Macer, Public Prosecutions, Book I. The crime of violating a sepulchre may be considered as coming within the terms of the Julian Law relating to public violence, and that part in which it is provided that he shall be punished who prevents anyone from celebrating funeral ceremonies, or burying a corpse; because he who violates a sepulchre commits an act preventing interment.

Macer, Public Prosecutions, Book I. The prosecution of extortion is not public, but if anyone has received money because he threatened another with a criminal accusation, the prosecution may become public under the Decrees of the Senate, by which all those are ordered to be liable to the penalty of the Cornelian Law who have joined in the denunciation of innocent persons, and have received money in consideration of accusing, or not accusing others, or of giving, or not giving testimony against them.

Macer, Public Prosecutions, Book I. The crime of driving away cattle is not subject to public prosecution, because it is rather to be classed as a theft; but since most offenders of this description go armed, if they are arrested, they are usually more severely punished on this account.

Macer, Public Prosecutions, Book I. The judgment for prevarication is either public or introduced by custom. 1If the defendant opposes the prosecutor in a criminal case, alleging that he already has been accused of the same crime by another and acquitted, it is provided by the Julian Law relating to public prosecutions that he cannot be prosecuted until the crime charged by the first accuser and the judgment rendered with reference to it have been investigated. Therefore, the decision of cases of this kind is understood to belong to the category of public prosecutions. 2Where the crime of prevarication is said to have been committed by an advocate, a public prosecution cannot be instituted; and it makes no difference whether he is said to have committed it in a public or a private proceeding. 3Therefore if anyone is accused of having abandoned a public prosecution, the case will not be public, because no provision was made for this by any law; and a public accusation is not authorized by that decree of the Senate which prescribes the penalty of five pounds of gold against anyone who abandons a case.

Macer, On Criminal Prosecutions, Book I. All cases in which crime is involved are not public, but only those which are derived from the laws relating to the prosecution of crimes, such as the Julian Law on Treason; the Julian Law on Adultery; the Cornelian Law on Assassins and Poisoners; the Pompeian Law on Parricide; the Julian Law on Peculation; the Cornelian Law on Wills; the Julian Law on Private Violence; the Julian Law on Public Violence; the Julian Law on the Bribery of Voters; the Julian Law on Extortion; and the Julian Law on Raising the Price of Food.

Macer, On Public Prosecutions, Book I. Or before the accusation was brought against him,

Macer, Public Prosecutions, Book I. A husband is also permitted to kill a man who commits adultery with his wife, but not everyone without distinction, as the father is; for it is provided by this law that the husband can kill the adulterer if he surprises him in his own house, but not if he surprises him in the house of his father-in-law; nor if he was formerly a pander; or had exercised the profession of a mountebank, by dancing or singing on the stage; or had been convicted in a criminal prosecution and not been restored to his civil rights; or is the freedman of the husband or the wife, or of the father or mother, or of the son or the daughter of any of them; nor does it make any difference whether he belonged exclusively to one of the persons above mentioned, or owed services to two patrons in common, or was a slave. 1It is also provided that a husband who has killed any one of these must dismiss his wife without delay. 2It is held by many authorities to make no difference whether the husband is his own master, or a son under paternal control. 3With reference to both parties, the question arises, in accordance with the spirit of the law, whether the father can kill a magistrate; and also where his daughter is of bad reputation, or has been illegally married, whether the father or the husband will still retain his right; and what should be done if the husband is a pander, or is branded with ignominy for some reason or other. It may properly be held that those have a right to kill who can bring an accusation as a father or a husband.

