Where a delict, such as theft, robbery, unlawful damages, or outrage, is committed by a slave, a noxal action lies against the master, who on being condemned has the option of paying the damages awarded, or surrendering the slave in satisfaction of the injury.
1 The wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the term applied to the wrong itself, that is, the theft, damage, robbery, or outrage.
2 This principle of noxal surrender in lieu of paying damages awarded is based on most excellent reason, for it would be unjust that the misdeed of a slave should involve his master in any detriment beyond the loss of his body.
3 If a master is sued by a noxal action on the ground of his slave's delict, he is released from all liability by surrendering the slave in satisfaction of the wrong, and by this surrender his right of ownership is permanently transferred; though if the slave can procure enough money to compensate the surrenderee in full for the wrong he did him, he can, by applying to the praetor, get himself manumitted even against the will of his new master.
4 Noxal actions were introduced partly by statute, partly by the Edict of the praetor; for theft, by the statute of the Twelve Tables; for unlawful damages, by the lex Aquilia; for outrage and robbery, by the Edict.
5 Noxal actions always follow the person of the wrongdoer. Thus, if your slave does a wrong while in your power, an action lies against you; if he becomes the property of some other person, that other is the proper person to be sued; and if he is manumitted, he becomes directly and personally liable, and the noxal action is extinguished. Conversely, a direct action may change into noxal; thus, in an independent person has done a wrong, and then becomes your slave (as he may in several ways described in the first Book), a noxal action lies against you in lieu of the direct action which previously lay against the wrongdoer in person.
6 But no action lies for an offence committed by a slave against his master, for between a master and a slave in his power there can be no obligation; consequently, if the slave becomes the property of some other person, or is manumitted, neither he nor his new master can be sued; and on the same principle, if another man's slave commits a wrong against you, and then becomes your property, the action is extinguished, because it has come into a condition in which an action cannot exist; the result being that even if the slave passes again out of your power you cannot sue. Similarly, if a master commits a wrong against his slave, the latter cannot sue him after manumission or alienation.
7 These rules were applied by the ancients to wrongs committed by children in power no less than by slaves; but the feeling of modern times has rightly rebelled against such inhumanity, and noxal surrender of children under power has quite gone out of use. Who could endure in this way to give up a son, still more a daughter, to another, whereby the father would be exposed to greater anguish in the person of a son than even the latter himself, while mere decency forbids such treatment in the case of a daughter? Accordingly, such noxal actions are permitted only where the wrongdoer is a slave, and indeed we find it often laid down by old legal writers that sons in power may be sued personally for their own delicts.
A noxal action was granted by the statute of the Twelve Tables in cases of mischief done through wantonness, passion, or ferocity, by irrational animals; it being by an enactment of that statute provided, that if the owner of such an animal is ready to surrender it as compensation for the damage, he shall thereby be released from all liability. Examples of the application of this enactment may be found in kicking by a horse, or goring by a bull, known to be given that way; but the action does not lie unless in causing the damage the animal is acting contrary to its natural disposition; if its nature be to be savage, this remedy is not available. Thus, if a bear runs away from its owner, and causes damage, the quondam owner cannot be sued, for immediately with its escape his ownership ceased to exist. The term pauperies, or 'mischief,' is used to denote damage done without there being any wrong in the doer of it, for an unreasoning animal cannot be said to have done a wrong. Thus far as to the noxal action.
1 It is, however, to be observed that the Edict of the aedile forbids dogs, boars, bears, or lions to be kept near where there is a public road, and directs that if any injury be caused to a free man through disobedience of this provision, the owner of the beast shall be condemned to pay such sum as to the judge shall seem fair and equitable: in case of any other injury the penalty is fixed at double damages. Besides this aedilician action, that on pauperies may also be sometimes brought against the same defendant; for when two or more actions, especially penal ones, may be brought on one and the same ground, the bringing of one does not debar the plaintiff from subsequently bringing the other.
We must now remark that a man may sue either for himself, or for another as attorney, guardian, or curator: whereas formerly one man could not sue for another except in public suits, as an assertor of freedom, and in certain actions relating to guardianship. The lex Hostilia subsequently permitted the bringing of an action of theft on behalf of persons who were in the hands of an enemy, or absent on State employment, and their pupils. It was, however, found extremely inconvenient to be unable to either bring or defend an action on behalf of another, and accordingly men began to employ attorneys for this purpose; for people are often hindered by illhealth, age, unavoidable absence, and many other causes from attending to their own business.
