Macer, Public Prosecutions, Book I. The crime of violating a sepulchre may be considered as coming within the terms of the Julian Law relating to public violence, and that part in which it is provided that he shall be punished who prevents anyone from celebrating funeral ceremonies, or burying a corpse; because he who violates a sepulchre commits an act preventing interment.

Macer, Public Prosecutions, Book I. The prosecution of extortion is not public, but if anyone has received money because he threatened another with a criminal accusation, the prosecution may become public under the Decrees of the Senate, by which all those are ordered to be liable to the penalty of the Cornelian Law who have joined in the denunciation of innocent persons, and have received money in consideration of accusing, or not accusing others, or of giving, or not giving testimony against them.

Macer, Public Prosecutions, Book I. The crime of driving away cattle is not subject to public prosecution, because it is rather to be classed as a theft; but since most offenders of this description go armed, if they are arrested, they are usually more severely punished on this account.

Macer, Public Prosecutions, Book I. The judgment for prevarication is either public or introduced by custom. 1If the defendant opposes the prosecutor in a criminal case, alleging that he already has been accused of the same crime by another and acquitted, it is provided by the Julian Law relating to public prosecutions that he cannot be prosecuted until the crime charged by the first accuser and the judgment rendered with reference to it have been investigated. Therefore, the decision of cases of this kind is understood to belong to the category of public prosecutions. 2Where the crime of prevarication is said to have been committed by an advocate, a public prosecution cannot be instituted; and it makes no difference whether he is said to have committed it in a public or a private proceeding. 3Therefore if anyone is accused of having abandoned a public prosecution, the case will not be public, because no provision was made for this by any law; and a public accusation is not authorized by that decree of the Senate which prescribes the penalty of five pounds of gold against anyone who abandons a case.

Macer, On Criminal Prosecutions, Book I. All cases in which crime is involved are not public, but only those which are derived from the laws relating to the prosecution of crimes, such as the Julian Law on Treason; the Julian Law on Adultery; the Cornelian Law on Assassins and Poisoners; the Pompeian Law on Parricide; the Julian Law on Peculation; the Cornelian Law on Wills; the Julian Law on Private Violence; the Julian Law on Public Violence; the Julian Law on the Bribery of Voters; the Julian Law on Extortion; and the Julian Law on Raising the Price of Food.

Macer, On Public Prosecutions, Book I. Or before the accusation was brought against him,

Macer, Public Prosecutions, Book I. A husband is also permitted to kill a man who commits adultery with his wife, but not everyone without distinction, as the father is; for it is provided by this law that the husband can kill the adulterer if he surprises him in his own house, but not if he surprises him in the house of his father-in-law; nor if he was formerly a pander; or had exercised the profession of a mountebank, by dancing or singing on the stage; or had been convicted in a criminal prosecution and not been restored to his civil rights; or is the freedman of the husband or the wife, or of the father or mother, or of the son or the daughter of any of them; nor does it make any difference whether he belonged exclusively to one of the persons above mentioned, or owed services to two patrons in common, or was a slave. 1It is also provided that a husband who has killed any one of these must dismiss his wife without delay. 2It is held by many authorities to make no difference whether the husband is his own master, or a son under paternal control. 3With reference to both parties, the question arises, in accordance with the spirit of the law, whether the father can kill a magistrate; and also where his daughter is of bad reputation, or has been illegally married, whether the father or the husband will still retain his right; and what should be done if the husband is a pander, or is branded with ignominy for some reason or other. It may properly be held that those have a right to kill who can bring an accusation as a father or a husband.

Macer, On Public Prosecutions, Book I. It makes no difference whether the father kills his daughter surprised in adultery first, or not, provided he kills both guilty parties; for if he kills only one of them, he will be liable under the Cornelian Law. If, however, one of them should be killed, and the other wounded, he is not released under the terms of the law; but the Divine Marcus and Commodus stated in a Rescript that he ought to be granted impunity, for the reason that, although the adulterer was killed, and the woman survived, after having received serious wounds inflicted upon her by her father, she was saved rather by accident, than intentionally; because the law requires the same indignation and the same severity to be displayed toward all those who are taken in adultery. 1Where a husband has selected one of two culprits who have been guilty of adultery, he cannot accuse the other before the first case is terminated; because two persons cannot be accused by the same individual at the same time. Still, the prosecutor, while proceeding against the adulterer or the adulteress, is not prevented from also accusing anyone who lent his house for the purpose, or advised that the charge be suppressed by the payment of money.

Macer, Public Prosecutions, Book I. It makes no difference whether the crowd was convoked for the purpose of employing violence against freemen, or one’s own slaves, or slaves belonging to another. 1Those who have been assembled are none the less liable under the same law. 2If, however, no persons have been assembled, and none has been beaten, but something has been unjustly taken from property belonging to others, he who did so will be liable under this law.

