Marcianus, On Criminal Trials, Book I. One thing must be observed, he who governs the province must not pass its boundaries unless for the purpose of fulfilling a vow; and, even then he must not spend a night outside.

Marcianus, On Criminal Trials, Book I. Freedmen can act as assessors, and although persons who are infamous are not prohibited by law from doing so, still, I am of the opinion that they cannot perform the duties of an assessor; and, indeed, it is said that there is an Imperial Constitution extant upon this subject.

Marcianus, On Public Prosecutions, Book I. It must be remembered that if anyone should not defend his own slave, when he is accused of a capital crime, he will not be considered as having abandoned him; and therefore if the slave should be acquitted, he will not become free, but will still remain the property of his master.

Marcianus, On Public Prosecutions, Book I. The Divine Severus and Antoninus stated in a Rescript that a woman should be heard by the Prefect of Subsistence on the ground of the public welfare, if she brought an accusation relating to the excessive price of provisions. There is no doubt that persons who have been rendered infamous should be permitted to institute proceedings of this kind. Soldiers, also, who cannot prosecute the cases of others, because they guard the peace, can all the more readily be permitted to bring this accusation. When slaves bring it, they should also be heard.

Marcianus, On Public Prosecutions, Book I. Anything which may be due in these different cases can be recovered by a personal action derived from the law.

Marcianus, Public Prosecutions, Book I. Where anyone alleges that adultery has been committed by his slave, with a woman whom he had for his wife, the Divine Pius stated in a Rescript that he must accuse the woman before subjecting his slave to torture to her prejudice. 1If anyone should not let an adulterer depart, but detains him, as, for instance, his son, accused of adultery with his stepmother, or his freedman, or slave accused with his wife, he is guilty, according to the spirit, but not according to the letter of the law. The woman, however, who is detained, shall be punished. If, however, having driven her away, he should bring her back, he is not guilty according to strict construction of the law, but he must still be considered liable in order to avoid the commission of fraud. 2If a woman receives the price of adultery committed by her husband, she will be punishable as an adulteress under the Julian Law.

The Same, On Public Prosecutions, Book I. Just as the fathers and mothers of married persons are embraced in the designation fathers and mothers-in-law, so the husbands of the children are embraced in the term sons-in-law.

Marcianus, On Public Prosecutions, Book I. If a father should write anything for the benefit of his son, who is a soldier, and under his control, and with whom he himself is serving, and he knows this to be the case, for the reason that nothing is acquired by the father, he will not be liable to punishment. Where a son had written a clause for the benefit of his mother, the Divine Brothers stated in a Rescript that as he had done this by order of the testator, he should go unpunished, and that his mother was entitled to the bequest.

Marcianus, Public Prosecutions, Book I. He is liable under this law who enters upon the public registers a smaller amount than the proceeds of a sale or a lease, or who commits any other offence of this kind. 1The Divine Severus and Antoninus, having ascertained that a young man of very illustrious lineage had a small chest placed in a temple, and, after the temple was closed, emerged out of the chest and stole many things belonging to the temple, and afterwards again shut himself up in the chest, deported him to an island, after his conviction.

Marcianus, Public Prosecutions, Book I. A bona fide possessor is not liable to the penalty imposed by the Favian Law for having wrongfully withheld a slave; that is to say, if he did not know that the slave belonged to another, or if he thought that he acted with the consent of his master. And the law itself is framed in this way with reference to a bona fide possessor, for there is added, “If he did this knowingly and fraudulently.” It has very frequently been decided by the Emperors Severus and Antoninus that bona fide possessors are not liable under this law. 1It should not be forgotten that, as under the Aquilian Law, if the person on whose account the Favian Law was violated should die, the accusation and the penalty prescribed by the Favian Law will continue to exist, as the Divine Severus and Antoninus stated in a Rescript.

Marcianus, On Public Prosecutions, Book I. The Divine Brothers stated in a Rescript that decurions should not be forced to furnish grain to the people at a lower price than the supply of provisions demands; and this is also provided by other Imperial Constitutions.

Marcianus, On Public Prosecutions, Book I. A decurion is forbidden to lease any property; if, however, he should succeed to a lease by inheritance, he can retain possession of it; and this rule should be observed in all similar cases.

