De custodia et exhibitione reorum
(Concerning the custody and appearance of dependants in criminal cases.)
1 Ulpianus libro secundo de officio proconsulis. De custodia reorum proconsul aestimare solet, utrum in carcerem recipienda sit persona an militi tradenda vel fideiussoribus committenda vel etiam sibi. hoc autem vel pro criminis quod obicitur qualitate vel propter honorem aut propter amplissimas facultates vel pro innocentia personae vel pro dignitate eius qui accusatur facere solet.
1 Ulpianus, On the Duties of Proconsul, Book II. When accused persons are to be placed in custody, the Proconsul should determine whether they should be sent to prison, delivered to a soldier, or committed to the care of their sureties, or to that of themselves. This is usually done after taking into consideration the nature of the crime of which the defendant is accused, or his distinguished rank, or his great wealth, or his presumed innocence, or his reputation.
2 Papinianus libro primo de adulteriis. Si servus capitali crimine postuletur, lege publicorum cavetur, ut sistendum vel a domino vel ab extero satisdato promittatur: quod si non defendatur, in vincula publica coici iubetur, ut ex vinculis causam dicat. 1Solet itaque tractari, an postea domino permittendum sit oblata satisdatione servum suum vinculis liberare. dubitationem auget edictum Domitiani, quo cautum est abolitiones ex senatus consulto factas ad huiusmodi servos non pertinere. nam et lex ipsa prohibet eum absolvi, priusquam de eo iudicetur. sed haec interpretatio perdura, pernimium severa est in eo, cuius dominus absens fuit vel quod per inopiam illo momento temporis satisdationem implere non potuit: neque enim pro indefenso derelictus recte dici potest, qui dominum praesentem non habuit vel habuit paratum defendere, pauperem tamen. quod utique facilius admitti poterit, si non post longum temporis spatium hoc desideretur. 2Qui exhibendi postulati sunt propter aliam causam, alterius criminis, quod ante admissum est, rei non recipiuntur ex senatus consulto. quod in privatis quoque causis et hominibus sub fideiussore factis observatur, nisi ex hoc temporalis actio in periculum cadat.
2 Papinianus, On Adultery, Book I. Where a slave is accused of a capital offence, it is provided by the law of criminal prosecutions that he must furnish security for his appearance in court, even though his surety be a stranger. If he is not defended in this way, he should be thrown into the public prison, so that he may defend himself while under restraint. 1Therefore, the question is usually discussed whether the master should afterwards, by giving security, be permitted to release his slave from confinement. The Edict of Domitian, by which it is provided that releases obtained under the Decree of the Senate are not applicable to slaves of this kind, increases the already existing doubt, for the law itself forbids him to be discharged before his case has been disposed of. This interpretation, which is somewhat hard, is too severe when applied to a slave whose master is absent, or who, through poverty, was at that time unable to furnish security. For it cannot be said that a slave is left without defence whose master is present, or is ready to defend him, but is too poor to do so. This can the more readily be admitted, if too long a time to find security has not been taken. 2Those who are required to appear in court on account of some other crime previously committed are not included in the number of accused persons, according to a Decree of the Senate. This rule is also observed in private cases, where the parties have given sureties, unless on this account a temporary action is in danger of being extinguished through lapse of time.
3 Ulpianus libro septimo de officio proconsulis. Divus Pius ad epistulam Antiochensium Graece rescripsit non esse in vincula coiciendum eum, qui fideiussores dare paratus est, nisi si tam grave scelus admisisse eum constet, ut neque fideiussoribus neque militibus committi debeat, verum hanc ipsam carceris poenam ante supplicium sustinere.
3 Ulpianus, On the Duties of Proconsul, Book VII. The Divine Pius stated in a Rescript, in Greek, to the people of Antioch, that anyone who was ready to furnish sureties for his appearance should not be placed in prison, unless it was evident that he had committed so serious a crime that he should not be entrusted to the care of any sureties, or soldiers; but that he must undergo the penalty of imprisonment before suffering that for the crime of which he is guilty.
4 Idem libro nono de officio proconsulis. Si quis reum criminis, pro quo satisdedit, non exhibuerit, poena pecuniaria plectitur. puto tamen, si dolo non exhibeat, etiam extra ordinem esse damnandum. sed si neque in cautione neque in decreto praesidis certa quantitas compraehensa est, ac nec consuetudo ostenditur, quae certam formam habet, praeses de modo pecuniae, quae inferri oporteat, statuet.
4 The Same, On the Duties of Proconsul, Book IX. Where anyone does not produce a person who is accused of crime, and for whom he is responsible, he is punished with a pecuniary penalty. I think, however, that if, through fraud, he does not produce him, he also should arbitrarily be condemned. But if no certain amount is mentioned in the bond or in the Decree of the Governor, and custom does not establish it, the Governor must decide what sum of money must be paid.
5 Venuleius Saturninus libro secundo de iudiciis publicis. Si confessus fuerit reus, donec de eo pronuntietur, in vincula publica coiciendus est.
