De poenis
(Concerning punishments.)
1 Ulpianus libro octavo disputationum. Quotiens de delicto quaeritur, placuit non eam poenam subire quem debere, quam condicio eius admittit eo tempore, quo sententia de eo fertur, sed eam, quam sustineret, si eo tempore esset sententiam passus, cum deliquisset. 1Proinde si servus crimen commiserit, deinde libertatem consecutus dicetur, eam poenam sustinere debet, quam sustineret, si tunc sententiam passus fuisset, cum deliquisset. 2Per contrarium quoque si in deteriorem condicionem fuerit redactus, eam poenam subire eum oportebit, quam sustineret, si in condicione priore durasset. 3Generaliter placet, in legibus publicorum iudiciorum vel privatorum criminum qui extra ordinem cognoscunt praefecti vel praesides ut eis, qui poenam pecuniariam egentes eludunt, coercitionem extraordinariam inducant.
1 Ulpianus, Disputations, Book VIII. In every case of crime, it has been decided that the person convicted shall not suffer the penalty which his condition admitted at the time when judgment was rendered against him, but that which he would have undergone if he had been sentenced when he committed the offence. 1Hence, when a slave commits a crime, and it is alleged that he afterwards obtained his freedom, he must suffer the penalty which he would have suffered if he had been sentenced at the time when he perpetrated the offence. 2On the other hand, if his condition would be rendered worse, he must undergo the penalty which he would have undergone if he had remained in his former condition. 3Generally speaking, it has been decided that, with reference to the laws relating to public prosecutions or private offences of which Prefects or Governors have extraordinary jurisdiction, poor persons, who escape pecuniary penalties, are liable to arbitrary punishment.
2 Idem libro quadragensimo octavo ad edictum. Rei capitalis damnatum sic accipere debemus, ex qua causa damnato vel mors vel etiam civitatis amissio vel servitus contingit. 1Constat, postquam deportatio in locum aquae et ignis interdictionis successit, non prius amittere quem civitatem, quam princeps deportatum in insulam statuerit: praesidem enim deportare non posse nulla dubitatio est. sed praefectus urbi ius habet deportandi statimque post sententiam praefecti amisisse civitatem videtur. 2Eum accipiemus damnatum, qui non provocavit: ceterum si provocet, nondum damnatus videtur. sed et si ab eo, qui ius damnandi non habuit rei capitalis, quis damnatus sit, eadem causa erit: damnatus enim ille est ubi damnatio tenuit.
2 The Same, On the Edict, Book XLVIII. We should understand a person who has been convicted of a capital crime to be found guilty of an offence which entails death, the loss of civil rights, or servitude. 1It is established that after deportation has been substituted for the interdiction of water and fire, the defendant does not lose his citizenship until the Emperor has decided that he shall be deported to an island. For there is no doubt that the Governor cannot deport him, but the Prefect of the City has a right to do so, and he is considered to have lost his citizenship immediately after the sentence of the Prefect has been pronounced. 2We understand him to have been condemned who has not appealed; if, however, he should appeal, he is not yet considered to be convicted. But if he should be found guilty of a capital crime by someone who had not the right to do so, the result will be the same, for a person is only convicted whose condemnation stands.
3 Idem libro quarto decimo ad Sabinum. Praegnatis mulieris consumendae damnatae poena differtur quoad pariat. ego quidem et ne quaestio de ea habeatur, scio observari, quamdiu praegnas est.
3 The Same, On Sabinus, Book XIV. The execution of the penalty imposed upon a pregnant woman should be deferred until she brings forth her child. I, indeed, am well aware of the rule that torture must not be inflicted upon her as long as she is pregnant.
4 Marcianus libro tertio decimo institutionum. Relegati sive in insulam deportati debent locis interdictis abstinere. et hoc iure utimur, ut relegatus interdictis locis non excedat: alioquin in tempus quidem relegato perpetuum exilium, in perpetuum relegato insulae relegationis, in insulam relegato deportationis, in insulam deportato poena capitis adrogatur. et haec ita, sive quis non excesserit in exilium intra tempus intra quod debuit, sive etiam alias exilio non obtemperaverit: nam contumacia eius cumulat poenam. et nemo potest commeatum remeatumve dare exuli, nisi imperator, ex aliqua causa.
4 Marcianus, Institutes, Book XIII. Persons who are relegated or deported to an island should avoid forbidden places; and it is the law that one who has been relegated shall not depart from the place to which he was assigned, otherwise he who has been relegated for a time will be condemned to perpetual exile. He who is relegated for life is sent to an island; he who is relegated to an island is deported; and he who is deported to an island is subjected to the penalty of death. This is the case whether the convicted person did not go into exile within the time that he should have done so, or whether he did not obey the other rules of exile, for his obstinacy increases his penalty, and no one can effect the transfer of return of an exile except the Emperor for some good reason.
5 Ulpianus libro septimo de officio proconsulis. Absentem in criminibus damnari non debere divus Traianus Iulio Frontoni rescripsit. sed nec de suspicionibus debere aliquem damnari divus Traianus Adsidio Severo rescripsit: satius enim esse inpunitum relinqui facinus nocentis quam innocentem damnari. adversus contumaces vero, qui neque denuntiationibus neque edictis praesidum obtemperassent, etiam absentes pronuntiari oportet secundum morem privatorum iudiciorum. potest quis defendere haec non esse contraria. quid igitur est? melius statuetur in absentes pecuniarias quidem poenas vel eas, quae existimationem contingunt, si saepius admoniti per contumaciam desint, statui posse et usque ad relegationem procedi: verum si quid gravius irrogandum fuisset, puta in metallum vel capitis poenam, non esse absentibus irrogandam. 1In accusatorem autem absentem nonnumquam gravius statuendum, quam Turpilliani senatus consulti poena irrogatur, dicendum est. 2Refert et in maioribus delictis, consulto aliquid admittatur, an casu. et sane in omnibus criminibus distinctio haec poenam aut iustam elicere debet aut temperamentum admittere.
5 Ulpianus, On the Duties of Proconsul, Book VII. The Divine Trajan stated in a Rescript addressed to Julius Frontonus that anyone who is absent should not be convicted of crime. Likewise, no one should be convicted on suspicion; for the Divine Trajan stated in a Rescript to Assiduus Severus: “It is better to permit the crime of a guilty person to go unpunished than to condemn one who is innocent.” Persons, however, who are contumacious and do not obey either the notices or the edicts of Governors, can, even though absent, be sentenced, as is customary in private offences. Anyone can safely maintain that these things are not contradictory. What, then, should be done? With reference to parties who are absent it is better to decide that pecuniary penalties, or those which affect the reputation, even to the extent of relegation, can be imposed if they, having been frequently notified, do not appear through obstinacy; but if any more serious punishment should be inflicted, as, for instance, hard labor in the mines, or death, it cannot be imposed upon the parties while they are absent. 1It must be said that where an accuser is absent, heavier penalties are sometimes imposed than that prescribed by the Turpillian Decree of the Senate. 2A distinction must be made in more serious crimes, that is whether they have been committed intentionally, or accidentally. And, indeed, in all offences, this distinction should either induce a penalty to be inflicted in strict compliance with the law, or admit of moderation in this respect.