Macer, Public Prosecutions, Book I. Nothing is provided by the Decrees of the Senate with reference to a person who has written something for the benefit of one who has control of him, or of another who is under the same control. But the law is violated also in this instance, because the profit derived from the act will belong to the father or the master, who would be entitled to it if the son or the slave had written the instrument for his own benefit. 1It is established that where anyone writes the bequest of a legacy for the benefit of a stranger, even though he may afterwards, during the lifetime of the testator, begin to have him under his control, there will be no ground for the application of the Decree of the Senate.

Macer, Public Prosecutions, Book I. He is liable under the Julian Law relating to Extortion who, while invested with any authority, accepts money for rendering a judgment or decree;

Macer, Public Prosecutions, Book I. The attendants of judges can also be prosecuted under this law.

Macer, Public Prosecutions, Book I. The Julian Law on Extortion prescribes that: “No one shall receive anything as an inducement to render a judgment or a decree, or for changing his opinion; or to prevent him from rendering a decision; or to throw a person into prison, or put him in chains; or order him to be chained, or delivered from his chains; or to convict or acquit a man; or to appraise the amount of a judgment; or to sentence anyone to a capital or a pecuniary penalty, or to refrain from doing so.” 1It is, however, apparent that the law permits all those, excepting such as have been excepted, to receive money without limit; but those enumerated in this Section are not allowed to receive anything from anybody. 2It is also provided: “That no public work which is to be constructed shall be accepted as completed, nor any public provisions which are to be distributed held to be transferred or obtained, nor any buildings considered as repaired, before they have been finished, accepted, and delivered according to law.” 3Persons guilty of extortion are at present arbitrarily dealt with by the law, and they are generally punished with exile, or even more severely, according to the crime which they have committed. What, however, should be done if they accept money as a reward for killing a man? Or even if they do not accept it, but, impelled by rage, they kill an innocent person, or one whom they should not punish? They should undergo a capital penalty, or be deported to an island, as indeed most of them are.

Macer, On Criminal Trials, Book II. The Divine Marcus and Commodus addressed a Rescript to Scapulas Tertullus in the following terms: “If it is positively ascertained by you that Ælius Perseus is to such a degree insane that, through his constant alienation of mind, he is void of all understanding, and no suspicion exists that he was pretending insanity when he killed his mother, you can disregard the manner of his punishment, since he has already been sufficiently punished by his insanity; still, he should be placed under careful restraint, and, if you think proper, even be placed in chains; as this has reference not so much to his punishment as to his own protection and the safety of his neighbors. If, however, as often happens, he has intervals of sounder mind, you must diligently inquire whether he did not commit the crime during one of these periods, so that no indulgence should be given to his affliction; and, if you find that this is the case, notify Us, that We may determine whether he should be punished in proportion to the enormity of his offence, if he committed it at a time when he seemed to know what he was doing. “But, when We are informed by your letter that his condition so far as place and treatment are concerned, is that he remains in charge of his friends, or under guard in his own house; it appears to Us that you will act properly if you summon those who had care of him at that time, and investigate the cause of such great neglect, and decide the case of each one of them, so far as you discover anything tending to excuse or increase his negligence; for keepers are appointed for insane persons, not only to prevent them from injuring themselves, but that they may not be a source of destruction to others; and where this takes place, those very properly should be held responsible who are guilty of negligence in the discharge of their duties.”

Macer, Public Prosecutions, Book II. The Governor of a province cannot prevent anyone who has been convicted of theft from being branded with infamy.

Macer, Public Prosecutions, Book II. The Divine Severus wrote to Dionysius Diogenes, as follows: “Anyone who has been condemned for an atrocious injury cannot belong to the Order of Decurions; and the error of a Governor or of anyone else who has rendered a different decision on the point in controversy will not benefit you, nor will that of those who, in opposition to the established law, held that you still retained your membership in the Order of Decurions.”

The Same, Public Prosecutions, Book II. A pecuniary action is also granted for violating a sepulchre.

The Same, Public Prosecutions, Book II. If a person against whom an action for slander cannot be brought is convicted of being a prevaricator in a criminal case, he will become infamous.

Macer, Public Prosecutions, Book II. A sentence for every crime does not render a man infamous, but only such as have the character of public prosecutions. Hence infamy does not result from condemnation for a crime which is not the subject of public prosecution, unless the offence can be the subject of an action which, even in the case of a private judgment, brands the condemned party with infamy, as for instance, that of theft, that of robbery with violence, and that of injury.

