Ulpianus, Concerning the Office of Proconsul, Book VIII. Where a master is cruel to his slaves and forces them to licentiousness or to disgraceful violation, the course to be taken by the presiding judge is disclosed by a Rescript of the Divine Pius addressed to Julius Marcianus, Proconsul of Bætica. These are the terms of the Rescript: “It is proper that the power of masters over their slaves should remain unimpaired, and that no man should be deprived of his right; but it is to the interest of the masters themselves that relief from cruelty, hunger, or intolerable injury, should not be denied to those who justly implore it. Therefore, take cognizance of the complaints of those slaves of Julius Sabinus who fled for refuge to the Imperial statue; and if you find that they have been treated with greater severity than was proper, or subjected to disgraceful outrage, order them to be sold, under such conditions that they may not be restored to the power of their master; and if he violates this My Constitutions, let him know that he will be more severely punished”. The Divine Hadrian also, banished for five years a certain matron named Umbricia, because she had treated her female slaves with atrocious cruelty for very trivial reasons.

Ulpianus, On the Office of Proconsul, Book VIII. Farmers of the revenue cannot be compelled to testify; nor can anyone who has not absented himself to avoid giving testimony; nor anyone who may be employed in furnishing provisions to the army. 1Nor can wards be required to testify.

Ulpianus, On the Duty of Proconsul, Book VIII. It is established that anyone can collect his shipwrecked property, and this was stated by the Emperor Antoninus and his Divine Father in a Rescript. 1Persons of low rank who designedly cause a fire in a town shall be thrown to wild beasts, and those of superior station shall suffer death, or else be banished to some island.

The Same, On the Duties of Proconsul, Book VIII. Those who are accustomed to embrace every opportunity to increase the price of food are called dardanarii, and provision has been made by the Imperial Decrees and Constitutions for the repression of their avarice. It is provided as follows in the Decrees: “Moreover, you should take care that there are no dardanarii of any kind of goods, and that they do not adopt measures for storing away merchandise which they have purchased; or, that the more wealthy of them may not be unwilling to dispose of their goods at reasonable prices in expectation of an unproductive season, so that the price of food may not be raised.” The punishments imposed upon such persons, however, vary greatly, for generally, if they are merchants, they are only prohibited from engaging in trade, and sometimes they are deported, but those of low rank are condemned to the public works. 1The price of food is also increased by the use of false balances, with reference to which the Divine Trajan promulgated an Edict, by which Edict he renders such persons liable to the penalty of the Cornelian Law; just as if under that section of this law, which has reference to wills, anyone had been condemned for having written, sealed, or published a forged testament. 2The Divine Hadrian also condemned to deportation anyone who had false measures in his possession.

Ulpianus, On the Duties of Proconsul, Book VIII. The Divine Hadrian, at the Council of Bætica, stated in a Rescript relating to cattle-thieves, “When those who drive away cattle are punished most severely, they are ordinarily condemned to the sword.” They are not, however, punished with the greatest severity everywhere, but only in those places where this species of offence is most frequently committed; otherwise, they are sentenced to hard labor in the public works, and sometimes only temporarily. 1Those are properly considered cattle-thieves who remove cattle from pastures, or from droves, and prey upon them, as it were; and they exercise this occupation of stealing cattle as a regular trade when they take horses or cattle from the droves of which they form a part. If, however, anyone should drive away an ox that is lost, or horses which have been left alone, he does not belong to this category, but is merely an ordinary thief. 2He, however, who drives away a sow, a she-goat, or a sheep should not be punished as severely as one who steals larger animals. 3Although Hadrian established the penalty of the mines, or that of labor on the public works, or that of the sword for this offence; still, those who do not belong to the lowest rank of society should not be subjected to this penalty, for they either should be relegated or expelled from their order. Those, however, who drive away cattle, while armed, are not unjustly thrown to wild beasts. 4Anyone who drives away cattle whose ownership is in dispute should be subjected to a civil investigation, as Saturninus says; but this rule ought only to be adopted where no pretext for stealing the cattle is sought, but the accused person, induced by good reasons, actually believed that the cattle belonged to him.