6 Idem libro nono de officio proconsulis. Si quis forte, ne supplicio adficiatur, dicat se habere quod principi referat salutis ipsius causa, an remittendum sit ad eum, videndum est. et sunt plerique praesidum tam timidi, ut etiam post sententiam de eo dictam poenam sustineant nec quicquam audiant: alii omnino non patiuntur quicquam tale allegantes: nonnulli neque semper neque numquam remittunt, sed inquirunt, quid sit, quod allegare principi velint quidque quod pro salute ipsius habeant dicere, post quae aut sustinent poenam aut non sustinent. quod videtur habere mediam rationem. ceterum, ut mea fert opinio, prorsus eos non debuisse, posteaquam semel damnati sunt, audiri, quidquid allegent. quis enim dubitat eludendae poenae causa ad haec eos decurrere magisque esse puniendos, qui tamdiu conticuerunt, quod pro salute principis habere se dicere iactant? nec enim debebant tam magnam rem tam diu reticere. 1Si quos comitum vel legati sui reos proconsul invenerit, utrum punire eos debeat an successori servare, quaeri potest. sed multa exstant exempla, quae non tantum officialium suorum nec sub se agentium, verum suos quoque servos poena adfecerunt: quod quidem faciendum est, ut exemplo deterriti minus delinquant. 2Nunc genera poenarum nobis enumeranda sunt, quibus praesides adficere quemque possint. et sunt poenae, quae aut vitam adimant aut servitutem iniungant aut civitatem auferant aut exilium aut coercitionem corporis contineant:
6 The Same, On the Duties of Proconsul, Book IX. When anyone, to avoid being subjected to punishment, alleges that he has something to communicate to the Emperor which concerns his safety, let us see whether he should be sent to him. There are many Governors who are so timid that, even after they have passed sentence for a crime, they suspend its execution, and do not dare to do anything else. Others do not permit defendants to say anything of this kind. Others again, sometimes, but not always, send them to the Emperor, but they inquire what it is they wish to communicate to him, and what they have to say with reference to his safety; after which they either defer the infliction of the penalty, or execute it; which course seems to be reasonable. Besides, in my opinion, after the defendants once have been convicted, no attention should be paid to them, no matter what they say. For who can entertain any doubt that they have had recourse to this pretext for the purpose of escaping punishment? And there is even more reason that they should be punished for having so long failed to mention what they boast they have to disclose concerning the safety of the Emperor, for they should not keep such important information to themselves for so long a time. 1If a Proconsul ascertains that any of his attendants, or any of those of his Deputy is a criminal, should he punish him, or reserve him for his successor? is a question which may be asked. But there are many examples which show that they have punished not only the slaves of their officers, and of their subordinates, but their own as well. This, indeed, is what should be done, in order that, having been terrified by the example, they may commit fewer offences. 2Now we must enumerate the different kinds of penalties which Governors can inflict upon various culprits. These are such as take away life, or impose servitude, or deprive a person of citizenship, or include exile or corporeal punishment:
7 Callistratus libro sexto de cognitionibus. (veluti fustium, admonitio: flagellorum, castigatio: vinculorum, verberatio)
7 Callistratus, On Judicial Inquiries, Book VI. Such as castigation with rods, scourging, and blows with chains,
8 Ulpianus libro nono de officio proconsulis. aut damnum cum infamia aut dignitatis aliquam depositionem aut alicuius actus prohibitionem. 1Vita adimitur, ut puta si damnatur aliquis, ut gladio in eum animadvertatur. sed animadverti gladio oportet, non securi vel telo vel fusti vel laqueo vel quo alio modo. proinde nec liberam mortis facultatem concedendi ius praesides habent. multo enim vel veneno necandi. divi tamen fratres rescripserunt permittentes liberam mortis facultatem. 2Hostes autem, item transfugae ea poena adficiuntur, ut vivi exurantur. 3Nec ea quidem poena damnari quem oportet, ut verberibus necetur vel virgis interematur, nec tormentis: quamvis plerique dum torquentur deficere solent. 4Est poena, quae adimat libertatem: huiusmodi ut puta, si quis in metallum vel in opus metalli damnetur. metalla autem multa numero sunt et quaedam quidem provinciae habent, quaedam non habent: sed quae non habent, in eas provincias mittunt, quae metalla habent. 5Praefecto plane urbi specialiter competere ius in metallum damnandi ex epistula divi Severi ad Fabium Cilonem exprimitur. 6Inter eos autem, qui in metallum et eos, qui in opus metalli damnantur, differentia in vinculis tantum est, quod qui in metallum damnantur, gravioribus vinculis premuntur, qui in opus metalli, levioribus, quodque refugae ex opere metalli in metallum dantur, ex metallo gravius coercentur. 7Quisquis autem in opus publicum damnatus refugit, duplicato tempore damnari solet: sed duplicare eum id temporis oportet, quod ei cum superesset fugit, scilicet ne illud duplicetur, quo adprehensus in carcere fuit. et si in decem annos damnatus sit, aut perpetuari ei debet poena aut in opus metalli transmitti. plane si decennio damnatus fuit et initio statim fugit, videndum est, utrum duplicari ei tempora debeant, an vero perpetuari vel transferri in opus metalli: et magis est, ut transferatur aut perpetuetur. generaliter enim dicitur, quotiens decennium excessura est duplicatio, non esse tempore poenam artandam. 8In ministerium metallicorum feminae in perpetuum vel ad tempus damnari solent. simili modo et in salinas. et si quidem in perpetuum fuerint damnatae, quasi servae poenae constituuntur: si vero ad tempus damnantur, retinent civitatem. 9Solent praesides in carcere continendos damnare aut ut in vinculis contineantur: sed id eos facere non oportet. nam huiusmodi poenae interdictae sunt: carcer enim ad continendos homines, non ad puniendos haberi debet. 10In calcariam quoque vel sulpurariam damnari solent: sed hae poenae metalli magis sunt. 11Quicumque in ludum venatorium fuerint damnati, videndum est, an servi poenae efficiantur: solent enim iuniores hac poena adfici. utrum ergo servi poenae isti efficiantur an retineant libertatem, videndum est. et magis est, ut hi quoque servi efficiantur: hoc enim distant a ceteris, quod instituuntur venatores aut pyrricharii aut aliam quam voluptatem gesticulandi vel aliter se movendi gratia. 12Servos in metallum vel in opus metalli, item in ludum venatorium dari solere nulla dubitatio est: et si fuerint dati, servi poenae efficiuntur nec ad eum pertinebunt, cuius fuerint antequam damnarentur. denique cum quidam servus in metallum damnatus beneficio principis esset iam poena liberatus, imperator Antoninus rectissime rescripsit, quia semel domini esse desierat servus poenae factus, non esse eum in potestatem domini postea reddendum. 13Sed sive in perpetua vincula fuerit damnatus servus sive in temporalia, eius remanet, cuius fuit, antequam damnaretur.
