Marcianus, On the Turpillian Decree of the Senate. The recklessness of accusers is detected in three ways, and is punished by three penalties; for they either calumniate, prevaricate, or withdraw. 1To calumniate is to bring false accusations. To prevaricate is to conceal true crimes. To withdraw is to entirely abandon a charge. 2Punishment is inflicted upon calumniators by the Remmian Law. 3He who does not prove what he alleges is not immediately considered to be a calumniator, for the investigation of the offence is left to the judge, having jurisdiction of the case; who, if the defendant is acquitted, begins to inquire into the intention of the accuser, and why he was induced to bring the accusation; and if he finds this was due to a just mistake, he must discharge him. If, however, he should ascertain that he evidently has been guilty of calumny, he must inflict upon him the penalty of the law. 4The decision of either of these points is disclosed by the words of the judgment. For if it is as follows, “You have not proved your allegations,” he spares the defendant; but ff he says, “You are guilty of calumny,” he condemns him; and even though he may add nothing with reference to the penalty, still the power of the law will be enforced against him. For (as Papinianus held), the question of fact depends upon the discretion of the court, but the infliction of the punishment is not left to his will, but is reserved for the authority of the law. 5It may be asked, if the judge should make the following statement, “Lucius Titius appears to have brought a rash accusation,” should he be considered to have pronounced him a calumniator? Papinianus says that rashness affords a ground for pardon, and that unrestrained anger lacks the vice of calumny, and on this account no penalty need be incurred. 6We have shown him to be a prevaricator who is in collusion with the defendant, and who relinquishes his post as accuser, in order that he may conceal his evidence, and permit the false excuses of the defendant to be advanced. 7If, however, anyone desists from prosecuting the accusation without having it dismissed, he is punished. 8The dismissal of a case is usually asked for, and granted by the Governors of provinces. The application for it is made to the magistrate while presiding in court, and not elsewhere; and if he is present he cannot leave the investigation to another. 9If one person has accused the same individual of several offences, he should apply for the dismissal of each of them, otherwise he will suffer the penalty prescribed by the Decree of the Senate for each offence omitted. 10He who brings an accusation which can be barred by prescription, as, for instance, that of adultery, when five continuous years have elapsed since its commission by the man, or after six available months from the day of the divorce, in case of the woman; can there be any doubt whatever that, if he desists, he should be punished under this Decree of the Senate? A difficulty arises here for the reason that this accusation almost becomes of no effect when a period of time, or some defect in the person exists, which will render the defendant secure from fear and danger. On the other hand, when an accusation has once been brought, it cannot be dismissed at the wish of the accuser, but this must be done by the authority of the magistrate having cognizance of the case, and he is considered to be more worthy of odium who rashly brings such a disgraceful charge. Therefore, the better opinion is that he, also, of whom we spoke, should come within the terms of the Decree of the Senate. Papinianus, however, gives it as his opinion that if a woman who was not competent to bring an accusation of forgery, because she was not prosecuting an injury inflicted upon herself, or her family, should desist, she ought not be punished under the Turpillian Decree of the Senate. Would he have given the same opinion in other cases? For what difference does it make if an accusation is not permitted to be brought on account of the weakness of sex; the baseness of one’s condition; or the lapse of time? There is much more reason that persons should be exempt from punishment under such circumstances, because the accusation of the woman can at least be effective on account of her own injury, while the accusation of the others is nothing but the sound of a voice. However, the same authority has stated elsewhere that no one can accuse both persons, that is the man and the woman, of adultery at the same time; and still, if he did accuse both of them simultaneously, he should ask for the dismissal of the case against both, in order to avoid becoming liable under this Decree of the Senate. Moreover, what difference will it make if the accusation should prove to be void, for the reasons above mentioned, or if it could not stand on account of the number accused? Or if there is some distinction to be made where anyone has full power to bring an accusation, but is prevented from doing so because of the joinder of the two individuals; or he is not qualified to accuse them according to the strict construction of the law? Hence it is reasonable to hold that all persons (with the exception of women and minors), when they do not ask for a dismissal of the case, will come within the scope of this Decree of the Senate. 11The accusation of a suspected guardian can only be heard in open court, and no one but the Governor of the province can render a decision in such a case; and, nevertheless, anyone who desists from prosecution will not incur the penalty of the Decree of the Senate. 12Likewise, where anyone is accused of having incurred the penalty of the Turpillian Decree of the Senate, it is the duty of the Governor of the province to take cognizance of the matter; and the penalty of the Decree of the Senate will not be enforced against the party who abandons the charge, for he who says that someone has incurred the penalty of this Decree of the Senate is not an accuser. 13He comes within the terms of this decree who provides an accuser, or instigates, directs, or induces anyone to bring a capital accusation, by furnishing evidence, and by formulating charges. This is reasonable, for by failing to prove the accusation which he was instrumental in having brought, and by attempting to free himself from the danger of calumny by abandoning the case, he should certainly be subjected to punishment for those offences; unless the accuser, who had been suborned, can prove the crime which he undertook to establish. Nor does it make any difference whether he brought the charge himself, or directed it to be brought by another. Papinianus gave it as his opinion that if it was true that anyone had used means of this kind for the bringing of an accusation, he should be punished, not according to the letter, but according to the spirit of the law; for the accuser who took the place of the person who employed him is liable under the same Decree of the Senate; that is to say, he is punished for that alone which he did as the agent of another, who himself was afraid to act. 14A defendant who had been convicted, appealed, and his accuser afterwards desisted; did he come within the terms of the Decree of the Senate? He seems to have very nearly done so, because by the remedy of the appeal the decision of conviction was extinguished.