years required to obtain them. This can also be ascertained from the Rescripts of the Divine Pius, which he sent to Ennius, Proconsul of the Province of Africa. 2It is clearly and plainly stated, according to Rescripts of the Divine Ælius Pertinax, that the number of children affords a valid excuse from municipal employments; for he stated the following in a Rescript addressed to Julius Candidus: “Although the number of children does not exempt a father from all public employments, still because you have notified me in your petition that you have sixteen, it is not unreasonable for us to grant you exemption from public office, to enable you to bring up your children.” 3Traders, who assist in furnishing provisions to a city, as well as sailors who also provide for its necessities, will obtain exemption from public office, as long as they continue to do this; for it very properly has been decided that the risks which they incur should be suitably recompensed, so that those who perform such public duties outside of their own country with risk and labor should be exempt from annoyances and expenses at home; as it may not incorrectly be said that even they are absent on business for the government when they are employed in collecting provisions for a city. 4A certain specific character is given to the immunity bestowed upon the owners of vessels, which immunity they alone are entitled to; for it is not conferred either upon their children or their freedmen. This is set forth in the Imperial Constitutions. 5The Divine Hadrian stated in a Rescript that only those ship owners should be entitled to immunity who provided subsistence for the City. 6Although anyone may belong to the association of ship owners, if he has neither a ship nor vessels, nor anything else which is provided for by the Imperial Constitutions, he cannot avail himself of the privilege granted to ship owners; and the Divine Brothers stated the following in a Rescript: “Where there are any persons who claim that they are immune from public employments, under the pretext of transporting grain and oil by sea, for the benefit of the Roman people, and they are not engaged in maritime traffic, and have not the greater portion of their property invested in maritime business and commodities, they shall be deprived of the immunity which they enjoy.” 7It must be said with reference to the. following exemptions that where anyone was called to municipal employments before he engaged in commerce, and before he was admitted to an association formed by those engaged in the same pursuit (for the reason that he obtained immunity), whether before he became seventy years of age and publicly stated the fact, or had the requisite number of children, he should be compelled to assume the duties of the office to which he was appointed. 8Maritime commerce is prosecuted for the purpose of increasing one’s property, otherwise, if anyone should carry it on with the greater part of his money, and he, having become still more wealthy, should continue to transact the same volume of business, he will be liable to public service, just as wealthy persons who having purchased ships for a small sum attempt to evade the duties of municipal office. It is stated in a Rescript of the Divine Hadrian that this rule should be observed. 9The Divine Pius stated in a Rescript that, whenever a question arose as to whether anyone belonged to the association of ship owners, it should be ascertained whether he had assumed the character of one for the purpose of avoiding public employment. 10Farmers of the revenue, also, are not reduced to the necessity of exercising municipal employments. The Divine Brothers stated in a Rescript that this rule should be observed. From this Imperial Rescript it can be understood that it is not granted as a privilege to farmers of the revenue, that they should not be compelled to exercise municipal employments; but to prevent their property, which is already bound to the Treasury, from being subjected to further liability. Wherefore, it may be doubted if they should voluntarily offer to accept public office, whether they should be prevented from doing so by the Governor of the province, or by the Manager of the Imperial Revenues. The latter opinion is the more easy to maintain, unless they are said to be ready to settle their accounts with the Treasury. 11Farmers of the Imperial demesnes are exempt from municipal employments in order that they may be better adapted to the cultivation of the land belonging to the Treasury. 12Immunity is conceded to certain associations or corporate bodies, to which the right of assembly has been granted by law; that is to say, to associations or corporate bodies to which each person is admitted on account of his occupation, as, for instance, the Society of Artisans, provided they have the same origin; for instance, if they have been organized in order to perform labor necessary for the public welfare. Immunity is not indiscriminately granted to all those who are admitted to these associations, but only to artisans, for it was decided by the Divine Pius that persons of every age could not be chosen; and he disapproved of the admission of those of an advanced or decrepit age. And, in order that individuals who had become wealthy might not avoid the responsibility attaching to civil office, it was decided in many places that persons could avail themselves of the privileges which had been granted by such associations to anyone in reduced circumstances. 13I have been informed that when persons who have been elected to membership in corporate bodies, which afford immunity to their members, as, for instance, that of ship owners, obtain the honor of the decurionate, they should be compelled to exercise public employments. This seems to be confirmed by a Rescript of the Divine Pertinax.