8 Ulpianus, On the Duties of Proconsul, Book IX. Or condemnation with infamy, or degradation from rank, or the prohibition of some act. 1Life is taken away, for instance, where anyone is sentenced to be put to death by the sword, for the punishment must be inflicted with a sword, and not with an ax, a dart, a club, a noose, or in any other way. Hence Governors have not free power to grant the choice of death, and even less the right to inflict it by means of poison. Still, the Divine Brothers stated in a Rescript that they are permitted to select the mode of death. 2Enemies, as well as deserters, are subjected to the penalty of being burned alive. 3No one can be condemned to the penalty of being beaten to death, or to die under rods or during torture, although most persons, when they are tortured, lose their lives. 4There are penalties which deprive a person of his liberty, as where anyone is sentenced to the mines, or to some work connected with them. There are a great number of mines. Some provinces have them and some have not; and those which have none send culprits who have been sentenced into the provinces which have. 5By a Rescript of the Divine Severus, addressed to Fabius Cilo, the right to sentence persons to the mines is exclusively reserved to the Prefect of the City of Rome. 6The difference between those who are sentenced to the mines, and those who are sentenced to labor in the mines, is only a matter of chains; for those who are sentenced to the mines are oppressed with heavier chains, and those who are sentenced to work connected with the mines wear lighter ones. The result of this is that those who escape from labor connected with the mines are sentenced to the mines; and those who escape from the mines themselves are punished even more severely. 7Moreover, anyone sentenced to labor on the public works and escapes is usually condemned to serve double time; but only that time should be doubled which remained for him to serve when he escaped, and that should not be doubled which he passed in prison after having been arrested. If he was sentenced to serve ten years, his punishment should be made perpetual, or he should be transferred to the labor of the mines. Where he was sentenced to serve ten years, and immediately afterwards escaped, let us see whether his time should be doubled, or be made perpetual, or whether he should be transferred to the labor of the mines. The better opinion is, that he should either be transferred, or sentenced to serve for life. For, generally speaking, it is said that when double the time exceeds the period of ten years, the penalty should not be limited. 8Women are usually sentenced to the service of those working in the mines, for life or for a term, just as is the case with reference to the salt-pits. Where they are sentenced for life, they are considered penal slaves; but if they are sentenced for a prescribed term, they retain their civil rights. 9Governors usually sentence criminals to be confined in prison, or to be kept in chains; but they should not do this, for penalties of this kind are forbidden, as a prison should be used for the safe-keeping of men, and not for their punishment. 10They are also accustomed to sentence them to chalk-pits, and sulphur-pits, but these punishments are rather included in that of the mines. 11Let us see whether those who are sentenced to the amusement of hunting, become penal slaves; for the younger ones are ordinarily subjected to this penalty. Therefore it must be considered whether such persons become penal slaves, or whether they retain their freedom. The better opinion is that they also become slaves, for the only way in which they differ from others is that they are instructed in hunting, or dancing, or in some other art, for the purpose of acting in pantomime, and other theatrical exhibitions for the entertainment of audiences. 12There is no doubt that slaves are usually sentenced to the mines, to labor connected with the mines, or to the amusement of hunting. When this is done they become penal slaves, and no longer belong to him whose property they were before they were convicted. Finally, when a certain slave who was sentenced to the mines was released from punishment through the indulgence of the sovereign, the Emperor Antoninus very properly stated in a Rescript that, for the reason that he having become a penal slave, and on that account having ceased to belong to his master, he should not afterwards be restored to him. 13Where a slave has been sentenced to perpetual, or temporary confinement in chains, he continues to be the property of him to whom he belonged before he was convicted.
9 Idem libro decimo de officio proconsulis. Moris est advocationibus quoque praesides interdicere. et nonnumquam in perpetuum interdicunt, nonnumquam ad tempus vel annis metiuntur vel etiam tempore quo provinciam regunt. 1Nec non ita quoque interdici potest alicui, ne certis personis adsit. 2Potest et ita interdici cui, ne apud tribunal praesidis postulet, et tamen apud legatum vel procuratorem non prohibetur agere. 3Si tamen apud legatum prohibitus fuerit postulare, credo per consequentias ne quidem apud praesidem relictam illi postulandi facultatem. 4Nonnumquam non advocationibus cui interdicitur, sed foro. plus est autem foro quam advocationibus interdicere, si quidem huic omnino forensibus negotiis accommodare se non permittatur. solet autem ita vel iuris studiosis interdici vel advocatis vel tabellionibus sive pragmaticis. 5Solet et ita interdici, ne instrumenta omnino forment neve libellos concipiant vel testationes consignent. 6Solet et sic, ne eo loci sedeant, quo in publico instrumenta deponuntur, [ed. maior archio] <ed. minor archivo> forte vel grammatophylacio. 7Solet et sic, ut testamenta ne ordinent vel scribant vel signent. 8Erit et illa poena, ne quis negotiis publicis interveniat: hic enim privatis quidem interesse poterit, publicis prohibebitur, ut solent quibus sententia praecipitur δημοσίων ἀπέχεσθαι. 9Sunt autem et aliae poenae: si negotiatione quis abstinere iubeatur vel ad conductionem eorum quae publice locantur accedere, ut ad vectigalia publica. 10Interdici autem negotiatione plerumque vel negotiationibus solet: sed damnare, ut quis negotietur, an possit videamus. et sunt quidem hae poenae, si quis generaliter tractare velit, inciviles invitum hominem iubere facere quod facere non potest: sed si quis specialiter tractaverit, potest esse iusta causa compellendi cuius ad negotiationem: quod si fuerit, sequenda erit sententia. 11Istae fere sunt poenae quae iniungi solent. sed enim sciendum est discrimina esse poenarum neque omnes eadem poena adfici posse. nam in primis decuriones in metallum damnari non possunt nec in opus metalli, nec furcae subici vel vivi exuri. et si forte huiusmodi sententia fuerint affecti, liberandi erunt: sed hoc non potest efficere qui sententiam dixit, verum referre ad principem debet, ut ex auctoritate eius poena aut permutetur aut liberaretur. 12Parentes quoque et liberi decurionum in eadem causa sunt. 13Liberos non tantum filios accipere debemus, verum omnes liberos. 14Sed utrum hi soli, qui post decurionatum suscepti sunt, his poenis non adficiantur, an vero omnes omnino liberi, etiam in plebeia familia suscepti, videndum est: et magis puto omnibus prodesse debere. 15Plane si parens decurio esse desierit, si quidem iam decurione fuerit editus, proderit ei, ne adficiatur: enimvero si posteaquam plebeius factus est tunc suscipiat filium, quasi plebeio editus ita erit plectendus. 16Statuliberum quasi liberum iam puniendum divus Pius Salvio Marciano rescripsit.