Macer, On Public Prosecutions, Book II. We will more readily understand who can bring an accusation if we know who cannot do so. Hence, certain persons are forbidden to prosecute a crime on account of their sex or their age, as women, or minors. Many are disqualified because of their oath, for instance, those who are serving in the army; others cannot be brought into court on account of their magistracy, or their power, so long as they exercise this without the commission of fraud. Others, again are forbidden as the result of their own criminality, for example, infamous persons. Some are excluded on account of dishonorable gain, such as those who have filed two accusations signed by them against two different individuals; or who have received money in consideration of accusing, or not accusing others. Some are incompetent in consequence of their condition, as, for instance, freedmen cannot proceed against their patrons.

Macer, On Public Prosecutions, Book II. Still, all these persons, if they are prosecuting injuries sustained by them, or the death of near relatives, are not excluded from bringing accusations. 1When children and freedmen desire to protect their interests they should not be prevented from complaining of the acts of their parents and patrons; for instance, where they state that they have been forcibly expelled from possession, and do not do so for the purpose of bringing an accusation of the crime of violence, but in order that they may recover possession of the property. For, indeed, a son is not forbidden to complain of the act of his mother, if he alleges that a child has been falsely substituted by her in order that he might have a co-heir, but he will not be permitted to accuse his mother under the Cornelian Law. 2One person cannot accuse another who has been already accused by a third party; but anyone who has been publicly or privately acquitted, or whose accuser has desisted from prosecution, and has been removed from a number of defendants, may be accused by another.

Macer, Public Prosecutions, Book II. Or by reason of the fortunate result of some transaction,

Macer, Public Prosecutions, Book II. Those come within the scope of the Turpillian Decree of the Senate who substitute accusers in their places; or who, having done so, bring the accusation without prosecuting the defendants; or desist from the prosecution in some other manner than by the dismissal of the case, as well as such as have filed some written document, or have entered into some agreement for the purpose of accusing another. It must be said that these words, “Bring the accusation without prosecuting the defendants,” are applicable to all the persons above mentioned. 1The question arises whether the Decree of the Senate applies to those who, at present, have extraordinary jurisdiction of public offences. The present law, based upon the Imperial Constitutions, is that it does apply; hence each penalty will be imposed in each individual case. 2If those who are not permitted to bring an accusation for calumny desist, they will not be liable to the penalty of this Decree of the Senate. This has been provided by the Constitutions. 3If, on account of the death of the defendant, the accuser should desist, he cannot be held liable under this Decree of the Senate; because the prosecution is extinguished by the death of the accused, unless the crime is such that its prosecution can be continued against the heirs, as, for instance, that of high treason. The same rule applies where an accusation is brought for extortion, because this also is not extinguished by death. 4Moreover, if the defendant should die after the accuser has desisted from the prosecution, the offence of the accuser will not, for this reason, be lessened. For if he who has once desisted should afterwards be ready to renew the accusation, Severus and Antoninus have decreed that he shall not be heard. 5Those who, after having filed a written accusation, have permitted one or two years to elapse, for the reason that they could not prosecute on account of their various occupations as Governors, or because they were prevented by the requirements of civil office, do not come within the terms of the Decree of the Senate. 6If anyone has accused a person in the first place, and, after the case has been dismissed, but before the defendant is again accused, a second dismissal should occur, the thirty days should be computed, not from the first, but from the second dismissal of the case.

Macer, On Public Prosecutions, Book II. The term of a year is fixed for the purpose of seizing the property of anyone who is sought for and noted as being present. 1If, however, the Treasury does not seize his property for twenty years, it will be barred from doing so subsequently, if prescription should be pleaded either by the defendant himself, or by his heirs.

Macer, On Public Prosecutions, Book II. The year is computed from the time when the notification was publicly made, either by means of an Edict or by letters sent to the magistrate. 1Therefore, the term of twenty years is reckoned for the Treasury, from the moment when the notice was published. 2In a word, it should be remembered that he who is sought for and notified is not barred from undertaking his defence by any prescription of time.

Macer, On Public Prosecutions, Book II. The rule is observed with reference to slaves, that they shall be punished as persons of the lowest rank, and in cases where a freeman is whipped, a slave should be scourged, and ordered to be restored to his master; and where a freeman, after having been whipped, is sentenced to labor upon the public works, a slave, under the same circumstances, after having been kept in chains for a certain period of time, and scourged, is ordered to be restored to his master. Where a slave, after having undergone the punishment of chains, is ordered to be restored to his master, but is not received by him, he shall be sold; and if he does not find a purchaser, he shall be sentenced to labor on the public works for life. 1Those who, for some cause, have been sentenced to the mines and afterwards commit some offence, ought to be judged as having been condemned to the mines, although they may not yet have been taken to the place where they will be compelled to work; for they change their condition just as soon as sentence has been passed upon them. 2It has been decided with reference to plebeians as well as decurions, that where a more severe penalty than is authorized by law has been inflicted upon anyone, he does not become infamous. Therefore, if a man has been sentenced to labor for a specified term, or only beaten with rods, although this may have been done in an action which implied infamy, as, for instance, one of theft, it must be said that the accused does not become infamous, because blows with a rod constitute a more severe penalty than a pecuniary fine.