Ulpianus, On the Duties of Proconsul, Book VIII. Nocturnal thieves should be arbitrarily tried and punished when proper cause is shown, provided we take care that no greater penalty is inflicted than that of labor on the public works. The same rule applies to thieves who steal in baths. If, however, the thieves defend themselves with weapons, or if they have broken in, or have done anything of this kind, but have not struck anyone, they shall be sentenced to the mines, and those of superior social position shall be exiled.

Ulpianus, On the Duties of Proconsul, Book VIII. The Divine Brothers stated in a Rescript addressed to Æmilius Tiro, that persons who break out of prison should suffer death. Saturninus also adopts the opinion that those who have escaped from prison whether by breaking down the doors, or by conspiring with others confined with them, should be capitally punished, but if they escaped through the negligence of the guards, they should undergo a lighter penalty. 1Robbers, who are more atrocious thieves (for this is the meaning of the word) should be sentenced to labor on the public works either for life, or for a certain term of years; those, however, who are of superior rank should be temporarily dismissed from their order, or compelled to depart beyond the boundaries of their country; but no special penalty has been imposed upon them by the Imperial Rescripts. Therefore, where proper cause is shown, the magistrate having jurisdiction can pronounce judgment according to his discretion. 2In like manner, thieves who carry bags, directarii, and those who break into buildings, shall be punished in the same way. The Emperor Marcus ordered that a Roman knight who had stolen money, after having broken through a wall, should be banished from the Province of Africa from whence he came, as well as from the City, and from Italy, for the term of five years. It is, however, necessary, after proper cause has been shown, to render a decision with reference to both those who break into houses, and the other offenders above mentioned, according to the circumstances attending the crime; provided that no one shall be sentenced to a more severe penalty than that of labor on the public works, if he is a plebeian, and if he is of higher rank, shall suffer no more severe punishment than that of exile.

The Same, On the Duties of Proconsul, Book III. The accusation of Stellionatus comes within the jurisdiction of the Governor. 1It must be remembered that those who have committed any fraudulent act can be prosecuted for this crime, that is to say, if there is no other of which they can be accused, for what in private law gives rise to an action for fraud is the basis for a criminal prosecution in an accusation of Stellionatus. Hence, whenever where the offence lacks a name, we designate it Stellionatus. Especially, however, does this apply to anyone who exchanges or gives property in payment through deceit, where the property has been encumbered to another, and he conceals the fact; for all instances of this kind include stellionatus. And, where anyone has substituted some article for another; or has put aside goods which he was obliged to deliver, or has spoiled them, he is also liable for this offence. Likewise, if anyone has been guilty of imposture, or has been in collusion to bring about the death of another, he can be prosecuted for Stellionatus. And, generally speaking, I should say that where the name of any crime is wanting, an accusation for this offence can be brought, but it is not necessary to enumerate the different instances. 2No punishment, however, is legally prescribed for Stellionatus, since, under the law, it is not a crime. It is, however, customary for it to be punished arbitrarily, provided that, in the case of plebeians, the penalty inflicted is not more severe than that of condemnation to the mines. But, in the case of those who occupy a higher position, the sentence of temporary exile, or expulsion from their order should be imposed. 3Anyone who has fraudulently concealed merchandise can be specially prosecuted for this crime.

The Same, On the Duties of Proconsul, Book VIII. Anyone who is invested with authority or power, and subjects a Roman citizen to death or scourging, or orders this to be done, or attaches anything to his neck for the purpose of torturing him, without permitting him to appeal, is liable under the Julian Law relating to Public Violence. This also applies to deputies and orators, and their attendants, where anyone is proved to have beaten them, or caused them any injury.

Ulpianus, On the Duties of Proconsul, Book VIII. The question may be asked whether those who kill their parents, or know of the crime, should be punished for parricide. Msecianus says that not only parricides, but also their accomplices, should undergo this penalty. Hence the accomplices, even if they are strangers, are punished in the same way.