1 For the appointment of an attorney no set form of words is necessary, nor need it be made in the presence of the other party, who indeed usually knows nothing about it; for in law any one is your attorney whom you allow to bring or defend an action on your behalf.
2 The modes of appointing guardians and curators have been explained in the first Book.
The old system of taking security from litigants differed from that which has more recently come into use.
Formerly the defendant in a real action was obliged to give security, so that if judgement went against him, and he neither gave up the property which was in question, nor paid the damages assessed, the plaintiff might be able to sue either him or his sureties: and this is called security for satisfaction of judgement, because the plaintiff stipulates for payment to himself of the sum at which the damages are assessed. And there was all the more reason for compelling the defendant in a real action to give security if he was merely the representative of another. From the plaintiff in a real action no security was required if it was on his own account that he sued, but if he was merely an attorney, he was required to give security for the ratification of his proceedings by his principal, owing to the possibility of the latter's subsequently suing in person on the same claim. Guardians and curators were required by the Edict to give the same security as attorneys; but when they appeared as plaintiffs they were sometimes excused.
1 So much for real actions. In personal actions the same rules applied, so far as the plaintiff was concerned, as we have said obtained in real actions. If the defendant was represented by another person, security had always to be given, for no one is allowed to defend another without security; but if the defendant was sued on his own account, he was not compelled to give security for satisfaction of judgement.
2 Nowadays, however, the practice is different; for if the defendant is sued on his own account, he is not compelled to give security for repayment of the damages assessed, whether the action be real or personal; all that he has to do is to enter into a personal engagement that he will subject himself to the jurisdiction of the court down to final judgement; the mode of making such engagement being either a promise under oath, which is called a sworn recognizance, or a bare promise, or giving of sureties, according to the defendant's rank and station.
3 But the case is different where either plaintiff or defendant appears by an attorney. If the plaintiff does so, and the attorney's appointment is not enrolled in the records, or confirmed by the principal personally in court, the attorney must give security for ratification of his proceedings by his principal; and the rule is the same if a guardian, curator, or other person who has undertaken the management of another's affairs begins an action through an attorney.
4 If a defendant appears, and is ready to appoint an attorney to defend the action for him, he can do this either by coming personally into court, and confirming the appointment by the solemn stipulations employed when security is given for satisfaction of judgement, or by giving security out of court whereby, as surety for his attorney, he guarantees the observance of all the clauses of the socalled security for satisfaction of judgement. In all such cases, he is obliged to give a right of hypothec over all his property, whether the security be given in or out of court, and this right avails against his heirs no less than against himself. Finally, he has to enter into a personal engagement or recognizance to appear in court when judgement is delivered; and in default of such appearance his surety will have to pay all the damages to which he is condemned, unless notice of appeal is given.
5 If, however, the defendant for some reason or other does not appear, and another will defend for him, he may do so, and it is immaterial whether the action be real or personal, provided he will give security for satisfaction of the judgement in full; for we have already mentioned the old rule, that no one is allowed to defend another without security.
6 All this will appear more clearly and fully by reference to the daily practice of the courts, and to actual cases of litigation:
7 and it is our pleasure that these rules shall hold not only in this our royal city, but also in all our provinces, although it may be that through ignorance the practice elsewhere was different: for it is necessary that the provinces generally shall follow the lead of the capital of our empire, that is, of this royal city, and observe its usages.
BY AND AGAINST HEIRS
It should be here observed that actions founded on statutes, senatusconsults, and imperial constitutions could be brought at any length of time from the accrual of the cause of action, until certain limits were fixed for actions both real and personal by imperial enactments; while actions which were introduced by the praetor in the exercise of his jurisdiction could, as a rule, be brought only within a year, that being the duration of his authority. Some praetorian actions, however, are perpetual, that is to say, can be brought at any time which does not exceed the limit fixed by the enactments referred to; for instance, those granted to 'possessors of goods' and other persons who are fictitiously represented as heirs. So, too, the action for theft detected in the commission, though praetorian, is perpetual, the praetor having judged it absurd to limit it by a year.
1 Actions which will lie against a man under either the civil or the praetorian law will not always lie against his heir, the rule being absolute that for delict—for instance, theft, robbery, outrage, or unlawful damage—no penal action can be brought against the heir. The heir of the person wronged, however, may bring these actions, except in outrage, and similar cases, if any. Sometimes, even an action on contract cannot be brought against the heir; this being the case where the testator has been guilty of fraud, and his heir has not profited thereby. If, however, a penal action, such as those we have mentioned, has been actually commenced by the original parties, it is transmitted to the heirs of each.