Macer, Public Prosecutions, Book II. The Emperors Severus and Antoninus to Julius Julianus: Those who are said by robbers to have corrupted their accuser, and are dead, are considered to have confessed their crime, and hence to have left no defence to their heirs. 1Where anyone, concerning whose punishment a communication has been sent to the Emperor, for instance, because he was a decurion, or should have been deported to an island, and he dies before the Emperor has sent his reply, it may be asked whether he should be considered to have died before judgment. This question may be said to have been settled by a Decree of the Senate, which was enacted with reference to persons who were transferred to Rome, and died before judgment was rendered. The terms of this decree are as follows: “As no one can be considered to have been condemned during this year, before judgment in his case has been rendered and made public at Rome; no property belonging to a deceased person shall be confiscated before judgment in his case has been made public at Rome; and his heirs can take possession of his estate.”

Macer, Public Prosecutions, Book II. The Emperors Severus and Antoninus stated in a Rescript to Asclepiades: “You who, having failed to make a defence, preferred to purchase the judgment when you were accused of crime, are with reason ordered to pay fifty solidi to the Treasury, since, leaving out of consideration the examination of your case, you have rendered yourself liable to this penalty; for it must be maintained that those who are involved in matters in which the Treasury is interested, should undertake the defence of their cases in good faith, and not attempt to buy their adversaries, or their judges.”

Macer, On Appeals, Book I. It must be remembered that the possessors of real property are not compelled to give security. 1Ad Dig. 2,8,15,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 154, Note 7.By such a possessor is to be understood one who possesses land either in the country or in the city, either wholly, or in part. He also is understood to be a possessor who holds land subject to the payment of rent to the State, that is, an emphyteutic estate; and he also who has the mere ownership is considered to be a possessor. Ulpianus, however, stated that he who has only the usufruct, is not a possessor. 2A creditor who has accepted a pledge is not a possessor, even though he may have possession of the article, or whether it has been delivered to him, or is held by the debtor at the will of the creditor. 3Where real property is given by way of dowry, both the wife and the husband are understood to be possessors on account of their possession of said property. 4The case is different with a party who has the right of personal action for the recovery of land. 5Guardians, whether their wards or they themselves are in possession, are considered possessors; and the same rule applies where only one of several guardians is in possession. 6If you bring suit against me for land of which I am in possession; and judgment is rendered in your favor, and I take an appeal; am I still to be considered the possessor of said land? It may be very properly stated that I am the possessor of the same, because I still hold it; nor does it make any difference that I can subsequently be deprived of my possession. 7To ascertain whether a party is, or is not a possessor, the time when a bond was required must be considered; for just as the party is none the worse who has sold his possession after giving a bond, so he who takes possession after a bond has been executed obtains no advantage.

Macer, On Appeals, Book I. When anyone appeals at the time when the judgment is rendered, it will be sufficient for him to say, “I appeal.”

Macer, On Appeals, Book I. It is not permitted to appeal from the execution of a judgment. 1It is, however, permitted to appeal from the decision of one who is alleged to have placed a wrong interpretation upon a judgment, if he had the authority to interpret it, as, for instance, the Governor of a province, or the Imperial Procurator; provided that, in discussing the causes for granting the appeal the question alone is raised whether the interpretation was according to law. This was also stated by the Divine Antoninus in a Rescript. 2Where another person has been convicted, he who has an interest in the case can appeal; for instance, one who, having appointed an attorney, has been defeated, and the attorney did not appeal in his name. 3Likewise, if the purchaser is evicted of the property sold, and neglects to appeal, the vendor can appeal. Or, if he brings suit and is defeated, the vendor should not be denied the right to appeal. But what if the vendor who refused to appeal is not solvent? And even if he should appeal, and appears to be liable to suspicion when conducting the case, the defence for this reason can be entrusted to the purchaser, just as if he himself had appealed. 4This has been decided with reference to the creditor, when the debtor is defeated and appeals, for he did not faithfully defend his case. This constitution should be understood to mean that the creditor having intervened, the debtor lost his case involving a pledge and took an appeal. For it has been decided that the debtor, in case of the absence of his creditor, does not prejudice him in any way. 5Where an attorney who is conducting a case loses it, let us see whether he himself can appeal through another attorney, because it is established that one attorney cannot appoint another. It must, however, be remembered that an attorney, by the joinder of issue, becomes the master of the case, and therefore can appeal by the agency of another attorney.

