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.”