Marcianus, Public Prosecutions, Book I. Decrees that are enacted without the lawful number of decurions being present are not valid.

Marcianus, Public Prosecutions, Book I. An “obligation,” properly speaking, is something which we are obliged to do according to law, custom, or the command of someone who has the right to order it to be done. Gifts, however, are, correctly speaking, things which we voluntarily give without being compelled to do so by either law or our duty; and if they are not given, no one can be blamed, and if they are given, the donor is generally entitled to praise. In a word, it has been decided that the two terms are not interchangeable, but that a gift may properly give rise to an obligation.

Marcianus, Public Affairs, Book II. Where a slave is sold on condition of his being removed from Italy, he can remain in a province unless this was expressly prohibited.

Marcianus, Public Decisions, Book II. The Divine Severus and Antoninus stated in a Rescript that an ungrateful freedman could be accused by the agent of his patron.

Marcianus, Public Prosecutions, Book II. The harborers of criminals constitute one of the worst classes of offenders, for without them no criminal could long remain concealed. The law directs that they shall be punished as robbers. They should be placed in the same class, because when they can seize robbers they permit them to go, after having received money or a part of the stolen goods.

Marcianus, Public Prosecutions, Book II. If they commit theft in the daytime, they should be tried in the ordinary way.

Marcianus, Public Prosecutions, Book II. The Divine Severus and Antoninus stated in a Rescript that anyone who desired to prosecute extraordinarily the crime of plundering an estate could do so either before the Prefect of the City or the Governor; or he could demand the estate from the possessors by the ordinary course of procedure.

Marcianus, Public Prosecutions, Book II. Ad Dig. 47,22,3 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 62, Note 2.If associations are illegal, they will be dissolved by the terms of Imperial Mandates and Constitutions, and Decrees of the Senate. When they are dissolved, the members are permitted to divide among themselves the money or property owned in common, if there is any of this kind. 1In a word, unless an association or any body of this description assembles with the authority of the Decree of the Senate, or of the Emperor, this assembly is contrary to the provisions of the Decree of the Senate and the Imperial Mandates and Constitutions. 2It is also lawful for slaves to be admitted into associations of indigent persons, with the consent of their masters; and those who have charge of such societies are hereby notified that they cannot receive a slave into an association of indigent persons without the knowledge or consent of his master, and if they do, that they will be liable to a penalty of a hundred aurei for every slave admitted.

Marcianus, On Public Prosecutions, Book II. The Divine Hadrian, in a Rescript addressed to Julius Secundus, made the following statement: “It has elsewhere been set fort in a Rescript that no credit shall be given to the letters of those who send accused persons to the Governor of a province, as having already been convicted.” The same thing has been provided with reference to Irenarchs, because it has been ascertained that all persons do not bring charges against others in good faith. 1But a Section of the Imperial Mandate is extant in which the Divine Pius, at the time when he commanded in the province of Asia, published in the form of an Edict, that when Irenarchs apprehended thieves they should question them with reference to their accomplices and associates, and that they should forward the interrogatories, reduced to writing and sealed, for the examination of the magistrate. Therefore, those who are sent under such circumstances should again be heard, even though they had been despatched with letters, or brought in by the Irenarchs. Thus, the Divine Pius and the other Emperors stated in Rescripts that proceedings should be taken as in a preliminary inquiry, even with reference to those who had been accused but not yet condemned, if anyone appeared to accuse them. Hence when an accusation is made, the Irenarch is required to appear and prosecute the charge which he has committed to writing, and if he does so diligently and faithfully, his action should be approved; but if he produces his evidence with little skill, it should be simply noted that the Irenarch had rendered an insufficient report. If, however, it should be ascertained that he has put the questions maliciously, and has not reported the answers as they were given, an example should be made of him, in order that he may not afterwards attempt anything of the same kind.