Macer, Appeals, Book I. If you have conducted a case as an attorney, and, having been defeated, appeal, and your appeal has been decided to be ill founded, it may be doubted whether you should appeal on the second day, for as judgment has been rendered against your appeal, you appear to be the party in interest. It is, however, better to hold that you can appeal on the third day, because you have, nevertheless, defended the case of another. 1If, however, another than a party litigant should appeal, for example, one who has an interest, let us see whether he can appeal on the third day. It must, however, be said that he ought to appeal on the second day, because it is true that he is defending his own case. It would be opposing himself if he should allege that he has a right to appeal within three days, because it is held that if he takes an appeal in the name of another, when if he wishes his own case to appear to be that of another, he excludes himself, for the reason that he who was not a party in the beginning has no right to appeal in another’s case. 2If, however, one who is alleged to be a freedman should defend himself on the ground that he is freeborn, and, having been beaten, neglects to appeal, the question arises whether his father can do so, especially if he states that he is under his control. But if he can appeal, it is better to hold that he should do so on the second day, as conducting his own case. 3Where a near relative appeals in behalf of a person who has been sentenced to death, Paulus doubts whether he should be heard on the third day. It must, however, be said that a person of this kind should appeal upon the second day, as representing himself; because he who alleges that he is interested is defending his own case.

Macer, Appeals, Book I. He should not be heard who attempts to cause delay in a suit in which he alleges in reply that he has presented a petition to the Emperor, and is waiting for the issue of the Rescript, and, if he takes an appeal on this ground, the Imperial Constitutions forbid it to be received.

Macer, On Appeals, Book III. This difference exists between the case of minors under twenty-live years of age and parties who are absent on public business, namely: minors, even where they are defended by their guardians and curators, may still obtain complete restitution against the State, that is, where proper cause is shown; but where anyone is absent on public business, or where others who enjoy the same privilege, if they are defended by their agents, are usually only relieved by complete restitution to the extent of being permitted to appeal.

Ad Dig. 42,1,63Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 132, Note 2.Macer, On Appeals, Book II. It has often been stated in the Imperial Constitutions that judgments obtained by certain persons do not prejudice the rights of others. This, however, admits of a certain distinction, for in some instances a judgment rendered against certain persons does prejudice others who have knowledge of it, but, in other cases, does not injure even those against whom it was rendered. A judgment is of no disadvantage to those who have knowledge of it, as where one of two heirs of a debtor has judgment rendered against him; for the right of the other to defend himself remains unimpaired, even if he knew that he was sued with his co-heir. Moreover, where one of two plaintiffs, having lost his case, acquiesces in the decision, the claim of the other is not prejudiced. This has been stated in a rescript. A decision rendered against certain parties injures others who are aware of it, when anyone who has a right to bring or defend an action before another suffers someone else to do so; as, for instance, where a creditor permits his debtor to bring suit involving the right to a pledge; or a husband allows his father-in-law, or his wife to institute proceedings to determine the ownership of property received by way of dowry; or a possessor permits the vendor to bring an action to establish the title to property which he has purchased. These points are understood to have been settled by many constitutions. For why should knowledge injure these parties, when it does not injure those previously mentioned? The reason for this is, that when anyone knows that his co-heir brings suit, he cannot prevent him from using any means which he may be able to employ in bringing or defending an action in which he is interested. He, however, who suffers a former owner of the property in dispute to defend an action is, on account of his knowledge, barred by an exception, even though the suit was decided with reference to others; because the decision was rendered with his consent, so far as any right derived from the party appearing in the case was concerned. For if, through my intervention, my freedman is decided to be the slave or the freedman of another, my rights will be prejudiced. A distinction, however, arises where Titius brings suit against you to recover a tract of land, which I allege belongs to me directly, and not through Titius; for even though judgment has been rendered against Titius with my knowledge, I still do not suffer any prejudice to my rights, as I do not claim the land by the same title under which Titius was defeated; and I cannot interfere to prevent him from availing himself of his alleged right, just as was the case with the co-heir above mentioned.

Macer, On Appeals, Book II. It must be remembered that neither a ward, nor the State, can obtain complete restitution in a case where freedom is involved, but an appeal is necessary. This has been stated in various rescripts.

The Same, Appeals, Book II. When a letter is written to the Emperor, and a copy of the same is shown to one of the litigants, who did not appeal, and afterwards the Emperor decides against him in a Rescript, let us see whether he can appeal from the letter which was previously shown to him, since as he did not do so at the time, he seems to have admitted its contents were true. He should not be heard, if he should state that he was waiting for the issue of the Imperial Rescript.