Callistratus, On Judicial Inquiries, Book I. The number of judicial inquiries is derived from various sources, and cannot easily be divided into different kinds, unless this is done cursorily. Hence the number of judicial inquiries is generally divided into four kinds; for they usually have reference to the administration of offices or employments; or to disputes concerning pecuniary matters; or inquiry is made concerning someone’s reputation; or a capital crime is investigated. 1Reputation is the condition of unimpaired dignity approved by law and custom, which is either diminished or destroyed by legal authority on account of some offence which we have committed. 2Reputation is impaired whenever we, while retaining our liberty, are punished by a penalty affecting our status; as, for instance, when anyone is relegated or dismissed from his order; or when he is forbidden to discharge the duties of a public office; or when a plebeian is whipped, or sentenced to the public works; or when anyone is in such a condition as to be considered infamous under the terms of the Perpetual Edict. 3Reputation is entirely lost when a great change of civil condition takes place, that is to say, when liberty is forfeited; for example, where anyone is prohibited the use of water and fire, which results when a person is deported, or when a plebeian is condemned to labor connected with the mines, or to the mines; for there is no difference between these two sentences, nor are the penalty of labor connected with the mines and sentence to the mines dissimilar, except that in the former the penalty of civil death is not inflicted, but in the second, the offender is liable to it.

Callistratus, Judicial Inquiries, Book II. Time for payment should not only be granted to debtors who request it, but it should also be prolonged, if circumstances demand it. Where, however, anyone defers payment, rather through obstinacy than because he cannot obtain the money, he should be compelled to pay by taking his property in execution to satisfy the claim, according to the following rule which the Divine Pius prescribed to the Proconsul Cassius, namely, “Time for payment should be granted to those who admit that they owe a debt, or who are required to pay by a judgment, and the time should be such as appears to be sufficient in accordance with their means. If they do not make payment within the time granted in the beginning, or after it has been prolonged, their property can be levied on and sold, if they do not satisfy the claim or the judgment within two months; and if anything remains out of the price, it shall be returned to him whose property was taken in execution.”

Callistratus, On Judicial Inquiries, Book II. The Divine Hadrian stated in a Rescript addressed to the people of Nicomedia that where the Order of Decurions had once issued a decree it should not be rescinded, except for some good reason; that is to say, where the annulment of the decree had reference to the public welfare.

Callistratus, On Judicial Inquiries, Book II. The Divine Pius stated in a Rescript that where money had been bequeathed for the construction of a new work, it was better for it to be employed for the preservation of works already existing than to be expended in the construction of new ones; that is to say, if the city had enough public works, and money was not easily obtained for their repair. 1When anyone wishes to adorn with marble, or in any other manner a work constructed by another, and he promises to do so according to the will of the people, the Senate decreed that this could be done if he inscribed his own name upon the work, but that he should allow the name of the person who built it in the first place to remain. Where, however, private individuals expend a sum of money of their own to the embellishment of a work already constructed with the public funds, it is provided by the same Imperial Mandates that they can have their names inscribed upon the work and state the amount of money which they had contributed to it.

Callistratus, On Judicial Inquiries, Book III. The Divine Pius stated in a Rescript to bird-catchers, “It is not proper for you to catch birds on the land of others without the consent of the owners”.

Callistratus, On Judicial Inquiries, Book III. When a tract of land is devised, its equipment will not be embraced in the legacy, unless this was expressly mentioned; for where a house is devised, neither its utensils nor its furniture are included, unless this was explicitly stated by the testator.