2 Finally, it must be remarked that if, before judgement is pronounced, the defendant satisfies the plaintiff, the judges ought to absolve him, even though he was liable to condemnation at the time when the action was commenced; this being the meaning of the old dictum, that all actions involve the power of absolution.
We have next to examine the nature of exceptions. Exceptions are intended for the protection of the defendant, who is often in this position, that though the plaintiff's case is a good one in the abstract, yet as against him, the particular defendant, his contention is inequitable.
1 For instance, if you are induced by duress, fraud, or mistake to promise Titius by stipulation what you did not owe him, it is clear that by the civil law you are bound, and that the action on your promise is well grounded; yet it is inequitable that you should be condemned, and therefore in order to defeat the action you are allowed to plead the exception of duress, or of fraud, or one framed to suit the circumstances of the cases.
2 So too, if, as a preliminary to an advance of money, one stipulates from you for its repayment, and then never advances it after all, it is clear that he can sue you for the money, and you are bound by your promise to give it; but it would be iniquitous that you should be compelled to fulfil such an engagement, and therefore you are permitted to defend yourself by the exception that the money, in point of fact, was never advanced. The time within which this exception can be pleaded, as we remarked in a former Book, has been shortened by our constitution.
3 Again, if a creditor agrees with his debtor not to sue for a debt, the latter still remains bound, because an obligation cannot be extinguished by a bare agreement; accordingly, the creditor can validly bring against him a personal action claiming payment of the debt, though, as it would be inequitable that he should be condemned in the face of the agreement not to sue, he may defend himself by pleading such agreement in the form of an exception.
4 Similarly, if at his creditor's challenge a debtor affirms on oath that he is not under an obligation to convey, he still remains bound; but as it would be unfair to examine whether he has perjured himself, he can, on being sued, set up the defence that he has sworn to the nonexistence of the debt. In real actions, too, exceptions are equally necessary; thus, if on the plaintiff's challenge the defendant swears that the property is his, there is nothing to prevent the former from persisting in his action; but it would be unfair to condemn the defendant, even though the plaintiff's contention that the property is his be well founded.
5 Again, an obligation still subsists even after judgement in an action, real or personal, in which you have been defendent, so that in strict law you may be sued again on the same ground of action; but you can effectually meet the claim by pleading the previous judgement.
6 These examples will have been sufficient to illustrate our meaning; the multitude and variety of the cases in which exceptions are necessary may be learnt by reference to the larger work of the Digest or Pandects.
7 Some exceptions derive their force from statutes or enactments equivalent to statutes, others from the jurisdiction of the praetor;
8 and some are said to be perpetual or peremptory, others to be temporary or dilatory.
9 Perpetual or peremptory exceptions are obstructions of unlimited duration, which practically destroy the plaintiff's ground of action, such as the exceptions of fraud, intimidation, and agreement never to sue.
10 Temporary or dilatory exceptions are merely temporary obstructions, their only effect being to postpone for a while the plaintiff's right to sue; for example, the plea of an agreement not to sue for a certain time, say, five years; for at the end of that time the plaintiff can effectually pursue his remedy. Consequently persons who would like to sue before the expiration of the time, but are prevented by the plea of an agreement to the contrary, or something similar, ought to postpone their action till the time specified has elapsed; and it is on this account that such exceptions are called dilatory. If a plaintiff brought his action before the time had expired, and was met by the exception, this would debar him from all success in those proceedings, and formerly he was unable to sue again, owing to his having rashly brought the matter into court, whereby he consumed his right of action, and lost all chance of recovering what was his due. Such unbending rules, however, we do not at the present day approve. Plaintiffs who venture to commence an action before the time agreed upon, or before the obligation is yet actionable, we subject to the constitution of Zeno, which that most sacred legislator enacted as to overclaims in respect of time; whereby, if the plaintiff does not observe the stay which he has voluntarily granted, or which is implied in the very nature of the action, the time during which he ought to have postponed his action shall be doubled, and at its termination the defendant shall not be suable until he has been reimbursed for all expenses hitherto incurred. So heavy a penalty it is hoped will induce plaintiffs in no case to sue until they are entitled.