Macer, On Appeals, Book II. It must be remembered that, when an appeal is rejected, it has been decided by the Imperial Constitutions that everything must remain in the same condition, and nothing new be done, even if the appeal is taken against the Treasury; and he who refuses to receive the appeal must immediately make a report giving his opinion, and the reason for its rejection; and it is provided by the Imperial Mandates that he shall furnish the litigant with a copy of his report.

Macer, On Appeals, Book II. We must remember that when an inquiry is made whether a case has been decided or not, and the judge of this question declares that it has not been decided, even though it may have been, it is rescinded, even if no appeal has been taken. 1Ad Dig. 49,8,1,1ROHGE, Bd. 7 (1873), S. 59: Berichtigung von Rechnungsfehlern in einem Erkenntnisse.Likewise, if an error in the calculation is alleged to exist in the decision, it is not necessary to appeal, for instance, if the judge decides as follows: “As it is proved that Titius owes Seius fifty sesterces for such-and-such an article, and also twenty-five for another; therefore I hold that Lucius Titius shall pay Seius a hundred sesterces;” because, as the mistake is one of computation, it is not necessary to appeal, and it can be corrected without doing so. If, however, the judge of this question should render a decision for a hundred sesterces, for the reason that he thought that fifty and twenty-five made a hundred, still, the same mistake is one of computation, and it is not necessary to appeal. But when the judge decides that there is another sum of twenty-five sesterces due, there will be ground for appeal. 2Likewise, when the decision is contrary to the Imperial Constitutions, the necessity for appeal does not exist. A decision is rendered against the constitutions when it is pronounced in compliance with the law as laid down by them, and not with reference to the rights of the litigant; for if the judge, in the case of a person desiring to be excused from the charge of a public office, or of a guardianship, on account of having children, or through age, or by reason of some privilege, should hold that neither children, nor age, nor any privilege will avail to excuse anyone from office, or from guardianship, he is understood to have decided with reference to the law as set forth in the constitutions. If, however, he should permit a person to establish his right, and then renders a decision against him because he did not prove his age, or the number of his children; he is understood to have decided with reference to the rights of the litigant, in which case an appeal will be necessary. 3Likewise when, under a peremptory Edict which has not been published, and of which the party has not been notified, he is convicted while absent, the constitutions declare that a decision of this kind is of no effect. 4If you and I both apply to the same judge, and neither of our petitions asks for interest, and the judge renders a decision against me before doing so against you, in order that you may be the first to have a judgment in your favor; it is not necessary for me to appeal on this ground, as, according to the Sacred Constitutions, you cannot ask for an execution against me before judgment has been rendered with reference to my claim; but the better opinion is that an appeal should be taken.

Macer, Appeals, Book II. When the attorney of an absent party appeals, and afterwards gives his reasons for doing so, he will, nevertheless, be obliged to answer. If, however, he fails to do so, can the party to the suit answer, as in the case of a minor? is a question which we should consider. We rather incline to the opinion that he ought to be heard in giving the reasons for the appeal, who, as the attorney of the absent party, applied for it.

Macer, On Appeals, Book II. Where the appellant dies without leaving an heir, an appeal of this kind is extinguished. If, however, an heir of the appellant should appear, and no one else has any interest in stating the ground for the appeal, the heir cannot be forced to prosecute it. But when the Treasury, or any other party against whom the appeal was taken, is interested in the case, the heir will be required to state the grounds for the appeal. No one has any interest, where, for example, the party has been relegated without having been deprived of his property. In case he should be relegated after having been deprived of his property, or be deported to an island, or sentenced to the mines, or should die after the appeal was taken, our Emperor Alexander made the following statement in a Rescript addressed to Pletorius, a soldier, as being applicable: “Although, while the appeal is pending, the accusation of the defendant is annulled by death, still, as it is alleged that a part of his property has been confiscated under the judgment, be who is entitled to the benefit of the succession can only obtain it if he gives good reasons for the appeal, and establishes the injustice of the decision.” 1If a guardian, after having taken an appeal pertaining to the business of his ward, should die, his heir will be compelled to state the grounds for the appeal, even if he has already rendered his account of the guardianship, for the reason that it is sufficient that he would have been obliged to state the grounds for it at the time of his death. The Divine Severus and Antoninus, however, stated in a Rescript that a guardian, after having rendered his accounts, should not be compelled to set forth the grounds of the appeal.

Macer, On the Duties of Governor, Book I. The title of Governor is a general one, and hence it is applicable to Proconsuls and Deputies of the Emperor, as well as to all Governors of the provinces, and even to Senators. The title of Proconsul is one of special signification.