Callistratus, On Judicial Inquiries, Book III. Where a slave has been sold on condition of being manumitted within a certain time, and the day appointed for Eis freedom arrives during the lifetime of the vendor, and the latter has not changed his mind, the result is that the slave will be manumitted, just as if this had been done by the person who should have liberated him; but if the vendor should be dead, the Divine Marcus and his son stated in a Rescript that it was not necessary to obtain the consent of his heirs.

The Same, Judicial Inquiries, Book III. Where a judge rules against constitutions which are cited, for the reason that he does not think them to be applicable to the case in question, he is not considered to have ruled against them improperly, and therefore an appeal can be taken from his decision; otherwise the matter will be held to have been finally determined.

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.

Callistratus, On Judicial Inquiries, Book III. The Divine Pius stated in a Rescript addressed to Claudius: “Any persons who introduce instruments into court which cannot be proved shall be punished according to the nature of each offence; or, if they seem to have deserved a more serious penalty than can be imposed upon them under this jurisdiction, the facts may be stated to the Emperor, in order that he may determine what punishment shall be inflicted upon them.” The Emperor Marcus, along with his Brother, however, influenced by feelings of humanity, mitigated this punishment; so that if, (as frequently happens), such documents should be produced by mistake, those who did anything of this kind may be pardoned.

Callistratus, Judicial Inquiries, Book III. When anyone orders the cultivators of land and fishermen to bring provisions into a city, in order that they themselves may dispose of them, for the reason that the supply of provisions will be diminished when the farmers are called away from their work, those who bring in the merchandise must deliver it immediately after doing so, and return to their labors. Hence, Plato displayed the highest wisdom and authority who while he was teaching among the Greeks, stated that in order for a city to be prosperous, and its people to be happy, it must, in the first place, attract all such merchants as were necessary; for, in the First Book on Civil Intercourse, he said: “A city is in need of many farmers, and other laborers and artisans, as well as of those who bring in and carry away articles of commerce, for these are traders. Where, however, a farmer brings to market anything which he produced, or any other laborer does so, and he does not immediately encounter someone who desires to exchange wares with him, will it be necessary for him to remain sitting in his place in the market until he disposes of his commodities? By no means, for there are those who, seeing this, may offer their services for the disposal of the merchandise.”

