The Digest of Justinian, Volume 1

BOOK THREE APPLICATIONS TO THE MAGISTRATE

BOOK THREE APPLICATIONS TO THE MAGISTRATE 1 ULPIAN, Edict, book 6: The praetor issued this title for the sake of taking into account and protecting his position and for the sake of his own dignity, to prevent applications being made before him without restriction by all and sundry. 1. For this purpose he distinguished three classes. Some people he refused to allow to make application at all, others he permitted to do so only on their own behalf, while others he permitted to do so on their own behalf and on that of a limited number of specified persons. 2. To make application is to set out one's own claim or that of one's friend in court before the presiding officer, or to oppose the claim of another. 3. The praetor began with those who are forbidden to make application at all. In this edict, he makes either youth or disability ground for exclusion. He forbids anyone below the age of seventeen, who has not fully attained this age, to make application, because he thought this a tender age for appearing in public, although it was at this age or a little older that Nerva the Younger is said to have given consultations on points of law in public. On the ground of disability, he forbids a deaf person without any hearing at all to make application before him. For no one was to be allowed to make application who was unable to hear the praetor's decree. This would have been dangerous even for the applicant himself; for if he had not heard the praetor's decree, he would have been punished as contumacious for not obeying it. 4. The praetor says: "If they do not have an advocate, I will appoint one." The praetor is accustomed to show this consideration not only to the persons mentioned above but also to anyone else who for certain reasons, because of either intrigues or duress on the part of his opponent, has not found an advocate. 5. Next comes an edict against those who are not to make application on behalf of others. In this edict the praetor debarred on grounds of sex and disability. He also blacklisted exceptionally disreputable persons. On the ground of sex, he forbids women to make application on behalf of others. There is a reason for this prohibition, to prevent them from involving themselves in the cases of other people contrary to the modesty in keeping with their sex and to prevent women from performing the functions of men. Its introduction goes back to a shameless woman called Carfania who by brazenly making applications and annoying the magistrate gave rise to the edict. On the ground of disability, the praetor rejects the man blind in both eyes, obviously because he cannot see and respect the magistrate's insignia. Labeo also has a story of Publilius, the blind father of Nonius Asprenas, when he wished to make an application, being left in the lurch by Brutus turning away his chair. But although a blind man cannot make an application on behalf of someone else, yet he keeps his senatorial rank and can also act as judge. Could he then also hold magistracies ? This needs discussion. There is certainly an example of a man who did so. Appius Claudius, though blind, took part in councils of state; and in the senate expressed a very stern view on Pyrrhus's prisoners of war. But it is better to say that the blind man can retain a magistracy already entered upon but is absolutely 80 BOOK THREE/APPLICATIONS TO THE MAGISTRATE forbidden to seek another one. There are many examples in support of this opinion. 6. He also forbids a man who has been a catamite to make applications on behalf of others. However , anyone raped by the violence of robbers or the enemy ought not to be blacklisted, as Pomponius also says. The man too who has been condemned on a capital charge does not have the right to make an application on behalf of someone else. Likewise, a man condemned on a charge of vexatious litigation (calumnia)in a criminal court is forbidden by a senatus consultum to make applications even before the judges in the lower courts. So too with the man who has hired out his services to fight against beasts. But we ought to interpret the term beasts by reference to the animal's ferocity rather than to its species. For what if...