9 The Same, On the Duties of Proconsul, Book X. It is not unusual for Governors to forbid persons to act as advocates, sometimes for life, and sometimes for a certain term of years, or for the time during which they rule the province. 1Anyone can also be forbidden to assist certain persons. 2Anyone can be forbidden to accuse another before the tribunal of a Governor, and still he cannot be forbidden to do so before his Deputy, or the Agent of the Treasury. 3If, however, he is forbidden to prosecute before the Deputy, I think that, in consequence of this, he will not retain the power to do so before the Governor. 4Sometimes a person is not forbidden to act as advocate, but to practice law. The latter penalty is more severe than the prohibition of appearing as an advocate, since, by means of it, a person is not permitted to transact any legal business whatever. It is customary to interdict in this manner students of law, advocates, notaries, and other members of the legal profession. 5It is also customary to prohibit them from drawing up any instrument, petition, or deposition whatever. 6It is also customary to prohibit them from stopping in places where public documents are deposited, for instance, in the archives, or wherever such papers are stored. 7It is also customary to prohibit them from formulating wills, or writing, or sealing them. 8The penalty of being prohibited from conducting any public business is also imposed; for a person of this kind can transact private business, and still be forbidden to attend to any that is public; as occurs in cases where sentence is pronounced to abstain from all public matters. 9There are also other penalties, as where anyone is ordered to abstain from any negotiation; or from having anything to do with the contracts of those who lease property belonging to the public; or with the public taxes. 10It is customary for anyone to be forbidden to transact any special matter, or any business in general; but let us see whether he can be sentenced to transact some business. These penalties, indeed, if anyone wishes to discuss them in a general way, are contrary to the Civil Law, for a man cannot be ordered, against his consent, to do something that he is unable to perform; but, in particular instances, good reason exists for compelling him to attend to certain negotiations. When this is the case, the sentence must be executed. 11The following are the penalties which are ordinarily inflicted. It must, however, be remembered that distinctions exist between them, and that all persons should not be subjected to the same punishment. For, in the first place, decurions cannot be sentenced to the mines, nor to work connected with the mines, nor to the gallows, nor to be burned alive; and if any of these sentences should be imposed upon them, they must be released. He who pronounced the sentence, however, cannot do this, but it ought to be referred to the Emperor, who, by his authority, will either commute the penalty or discharge the party in question. 12The parents and children of decurions also enjoy the same privilege. 13We should understand by the term “children,” not only the sons but all the offspring. 14But are only those born after the office of decurion has been obtained, exempt from these penalties; or are all the children, even those born in a plebeian family, excepted? is a question which should be considered. I am inclined to believe that all are entitled to the privilege. 15It is clear that if the father has ceased to be a decurion, any child born while he holds the office will enjoy the privilege of not being subjected to these penalties; but if, after he became a plebeian again, he should have a son, the latter, having been born a plebeian, should be punished in this manner. 16The Divine Pius stated to Salvius Marcianus in a Rescript that a slave, who is to become free under a condition, should be punished just as if he were already free.
10 Macer libro secundo de publicis iudiciis. In servorum persona ita observatur, ut exemplo humiliorum puniantur. et ex quibus causis liber fustibus caeditur, ex his servus flagellis caedi et domino reddi iubetur: et ex quibus liber fustibus caesus in opus publicum datur, ex his servus, sub poena vinculorum ad eius temporis spatium, flagellis caesus domino reddi iubetur. si sub poena vinculorum domino reddi iussus non recipiatur, venumdari et, si emptorem non invenerit, in opus publicum et quidem perpetuum tradi iubetur. 1Qui ex causa in metallum dati sunt et post hoc deliquerunt, in eos tamquam metallicos constitui debet, quamvis nondum in eum locum perducti fuerint, in quo operari habent: nam statim ut de is sententia dicta est, condicionem suam permutant. 2In personis tam plebeiorum quam decurionum illud constitutum est, ut qui maiori poena adficitur, quam legibus statuta est, infamis non fiat. ergo et si opere temporario quis multatus sit vel tantum fustibus caesus, licet in actione famosa, veluti furti, dicendum erit infamem non esse, quia et solus fustium ictus gravior est quam pecuniaris damnatio.
10 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.
11 Marcianus libro secundo de publicis iudiciis. Perspiciendum est iudicanti, ne quid aut durius aut remissius constituatur, quam causa deposcit: nec enim aut severitatis aut clementiae gloria affectanda est, sed perpenso iudicio, prout quaeque res expostulat, statuendum est. plane in levioribus causis proniores ad lenitatem iudices esse debent, in gravioribus poenis severitatem legum cum aliquo temperamento benignitatis subsequi. 1Furta domestica si viliora sunt, publice vindicanda non sunt, nec admittenda est huiusmodi accusatio, cum servus a domino vel libertus a patrono, in cuius domo moratur, vel mercennarius ab eo, cui operas suas locaverat, offeratur quaestioni: nam domestica furta vocantur, quae servi dominis vel liberti patronis vel mercennarii apud quos degunt subripiunt. 2Delinquitur autem aut proposito aut impetu aut casu. proposito delinquunt latrones, qui factionem habent: impetu autem, cum per ebrietatem ad manus aut ad ferrum venitur: casu vero, cum in venando telum in feram missum hominem interfecit. 3Capitis poena est bestiis obici vel alias similes poenas pati vel animadverti.
11 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.
12 Macer libro secundo de officio praesidis. Quod ad statum damnatorum pertinet, nihil interest, iudicium publicum fuerit nec ne: nam sola sententia, non genus criminis spectatur. itaque hi, in quos animadverti iubetur quive ad bestias dantur, confestim poenae servi fiunt.
12 Macer, On the Duties of Governor, Book II. With reference to the civil condition of persons who have been convicted, it makes no difference whether the prosecution was public or not; for the sentence, and not the kind of crime, is alone considered. Therefore, those who are ordered to be punished in other ways, or who are delivered up to wild beasts, instantly become penal slaves.
13 Ulpianus libro primo de appellationibus. Hodie licet ei, qui extra ordinem de crimine cognoscit, quam vult sententiam ferre, vel graviorem vel leviorem, ita tamen ut in utroque moderationem non excedat.
13 Ulpianus, On Appeals, Book I. It is lawful, at present, when anyone has extraordinary jurisdiction of a crime, to inflict any sentence which he may desire, either a more severe or a lighter one; provided that, in neither instance, he exceeds the bounds of reason.
14 Macer libro secundo de re militari. Quaedam delicta pagano aut nullam aut leviorem poenam irrogant, militi vero graviorem. nam si miles artem ludicram fecerit vel in servitutem se venire passus est, capite puniendum Menander scribit.
14 Macer, On Military Affairs, Book II. Certain offences, if committed by a civilian, either entail no penalty at all, or merely a trifling one, while in the case of a soldier, they are severely punished; for if a soldier follows the calling of a buffoon, or suffers himself to be sold in slavery, Menander says that he should undergo capital punishment.
15 Venuleius Saturninus libro primo de officio proconsulis. Divus Hadrianus eos, qui in numero decurionum essent, capite puniri prohibuit, nisi si qui parentem occidissent: verum poena legis Corneliae puniendos mandatis plenissime cautum est.
15 Venuleius Saturninus, On the Duties of Proconsul, Book I. The Divine Hadrian forbade those included in the order of decurions to be punished capitally, unless they had killed one of their parents. It is, however, very clearly provided by the Imperial Mandates, that they should suffer the penalty of the Cornelian Law.