Macer, On the Office of Governor, Book I. It is provided by a Decree of the Senate “That judicial proceeding must be very sparingly instituted with reference to obligations contracted by those who govern provinces, their attendants, or their freedmen, before they entered the province; for any actions which are not brought for this reason can be filed afterwards when any of the parties have left the province. But where anything occurs against the will of the party, as for instance if he suffers some injury, or is made the victim of theft, proceedings can be instituted to the extent of joining issue, and ordering the production and deposit of the stolen property; or a promise shall be given with security that the party will appear, or that the article in question will be produced.”

Macer, On the Office of Governor, Book I. Cognizance of the acts of suspected guardians can be delegated, and it is settled that this may occur in the general delegation of jurisdiction, on account of the interest of wards, as follows: “The Emperors Severus and Antoninus to Braduas, Proconsul of Africa. Since you have delegated your jurisdiction to your Deputies, it follows that they can take cognizance of the acts of suspected guardians.” 1Thus power can be delegated to give possession of property, as for instance, when an order is issued to take possession where a bond is not furnished to provide against threatened injury; or for possession in the case of a woman in behalf of her unborn child; or to grant possession to a legatee for the preservation of his legacy.

Macer, On the Office of Governor, Book I. Where the same province has been divided between two Governors, as for instance, Germany and Mysia, a man born in either can act as assessor in the other and is not considered as acting in his own province.

Macer, On the Duties of Governor, Book I. Where a minor, after having accepted an estate, obtains complete restitution, the Divine Severus decreed that his co-heir is not bound to assume liability for the debts of his share of the estate, but that prætorian possession of the same should be granted to the creditors.

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.

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.

Macer, On the Duties of Governor, Book II. Ulpianus gave it as his opinion that no exemption should be granted to any other office while anyone was called to it from the decurionate.

Macer, On the Duties of Governor, Book II. A private individual can construct a new work even without the authority of the Emperor, unless this is done through rivalry with another city, or may furnish material for sedition, or is a circus, a theatre, or an amphitheatre. 1It is stated by the Imperial Constitutions that it is not lawful for a new work to be constructed at the public expense without the authority of the Emperor. 2It is not lawful for any other name than that of the Emperor, or of him by whose money it was constructed, to be inscribed upon any public work.

Macer, On Military Affairs, Book I. The duty of the commander of an army consists not only in enforcing discipline, but also in observing it. 1Paternus says that he who commands an army should remember to grant furloughs very sparingly, and not to permit a horse belonging to the military service to be taken out of the province where the soldiers are; and not to send a soldier to perform any private labor, or to fish or hunt; for this is laid down in the rules of discipline prescribed by Augustus. Although I know that it is not unlawful for soldiers to perform mechanical labor, still, I fear if I should allow any act to be performed for my benefit, or for yours, this would not be done in a way which would be tolerated by me. 2It is the duty of the tribunes, or of those who command the army, to confine the soldiers in camps; to compel them to go through their exercises; to keep the keys of the gates; sometimes to make the rounds of the watch; to oversee the distribution of grain; to test it to prevent fraud from being committed by those who measure it; to punish offences according to their authority; to be frequently present at headquarters to hear the complaints of their fellow-soldiers; and to inspect those who are ill.

Macer, Military Wills, Book II. The wills of soldiers who have been dishonorably discharged immediately cease to be valid by military law; but the privilege is extended for the term of a year to the wills of those who have obtained an honorable discharge, or one for some good reason. The right to dispose of castrense peculium by will, which is granted to sons under paternal control, serving in the army, is not conceded to such as are dishonorably discharged, because this privilege is only bestowed by way of recompense upon others who deserve it.

Macer, On Military Affairs, Book II. If a soldier, having made his will, directs half of his estate to be delivered to you, and then executes a codicil after he has been discharged, by which he requests the other half of his estate to be delivered to Titius, and dies a year after his discharge, the heir shall retain his fourth out of what was due to yourself and Titius; because the testator died at a time when his will could not receive the benefit of the Imperial privilege relating to military wills. If, however, he should die within a year after his discharge, Titius alone must suffer the deduction of the Falcidian fourth, because the trust was left to him at a time when the testator could not make a will under military law.

Macer, On Military Affairs, Book II. Paulus and Menander say that a soldier who deserves to suffer the punishment of death should be permitted to make a will; and if he should die intestate, after having been punished, his property will belong to his next of kin; provided he is punished for a military offence, and not for an ordinary crime.

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.