Macer, On Public Prosecutions, Book I. It makes no difference whether the father kills his daughter surprised in adultery first, or not, provided he kills both guilty parties; for if he kills only one of them, he will be liable under the Cornelian Law. If, however, one of them should be killed, and the other wounded, he is not released under the terms of the law; but the Divine Marcus and Commodus stated in a Rescript that he ought to be granted impunity, for the reason that, although the adulterer was killed, and the woman survived, after having received serious wounds inflicted upon her by her father, she was saved rather by accident, than intentionally; because the law requires the same indignation and the same severity to be displayed toward all those who are taken in adultery. 1Where a husband has selected one of two culprits who have been guilty of adultery, he cannot accuse the other before the first case is terminated; because two persons cannot be accused by the same individual at the same time. Still, the prosecutor, while proceeding against the adulterer or the adulteress, is not prevented from also accusing anyone who lent his house for the purpose, or advised that the charge be suppressed by the payment of money.

Macer, Public Prosecutions, Book I. It makes no difference whether the crowd was convoked for the purpose of employing violence against freemen, or one’s own slaves, or slaves belonging to another. 1Those who have been assembled are none the less liable under the same law. 2If, however, no persons have been assembled, and none has been beaten, but something has been unjustly taken from property belonging to others, he who did so will be liable under this law.

Macer, Public Prosecutions, Book I. Nothing is provided by the Decrees of the Senate with reference to a person who has written something for the benefit of one who has control of him, or of another who is under the same control. But the law is violated also in this instance, because the profit derived from the act will belong to the father or the master, who would be entitled to it if the son or the slave had written the instrument for his own benefit. 1It is established that where anyone writes the bequest of a legacy for the benefit of a stranger, even though he may afterwards, during the lifetime of the testator, begin to have him under his control, there will be no ground for the application of the Decree of the Senate.

Macer, Public Prosecutions, Book I. He is liable under the Julian Law relating to Extortion who, while invested with any authority, accepts money for rendering a judgment or decree;

Macer, Public Prosecutions, Book I. The attendants of judges can also be prosecuted under this law.

Macer, Public Prosecutions, Book I. The Julian Law on Extortion prescribes that: “No one shall receive anything as an inducement to render a judgment or a decree, or for changing his opinion; or to prevent him from rendering a decision; or to throw a person into prison, or put him in chains; or order him to be chained, or delivered from his chains; or to convict or acquit a man; or to appraise the amount of a judgment; or to sentence anyone to a capital or a pecuniary penalty, or to refrain from doing so.” 1It is, however, apparent that the law permits all those, excepting such as have been excepted, to receive money without limit; but those enumerated in this Section are not allowed to receive anything from anybody. 2It is also provided: “That no public work which is to be constructed shall be accepted as completed, nor any public provisions which are to be distributed held to be transferred or obtained, nor any buildings considered as repaired, before they have been finished, accepted, and delivered according to law.” 3Persons guilty of extortion are at present arbitrarily dealt with by the law, and they are generally punished with exile, or even more severely, according to the crime which they have committed. What, however, should be done if they accept money as a reward for killing a man? Or even if they do not accept it, but, impelled by rage, they kill an innocent person, or one whom they should not punish? They should undergo a capital penalty, or be deported to an island, as indeed most of them are.

Macer, On Criminal Trials, Book II. The Divine Marcus and Commodus addressed a Rescript to Scapulas Tertullus in the following terms: “If it is positively ascertained by you that Ælius Perseus is to such a degree insane that, through his constant alienation of mind, he is void of all understanding, and no suspicion exists that he was pretending insanity when he killed his mother, you can disregard the manner of his punishment, since he has already been sufficiently punished by his insanity; still, he should be placed under careful restraint, and, if you think proper, even be placed in chains; as this has reference not so much to his punishment as to his own protection and the safety of his neighbors. If, however, as often happens, he has intervals of sounder mind, you must diligently inquire whether he did not commit the crime during one of these periods, so that no indulgence should be given to his affliction; and, if you find that this is the case, notify Us, that We may determine whether he should be punished in proportion to the enormity of his offence, if he committed it at a time when he seemed to know what he was doing. “But, when We are informed by your letter that his condition so far as place and treatment are concerned, is that he remains in charge of his friends, or under guard in his own house; it appears to Us that you will act properly if you summon those who had care of him at that time, and investigate the cause of such great neglect, and decide the case of each one of them, so far as you discover anything tending to excuse or increase his negligence; for keepers are appointed for insane persons, not only to prevent them from injuring themselves, but that they may not be a source of destruction to others; and where this takes place, those very properly should be held responsible who are guilty of negligence in the discharge of their duties.”