Callistratus, Concerning Judicial Inquiries, Book IV. The integrity of witnesses should be carefully investigated, and in consideration of their personal characteristics, attention should be, in the first place, paid to their rank; as to whether the witness is a Decurion or a plebeian; whether his life is honorable and without blame, or whether he has been branded with infamy and is liable to censure; whether he is rich or poor, lest he may readily swear falsely for the purpose of gain; whether he is an enemy to him against whom he testifies, or whether he is a friend to him in whose favor he gives his evidence. For if the witness is free from suspicion, either because his personal character is beyond reproach, for the reason that he is neither influenced by the expectation of gain, nor by any inducements of favor or enmity, he will be competent. 1Therefore, the Divine Hadrian stated in a Rescript addressed to Vivius Verus, the Governor of Cilicia, that he who hears a case has the best means of judging how much confidence should be reposed in witnesses. The following are the terms of the Rescript: “You are best qualified to ascertain how much faith should be placed in witnesses, who they are, what is their rank and reputation, whether they seem to speak sincerely, whether or not they have agreed upon and planned the same statements together, and whether they, without hesitation, return suitable answers to the questions put to them.” 2Another Rescript of the same Emperor, addressed to Valerius Verus, on the subject of ascertaining the confidence to be placed in witnesses, is extant, and is in the following words: “It cannot be laid down with precision what evidence will be sufficient for the proof of any matter, just as it is not always essential to establish the existence of any fact by means of public documents, although this is frequently done. Otherwise, the number of witnesses, as well as their rank and authority, and their general reputation, would tend to confirm the proof of the subject under investigation. “I can only say to you in general terms, that a judicial inquiry should not be confined merely to one kind of evidence, but that it is necessary for you to form your opinion as to what you believe to have been proved, or what you may think has not been satisfactorily established, through the exercise of your own judgment.” 3The Divine Hadrian also stated in a Rescript to Julius Rufinus, Proconsul of Macedonia, that he must pay more attention to the witnesses than to their evidence. The words of the Rescript on this point are as follows: “Alexander accused Aper of certain crimes before me, but he did not prove them, or produce any witnesses; but he desired to use evidence which I am unwilling to admit, for I am accustomed to examine witnesses, and I have sent him back to the Governor of the province that he may make inquiry with reference to the credibility of the witnesses, and unless he proves what he alleges, he shall be sent into exile.” 4The same Emperor stated the following in a Rescript to Gabinius Maximus: “The weight to be attached to the oral evidence of witnesses who are present is one thing, and that of written testimony which is to be read is another. Therefore deliberate carefully whether you desire to retain them, and if you do, allow them their costs.” 5It is proved by the Lex Julia relating to violence, that those shall not be permitted to give testimony against a defendant who has been freed by him or by his father; or who have not yet arrived at puberty; or anyone who has been condemned for a public crime, and has not been restored to his former condition, or who is in chains, or in prison, or has hired himself out to fight with wild beasts; or any woman who openly prostitutes herself, or has already done so; or anyone who has been sentenced or convicted of having received money for giving or withholding testimony. For, indeed, certain persons should not be allowed to testify on account of the reverence due to their position; others on account of the unreliability of their judgment; and still others because of the notorious infamy of their lives. 6Witnesses should not hastily be summoned from a long distance, and still less should soldiers be called away from their standards or their stations for the purpose of giving evidence; and this the Divine Hadrian stated in a Rescript. The Divine Brothers also stated in a Rescript that: “With reference to the summoning of witnesses, the judge should carefully ascertain what is the custom in the province over which he presides; for if it should be proved that witnesses are frequently summoned to another city for the purpose of testifying, there is no doubt that those can be summoned whom the judge may decide are necessary to be called in the case.”

Callistratus, Concerning Investigations, Book IV. The same diligence is required of the guardians and the curators of minors with reference to the administration of their affairs, as the head of the family should conscientiously exercise in the transaction of his own business. 1The duties of a guardian terminate with the appointment of a curator; and therefore all matters which have been begun are entrusted for completion to the curator. This the Divine Marcus, together with his son Commodus, stated in a Rescript. 2The heirs of wards have the same right to choose against what guardians they may prefer to proceed, just as those whose guardianship is being administered can do. 3It is stated in the Imperial Constitutions that an account shall be rendered of any expenses incurred in good faith during the administration of the guardianship, but, not such as the guardians have incurred for themselves; unless a certain compensation was fixed by the party who appointed them.

Callistratus, On Judicial Inquiries, Book IV. For the reason that security does not change the evil disposition of the guardian, but gives him an opportunity to more readily plunder the property of the ward.

Callistratus, On Judicial Inquiries, Book IV. Not only the value of the estate to be entered upon, the administration of which is to be undertaken in the case of three already existing guardianships, but also the ages of the wards, must be considered. For if the ages of the first wards are approaching puberty, so that only a term of six months remains, or if the age of those, the assumption of whose guardianship is involved, is not far from puberty, an excuse will not be allowed. This matter is provided for by the Imperial Constitutions. 1Complete exemption was long since granted to the Trojans, both by Decrees of the Senate and Constitutions of the Emperors, on account of the renowned nobility of their city and their connection with the origin of Rome, where wards are concerned who are not Trojans. This the Divine Pius stated in a Rescript. 2Those who belong to certain associations, as, for example, to that of artisans, We declare to be entitled to exemption, for they can be excused from the administration of the guardianship of persons who are not members of their organization, in order to compel them to undertake other public employments, even if their property has been subsequently increased. This is also provided for in the Imperial Constitutions. 3All bodies or associations, however, are not entitled to be released from the duties of guardianship, although they may not be obliged to assume municipal offices, unless this privilege has been expressly granted them. 4He who is performing the duties of ædile may be appointed a guardian; for the office of ædile is included among those magistracies whose incumbents are exempt from private employments, according to a Rescript of the Divine Marcus. 5It must, indeed, be noted that it has been settled that those invested with public office are released from the duties of guardianship. Those are exempt who, being already in office, are called upon to undertake the duties of guardianship; but it should also be noted that those who have already been concerned in the administration of its duties are not excused, even during the time of their magistracy. 6The masters of ships, among their other privileges, do not seem to enjoy that of being exempt from guardianship. This the Divine Trajan stated in a rescript. 7Those who dwell in camps are usually exempt from guardianship, except with reference to that of parties who themselves reside in the same camp, and are of the same condition.

