Ad Dig. 4,2,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 1.Callistratus, On Judicial Inquiries, Book V. There is extant a Decree of the Divine Marcus in the following terms: “The best course to pursue if you think that you have any legal claim, is to test it by an action”; and when Marcianus said, “I have employed no force”; the Emperor replied, “Do you think that there is no force employed except where men are wounded? Force is employed just as much in a case where anyone who thinks that something is owing to him and makes a demand for it, without instituting judicial proceedings; therefore, if anyone is proved before Me to have boldly, and without judicial authority obtained possession of any property of his debtor, or any money which was due to him, and which was not voluntarily paid to him by the said debtor; and who has established the law for himself in the matter, he shall not be entitled to the right of a creditor”.

The Same, Inquiries, Book V. Where inquiry is made concerning violence and the existence of possession, investigation must be made of the violence before the ownership of the property is considered; in accordance with a Rescript of the Divine Hadrian in the Greek language directed to the Commonwealth of Thessaly.

Callistratus, Concerning Judicial Inquiries, Book V. The Divine Marcus Commodus stated in a Rescript to Piso the following: “Since it has been proved before you, my dear Piso, that Julius Donatus, after having been alarmed by the approach of robbers, took refuge in his country-house, and was wounded, and afterwards, having executed a will, manifested his affection for his slaves, neither his regard for them, nor the solicitude of the heir should allow punishment to be inflicted upon those whom the master himself has absolved”.

Ad Dig. 42,1,33ROHGE, Bd. 5 (1872), S. 213: Rescission eines auf eine falsche Urkunde gestützten Erkenntnisses. Einfluß des prozessualen Anerkenntnisses der Echtheit der Urkunde.The Same, Judicial Inquiries, Book V. The Divine Hadrian, having been presented with a petition by Julius Tarentinus, in which he alleged that a decision had been rendered against him through the judge having been deceived by forged evidence, and by a conspiracy of his adversaries, who had corrupted witnesses with money, the Emperor stated in a Rescript that he was entitled to complete restitution, as follows: “I have ordered a copy of the petition which was presented to me by Julius Tarentinus to be sent to you. If he proves that he has been oppressed by a conspiracy of his adversaries, and that their witnesses have been corrupted with money, you will inflict severe punishment; and if the decision of the judge was induced by false representations, you will grant complete restitution.”

The Same, On Judicial Inquiries, Book V. A pecuniary penalty was established by the agrarian law which Gaius Cæsar enacted against those who fraudulently removed monuments beyond their proper place, and the boundaries of their land; for it directed that they should pay to the Public Treasury fifty aurei for every boundary mark which they took out or removed, and that an action should be granted to anyone who desired to bring it. 1By another agrarian law, introduced by the Divine Nerva, it is provided that if a male or female slave, without the knowledge of his or her master, commits this offence with malicious intent, he or she shall be punished with death, unless his or her master or mistress prefers to pay the fine. 2Those, also, who change the appearance of the place in order to render the location of the boundaries obscure, as by making a shrub out of a tree; or plowed land out of a forest; or who do anything else of this kind, shall be punished in accordance with their character and their rank, and the violence with which their acts were committed.

Callistratus, On Judicial Inquiries, Book V. The Divine Brothers stated in a Rescript that the heirs of an accuser should not be compelled to prosecute the crime. 1Likewise, the Divine Hadrian stated in a Rescript that no one could be forced to prosecute several accused persons.

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.

Ad Dig. 48,7,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 123, Note 1.Callistratus, On Judicial Inquiries, Book V. Creditors, who proceed against their debtors, should demand a second time, through the judge, what they think to be due to them. Otherwise, if they enter upon the property of the debtor without permission having been given them to do so, the Divine Marcus decreed that they had no longer any right to their claims. The following are the terms of the Decree: “It is very proper, where you think that you have claims, that you should attempt to collect them by means of actions. In the meantime, the other party should remain in possession, for you are merely the plaintiff.” And when Marcianus said that no force had been employed, the Emperor replied: “You think that force is only employed when men are wounded. Force is employed when anyone thinks that he can take what is due to him without demanding it a second time through the judge. I do not think that it is consistent either with your character for reserve or your dignity, to commit an act which is unauthorized by law. Therefore, whenever it is proved to me that any property of the debtor was not delivered by him to his creditor, but that the latter boldly took possession of it without being authorized by a court, and he has declared that he was entitled to the property, he will forfeit his right to the claim.”

Callistratus, Judicial Inquiries, Book V. It is not necessary to inflict torture in the case of a freeman, where his testimony is not vacillating. 1In the case of a minor under fourteen years of age, the Divine Pius stated in a Rescript to Mæcilius that torture should not be inflicted to obtain evidence against another, especially as the accusation was by no means established by other evidence, since it did not result that the minor should be believed, even without the application of torture; for he says that age, which appears to protect persons against the harshness of torture, renders them also more suspected of falsehood. 2He who has given security to another claiming a slave should be considered as the master; and therefore such slaves cannot be put to torture to obtain evidence against him. The Divine Pius stated the following in a Rescript: “You must prove your case by other testimony, for torture should not be inflicted upon slaves, when the possessor of an estate has given security to a claimant, and in the meantime, is considered as the master.”

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.”