The Same, On the Duties of Proconsul, Book VIII. It is provided by the Cornelian Law that anyone who adds any alloy to gold, or who makes base silver coins, is liable to punishment for forgery. 1He also is liable to the same penalty who, when he was able to prevent these things, did not do so. 2It is provided by the same law that no one shall fraudulently purchase or sell coins made of lead, or of any other base metal. 3The penalty of the Cornelian Law is inflicted upon him who knowingly and fraudulently seals, or causes to be sealed, any other written instrument than a will; as well as upon anyone who, with fraudulent intent, has brought together persons for the purpose of giving false testimony, or who produces any false evidence on one side or the other. 4Anyone who has suborned an informer in a case in which pecuniary interests are involved is liable to the same penalty as those who have received money for the sake of causing litigation.

Ulpianus, On the Duties of Proconsul, Book VIII. It is customary for torture to be applied for the purpose of detecting crime. Let us see when, and to what extent, this should be done. A beginning ought not to be made by the actual infliction of the question, and the Divine Augustus decided that confidence should not unreservedly be placed in torture. 1This is also contained in a letter of the Divine Hadrian addressed to Sennius Sabinus. The terms of the Rescript are as follows: “Slaves are to be subjected to torture only when the accused is suspected, and proof is so far obtained by other evidence that the confession of the slaves alone seems to be lacking.” 2The Divine Hadrian also stated the same thing in a Rescript to Claudius Quartinus, and in this Rescript he decided that a beginning should be made with the person who was most suspected, and from whom the judge believed that the truth could most easily be ascertained. 3Those whom the accuser produces from his own house should not be tortured, for it is not easy to believe that a substitution has been made for one whom both parents consider their dear daughter; as is stated in a Rescript of the Divine Brothers addressed to Lucius Tiberianus. 4They also stated in a Rescript to Cornelius Proculus, that confidence should not be reposed in the torture of a single slave, but that the case should be investigated after the evidence has been given. 5The Divine Antoninus and the Divine Hadrian stated in a Rescript to Sennius Sabinus that where it was alleged that slaves, in company with their master, had carried away gold and silver, they should not be interrogated against their master, and not even anything which they may have said when not under torture will prejudice him. 6The Divine Brothers stated in a Rescript addressed to Lelianus Longinus that torture should not be applied to a slave belonging to the heirs, to obtain information with reference to the estate, even though it was suspected that the heir had obtained the ownership of the property by means of a fictitious sale. 7It has frequently been stated in Rescripts that a slave belonging to a municipality can be tortured when citizens are accused, because he is not their slave, but the slave of the community. The same thing should be stated with reference to the slaves of other corporations, for a slave is not considered to belong to several masters, but to the corporate body. 8When a slave is serving me in good faith, even though I do not have the ownership of him, it may be said that he can not be tortured to obtain evidence against me. The same rule applies to a freeman who is serving in good faith as a slave. 9It has also been established that a freedman cannot be tortured in a case where his patron is accused of a capital crime. 10Our Emperor, together with his Divine Father, stated in a Rescript that one brother could not be put to the question on account of another; and added as the reason that he should not be tortured to obtain evidence to implicate one against whom he could not be compelled to testify, if he was unwilling to do so. 11The Divine Trajan stated in a Rescript to Servius Quartus that the slave of a husband could be tortured to obtain evidence to convict his wife. 12He also stated in a Rescript to Mummius Lollianus that the slaves of a person who had been convicted could be tortured to obtain evidence against him, because they had ceased to be his. 13When a slave has been manumitted to prevent him from being put to torture, the Divine Pius stated in a Rescript that he could be tortured, provided this was not done to obtain evidence against his master. 14But where a slave belonged to another at the time when the investigation was begun, but afterwards became the property of the defendant, the Divine Brothers stated in a Rescript that he could, nevertheless, be tortured in the case in which his master was involved. 15If anyone should allege that a slave has been purchased at a sale which was void, he cannot be tortured before it has been established that the sale was not valid. This our Emperor, with his Divine Father, stated in a Rescript. 16Severus also stated in a Rescript to Spicius Antigonus: “As the torture of slaves should not be inflicted against their masters, and, if this has been done, as it cannot be used to influence the decision of the judge about to render it, still less should the statements of slaves against their masters be admitted.” 