16 Claudius Saturninus libro singulari de poenis paganorum. Aut facta puniuntur, ut furta caedesque, aut dicta, ut convicia et infidae advocationes, aut scripta, ut falsa et famosi libelli, aut consilia, ut coniurationes et latronum conscientia quosque alios suadendo iuvisse sceleris est instar. 1Sed haec quattuor genera consideranda sunt septem modis: causa persona loco tempore qualitate quantitate eventu. 2Causa: ut in verberibus, quae impunita sunt a magistro allata vel parente, quoniam emendationis, non iniuriae gratia videntur adhiberi: puniuntur, cum quis per iram ab extraneo pulsatus est. 3Persona dupliciter spectatur, eius qui fecit et eius qui passus est: aliter enim puniuntur ex isdem facinoribus servi quam liberi, et aliter, qui quid in dominum parentemve ausus est quam qui in extraneum, in magistratum vel in privatum. in eius rei consideratione aetatis quoque ratio habeatur. 4Locus facit, ut idem vel furtum vel sacrilegium sit et capite luendum vel minore supplicio. 5Tempus discernit emansorem a fugitivo et effractorem vel furem diurnum a nocturno. 6Qualitate, cum factum vel atrocius vel levius est: ut furta manifesta a nec manifestis discerni solent, rixae a grassaturis, expilationes a furtis, petulantia a violentia. qua de re maximus apud Graecos orator Demosthenes sic ait: οὐ γὰρ ἡ πληγὴ παρέστησε τὴν ὕβριν, ἀλλ’ ἡ ἀτιμία· οὐδὲ τὸ τύπτεσθαι τοῖς ἐλευθέροις ἐστὶ δεινόν, καίπερ ὂν δεινόν, ἀλλὰ τὸ ἐφ’ ὕβρει. πολλὰ γὰρ ἂν ποιήσειεν ὁ τύπτων, ὦ ἄνδρες Ἀθηναῖοι, ὧν ὁ παθὼν ἔνια οὐδ’ ἂν ἀπαγγεῖλαι δύναιτο ἑτέρῳ, τῷ σχήματι, τῷ βλέμματι, τῇ φωνῇ, ὅταν ὡς ὑβρίζων, ὅταν ὡς ἐχθρὸς ὑπάρχων, ὅταν κονδύλοις, ὅταν ἐπὶ κόρρης. ταῦτα κινεῖ, ταῦτα ἐξίστησιν ἀνθρώπους αὑτῶν ἀήθεις ὄντας τοῦ προπηλακίζεσθαι. 7Quantitas discernit furem ab abigeo: nam qui unum suem subripuerit, ut fur coercebitur, qui gregem, ut abigeus. 8Eventus spectetur, ut a clementissimo quoquo facta: quamquam lex non minus eum, qui occidendi hominis causa cum telo fuerit, quam eum qui occiderit puniat. et ideo apud Graecos exilio voluntario fortuiti casus luebantur, ut apud praecipuum poetarum scriptum est: εὖτέ με τυτθὸν ἐόντα Μενοίτιος ἐξ Ὀπόεντοσ ἤγαγεν ὑμέτερόνδ’ ἀνδροκτασίης ὕπο λυγρῆς, ἤματι τῷ ὅτε παῖδα κατέκτανον Ἀμφιδάμαντοσ νήπιος, οὐκ ἐθέλων, ἀμφ’ ἀστραγάλοισι χολωθείς. 9Evenit, ut eadem scelera in quibusdam provinciis gravius plectantur, ut in Africa messium incensores, in mysia vitium, ubi metalla sunt adulteratores monetae. 10Honnumquam evenit, ut aliquorum maleficiorum supplicia exacerbentur, quotiens nimium multis personis grassantibus exemplo opus sit.
16 Claudius Saturninus, On the Penalties of Civilians. Acts such as theft or homicide; verbal statements, such as insults, or betrayal by advocates; written ones, such as forgeries and criminal libels; and advice such as is given in conspiracies and the agreements of thieves are punished, for it is the same as a crime to assist others by persuasion. 1These four kinds of offences should be considered under seven different heads; namely, the cause, the person, the place, the time, the quality, the quantity, and the result. 2The cause, in the case of blows which are unpunished when inflicted by a master or a parent; for the reason that they seem to be given rather for the purpose of correction than injury. They are punishable when anyone is beaten by a stranger in anger. 3The person is considered from two points of view: first, that of him who committed the act; and second, that of him who suffered it; for otherwise slaves would be punished differently from freedmen for the same offences. And anyone who dares to attack his master or his father is punished differently from one who raises his hand against a stranger, a teacher, or a private individual. In the discussion of this subject age should also be taken into account. 4The place renders the same act one either of theft or sacrilege, and determines whether it should be punished with death or with a penalty of less severity. 5The time distinguishes a person temporarily absent from a fugitive, and a housebreaker or a daylight thief from one who commits the crime by night. 6The quality, when the act is either more atrocious or less grave, as manifest thefts are usually distinguished from those that are non-manifest; quarrels from highway robberies; pillage from ordinary theft; impudence from violence. On this point Demosthenes, the greatest orator of the Greeks, said: “It is not the wound but the disgrace which causes the insult, for it is not a wicked act to strike a freeman, but it becomes such when this is done by way of insult; for Athenians, he who strikes does many things which he who suffers them cannot properly communicate to others, by his bearing, his aspect, or his voice, when he smites with every evidence of contumely, as if he were an enemy, whether he strikes with a rod, or delivers a blow in the eye. These things are productive of annoyance, and cause men who are not accustomed to be insulted to become beside themselves.” 7The quantity distinguishes a common theft from one who drives away a herd of cattle, for anyone who steals a sow shall be punished merely as a thief; and he who drives away a number of animals shall be punished as a cattle stealer. 8The result should also be considered even when it is brought about by a man of the most amiable character; although the law does not punish with less severity a person who was provided with a weapon for the purpose of killing a man than him who actually killed him. Therefore, among the Greeks, crimes committed by accident were expiated by voluntary exile, as was stated by the most eminent of poets: “When I was small, Menetius of Opontus conducted me into your house, on account of a sad homicide; when on that day, I unintentionally and unwillingly enraged over a game of dice, killed the son of Amphidamantus.” 9It happens that the same crimes are more severely punished in certain provinces; as, for instance, in Africa, those who burn harvests; in Mysia, those who burn vines; and counterfeiters, where mines are situated. 10It sometimes happens that the punishments of certain malefactors are rendered more severe whenever an example is necessary, as for the suppression of many persons engaged in highway robbery.
17 Marcianus libro primo institutionum. Sunt quidam servi poenae, ut sunt in metallum dati et in opus metalli: et si quid eis testamento datum fuerit, pro non scriptis est, quasi non Caesaris servo datum, sed poenae. 1Item quidam ἀπόλιδες sunt, hoc est sine civitate: ut sunt in opus publicum perpetuo dati et in insulam deportati, ut ea quidem, quae iuris civilis sunt, non habeant, quae vero iuris gentium sunt, habeant.
17 Marcianus, Institutes, Book I. Where anything is left by will to certain penal slaves, such as those who have been condemned to the mines, and to work connected with the mines, it is considered as not having been written, and as having been left, not to a slave of the Emperor, but to a penal slave. 1Likewise, some persons, such as those who have been sentenced to hard labor on the public works for life, or deported to an island, are deprived of citizenship, so that they no longer enjoy any privileges derived from the Civil Law, but retain whatever rights they are entitled to by the Law of Nations.
18 Ulpianus libro tertio ad edictum. Cogitationis poenam nemo patitur.
18 Ulpianus, On the Edict, Book III. No one suffers a penalty for merely thinking.
19 Idem libro quinquagensimo septimo ad edictum. Si non defendantur servi a dominis, non utique statim ad supplicium deducuntur, sed permittetur eis defendi vel ab alio, et qui cognoscit, debebit de innocentia eorum quaerere.
19 The Same, On the Edict, Book LVII. If slaves are not defended by their masters, they should not, for this reason, immediately be conducted to punishment, but should be permitted to defend themselves, or be defended by another; and the judge who hears the case shall inquire as to their innocence.
20 Paulus libro octavo decimo ad Plautium. Si poena alicui irrogatur, receptum est commenticio iure, ne ad heredes transeat. cuius rei illa ratio videtur, quod poena constituitur in emendationem hominum: quae mortuo eo, in quem constitui videtur, desinit.
