3. CUSTODY AND PRODUCTION OF PERSONS CHARGED
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314 BOOK FORTY-EIGHTICUSTODY the penalty can be imposed on the heir in the first place if and only if the accusation was lodged during the lifetime of the accused, even if condemnation did not follow. 21 PAPINIAN,Replies, book 15: Someone charged with a capital offense while the charge is yet unproved, is not barred from denouncing a case to the imperial treasury. 22 PAPINIAN, Replies, book 16: Someone charged [who comes from] another province is accused and condemned [in the province of] those in whose territory the crime is shown to have been committed. Our excellent emperors have written in general terms in their rescripts that this principle should also be observed in the case of soldiers. CUSTODY AND PRODUCTION OF PERSONS CHARGED 1 ULPIAN,Duties o f Proconsul, book 2: The proconsul normally determines the custody of accused persons, whether someone is to be lodged in prison, handed over to the military, entrusted to sureties, or even on his own recognizances. He normally does this by reference to the nature of the charge brought, the honorable status, or the great wealth, or the harmlessness, or the rank of the accused. 2 PAPINIAN, Adulteries, book 1: If a slave be accused on a capital charge, the statute on criminal proceedings provides that bail must be pledged for his appearance either by his master or by another; but if he is not defended, he is required to be thrown into a public prison so asto plead his case in chains. 1. There has, therefore, been frequent discussion of whether a master may subsequently be permitted to put up a surety and have his slave released. The doubt is increased by an edict of Domitian, which provided that the amnesties granted by senatus consultum should not apply to slaves of this kind. Indeed, the statute itself forbids a man's release before he has been tried. However, this interpretation is a very harsh one and excessively severe on a slave whose master was away or who because of shortage of means could not at that moment in time put up a surety. Nor can a slave properly be described as abandoned without a defense if he had no master at hand or if he had a master willing to defend him but lacking money. This [concession]may be allowedthe more readily if it is not sought after a considerable lapse of time. 2. It is provided by senatus consultum that those arraigned to appear in one action are not to have a charge accepted against them in respect of another crime committed at an earlier date. The same principle is observed in private actions and in the case of men underfideiussio, unless by this a time-limited action would be put at risk. 3 ULPIAN,Duties o f Proconsul, book 7: The deified Pius sent a rescript in Greek in reply to a letter from the inhabitants of Antioch to the effect that a person prepared to give sureties should not be put in chains, unless it was agreed that he had committed so serious a crime that he ought not to be entrusted to sureties nor to soldiers, but should suffer this same penalty of imprisonment before his punishment. 4 ULPIAN,Duties o f Proconsul, book 9: Should anyone who has given surety for one charged fail to produce him, he suffers a money penalty. My own opinion, however, is that if he fails to produce him by connivance, he is also liable to condemnation extra ordinem. But if neither the obligation itself nor the governor's decree included a fixed sum, and no custom is declared which provides a set form, the governor shall lay down the quantity of money which must be paid into court. 314 BOOK FORTY-EIGHT /CUSTODY the penalty can be imposed on the heir in the first place if and only if the accusation was lodged during the lifetime of the accused, even if condemnation did not follow. 21 PAPINIAN, Replies, book 15: Someone charged with a capital offense while the charge is yet unproved, is not barred from denouncing a case to the imperial treasury. 22 PAPINIAN, Replies, book 16: Someone charged [who comes from] another province is accused and condemned [in the province of] those in whose territory the crime is shown to have been committed. Our excellent emperors have written in general terms in their rescripts that this principle should also be observed in the case of soldiers. 3 CUSTODY...


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