The Same, On Military Affairs, Book II. Soldiers are forbidden to purchase land in the province in which they are carrying on warlike operations, for fear that, through the desire of cultivating the soil, they may be withdrawn from military service, and therefore they are not forbidden to purchase houses. They can, however, buy land in another province, but they are not allowed to do so, even in the name of another or in the one to which they have come for the purpose of battle; otherwise, the land will be confiscated by the Treasury. 1He who purchases land contrary to the rule of military discipline cannot be molested if he has received his discharge before any action has been taken with reference to his purchase. 2It is established that soldiers who have been dishonorably discharged have no right to the benefit of this provision, as it is understood to have been granted to veterans as a reward; and therefore it may be said to apply to those who have been discharged for some good reason, because they also are entitled to rewards. 3There are three general kinds of discharges, namely, those which are honorable, those which are for some cause, and those which are ignominious. An honorable discharge is one which is granted after the term of military service has expired. A discharge for cause is where anyone is dismissed because he has become incapable of military duty, through some defect of mind or body. An ignominious discharge is where a soldier is released from his military oath, on account of the commission of a crime. Anyone who has been ignominiously discharged can neither remain at Rome, nor in the Imperial household. When soldiers are discharged without any mention of disgrace, they can still be understood to have been dishonorably discharged. 4A soldier who is guilty of disrespect should be punished, not only by the tribune or the centurion, but also by the Emperor, for the ancients branded with infamy anyone who resisted a centurion who desired to chastise him. If he seizes the staff of the centurion, he must change his corps; if he breaks it on purpose, or raises his hand against the centurion, he is punished with death. 5Menander says that he who takes to flight while under guard or in prison should not be considered a deserter, because he has escaped from custody, and is not a deserter from the army. Paulus says that he who breaks out of prison, even if he has not previously deserted, should be punished with death. 6The Divine Pius ordered a deserter, who had been produced by his father, to be placed in an inferior corps, in order to prevent his father from appearing to have surrendered him to undergo the extreme penalty. Likewise, the Divine Severus and Antoninus ordered a soldier to be deported who gave himself up after five years of desertion. Menander says that we should follow this example in the case of other deserters.

Macer, On Military Affairs, Book II. Castrense peculium is what has been given by parents or relatives to one who is serving in the army, or what a son under paternal control has himself obtained while in the service, and which he would not have acquired if he had not been a soldier; for whatever he might have acquired without being in the army does not constitute any part of his peculium, castrense.

Æmilius Macer, On the Five Per Cent Law Respecting Inheritances, Book I. It is not lawful for an Imperial Procurator to make a compromise without the authority of the Emperor.

Macer, On the Law of the Twentieth Relating to Successions, Book I. Under the head of “funeral expenses” must be understood whatever is disbursed on account of the body; for instance, in the purchase of ointments, as well as the price of the place where the deceased is buried, and where any rent that is to be paid, together with the cost of the sarcophagus, the hire of vehicles, and anything else which is consumed on account of the body before it is buried; I think should be included in the funeral expenses. 1The Divine Hadrian stated in a Rescript that a sepulchral monument is anything which is erected as a monument, that is to say, for the protection of the place where the body is laid; and therefore, if the testator ordered a large building to be constructed, for example, a number of porticos in a circular form, these expenses are not incurred on account of the funeral.

Æmilius Macer, On the Twenty Per Cent Law of Inheritance, Book I. Where a person who is dumb or deaf obtains permission from the Emperor to make a will, it will be valid.

Macer, On the Law Relating to the Twentieth. The thousand paces constituting a mile are not reckoned from the milestone of the City of Rome, but from the houses contiguous thereto.

Æmilius Macer, On the Law of Five Per Cent Tax of Estates, Book II. Ulpianus says that the following rule should be adopted in making the estimate of maintenance to be furnished. The amount bequeathed to anyone for this purpose from the first to the twentieth year is computed to have lasted for thirty years, and the Falcidian portion of that sum shall be reserved. From twenty to twenty-five years, the amount is calculated for twenty-eight years, from twenty to thirty years, the amount is calculated for twenty-five years; from thirty to thirty-five years, the amount is calculated for twenty-two years, from thirty to forty years, it is computed for twenty years; from forty to fifty years, the computation is made for as many years as the party lacks of the sixtieth year after having omitted one year; from the fiftieth to the fifty-fifth, the amount is calculated for nine years; from the fifty-fifth to the sixtieth year, it is calculated for seven years; and for any age above sixty, no matter what it may be, the computation is made for five years. Ulpianus also says that we use this same rule in making the calculation with reference to the legacy of an usufruct. Nevertheless, it is the practice for the computation to be made for thirty years from the first to the thirtieth, but after the age of thirty years it is made for as many years as the legatee lacks of being sixty; hence the computation is never made for a longer time than thirty years. Finally, in like manner, the computation is made for the period of thirty years, where the usufruct of property is bequeathed to the State, either simply, or for the purpose of celebrating games. 1Where one of the heirs claims that certain property belongs to him individually, and it is afterwards proved to constitute part of the estate, certain authorities hold that the Falcidian portion cannot be reserved out of said property, because it makes no difference whether the heir appropriated it, or denied that it belonged to the estate. This opinion Ulpianus very properly does not accept.