5 Venuleius Saturninus, On Public Prosecutions, Book II. If the defendant has confessed, he should be thrown into prison until sentence is passed upon him.
6 Marcianus libro secundo de iudiciis publicis. Divus Hadrianus Iulio Secundo ita rescripsit et alias rescriptum est non esse utique epistulis eorum credendum, qui quasi damnatos ad praesidem remiserint. idem de irenarchis praeceptum est, quia non omnes ex fide bona elogia scribere compertum est. 1Sed et caput mandatorum exstat, quod divus Pius, cum provinciae Asiae praeerat, sub edicto proposuit, ut irenarchae, cum adprehenderint latrones, interrogent eos de sociis et receptatoribus et interrogationes litteris inclusas atque obsignatas ad cognitionem magistratus mittant. igitur qui cum elogio mittuntur, ex integro audiendi sunt, etsi per litteras missi fuerint vel etiam per irenarchas perducti. sic et divus Pius et alii principes rescripserunt, ut etiam de his, qui requirendi adnotati sunt, non quasi pro damnatis, sed quasi re integra quaeratur, si quis erit qui eum arguat. et ideo cum quis ἀνάκρισιν faceret, iuberi oportet venire irenarchen et quod scripserit, exsequi: et si diligenter ac fideliter hoc fecerit, conlaudandum eum: si parum prudenter non exquisitis argumentis, simpliciter denotare irenarchen minus rettulisse: sed si quid maligne interrogasse aut non dicta rettulisse pro dictis eum compererit, ut vindicet in exemplum, ne quid et aliud postea tale facere moliatur.
6 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.
7 Macer libro secundo de officio praesidis. Solent praesides provinciarum, in quibus delictum est, scribere ad collegas suos, ubi factores agere dicuntur, et desiderare, ut cum prosecutoribus ad se remittantur: et id quoque quibusdam rescriptis declaratur.
7 Macer, On the Duties of Governor, Book II. The Governor of a province in which a crime has been committed is accustomed to write to his colleagues, where it is said that the guilty parties are, and ask them to send them to him under guard. This has also been prescribed by certain rescripts.
8 Paulus libro singulari de poenis militum. Carceri praepositus si pretio corruptus sine vinculis agere custodiam vel ferrum venenumve in carcerem inferri passus est, officio iudicis puniendus est: si nescit, ob neglegentiam removendus est officio.
8 Paulus, On the Punishments of Soldiers. If a jailor, having been corrupted with money, permits prisoners to remain in custody unchained, or allows weapons or poison to be introduced into the prison, he should be punished by the judge as a part of his official duty; and if this was done without the knowledge of the jailor, he ought to be removed from his office for negligence.
9 Venuleius Saturninus libro primo de officio proconsulis. De militibus ita servatur, ut ad eum remittantur, si quid deliquerint, sub quo militabunt: is autem, qui exercitum accipit, etiam ius animadvertendi in milites caligatos habet.
9 Venuleius Saturninus, On the Duties of Proconsul, Book I. It is the rule that if soldiers commit a crime, they must be sent back to the officer under whom they served. The general in chief has a right to punish all soldiers under his command.
10 Idem libro secundo de officio proconsulis. Ne quis receptam custodiam sine causa dimittat, mandatis ita cavetur: ‘si quos ex his, qui in civitatibus sunt, celeriter et sine causa solutos a magistratibus cognoveris, vinciri iubebis et his, qui solverint, multam dices. nam cum scierint sibi quoque molestiae futurum magistratus, si facile solverint vinctos, non indifferenter de cetero facient’.
10 The Same, On the Duties of Proconsul, Book II. To prevent anyone from dismissing prisoners without sufficient reason, it is provided as follows by the Imperial Mandates: “If you know that imprisoned persons have been released too soon, and without good cause by the magistrates, you will order them to be placed in custody, and you will fine those who released them; for when the magistrates know that they themselves will be punished if they discharge prisoners too readily, they will not do so again without proper investigation.”
11 Celsus libro trigensimo septimo digestorum. Non est dubium, quin, cuiuscumque est provinciae homo, qui ex custodia producitur, cognoscere debeat is, qui ei provinciae praeest, in qua provincia agitur. 1Illud a quibusdam observari solet, ut, cum cognovit et constituit, remittat illum cum elogio ad eum, qui provinciae praeest, unde is homo est: quod ex causa faciendum est.
11 Celsus, Digest, Book XXXVII. There is no doubt that when a man from any province is brought from prison, he who governs the province where proceedings have been instituted should take cognizance of the offence. 1It is customary for certain judges, when a case has been heard and a decision rendered, to send the defendant back with the papers to the officer commanding in the province from which the defendant came. This should only be done when there is good reason, for it.