20 Paulus, On Plautius, Book XVIII. When a penalty is inflicted upon anyone, it is provided by a legal fiction that it shall not be transmitted to his heir; the reason for which seems to be that punishment is established for the correction of man, and when he is dead against whom it is held to have been established, it ceases to be applicable.
21 Celsus libro trigensimo septimo digestorum. Ultimum supplicium esse mortem solam interpretamur.
21 Celsus, Digest, Book XXXVII. We understand the extreme penalty to mean only death.
22 Modestinus libro primo differentiarum. In metallum damnati si valetudine aut aetatis infirmitate inutiles operi faciundo deprehendantur, ex rescripto divi Pii a praeside dimitti poterunt, qui aestimabit de his dimittendis, si modo vel cognatos vel adfines habeant et non minus decem annis poenae suae functi fuerint.
22 Modestinus, Differences, Book I. Where persons are sentenced to the mines, and, through illness or the infirmities of age, they become incapable of performing labor, according to a Rescript of the Divine Pius, they can be discharged by the Governor, who shall decide whether they shall be released; provided they have relatives or connections, and have served not less than ten years of their sentence.
23 Idem libro octavo regularum. Sine praefinito tempore in metallum dato imperitia dantis decennii tempora praefinita videntur.
23 The Same, Rules, Book VIII. When anyone is condemned to the mines without a definite time being stated, because of the ignorance of the judge who imposed the sentence, the term of ten years will be understood to have been intended.
24 Idem libro undecimo pandectarum. Eorum, qui relegati vel deportati sunt ex causa maiestatis, statuas detrahendas scire debemus.
24 The Same, Pandects, Book XI. We must remember that the statues of those who have been relegated, or deported for high treason, should be removed.
25 Idem libro duodecimo pandectarum. Si diutino tempore aliquis in reatu fuerit, aliquatenus poena eius sublevanda erit: sic etiam constitutum est non eo modo puniendos eos, qui longo tempore in reatu agunt, quam eos qui in recenti sententiam excipiunt. 1Non potest quis sic damnari, ut de saxo praecipitetur.
25 The Same, Pandects, Book XII. If anyone remains for a long time under an accusation, his punishment should, to some extent, be mitigated; for it has been decided that those who have been accused for a considerable time should not be punished as severely as those who have been tried and convicted without delay. 1No one can be sentenced to be thrown down from a rock.
26 Callistratus libro primo de cognitionibus. Crimen vel poena paterna nullam maculam filio infligere potest: namque unusquisque ex suo admisso sorti subicitur nec alieni criminis successor constituitur, idque divi fratres Hierapolitanis rescripserunt.
26 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.
27 Idem libro quinto de cognitionibus. Divi fratres Arruntio Siloni rescripserunt non solere praesides provinciarum ea quae pronuntiaverunt ipsos rescindere. Vetinae quoque Italicensi rescripserunt suam mutare sententiam neminem posse idque insolitum esse fieri. si tamen de se quis mentitus fuerit vel, cum non haberet probationum instrumenta, quae postea reppererit, poena adflictus sit, nonnulla exstant principalia rescripta, quibus vel poena eorum minuta est vel in integrum restitutio concessa. sed id dumtaxat a principibus fieri potest. 1De decurionibus et principalibus civitatium, qui capitale admiserunt, mandatis cavetur, ut, si quis id admississe videatur, propter quod relegandus extra provinciam in insulam sit, imperatori scribatur adiecta sententia a praeside. 2Alio quoque capite mandatorum in haec verba cavetur: ‘Si qui ex principalibus alicuius civitatis latrocinium fecerint aliudve quod facinus, ut capitalem poenam meruisse videantur, commiserint, vinctos eos custodies et mihi scribes et adicies, quid quisque commiserit’.
27 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.”
28 Idem libro sexto de cognitionibus. Capitalium poenarum fere isti gradus sunt. summum supplicium esse videtur ad furcam damnatio. item vivi crematio: quod quamquam summi supplicii appellatione merito contineretur, tamen eo, quod postea id genus poenae adinventum est, posterius primo visum est. item capitis amputatio. deinde proxima morti poena metalli coercitio. post deinde in insulam deportatio. 1Ceterae poenae ad existimationem, non ad capitis periculum pertinent, veluti relegatio ad tempus, vel in perpetuum, vel in insulam, vel cum in opus quis publicum datur, vel cum fustium ictu subicitur. 2Non omnes fustibus caedi solent, sed hi dumtaxat qui liberi sunt et quidem tenuiores homines: honestiores vero fustibus non subiciuntur, idque principalibus rescriptis specialiter exprimitur. 3Solent quidam, qui volgo se iuvenes appellant, in quibusdam civitatibus turbulentis se adclamationibus popularium accommodare. qui si amplius nihil admiserint nec ante sint a praeside admoniti, fustibus caesi dimittuntur aut etiam spectaculis eis interdicitur. quod si ita correcti in eisdem deprehendantur, exilio puniendi sunt, nonnumquam capite plectendi, scilicet cum saepius seditiose et turbulente se gesserint et aliquotiens adprehensi tractati clementius in eadem temeritate propositi perseveraverint. 4Servi caesi solent dominis reddi. 5Et ut generaliter dixerim, omnes, qui fustibus caedi prohibentur, eandem habere honoris reverentiam debent, quam decuriones habent. est enim inconstans dicere eum, quem principales constitutiones fustibus subici prohibuerunt, in metallum dari posse. 6Divus Hadrianus in haec verba rescripsit: ‘In opus metalli ad tempus nemo damnari debet. sed qui ad tempus damnatus est, etiamsi faciet metallicum opus, non in metallum damnatus esse intellegi debet: huius enim libertas manet, quamdiu etiam hi, qui in perpetuum opus damnantur’. proinde et mulieres hoc modo damnatae liberos pariunt. 7Ad statuas confugere vel imagines principum in iniuriam alterius prohibitum est. cum enim leges omnibus hominibus aequaliter securitatem tribuant, merito visum est in iniuriam potius alterius quam sui defensionis gratia ad statuas vel imagines principum confugere: nisi si quis ex vinculis vel custodia detentus a potentioribus ad huiusmodi praesidium confugerit: his enim venia tribuenda est. ne autem ad statuas vel imagines quis confugiat, senatus censuit: eumque, qui imaginem Caesaris in invidiam alterius praetulisset, in vincula publica coerceri divus Pius rescripsit. 8Omnia admissa in patronum patronive filium patrem propinquum maritum uxorem ceterasque necessitudines gravius vindicanda sunt quam in extraneos. 9Venenarii capite puniendi sunt aut, si dignitatis respectum agi oportuerit, deportandi. 10Grassatores, qui praedae causa id faciunt, proximi latronibus habentur. et si cum ferro adgredi et spoliare instituerunt, capite puniuntur, utique si saepius atque in itineribus hoc admiserunt: ceteri in metallum dantur vel in insulas relegantur. 11Igni cremantur plerumque servi, qui saluti dominorum suorum insidiaverint, nonnumquam etiam liberi plebeii et humiles personae. 12Incendiarii capite puniuntur, qui ob inimicitias vel praedae causa incenderint intra oppidum: et plerumque vivi exuruntur. qui vero casam aut villam, aliquo lenius. nam fortuita incendia, si, cum vitari possent, per neglegentiam eorum, apud quos orta sunt, damno vicinis fuerunt, civiliter exercentur (ut qui iactura adfectus est, damni disceptet) vel modice vindicaretur. 13In exulibus gradus poenarum constituti edicto divi Hadriani, ut qui ad tempus relegatus est, si redeat in insulam relegetur, qui relegatus in insulam excesserit, in insulam deportetur, qui deportatus evaserit, capite puniatur. 14Ita et in custodiis gradum servandum esse idem princeps rescripsit, id est ut, qui in tempus damnati erant, in perpetuum damnarentur, qui in perpetuum damnati erant, in metallum damnarentur, qui in metallum damnati id admiserint, summo supplicio adficerentur. 15Famosos latrones in his locis, ubi grassati sunt, furca figendos compluribus placuit, ut et conspectu deterreantur alii ab isdem facinoribus et solacio sit cognatis et adfinibus interemptorum eodem loco poena reddita, in quo latrones homicidia fecissent: nonnulli etiam ad bestias hos damnaverunt. 16Maiores nostri in omni supplicio severius servos quam liberos, famosos quam integrae famae homines punierunt.