Macer, Public Prosecutions, Book II. The Governor of a province cannot prevent anyone who has been convicted of theft from being branded with infamy.

Macer, Public Prosecutions, Book II. The Divine Severus wrote to Dionysius Diogenes, as follows: “Anyone who has been condemned for an atrocious injury cannot belong to the Order of Decurions; and the error of a Governor or of anyone else who has rendered a different decision on the point in controversy will not benefit you, nor will that of those who, in opposition to the established law, held that you still retained your membership in the Order of Decurions.”

The Same, Public Prosecutions, Book II. A pecuniary action is also granted for violating a sepulchre.

The Same, Public Prosecutions, Book II. If a person against whom an action for slander cannot be brought is convicted of being a prevaricator in a criminal case, he will become infamous.

Macer, Public Prosecutions, Book II. A sentence for every crime does not render a man infamous, but only such as have the character of public prosecutions. Hence infamy does not result from condemnation for a crime which is not the subject of public prosecution, unless the offence can be the subject of an action which, even in the case of a private judgment, brands the condemned party with infamy, as for instance, that of theft, that of robbery with violence, and that of injury.

Macer, On Public Prosecutions, Book II. We will more readily understand who can bring an accusation if we know who cannot do so. Hence, certain persons are forbidden to prosecute a crime on account of their sex or their age, as women, or minors. Many are disqualified because of their oath, for instance, those who are serving in the army; others cannot be brought into court on account of their magistracy, or their power, so long as they exercise this without the commission of fraud. Others, again are forbidden as the result of their own criminality, for example, infamous persons. Some are excluded on account of dishonorable gain, such as those who have filed two accusations signed by them against two different individuals; or who have received money in consideration of accusing, or not accusing others. Some are incompetent in consequence of their condition, as, for instance, freedmen cannot proceed against their patrons.

Macer, On Public Prosecutions, Book II. Still, all these persons, if they are prosecuting injuries sustained by them, or the death of near relatives, are not excluded from bringing accusations. 1When children and freedmen desire to protect their interests they should not be prevented from complaining of the acts of their parents and patrons; for instance, where they state that they have been forcibly expelled from possession, and do not do so for the purpose of bringing an accusation of the crime of violence, but in order that they may recover possession of the property. For, indeed, a son is not forbidden to complain of the act of his mother, if he alleges that a child has been falsely substituted by her in order that he might have a co-heir, but he will not be permitted to accuse his mother under the Cornelian Law. 2One person cannot accuse another who has been already accused by a third party; but anyone who has been publicly or privately acquitted, or whose accuser has desisted from prosecution, and has been removed from a number of defendants, may be accused by another.

Macer, Public Prosecutions, Book II. Or by reason of the fortunate result of some transaction,

Macer, Public Prosecutions, Book II. Those come within the scope of the Turpillian Decree of the Senate who substitute accusers in their places; or who, having done so, bring the accusation without prosecuting the defendants; or desist from the prosecution in some other manner than by the dismissal of the case, as well as such as have filed some written document, or have entered into some agreement for the purpose of accusing another. It must be said that these words, “Bring the accusation without prosecuting the defendants,” are applicable to all the persons above mentioned. 1The question arises whether the Decree of the Senate applies to those who, at present, have extraordinary jurisdiction of public offences. The present law, based upon the Imperial Constitutions, is that it does apply; hence each penalty will be imposed in each individual case. 2If those who are not permitted to bring an accusation for calumny desist, they will not be liable to the penalty of this Decree of the Senate. This has been provided by the Constitutions. 3If, on account of the death of the defendant, the accuser should desist, he cannot be held liable under this Decree of the Senate; because the prosecution is extinguished by the death of the accused, unless the crime is such that its prosecution can be continued against the heirs, as, for instance, that of high treason. The same rule applies where an accusation is brought for extortion, because this also is not extinguished by death. 4Moreover, if the defendant should die after the accuser has desisted from the prosecution, the offence of the accuser will not, for this reason, be lessened. For if he who has once desisted should afterwards be ready to renew the accusation, Severus and Antoninus have decreed that he shall not be heard. 5Those who, after having filed a written accusation, have permitted one or two years to elapse, for the reason that they could not prosecute on account of their various occupations as Governors, or because they were prevented by the requirements of civil office, do not come within the terms of the Decree of the Senate. 6If anyone has accused a person in the first place, and, after the case has been dismissed, but before the defendant is again accused, a second dismissal should occur, the thirty days should be computed, not from the first, but from the second dismissal of the case.

