18. BREAKERS OUT OR IN AND ROBBERS
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304 BOOK FORTY-SEVENIDESPOILED INHERITANCE labor be not exceeded. The same applies to thieves from the baths. But if thieves defend themselves with weapons, or burglars and their like strike someone, they are to be sent to the mines or, if of respectable rank, banished. 2 MARCIAN, Public Prosecutions, book 2: But if they commit a theft in the daytime, they are to be subjected to civil proceedings. 3 PAUL,Military Penalties, sole book: A soldier caught stealing in the baths is to be discharged with ignominy. 18 BREAKERS OUT OR IN AND ROBBERS 1 ULPIAN,Duties o f Proconsul, book 8: The deified brothers, in a rescript to Aemilius Tiro, ruled that those who break out of prison and escape are to be punished. And Saturninus endorses the view that those who break out of prison, whether by breaking down the doors or through a conspiracy with others detained like themselves, are to be punished by death; but if they escape through the laxity of the jailers, their punishment should be less severe. 1. Robbers, who are more heinous thieves (that is, plunderers), are normally condemned to forced labor, whether in perpetuity or for a limited period, because those of better class are removed for a time from their civic rank or directed to quit the boundaries of the homeland. For them, no particular penalty is prescribed by imperial rescripts, and so their punishment is a matter for the discretion of the person conducting the cognitio, once the investigation is completed . 2. Cutpurses, pickpockets, and burglars are to be similarly punished. For the deified Marcus directed that a Roman knight, who was a burglar and who, having broken down and penetrated a wall, stole some money, should keep away from the province of Africa from which he came, the city of Rome, and Italy as a whole for five years. Punishment should, though, be inflicted on burglars and the others listed above after the hearing of the case, according to what comes out in the hearing, provided that, in the case of the lower orders, it does not go beyond forced labor and, for those of gentler rank, banishment. 2 PAUL,Duties o f Prefect o f the City Guard, sole book: The punishment for burglars varies. For nocturnal intruders are the more heinous, and so, having been cudgeled, they are usually sent to the mines. But those who break in by day, having been similarly beaten, are sentenced to forced labor for life or for a term. 19 THE DESPOILED INHERITANCE 1 MARCIAN, Institutes, book 3: If someone plunder the inheritance of another, he is to be punished by extraordinary process on being charged with such offense, as is laid down in a proposal of the deified Marcus. 2 ULPIAN,Duties of Proconsul, book 9: If a charge of despoiling an inheritance be laid, the provincial governor must arrange to investigate it; for, where no action for theft can be brought, there remains only the aid of the governor. 1. It is clear that 304 BOOK FORTY-SEVEN IDESPOILED INHERITANCE labor be not exceeded. The same applies to thieves from the baths. But if thieves defend themselves with weapons, or burglars and their like strike someone, they are to be sent to the mines or, if of respectable rank, banished. 2 MARCIAN, Public Prosecutions, book 2: But if they commit a theft in the daytime, they are to be subjected to civil proceedings. 3 PAUL, Military Penalties, sole book: A soldier caught stealing in the baths is to be discharged with ignominy. 18 BREAKERS OUT OR IN AND ROBBERS 1 ULPIAN, Duties ofProconsul, book 8: The deified brothers, in a rescript to Aemilius Tiro, ruled that those who break out of prison and escape are to be punished. And Saturninus endorses the view that those who break out of prison, whether by breaking down the doors or through a conspiracy with others detained like themselves, are to be punished by death; but if they escape through the laxity of the jailers, their punishment should be less severe. 1. Robbers, who are more heinous thieves (that is, plunderers), are normally condemned to forced labor, whether in perpetuity or for a limited period, because those of better class are removed for a time from their civic rank or directed to quit the boundaries of the homeland. For them, no particular penalty is prescribed by imperial rescripts, and so their punishment is a matter for the discretion of the person conducting...