28 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.
29 Gaius libro primo ad legem Iuliam et Papiam. Qui ultimo supplicio damnantur, statim et civitatem et libertatem perdunt. itaque praeoccupat hic casus mortem et nonnumquam longum tempus occupat: quod accidit in personis eorum, qui ad bestias damnantur. saepe etiam ideo servari solent post damnationem, ut ex his in alios quaestio habeatur.
29 Gaius, On the Lex Julia et Papia, Book I. Those who have been sentenced to death immediately lose both their citizenship and their freedom. Therefore, this condition attaches to them while living, and sometimes affects them for a long time; which happens to those who are condemned to be thrown to wild beasts, for they are frequently kept after having been sentenced, in order that they may be tortured to obtain evidence against others.
30 Modestinus libro primo de poenis. Si quis aliquid fecerit, quo leves hominum animi superstitione numinis terrentur, divus Marcus huiusmodi homines in insulam relegari rescripsit.
30 Modestinus, On Penalties, Book I. If anyone should do something by which weak-minded persons are terrified through superstition, the Divine Marcus stated in a Rescript that men of this kind should be relegated to an island.
31 Idem libro tertio de poenis. Ad bestias damnatos favore populi praeses dimittere non debet: sed si eius roboris vel artificii sint, ut digne populo Romano exhiberi possint, principem consulere debet. 1Ex provincia autem in provinciam transduci damnatos sine permissu principis non licere divus Severus et Antoninus rescripserunt.
31 The Same, On Punishments, Book III. The Governor should not, in order to obtain the favor of the people, discharge persons who have been condemned to be thrown to wild beasts. If, however, the culprits have strength or skill worthy of being used for the benefit of the Roman people, he should consult the Emperor. 1The Divine Severus and Antoninus stated in a Rescript, that it was not permitted to transfer persons who have been sentenced, from one province to another, without the consent of the Emperor.
32 Ulpianus libro sexto ad edictum. Si praeses vel iudex ita interlocutus sit ‘vim fecisti’, si quidem ex interdicto, non erit notatus nec poena legis Iuliae sequetur: si vero ex crimine, aliud est. quid si non distinxerit praeses, utrum Iulia publicorum an Iulia privatorum? tunc ex crimine erit aestimandum. sed si utriusque legis crimina obiecta sunt, mitior lex, id est privatorum erit sequenda.
32 Ulpianus, On the Edict, Book VI. If a Governor or a judge should make the statement: “You have committed violence,” in proceedings under an interdict, the defendant shall not be branded with infamy, nor shall the penalty of the Julian Law be inflicted. When, however, this is done during the prosecution of a crime, it is another thing. What would be the rule if the Governor should not make a distinction in the application of the Julian Law relating to Public Offences, and that relating to private ones? It must then be held that proceedings have been instituted for the punishment of a crime. But, if the defendant is accused of offences under both laws, the one which is less severe, that is to say, the one relating to private violence should be followed.
33 Papinianus libro secundo quaestionum. Fratres imperatores rescripserunt servos in temporaria vincula damnatos libertatem et hereditatem sive legatum, postquam tempus expleverint, consequi, quia temporaria coercitio, quae descendit ex sententia, poenae est abolitio. si autem beneficium libertatis in vinculis eos inveniat, ratio iuris et verba constitutionis libertati refragantur. plane si testamento libertas data sit et eo tempore, quo aditur hereditas, tempus vinculorum solutum sit, recte manumissus intellegetur, non secus ac si pignori datum servum debitor manumisisset eiusque post liberatum pignus adita fuisset hereditas.
33 Papinianus, Questions, Book II. The Imperial Brothers stated in a Rescript that slaves who have been condemned to chains for a term could, after having served it, receive either their freedom, an estate, or a legacy; because a temporary punishment based from a judgment is equivalent to an annulment of the penalty. If, however, the benefit of freedom comes to them while in chains, the reason of the law and the words of the constitution are opposed to freedom. It is evident that if freedom was granted by a will, and that when the estate was entered upon, the time of the sentence had expired, the slave is understood to have been lawfully manumitted; not otherwise than if a debtor should manumit a slave given by way of pledge, and the estate should be entered upon after the pledge had been released.
34 Idem libro sexto decimo responsorum. Servus in opus publicum perpetuum ac multo magis temporarium non datur. cum igitur per errorem in opus temporarium fuisset datus, expleto tempore domino servum esse reddendum respondi. 1Eos quoque poena delatoris ex sententia senatus consulti teneri respondi, qui per suppositam personam delatori causam dederunt.
34 The Same, Opinions, Book XVI. A slave cannot be sentenced to perpetual labor on the public works; and, with much more reason, he cannot be sentenced to labor dn them for a term. Therefore, in a case where one who was condemned to the public works for a term, through mistake, I gave it as my opinion that, after the time had expired, the slave should be restored to his master. 1I also gave it as my opinion that, according to the Decree of the Senate, those persons are liable to the penalty of informers who, by the intervention of a third party, caused an informer to commit the offence.
35 Callistratus libro primo quaestionum. Mandatis principalibus, quae praesidibus dantur, cavetur, ne quis perpetuis vinculis damnetur: idque etiam divus Hadrianus rescripsit.
35 Callistratus, Questions, Book I. It is provided by the Imperial Mandates, which are communicated to Governors, that no one shall be sentenced to chains for life; and this was also stated by the Divine Hadrian in a Rescript.
36 Hermogenianus libro primo iuris epitomarum. In metallum, sed et in ministerium metallicorum damnati servi efficiuntur, sed poenae.
36 Hermogenianus, Epitomes, Book I. Those who are condemned to the mines, or to the service of the criminals who labor there, become penal slaves.
37 Paulus libro primo sententiarum. In dardanarios propter falsum mensurarum modum ob utilitatem popularis annonae pro modo admissi extra ordinem vindicari placuit.
37 Paulus, Sentences, Book I. It has been held that dardanarii who make use of false measures shall, for the purpose of protecting the welfare of the people with reference to food, be punished arbitrarily, according to the nature of the crime.