17The Divine Severus stated in a Rescript, that the confessions of accused persons should not be considered as proofs of crime, if no other evidence is offered to influence the sense of duty of the judge who is to decide the case. 18When anyone is ready to deposit the price of a slave, in order that he may be tortured to give evidence against his master, our Emperor, with his Divine Father, did not permit this to be done. 19Where slaves are tortured as accomplices in a crime, and they confess something in court which involves their master, the Emperor Trajan stated in a Rescript that the judge should render his decision as circumstances demand. It is shown by this Rescript that masters can be implicated by the confessions of their slaves, but more recent constitutions indicate that it is no longer in force. 20When tributes, which no one doubts are the sinews of the republic, are concerned, consideration of the danger which menaces with capital punishment a slave who is the accomplice of a fraud should cause his statements to be rejected. 21The magistrate in charge of the torture ought not directly to put the interrogation whether Lucius Titius committed the homicide, but he should ask in general terms who did it; for the other way rather seems to suggest an answer than to ask for one. This the Divine Trajan stated in a Rescript. 22The Divine Hadrian stated the following in a Rescript addressed to Calpurnius Celerianus: “Agricola, the slave of Pompeius Valens, may be interrogated concerning himself; but if, while undergoing torture, he should say anything more, it will be considered as proof against the defendant, and not the fault of him who asked the question.” 23It was declared by the Imperial Constitutions that while confidence should not always be reposed in torture, it ought not to be rejected as absolutely unworthy of it, as the evidence obtained is weak and dangerous, and inimical to the truth; for most persons, either through their power of endurance, or through the severity of the torment, so despise suffering that the truth can in no way be extorted from them. Others are so little able to suffer that they prefer to lie rather than to endure the question, and hence it happens that they make confessions of different kinds, and they not only implicate themselves, but others as well. 24Moreover, faith should not be placed in evidence obtained by the torture of enemies, because they lie very readily; still, under the pretext of enmity, its employment should not be rejected. 25After the case has been duly investigated, it can be decided whether confidence is to be placed in torture, or not. 26When anyone has betrayed robbers, it is stated by certain rescripts that no confidence should be placed in those who betrayed them. In others, however, which are more specific, it is provided that the evidence should not be entirely rejected, as is usual in similar cases; but, after proper consideration, it should be determined whether it is entitled to credit or not. For the majority of such persons, who fear that those who have been arrested may mention them, are accustomed to betray the latter for the purpose of themselves obtaining immunity, because accused persons who denounce those who have betrayed them are not readily believed; nor should immunity indiscriminately be granted to them as a reward for betrayals of this kind; nor should their allegations be believed, when they say that they have been accused by the others for having given them up, for this weak proof based on mendacity or calumny ought not to be considered against them. 27If anyone voluntarily confesses a crime, faith should not always be reposed in him; for sometimes one makes a confession through fear, or for some other reason. An Epistle of the Divine Brothers addressed to Voconius Saxa declares that a man who had made a confession against himself, and whose innocence was established, must be discharged after his conviction. The terms of the Epistle are as follows: “It is in compliance with the dictates of prudence and humanity, my dear Saxa, that, where a slave was suspected of having falsely confessed himself guilty of homicide, through fear of being restored to his master, you condemned him, still persevering in his false statement, with the intention of subjecting to torture his alleged accomplices, whom he had also accused falsely, in order that you might render his statements with reference to himself more certain. “Nor was your judicious intention in vain, as it was established by the torture that the persons referred to were not his accomplices, but that he had accused himself falsely. You can then set aside the judgment, and order him to be officially sold, under the condition that he never shall be returned to the power of his master, who, having received the price, will certainly be very willing to be rid of such a slave.” The Rescript indicates that, when a slave is condemned, if he should subsequently be discharged from liability, he will belong to the person whose property he was before his conviction. The Governor of the province, however, cannot restore anyone whom he has condemned to his original condition, as he cannot even revoke a decision in which money is involved. What then should be done? He should have recourse to the Emperor when anyone who at first appeared to be guilty, afterwards has his innocence established.