The Institutes of Justinian Part 22

8 To speak of the procedure and result of interdicts under the older law would now be a waste of words; for when the procedure is what is called 'extraordinary,' as it is nowadays in all actions, the issue of an interdict is unnecessary, the matter being decided without any such preliminary step in much the same way as if it had actually been taken, and a modified action had arisen on it.

t.i.tLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION

It should here be observed that great pains have been taken by those who in times past had charge of the law to deter men from reckless litigation, and this is a thing that we too have at heart. The best means of restraining unjustifiable litigation, whether on the part of a plaintiff or of a defendant, are money fines, the employment of the oath, and the fear of infamy.

1 Thus under our const.i.tution, the oath has to be taken by every defendant, who is not permitted even to state his defence until he swears that he resists the plaintiff's claim because he believes that his cause is a good one. In certain cases where the defendant denies his liability the action is for double or treble the original claim, as in proceedings on unlawful damages, and for recovery of legacies bequeathed to religious places. In various actions the damages are multiplied at the outset; in an action on theft detected in the commission they are quadrupled; for simple theft they are doubled; for in these and some other actions the damages are a multiple of the plaintiff's loss, whether the defendant denies or admits the claim. Vexatious litigation is checked on the part of the plaintiff also, who under our const.i.tution is obliged to swear on oath that his action is commenced in good faith; and similar oaths have to be taken by the advocates of both parties, as is prescribed in other of our enactments. Owing to these subst.i.tutes the old action of dishonest litigation has become obsolete. The effect of this was to penalize the plaintiff in a tenth part of the value he claimed by action; but, as a matter of fact, we found that the penalty was never exacted, and therefore its place has been taken by the oath above mentioned, and by the rule that a plaintiff who sues without just cause must compensate his opponent for all losses incurred, and also pay the costs of the action.

2 In some actions condemnation carries infamy with it, as in those on theft, robbery, outrage, fraud, guardianship, agency, and deposit, if direct, not contrary; also in the action on partnership, which is always direct, and in which infamy is incurred by any partner who suffers condemnation. In actions on theft, robbery, outrage, and fraud, it is not only infamous to be condemned, but also to compound, as indeed is only just; for obligation based on delict differs widely from obligation based on contract.

3 In commencing an action, the first step depends upon that part of the Edict which relates to summons; for before anything else is done, the adversary must be summoned, that is to say, must be called before the judge who is to try the action. And herein the praetor takes into consideration the respect due to parents, patrons, and the children and parents of patrons, and refuses to allow a parent to be summoned by his child, or a patron by his freedman, unless permission so to do has been asked of and obtained from him; and for non.o.bservance of this rule he has fixed a penalty of fifty solidi.

t.i.tLE XVII. OF THE DUTIES OF A JUDGE

Finally we have to treat of the duties of a judge; of which the first is not to judge contrary to statutes, the imperial laws, and custom.

1 Accordingly, if he is trying a noxal action, and thinks that the master ought to be condemned, he should be careful to word his judgement thus: 'I condemn Publius Maevius to pay ten aurei to Lucius t.i.tius, or to surrender to him the slave that did the wrong.'

2 If the action is real, and he finds against the plaintiff, he ought to absolve the defendant; if against the latter, he ought to order him to give up the property in question, along with its fruits. If the defendant pleads that he is unable to make immediate rest.i.tution and applies for execution to be stayed, and such application appears to be in good faith, it should be granted upon the terms of his finding a surety to guarantee payment of the damages a.s.sessed, if rest.i.tution be not made within the time allowed. If the subject of the action be an inheritance, the same rule applies as regards fruits as we laid down in speaking of actions for the recovery of single objects. If the defendant is a mala fide possessor, fruits which but for his own negligence he might have gathered are taken into account in much the same way in both actions; but a bona fide possessor is not held answerable for fruits which he has not consumed or has not gathered, except from the moment of the commencement of the action, after which time account is taken as well of fruits which might have been gathered but for his negligence as of those which have been gathered and consumed.

3 If the object of the action be production of property, its mere production by the defendant is not enough, but it must be accompanied by every advantage derived from it; that is to say, the plaintiff must be placed in the same position he would have been in if production had been made immediately on the commencement of the action. Accordingly if, during the delay occasioned by trial, the possessor has completed a t.i.tle to the property by usucapion, he will not be thereby saved from being condemned. The judge ought also to take into account the mesne profits, or fruits produced by the property in the interval between the commencement of the action and judgement. If the defendant pleads that he is unable to make immediate production, and applies for a stay, and such application appears to be in good faith, it should be granted on his giving security that he will render up the property. If he neither complies at once with the judge's order for production, nor gives security for doing so afterwards, he ought to be condemned in a sum representing the plaintiff's interest in having production at the commencement of the proceedings.

4 In an action for the division of a 'family' the judge ought to a.s.sign to each of the heirs specific articles belonging to the inheritance, and if one of them is unduly favoured, to condemn him, as we have already said, to pay a fixed sum to the other as compensation. Again, the fact the one only of two jointheirs has gathered the fruits of land comprised in the inheritance, or has damaged or consumed something belonging thereto, is ground for ordering him to pay compensation to the other; and it is immaterial, so far as this action is concerned, whether the jointheirs are only two or more in number.

5 The same rules are applied in an action for part.i.tion of a number of things held by joint-owners. If such an action be brought for the part.i.tion of a single object, such as an estate, which easily admits of division, the judge ought to a.s.sign a specific portion of each jointowner, condemning such one as seems to be unduly favoured to pay a fixed sum to the other as compensation. If the property cannot be conveniently divided--as a slave, for instance, or a mule--it ought to be adjudged entirely to one only of the jointowners, who should be ordered to pay a fixed sum to the other as compensation.