11 Moreover, some personal incapacities produce dilatory exceptions, such as those relating to agency, supposing that a party wishes to be represented in an action by a soldier or a woman; for soldiers may not act as attorneys in litigation even on behalf of such near relatives as a father, mother, or wife, not even in virtue of an imperial rescript, though they may attend to their own affairs without committing a breach of discipline. We have sanctioned the abolition of those exceptions, by which the appointment of an attorney was formerly opposed on account of the infamy of either attorney or principal, because we found that they no longer were met with in actual practice, and to prevent the trial of the real issue being delayed by disputes as to their admissibility and operation.
Sometimes an exception, which prima facie seems just to the defendant, is unjust to the plaintiff, in which case the latter must protect himself by another allegation called a replication, because it parries and counteracts the force of the exception. For example, a creditor may have agreed with his debtor not to sue him for money due, and then have subsequently agreed with him that he shall be at liberty to do so; here if the creditor sues, and the debtor pleads that he ought not to be condemned on proof being given of the agreement not to sue, he bars the creditor's claim, for the plea is true, and remains so in spite of the subsequent agreement; but as it would be unjust that the creditor should be prevented from recovering, he will be allowed to plead a replication, based upon that agreement.
1 Sometimes again a replication, though prima facie just, is unjust to the defendant; in which case he must protect himself by another allegation called a rejoinder:
2 and if this again, though on the face of it just, is for some reason unjust to the plaintiff, a still further allegation is necessary for his protection, which is called a surrejoinder.
3 And sometimes even further additions are required by the multiplicity of circumstances under which dispositions are made, or by which they are subsequently affected; as to which fuller information may easily be gathered from the larger work of the Digest.
4 Exceptions which are open to a defendant are usually open to his surety as well, as indeed is only fair: for when a surety is sued the principal debtor may be regarded as the real defendant, because he can be compelled by the action on agency to repay the surety whatsoever he has disbursed on his account. Accordingly, if the creditor agrees with his debtor not to sue, the latter's sureties may plead this agreement, if sued themselves, exactly as if the agreement had been made with them instead of with the principal debtor. There are, however, some exceptions which, though pleadable by a principal debtor, are not pleadable by his surety; for instance, if a man surrenders his property to his creditors as an insolvent, and one of them sues him for his debt in full, he can effectually protect himself by pleading the surrender; but this cannot be done by his surety, because the creditor's main object, in accepting a surety for his debtor, is to be able to have recourse to the surety for the satisfaction of his claim if the debtor himself becomes insolvent.
We have next to treat of interdicts or of the actions by which they have been superseded. Interdicts were formulae by which the praetor either ordered or forbad some thing to be done, and occurred most frequently in case of litigation about possession or quasi-possession.
1 The first division of interdicts is into orders of abstention, of restitution, and of production. The first are those by which the praetor forbids the doing of some act—for instance, the violent ejection of a bona fide possessor, forcible interference with the internment of a corpse in a place where that may lawfully be done, building upon sacred ground, or the doing of anything in a public river or on its banks which may impede its navigation. The second are those by which he orders restitution of property, as where he directs possession to be restored to a 'possessor of goods' of things belonging to an inheritance, and which have hitherto been in the possession of others under the title of heir, or without any title at all; or where he orders a person to be reinstated in possession of land from which he has been forcibly ousted. The third are those by which he orders the production of persons or property; for instance, the production of a person whose freedom is in question, of a freedman whose patron wishes to demand from him certain services, or of children on the application of the parent in whose power they are. Some think that the term interdict is properly applied only to orders of abstention, because it is derived from the verb 'interdicere,' meaning to denounce or forbid, and that orders of restitution or production are properly termed decrees; but in practice they are all called interdicts, because they are given 'inter duos,' between two parties.
2 The next division is into interdicts for obtaining possession, for retaining possession, and for recovering possession.
3 Interdicts for obtaining possession are exemplified by the one given to a 'possessor of goods,' which is called 'Quorum bonorum,' and which enjoins that whatever portion of the goods, whereof possession has been granted to the claimant, is in the hands of one who holds by the title of heir or as mere possessor only, shall be delivered up to the grantee of possession. A person is deemed to hold by the title of heir who thinks he is an heir; he is deemed to hold as mere possessor who relies on no title at all, but holds a portion of the whole of the inheritance, knowing that he is not entitled. It is called an interdict for obtaining possession, because it is available only for initiating possession; accordingly, it is not granted to a person who has already had and lost possession. Another interdict for obtaining possession is that named after Salvius, by which the landlord gets possession of the tenant's property which has been hypothecated as a security for rent.
