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- The Institutes of Justinian - 41/41 -

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 commence- ment 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 joint-heirs has gathered the fruits of land comprised in the inheritance, or has damaged or con- sumed 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 joint-heirs 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 joint-owner, 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 joint-owners, 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 com- mission 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 follow- ing 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 inter- course 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 con- dition, 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 cor- responds 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. Ravish- ment 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 refer- ence 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 ex- tortion, 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.


Transcribed by Howard R. Sauertieg, on historic Route 66, Albuquerque, New Mexico, November, 2001.

The Institutes of Justinian - 41/41

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