Callistratus, On Judicial Inquiries, Book IV. If the legatee or the beneficiary of the trust cannot readily furnish security, and for this reason runs the risk of being deprived of the benefit conferred by the will, shall he be released from the necessity of giving security? This opinion seems to be adopted in a Rescript of the Divine Commodus, which is in the following words: “If the court having jurisdiction of the case should ascertain that application has been made to him to compel you to give security in order to prevent you from claiming the benefit of the trust, he must see that you are released from the requirement of furnishing it.”

Callistratus, On Judicial Inquiries, Book IV. Where anyone, without having any legal adversary, is judicially declared to be entitled to the rights of a freeborn person, the decision will be without effect, and just as if none had been rendered. This is provided by the Imperial Constitutions.

Callistratus, Judicial Inquiries, Book IV. By the term “clothing” is meant that ordinarily worn by both men and women, as well as theatrical costumes, whether used in a tragedy or comedy.

Ad Dig. 4,2,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 1.Callistratus, On Judicial Inquiries, Book V. There is extant a Decree of the Divine Marcus in the following terms: “The best course to pursue if you think that you have any legal claim, is to test it by an action”; and when Marcianus said, “I have employed no force”; the Emperor replied, “Do you think that there is no force employed except where men are wounded? Force is employed just as much in a case where anyone who thinks that something is owing to him and makes a demand for it, without instituting judicial proceedings; therefore, if anyone is proved before Me to have boldly, and without judicial authority obtained possession of any property of his debtor, or any money which was due to him, and which was not voluntarily paid to him by the said debtor; and who has established the law for himself in the matter, he shall not be entitled to the right of a creditor”.

The Same, Inquiries, Book V. Where inquiry is made concerning violence and the existence of possession, investigation must be made of the violence before the ownership of the property is considered; in accordance with a Rescript of the Divine Hadrian in the Greek language directed to the Commonwealth of Thessaly.

Callistratus, Concerning Judicial Inquiries, Book V. The Divine Marcus Commodus stated in a Rescript to Piso the following: “Since it has been proved before you, my dear Piso, that Julius Donatus, after having been alarmed by the approach of robbers, took refuge in his country-house, and was wounded, and afterwards, having executed a will, manifested his affection for his slaves, neither his regard for them, nor the solicitude of the heir should allow punishment to be inflicted upon those whom the master himself has absolved”.

Ad Dig. 42,1,33ROHGE, Bd. 5 (1872), S. 213: Rescission eines auf eine falsche Urkunde gestützten Erkenntnisses. Einfluß des prozessualen Anerkenntnisses der Echtheit der Urkunde.The Same, Judicial Inquiries, Book V. The Divine Hadrian, having been presented with a petition by Julius Tarentinus, in which he alleged that a decision had been rendered against him through the judge having been deceived by forged evidence, and by a conspiracy of his adversaries, who had corrupted witnesses with money, the Emperor stated in a Rescript that he was entitled to complete restitution, as follows: “I have ordered a copy of the petition which was presented to me by Julius Tarentinus to be sent to you. If he proves that he has been oppressed by a conspiracy of his adversaries, and that their witnesses have been corrupted with money, you will inflict severe punishment; and if the decision of the judge was induced by false representations, you will grant complete restitution.”