38 Idem libro quinto sententiarum. Si quis aliquid ex metallo principis vel ex moneta sacra furatus sit, poena metalli et exilii punitur. 1Transfugae ad hostes vel consiliorum nostrorum renuntiatores aut vivi exuruntur aut furcae suspenduntur. 2Actores seditionis et tumultus populo concitato pro qualitate dignitatis aut in furcam tolluntur aut bestiis obiciuntur aut in insulam deportantur. 3Qui nondum viripotentes virgines corrumpunt, humiliores in metallum damnantur, honestiores in insulam relegantur aut in exilium mittuntur. 4Qui se suis nummis redemptum non probaverit, libertatem petere non potest: amplius eidem domino sub poena vinculorum redditur vel, si ipse dominus malit, in metallum damnatur. 5Qui abortionis aut amatorium poculum dant, etsi dolo non faciant, tamen quia mali exempli res est, humiliores in metallum, honestiores in insulam amissa parte bonorum relegantur. quod si eo mulier aut homo perierit, summo supplicio adficiuntur. 6Testamentum, quod nullo iure valet, impune supprimitur: nihil est enim, quod ex eo aut petatur aut consistere possit. 7Qui vivi testamentum aperuerit recitaverit resignaverit, poena Corneliae tenetur: et plerumque humiliores aut in metallum damnantur aut honestiores in insulam deportantur. 8Si quis instrumentum litis suae a procuratore adversario proditum esse convicerit, procurator si humilior sit, in metallum damnatur, si honestior, adempta parte bonorum dimidia in perpetuum relegatur. 9Instrumenta penes se deposita quicumque alteri altero absente reddiderit vel adversario prodiderit: prout personae condicio est, aut in metallum damnatur aut in insulam deportatur. 10Iudices pedanei si pecunia corrupti dicantur, plerumque a praeside aut curia summoventur aut in exilium mittuntur aut ad tempus relegantur. 11Miles, qui ex carcere dato gladio erupit, poena capitis punitur. eadem poena tenetur et qui cum eo, quem custodiebat, deseruit. 12Miles, qui sibi manus intulit nec factum peregit, nisi inpatientia doloris aut morbi luctusve alicuius vel alia causa fecerit, capite puniendus est: alias cum ignominia mittendus est.
38 The Same, Sentences, Book V. Where anyone has stolen any metal or money belonging to the Emperor, he shall be punished with the penalty of the mines and with exile. 1Deserters who go over to the enemy, or who reveal our plans, shall either be burned alive, or hanged on a gallows. 2Instigators of sedition and of tumult, which result in the uprising of the people, shall, in accordance with their rank, either be hanged upon a gallows, thrown to wild beasts, or deported to an island. 3Any persons who corrupt virgins that are not yet marriageable, if of low rank, shall be sentenced to the mines; if of more exalted station, shall be relegated to an island, or sent into exile. 4Anyone who cannot prove that he was purchased with his own money cannot demand his freedom; and he will besides be restored to his master under the penalty of being confined in chains; or if the master himself prefers he shall be sentenced to the mines. 5Those who administer a beverage for the purpose of producing abortion, or of causing affection, although they may not do so with malicious intent, still, because the act offers a bad example, shall, if of humble rank, be sent to the mines; or, if higher in degree, shall be relegated to an island, with the loss of a portion of their property. If a man or a woman should lose his or her life through such an act, the guilty party shall undergo the extreme penalty. 6A will which is void by law can be suppressed with impunity; for there is nothing which can be claimed under it, or can actually exist. 7Anyone who opens the will of anyone who is still living, and reads and reseals it, is liable to the penalty of the Cornelian Law; and, as a rule, persons of inferior rank are condemned to the mines, and those of superior station are deported to an island. 8If anyone should prove that the documents relating to his suit have been delivered by his attorney to his adversary, the said attorney, if of inferior rank, shall be sentenced to the mines, and if of higher station, shall be relegated for life, and deprived of half his property. 9When anyone, who holds documents deposited with him, transfers them to a third party in the absence of him who deposited them, or delivers them to the adversary of the latter, he shall either be sentenced to the mines, or deported to an island, according to his legal condition. 10Where judges are alleged to have been corrupted by money, their names are usually erased by the Governor from the records of the court; or they are sent into exile, or relegated for a term. 11The soldier who, having been given a sword, escapes from prison, is punished with death. He who deserts with one whom he was appointed to guard is liable to the same penalty. 12A soldier who has attempted to kill himself, and did not succeed, shall be punished with death, unless he committed the act through being unable to endure suffering, disease, or grief of some kind, or for some other good reason; otherwise, he should be dishonorably discharged.
39 Tryphoninus libro decimo disputationum. Cicero in oratione pro Cluentio Habito scripsit Milesiam quandam mulierem, cum esset in Asia, quod ab heredibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset, rei capitalis esse damnatam. sed et si qua visceribus suis post divortium, quod praegnas fuit, vim intulerit, ne iam inimico marito filium procrearet, ut temporali exilio coerceatur, ab optimis imperatoribus nostris rescriptum est.
39 Tryphoninus, Disputations, Book X. Cicero, in his oration for Cluentius Avitus, said that when he was in Asia, a certain Milesian woman, having received money from certain substituted heirs, produced an abortion on herself, by means of drugs, and was sentenced to death. If, however, any woman, after a divorce, should commit a violent act upon her viscera, for the reason that she was pregnant and did not wish to bear a son to her husband, whom she hated, she ought to be punished by temporary exile; as was stated by our most excellent Emperors in a Rescript.
40 Paulus libro tertio decretorum. Metrodorum, cum hostem fugientem sciens susceperit, in insulam deportari, Philocteten, quod occultari eum non ignorans diu dissimulaverit, in insulam relegari placet.
40 Paulus, Decrees, Book III. It was decided that Metrodorus, for having knowingly harbored a fleeing enemy, should be deported to an island; and that Philoctetis, who was aware that he was concealed, and kept the fact secret for a long time, should be relegated to an island.
41 Papinianus libro secundo definitionum. Sanctio legum, quae novissime certam poenam irrogat his, qui praeceptis legis non obtemperaverint, ad eas species pertinere non videtur, quibus ipsa lege poena specialiter addita est. nec ambigitur in cetero omni iure speciem generi derogare, nec sane verisimile est delictum unum eadem lege variis aestimationibus coerceri.
41 Papinianus, Definitions, Book II, The sanction of the laws, which, in the last section, impose a certain penalty upon those who do not obey their precepts, is not held to apply to those cases in which a penalty is specifically added by the law itself, and there is no doubt that in every law the species is subordinated to the genus. Nor is it probable that one crime should be punished by different penalties under the same law.
42 Hermogenianus libro primo epitomarum. Interpretatione legum poenae molliendae sunt potius quam asperandae.
42 Hermogenianus, Epitomes, Book I. By the interpretation of the laws, penalties should rather be mitigated than increased in severity.
43 Paulus libro primo responsorum. Imperator Antoninus Aurelio Atiliano rescripsit: ‘Praeses ultra administrationis suae tempus interdicere alicui arte sua uti non potest’. 1Idem respondit eum, qui suo admisso decurionum honorem amisit, non posse in poenis evitandis decurionis filii honorem vindicare.
43 Paulus, Opinions, Book I. The Emperor Antoninus stated in a Rescript addressed to Aurelius Atilianus: “A Governor cannot forbid anyone the use of his trade for a longer time than that included in his administration.” 1He also said that, “Anyone who, by the commission of some offence, has lost the honor of being a decurion, cannot claim the privileges of the son of a decurion in order to escape the infliction of a penalty.”