Macer, On Public Prosecutions, Book II. The term of a year is fixed for the purpose of seizing the property of anyone who is sought for and noted as being present. 1If, however, the Treasury does not seize his property for twenty years, it will be barred from doing so subsequently, if prescription should be pleaded either by the defendant himself, or by his heirs.

Macer, On Public Prosecutions, Book II. The year is computed from the time when the notification was publicly made, either by means of an Edict or by letters sent to the magistrate. 1Therefore, the term of twenty years is reckoned for the Treasury, from the moment when the notice was published. 2In a word, it should be remembered that he who is sought for and notified is not barred from undertaking his defence by any prescription of time.

Macer, On Public Prosecutions, Book II. The rule is observed with reference to slaves, that they shall be punished as persons of the lowest rank, and in cases where a freeman is whipped, a slave should be scourged, and ordered to be restored to his master; and where a freeman, after having been whipped, is sentenced to labor upon the public works, a slave, under the same circumstances, after having been kept in chains for a certain period of time, and scourged, is ordered to be restored to his master. Where a slave, after having undergone the punishment of chains, is ordered to be restored to his master, but is not received by him, he shall be sold; and if he does not find a purchaser, he shall be sentenced to labor on the public works for life. 1Those who, for some cause, have been sentenced to the mines and afterwards commit some offence, ought to be judged as having been condemned to the mines, although they may not yet have been taken to the place where they will be compelled to work; for they change their condition just as soon as sentence has been passed upon them. 2It has been decided with reference to plebeians as well as decurions, that where a more severe penalty than is authorized by law has been inflicted upon anyone, he does not become infamous. Therefore, if a man has been sentenced to labor for a specified term, or only beaten with rods, although this may have been done in an action which implied infamy, as, for instance, one of theft, it must be said that the accused does not become infamous, because blows with a rod constitute a more severe penalty than a pecuniary fine.

Macer, Public Prosecutions, Book II. The Emperors Severus and Antoninus to Julius Julianus: Those who are said by robbers to have corrupted their accuser, and are dead, are considered to have confessed their crime, and hence to have left no defence to their heirs. 1Where anyone, concerning whose punishment a communication has been sent to the Emperor, for instance, because he was a decurion, or should have been deported to an island, and he dies before the Emperor has sent his reply, it may be asked whether he should be considered to have died before judgment. This question may be said to have been settled by a Decree of the Senate, which was enacted with reference to persons who were transferred to Rome, and died before judgment was rendered. The terms of this decree are as follows: “As no one can be considered to have been condemned during this year, before judgment in his case has been rendered and made public at Rome; no property belonging to a deceased person shall be confiscated before judgment in his case has been made public at Rome; and his heirs can take possession of his estate.”

Macer, Public Prosecutions, Book II. The Emperors Severus and Antoninus stated in a Rescript to Asclepiades: “You who, having failed to make a defence, preferred to purchase the judgment when you were accused of crime, are with reason ordered to pay fifty solidi to the Treasury, since, leaving out of consideration the examination of your case, you have rendered yourself liable to this penalty; for it must be maintained that those who are involved in matters in which the Treasury is interested, should undertake the defence of their cases in good faith, and not attempt to buy their adversaries, or their judges.”