The Same, On Judicial Inquiries, Book V. A pecuniary penalty was established by the agrarian law which Gaius Cæsar 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. 1By 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. 2Those, 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.

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. 1Likewise, the Divine Hadrian stated in a Rescript that no one could be forced to prosecute several accused persons.

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. 1When 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.

Ad Dig. 48,7,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 1.Callistratus, On Judicial Inquiries, Book V. Creditors, who proceed against their debtors, should demand a second time, through the judge, what they think to be due to them. Otherwise, if they enter upon the property of the debtor without permission having been given them to do so, the Divine Marcus decreed that they had no longer any right to their claims. The following are the terms of the Decree: “It is very proper, where you think that you have claims, that you should attempt to collect them by means of actions. In the meantime, the other party should remain in possession, for you are merely the plaintiff.” And when Marcianus said that no force had been employed, the Emperor replied: “You think that force is only employed when men are wounded. Force is employed when anyone thinks that he can take what is due to him without demanding it a second time through the judge. I do not think that it is consistent either with your character for reserve or your dignity, to commit an act which is unauthorized by law. Therefore, whenever it is proved to me that any property of the debtor was not delivered by him to his creditor, but that the latter boldly took possession of it without being authorized by a court, and he has declared that he was entitled to the property, he will forfeit his right to the claim.”

Callistratus, Judicial Inquiries, Book V. It is not necessary to inflict torture in the case of a freeman, where his testimony is not vacillating. 1In the case of a minor under fourteen years of age, the Divine Pius stated in a Rescript to Mæcilius that torture should not be inflicted to obtain evidence against another, especially as the accusation was by no means established by other evidence, since it did not result that the minor should be believed, even without the application of torture; for he says that age, which appears to protect persons against the harshness of torture, renders them also more suspected of falsehood. 2He who has given security to another claiming a slave should be considered as the master; and therefore such slaves cannot be put to torture to obtain evidence against him. The Divine Pius stated the following in a Rescript: “You must prove your case by other testimony, for torture should not be inflicted upon slaves, when the possessor of an estate has given security to a claimant, and in the meantime, is considered as the master.”

The Same, On Judicial Inquiries, Book V. The Divine Brothers stated in a Rescript to Harruntius Silo, that the Governors of provinces were not accustomed to rescind judgments which they themselves had rendered. They also stated in a Rescript addressed to Vetina of Italica, that no judge could change his own decision, and that this was an unusual thing to do. Where, however, anyone was falsely accused, and did not have at first the documents to establish his innocence, which he afterwards found, and was subjected to punishment, there are some Imperial Rescripts extant by which it is provided that the penalty of such persons shall either be lessened, or that they shall be entirely restored to their former condition. This, however, can only be done by the Emperor. 1It is provided by the Imperial Mandates with reference to Decurions, and civil officials who have been guilty of capital crimes, that if anyone appears to have committed an offence for which he should be relegated to an island outside of the province, the facts, together with the sentence imposed, should be submitted to the Emperor in writing by the Governor. 2In another Section of the Imperial Mandates, it is provided as follows: “When any of the officials of a town have committed robbery, or any other crime which seems to deserve capital punishment, you shall place them in chains, and write to me, and also state what crime each of them has perpetrated.”

Callistratus, On Judicial Inquiries, Book VI. The Imperial Stewards cannot sentence to deportation, for the reason that they have not the right of imposing this penalty. 1If, however, they forbid anyone to enter upon the land of the Emperor because his riotous or violent conduct might injure the Imperial tenants, the person is obliged to withdraw; for this the Divine Pius stated in a Rescript to Julius. 2Stewards cannot give permission to anyone to return after deportation, and this our Emperors Severus and Antoninus stated in a Rescript in answer to a petition of Hermias.