12 Callistratus libro quinto de cognitionibus. Milites si amiserint custodias, ipsi in periculum deducuntur. nam divus Hadrianus Statilio Secundo legato rescripsit, quotiens custodia militibus evaserit, exquiri oportere, utrum nimia neglegentia militum evaserit an casu, et utrum unus ex pluribus an una plures, et ita demum adficiendos supplicio milites, quibus custodiae evaserint, si culpa eorum nimia deprehendatur: alioquin pro modo culpae in eos statuendum. Salvio quoque legato Aquitaniae idem princeps rescripsit in eum, qui custodiam dimisit aut ita sciens habuit, ut possit custodia evadere, animadvertendum: si tamen per vinum aut desidiam custodis id evenerit, castigandum eum et in deteriorem militiam dari: si vero fortuito amiserit, nihil in eum statuendum. 1Si paganos evaserit custodia, idem puto exquirendum, quod circa militum personas explorandum rettuli.
12 Callistratus, On Judicial Inquiries, Book V. If soldiers permit their prisoners to escape, they themselves are responsible, and run the risk of being punished. For the Divine Hadrian stated in a Rescript addressed to Statilius Secundus, his Deputy, that whenever anyone escapes from the custody of soldiers, if should be ascertained whether this was due to gross negligence of the soldiers, or to accident, and whether one among several, or several fled at the same time; and the soldiers should be delivered up to punishment when the prisoners escaped from their custody, if this occurred through gross negligence on their part; otherwise, a decision should be rendered in proportion to the blame attaching to them. The same Emperor stated in a Rescript to Salvius, the Governor of Aquitania, that anyone who permitted a prisoner to escape, or intentionally kept him in such a way that he could escape, should be punished. If, however, this occurred through indulgence in wine, or the laziness of the guard, he should be chastised, and degraded to the lowest military rank. But where he lost his prisoner through accident, no proceedings should be taken against him. 1When a prisoner escapes from the hands of civilians, I think that the same investigation should be made which I have mentioned should be done with reference to soldiers.
13 Idem libro sexto de cognitionibus. In eos, qui, cum recepti essent in carcerem, conspiraverint, ut ruptis vinculis et effracto carcere evadant, amplius, quam causa ex qua recepti sunt reposcit, constituendum est quamvis innocentes inveniantur ex eo crimine, propter quod inpacti sunt in carcere, tamen puniendi sunt: eos vero, qui conspirationem eorum detexerint, relevandos.
13 The Same, On Judicial Inquiries, Book VI. Where persons who are confined in prison conspire to break their chains and escape, it has been decided that they must be punished without reference to the cause for which they were incarcerated. Although they may be found innocent of the crime for which they were kept in custody, still, they must be punished, and those who reveal their conspiracy should be released.
14 Herennius Modestinus libro quarto de poenis. Non est facile tironi custodia credenda: nam ea prodita is culpae reus est, qui eam ei commisit. 1Nec uni, sed duobus custodia committenda est. 2Qui si neglegentia amiserint, pro modo culpae vel castigantur vel militiam mutant: quod si levis persona custodiae fuit, castigati restituuntur. nam si miseratione custodiam quis dimiserit, militiam mutat: fraudulenter autem si fuerit versatus in dimittenda custodia, vel capite punitur vel in extremum gradum militiae datur. interdum venia datur: nam cum custodia cum altero custode simul fugisset, alteri venia data est. 3Sed si se custodia interfecerit vel praecipitaverit, militi culpae adscribitur, id est castigabitur. 4Quod si ipse custos custodiam interfecerit, homicidii reus est: 5Ergo si casu custodia defuncta dicatur, testationibus id probandum est et sic venia dabitur. 6Solet praeterea amissa culpa custodia, si tamen intersit eam adprehendi, tempus causa cognita militi dari ad eam requirendam, applicito ei alio milite. 7Quod si fugitivum domino reddendum prodiderit, si facultates habeat, domino pretium reddere iuberi Saturninus probat.
14 Herennius Modestinus, On Punishments, Book IV. A prisoner should not readily be entrusted to a new recruit, for if he escapes, he who committed the prisoner to his care will be to blame. 1The custody of a prisoner should not be committed to one, but to two guards. 2Those who have lost their prisoners through negligence are either punished in proportion to their fault, or are reduced in rank. If the prisoner was of little importance, after the soldiers have been chastised, they shall be restored to their positions; but if anyone releases a prisoner through compassion, he will lose his rank in the army. If, however, he was guilty of fraud in letting him go, he is either punished with death, or degraded to the lowest place in the service. Sometimes he is pardoned, for when a prisoner flees with one of his guards, pardon is granted to the other. 3If the prisoner should kill himself, or precipitate himself from a height, the soldier will be to blame, that is to say, he will be punished. 4If the guard himself should kill the prisoner, he will be guilty of homicide. 5Therefore, if it is alleged that the prisoner died as the result of an accident, this must be proved by witnesses, and then the guard will be pardoned. 6In addition to this, when the prisoner escaped through the fault of his guard, if the latter still has an interest in apprehending him, it is customary, after proper cause is shown, for a certain time to be given him to look for the fugitive, after having taken another soldier with him. 7Where a fugitive slave, who should have been restored to his master, is allowed to escape, if the person to blame has the means to do so, Saturninus says he must pay the value of the slave to his master.