6 In an action for rectification of boundaries the judge ought to examine whether an adjudication of property is actually necessary. There is only one case where this is so; where, namely, convenience requires that the line of separation between fields belonging to different owners shall be more clearly marked than heretofore, and where, accordingly, it is requisite to adjudge part of the one's field to the owner of the other, who ought, in consequence, to be ordered to pay a fixed sum as compensation to his neighbour. Another ground for condemnation in this action is the commission of any malicious act, in respect of the boundaries, by either of the parties, such as removal of landmarks, or cutting down boundary trees: as also is contempt of court, expressed by refusal to allow the fields to be surveyed in accordance with a judge's order.

7 Wherever property is adjudged to a party in any of these actions, he at once acquires a complete t.i.tle thereto.

t.i.tLE XVIII. OF PUBLIC PROSECUTIONS

Public prosecutions are not commenced as actions are, nor indeed is there any resemblance between them and the other remedies of which we have spoken; on the contrary, they differ greatly both in the mode in which they are commenced, and in the rules by which they are conducted.

1 They are called public because as a general rule any citizen may come forward as prosecutor in them.

2 Some are capital, others not. By capital prosecutions we mean those in which the accused may be punished with the extremest severity of the law, with interdiction from water and fire, with deportation, or with hard labour in the mines: those which entail only infamy and pecuniary penalties are public, but not capital.

3 The following statutes relate to public prosecutions. First, there is the lex Iulia on treason, which includes any design against the Emperor or State; the penalty under it is death, and even after decease the guilty person's name and memory are branded with infamy.

4 The lex Iulia, pa.s.sed for the repression of adultery, punishes with death not only defilers of the marriage-bed, but also those who indulge in criminal intercourse with those of their own s.e.x, and inflicts penalties on any who without using violence seduce virgins or widows of respectable character. If the seducer be of reputable condition, the punishment is confiscation of half his fortune; if a mean person, flogging and relegation.

5 The lex Cornelia on a.s.sa.s.sination pursues those persons, who commit this crime with the sword of vengeance, and also all who carry weapons for the purpose of homicide. By a 'weapon,' as is remarked by Gaius in his commentary on the statute of the Twelve Tables, is ordinarily meant some missile shot from a bow, but it also signifies anything thrown with the hand; so that stones and pieces of wood or iron are included in the term. 'Telum,' in fact, or 'weapon,' is derived from the Greek 'telou,'

and so means anything thrown to a distance. A similar connexion of meaning may be found in the Greek word 'belos,' which corresponds to our 'telum,' and which is derived from 'ballesthai,' to throw, as we learn from Xenophon, who writes, 'they carried with them 'belei,' namely spears, bows and arrows, slings, and large numbers of stones.'

'Sicarius,' or a.s.sa.s.sin, is derived from 'sica,' a long steel knife.

This statute also inflicts punishment of death on poisoners, who kill men by their hateful arts of poison and magic, or who publicly sell deadly drugs.

6 A novel penalty has been devised for a most odious crime by another statute, called the lex Pompeia on parricide, which provides that any person who by secret machination or open act shall hasten the death of his parent, or child, or other relation whose murder amounts in law to parricide, or who shall be an instigator or accomplice of such a crime, although a stranger, shall suffer the penalty of parricide. This is not execution by the sword or by fire, or any ordinary form of punishment, but the criminal is sewn up in a sack with a dog, a c.o.c.k, a viper, and an ape, and in this dismal prison is thrown into the sea or a river, according to the nature of the locality, in order that even before death he shall begin to be deprived of the enjoyment of the elements, the air being denied him while alive, and interment in the earth when dead.

Those who kill persons related to them by kinship or affinity, but whose murder is not parricide, will suffer the penalties of the lex Cornelia on a.s.sa.s.sination.

7 The lex Cornelia on forgery, otherwise called the statute of wills, inflicts penalties on all who shall write, seal, or read a forged will or other doc.u.ment, or shall subst.i.tute the same for the real original, or who shall knowingly and feloniously make, engrave, or use a false seal. If the criminal be a slave, the penalty fixed by the statute is death, as in the statute relating to a.s.sa.s.sins and poisoners: if a free man, deportation.

8 The lex Iulia, relating to public or private violence, deals with those persons who use force armed or unarmed. For the former, the penalty fixed by the statute is deportation; for the latter, confiscation of one third of the offender's property. Ravishment of virgins, widows, persons professed in religion, or others, and all a.s.sistance in its perpetration, is punished capitally under the provisions of our const.i.tution, by reference to which full information on this subject is obtainable.

9 The lex Iulia on embezzlement punishes all who steal money or other property belonging to the State, or devoted to the maintenance of religion. Judges who during the term of office embezzle public money are punishable with death, as also are their aiders and abettors, and any who receive such money knowing it to have been stolen. Other persons who violate the provisions of this statute are liable to deportation.

10 A public prosecution may also be brought under the lex Fabia relating to manstealing, for which a capital penalty is sometimes inflicted under imperial const.i.tutions, sometimes a lighter punishment.

11 Other statutes which give rise to such prosecutions are the lex Iulia on bribery, and three others, which are similarly ent.i.tled, and which relate to judicial extortion, to illegal combinations for raising the price of corn, and to negligence in the charge of public moneys. These deal with special varieties of crime, and the penalties which they inflict on those who infringe them in no case amount to death, but are less severe in character.

12 We have made these remarks on public prosecutions only to enable you to have the merest acquaintance with them, and as a kind of guide to a fuller study of the subject, which, with the a.s.sistance of Heaven, you may make by reference to the larger volume of the Digest or Pandects.

THE END OF THE INSt.i.tUTES OF JUSTINIAN