Callistratus, Judicial Inquiries, Book VI. Slaves who are simply fugitives should be returned to their masters; but where they pretend to be free, it is customary to punish them severely.

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 authorities 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. 1He 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. 2Those 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. 3Those 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.

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.

Callistratus, On Judicial Inquiries, Book VI. The Divine Hadrian stated the following in a Rescript: “In the perpetration of crime, the intention, and not the event, is considered.”

Callistratus, On Judicial Inquiries, Book VI. He does not forthwith become a kidnapper who is guilty of theft, on the ground of withholding slaves belonging to another, for the Divine Hadrian stated in a Rescript: “He who has solicited or appropriated the slaves of another gives rise to the question whether he is, or is not liable for the crime of kidnapping, of which he is accused; and therefore it is not necessary to consult me on this point. The judge, however, in a case of this kind must decide what he knows to be perfectly true, for it is evident that he must be aware that a person can be guilty of the crime of theft with reference to slaves taken from others, and not necessarily for that reason, be considered guilty of kidnapping.” 1The same Emperor stated in a Rescript with reference to the same matter: “Where one or more fugitive slaves is found in the possession of anyone who has hired their services in consideration of their maintenance, and the said slaves had previously performed labor for others, no one can properly say that the above-mentioned person has appropriated them.” 2It is provided by the Favian Law that: “A freeman who conceals one who is freeborn or a freedman, against his will; or has kept him in fetters, and has knowingly and fraudulently purchased him; or has been associated with anyone in a transaction of this kind; or has persuaded the male or female slave of another to run away from his or her master or mistress; or has concealed such a slave without the knowledge or consent of his or her master or mistress; or has kept him or her chained; or knowingly and fraudulently has purchased the slave, or has been implicated in any of these crimes, shall suffer the penalty of the law.”

Callistratus, On Judicial Inquiries, Book VI. Such as castigation with rods, scourging, and blows with chains,