4 The interdicts 'Uti possidetis' and 'Utrubi' are interdicts for retaining possession, and are employed when two parties claim ownership in anything, in order to determine which shall be defendant and which plaintiff; for no real action can be commenced until it is ascertained which of the parties is in possession, because law and reason both require that one of them shall be in possession and shall be sued by the other. As the role of defendant in a real action is far more advantageous than that of plaintiff, there is almost invariably a keen dispute as to which party is to have possession pending litigation: the advantage consisting in this, that, even if the person in possession has no title as owner, the possession remains to him unless and until the plaintiff can prove his own ownership: so that where the rights of the parties are not clear, judgement usually goes against the plaintiff. Where the dispute relates to the possession of land or buildings, the interdict called 'Uti possidetis' is employed; where to movable property, that called 'Utrubi.' Under the older law their effects were very different. In 'Uti possidetis' the party in possession at the issue of the interdict was the winner, provided he had not obtained that possession from his adversary by force, or clandestinely, or by permission; whether he had obtained it from some one else in any of these modes was immaterial. In 'Utrubi' the winner was the party who had been in possession the greater portion of the year next immediately preceding, provided that possession had not been obtained by force, or clandestinely, or by permission, from his adversary. At the present day, however, the practice is different, for as regards the right to immediate possession the two interdicts are now on the same footing; the rule being, that whether the property in question be movable or immovable, the possession is adjudged to the party who has it at the commencement of the action, provided he had not obtained it by force, or clandestinely, or by permission, from his adversary.
5 A man's possession includes, besides his own personal possession, the possession of any one who holds in his name, though not subject to his power; for instance, his tenant. So also a depositary or borrower for use may possess for him, as is expressed by the saying that we retain possession by any one who holds in our name. Moreover, mere intention suffices for the retention of possession; so that although a man is not in actual possession either himself or through another, yet if it was not with the intention of abandoning the thing that he left it, but with that of subsequently returning to it, he is deemed not to have parted with the possession. Through what persons we can obtain possession has been explained in the second Book; and it is agreed on all hands that for obtaining possession intention alone does not suffice.
6 An interdict for recovering possession is granted to persons who have been forcibly ejected from land or buildings; their proper remedy being the interdict 'Unde vi,' by which the ejector is compelled to restore possession, even though it had been originally obtained from him by the grantee of the interdict by force, clandestinely, or by permission. But by imperial constitutions, as we have already observed, if a man violently seizes on property to which he has a title, he forfeits his right of ownership; if on property which belongs to some one else, he has not only to restore it, but also to pay the person whom he has violently dispossessed a sum of money equivalent to its value. In cases of violent dispossession the wrongdoer is liable under the lex Iulia relating to private or public violence, by the former being meant unarmed force, by the latter dispossession effected with arms; and the term 'arms' must be taken to include not only shields, swords, and helmets, but also sticks and stones.
7 Thirdly, interdicts are divided into simple and double. Simple interdicts are those wherein one party is plaintiff and the other defendant, as is always the case in orders of restitution or production; for he who demands restitution or production is plaintiff, and he from whom it is demanded is defendant. Of interdicts which order abstention some are simple, others double. The simple are exemplified by those wherein the praetor commands the defendant to abstain from desecrating consecrated ground, or from obstructing a public river or its banks; for he who demands such order is the plaintiff, and he who is attempting to do the act in question is defendant. Of double interdicts we have examples in Uti possidetis and Utrubi; they are called double because the footing of both parties is equal, neither being exclusively plaintiff or defendant, but each sustaining the double role.
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.
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 constitution, 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 constitution 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 substitutes 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 nonobservance of this rule he has fixed a penalty of fifty solidi.
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 Titius, 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 restitution 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 assessed, if restitution 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 title 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 assign 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 partition of a number of things held by joint-owners. If such an action be brought for the partition of a single object, such as an estate, which easily admits of division, the judge ought to assign 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 title thereto.
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, passed 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 sex, 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 assassination 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 assassin, 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 cock, 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 assassination.
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 document, or shall substitute 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 assassins 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 assistance in its perpetration, is punished capitally under the provisions of our constitution, 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 constitutions, 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 entitled, 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 assistance of Heaven, you may make by reference to the larger volume of the Digest or Pandects.
THE END OF THE INSTITUTES OF JUSTINIAN