Marcianus, Public Prosecutions, Book II. The Divine Severus and Antoninus stated in a Rescript that no one who is absent should be punished, and it is the present law that absent persons shall not be condemned; for the rule of equity does not suffer anyone to be convicted without being heard. 1If anyone is liable to severe punishment, for instance, if he may be condemned to labor in the mines, or to a similar penalty, or to a capital one, in this case the penalty must not be inflicted upon an absent person, but anyone who is absent and is sought for is recorded as being present. 2The Governors of provinces should follow this course with reference to defendants who are sought for, and noted as being present; namely, they should order them by Edicts to appear in order that those who have been mentioned as being present should become aware of the fact. They should also write to magistrates where the parties live, in order that, by their agency, those who are being sought for may ascertain that they have been recorded as being present. 3A year is computed from this date to enable them to purge themselves of contempt. 4And even Papinianus, in the Sixteenth Book of Opinions, says that he who is sought for, and noted as being present, must appear before the Governor of the province within twelve months, and furnish security; and that there is no reason to order that his property shall be confiscated to the Treasury, for if he should die within the year, the accusation of the crime will be extinguished, and come to an end, and the property of the party accused will be transmitted to his successors.

Marcianus, On Public Prosecutions, Book II. Any claim made by the Treasury is prescribed by a silence of twenty years, when there is no other prescription, as was established by the Divine Emperors.

Marcianus, On Public Prosecutions, Book II. The Divine Pius stated in a Rescript that torture could be inflicted upon slaves in cases where money was involved, if the truth could not otherwise be ascertained, which is also provided by other rescripts. This, however, is true to the extent that this expedient should not be resorted to in a pecuniary case, but only where the truth cannot be ascertained unless by the employment of torture is it lawful to make use of it, as the Divine Severus stated in a Rescript. Hence it is permitted to put the slaves of others to the question if the circumstances justify it. 1In cases in which torture should not be inflicted upon slaves to obtain evidence against their masters they cannot even be interrogated, and still less can the statements of slaves against their masters be admitted. 2Torture should not be inflicted upon one who is deported to an island, as the Divine Pius stated in a Rescript. 3Nor should it be inflicted, in a pecuniary case, upon a slave who is to be free under a condition, unless the condition fails to be fulfilled.

Marcianus, On Public Prosecutions, Book II. It is the duty of the judge to be careful not to impose a sentence which is either more or less severe than the case demands; for neither a reputation for harshness, or the glory of clemency should be his aim; but, having carefully weighed the circumstances of the case, we should decide whatever the matter requires. It is clear that in cases of minor importance, judges should be inclined to lenity; and where heavier penalties are involved, while they must comply with the stern requirements of the laws, they should temper them with some degree of indulgence. 1Domestic thefts, if of trifling importance, should not be made the subject of public prosecutions; and an accusation of this kind ought not to be permitted when a slave is presented for trial by his master, or a freeman by his patron in whose house he lives, or a laborer by anyone who hires his services; for those are called domestic thefts which slaves commit against their masters, freedmen against their patrons, or hired laborers against those for whom they work. 2Moreover, a crime is committed either deliberately, or upon a sudden impulse, or by chance. Robbers commit a crime deliberately when they organize. Persons act by sudden impulse when they resort to violence, or to the use of weapons, through drunkenness. A crime is committed by chance, if one man kills another while hunting, when he aims a dart at a wild beast. 3To be thrown to wild beasts, or to suffer or be sentenced to similar punishments, are capital penalties.

Marcianus, Public Prosecutions, Book II. But I think that when he is deprived of the honor, he should be compelled to pay the expenses.

Marcianus, Book. But not avoid incurring necessary expenses.

Marcianus, Public Prosecutions, Book II. If anyone has been deported to an island or relegated, his punishment continues to exist even after his death, for it is not permitted for him to be taken elsewhere and buried, without the consent of the Emperor; as Severus and Antoninus repeatedly stated in Rescripts, and they frequently granted this as a favor to many persons who requested it.

Marcianus, Public Prosecutions, Book II. A person who has been accused of crime is forbidden by the Imperial Constitutions to aspire to municipal honors before his case has been decided. It makes no difference whether he is a plebeian or a decurion. He cannot, however, be prevented from accepting such an office after a year has elapsed from the time when he was accused, unless he is to blame for the case not having been heard during the year. 1The Divine Severus stated in a Rescript that when a man is elected a magistrate, and his opponent appeals, and while the appeal is pending he takes possession of the office, he should be punished. Therefore, if anyone who is prevented by a decision from obtaining municipal honors takes an appeal, he should, in the meantime, refrain from demanding the office.