The Same, On Judicial Inquiries, Book VI. The following is the gradation of capital crimes. The extreme penalty is considered to be sentence to the gallows, or burning alive. Although the latter seems, with good reason, to have been included in the term “extreme penalty,” still, because this kind of punishment was invented subsequently, it appears to come after the first, just as decapitation does. The next penalty to death is that of labor in the mines. After that comes deportation to an island. 1Other penalties have reference to reputation, without incurring the danger of death; as, for instance, relegation for a certain term of years, or for life, or to an island; or sentence to labor on the public works; or where the culprit is subjected to the punishment of whipping. 2It is not customary for all persons to be whipped, but only men who are free and of inferior station; those of higher rank are not subjected to the penalty of castigation. This is specially provided by the Imperial Rescripts. 3Some persons who are ordinarily called young are, in some turbulent cities, accustomed to encourage the clamors of the mob. If they have not done anything more than this, and have not previously been warned by the Governor, they are punished by being whipped, or are even forbidden to be present at exhibitions. If, however, after having been corrected in this way they are again detected committing the same offence, they should be punished with exile, and sometimes with death; that is to say, when they have frequently acted in a seditious or turbulent manner, and, having been arrested several times, and treated with too much clemency, they have persevered in their bold designs. 4Slaves who have been whipped are usually restored to their masters. 5And, generally speaking, I should say that all those whom it is not permitted to punish by whipping are persons that should have the same respect shown them that decurions have. For it would be inconsistent to hold that anyone whom the Emperors have, by their Constitutions, forbidden to be whipped, should be sentenced to the mines. 6The Divine Hadrian stated in a Rescript: “No one should be condemned to the mines for a specified term, but anyone who is sentenced for a term, and performs labor connected with the mines, ought not to be understood to be condemned to the mines; for his liberty continues to exist as long as he is not condemned to labor for life.” Hence, women sentenced in this way have children who are free. 7It is forbidden to seek sanctuary at the statues or portraits of the Emperor, in order to cause another injury; for as the laws afford equal security to all men, it seems reasonable that he who takes refuge at the statues or the portraits of the Emperor does so rather in order to injure another than to provide for his own safety, unless someone who was confined in chains or in prison by persons more powerful than himself has recourse to this safeguard; for such persons ought to be excused. The Senate decreed that no one shall flee for refuge to the statues or portraits of the Emperor; and the Divine Pius stated in a Rescript that anyone who carried before him an image of the Emperor, for the purpose of incurring the hatred of another, should be punished by being placed in chains. 8All offences committed against a patron or the son of a patron, a father, a near relative, a husband, a wife, or other persons to whom anyone is nearly related, should be punished with more severity than if they were committed against strangers. 9Poisoners should be punished with death, or if it is necessary to show respect to their rank, they should be deported. 10Highwaymen, who pursue this occupation for the sake of booty, are regarded as greatly resembling thieves; and when they make an attack and rob while armed, they are punished with death, if they have committed this crime repeatedly and on the highways; others are sentenced to the mines, or relegated to islands. 11Slaves who have plotted against the lives of their masters are generally put to death by fire; sometimes freemen, also, suffer this penalty, if they are plebeians and persons of low rank. 12Incendiaries are punished with death when, either induced by enmity or for the sake of plunder, they have caused a fire in the interior of a town; and they are generally burned alive. Those also who have “burned a house or a hut, in the country, are punished a little more leniently. For if accidental fires could have been avoided, and were caused by the negligence of those on whose premises they originated, and resulted in injury to the neighbors; the responsible parties are prosecuted civilly to enable anyone who has suffered loss to recover damages, or they may be subjected to moderate punishment. 13A graduated scale of penalties with reference to exiles was established by an Edict of the Divine Hadrian, so that if anyone who was relegated for a term returned before it expired, he should be relegated to an island; and if one who was relegated to an island left it, he should be deported to an island; and if anyone, after having been deported, escaped, he should be punished with death. 14The same Emperor stated in a Rescript, that a certain gradation should be observed with reference to prisoners, that is to say, those who were sentenced for a certain term should, under similar circumstances, be sentenced for life; those who had been sentenced for life should be condemned to the mines; and when those have been condemned to the mines committed such an act, they should suffer the extreme penalty. 15It has been held by many authorities that notorious robbers should be hanged in those very places which they had subjected to pillage, in order that others might be deterred by their example from perpetrating the same crimes, and that it might be a consolation to the relatives and connections of the persons who had been killed that the penalty should be inflicted in the same place where the robbers committed the homicides. Some also condemned them to be thrown to wild beasts. 16Our ancestors, in inflicting every penalty, treated slaves more harshly than persons who are free; and they punished those who are notorious with greater severity than men of good reputation.

The Same, On Judicial Inquiries, Book VI. It is not necessary to strip a person of his clothing when he is placed in prison, but only after he has been sentenced. This was stated by the Divine Hadrian in a Rescript.

Callistratus, On Judicial Inquiries, Book VI. Persons condemned to the mines are deprived of their freedom, as they are punished with the blows of a slave. The Divine Pius stated in a Rescript that nothing is acquired by the Treasury through persons of this kind; and therefore he decided that anything which was bequeathed to a man who was afterwards condemned to the mines would not belong to the Treasury, for he says that such persons are rather penal slaves than slaves of the Treasury.

The Same, Judicial Inquiries, Book VI. Those who trade in and sell the necessaries of life should not be despised as degraded persons, although they are subject to chastisement by the Ædiles. For men of this kind are not prohibited from seeking the office of decurion, or any other honor in their own country, as they are not infamous; and they are not excluded from public employments, even after they have been scourged by the Ædiles, who are only discharging their lawful duty in doing so. I do not, however, think that it is honorable to receive persons of this kind, who have been subjected to blows with a scourge, into the order; and especially in towns which contain a number of honest men, but the scarcity of those who should discharge the duties of a public office necessarily calls such persons to municipal honors, if they possess the requisite qualifications.