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316 BOOK FORTY-EIGHTITREASON occurs because of the drunkennessor sloth of the guard, the guard should be corporally punished and transferred to inferior military duties. If, however, he loses [his prisoner] by pure mischance , no punishment should be imposed on him. 1. My view is that if a person escapes from civilian custody, an investigation must be made similar to that which I have mentioned is to be undertaken in the case of soldiers. 13 CALLISTRATUS, Judicial Examinations, book 6: On those who, after being lodged in prison, conspire to smash their fetters and break out ofjail, punishment is to be imposed over and beyond that due for the offense for which they were lodged as accused; and even though they be found innocent of the charge for which they were flung in jail, yet they should [still] be punished; but those who exposed their conspiracy should receive a lighter penalty. 14 HERENNIUS MODESTINUS, Punishments, book 4: Custody of a prisoner should not lightly be given to an inexperienced person; for if the prisoner be lost, the blame rests upon the person who entrusted [the prisoner] to him. 1. The prisoner should be handed over, not to a single person but to two. 2. Those who lose a prisoner by negligence, accordingto the degree of their fault, are corporally punished or transferred to another branch of the service; but if it was an unimportant prisoner, they are corporally punished and restored [to their rank]. If someone lets a prisoner go out of pity, he is transferred to another branch of the service; but anyone involved in dishonest dealings over the release of a prisoner suffers the capital penalty or is transferred to the lowest rank in the service. Occasionally, pardon is given; thus, when a prisoner had made his escape along with one of the guards, the other guard was pardoned. 3. However, if a prisoner kills himself or throws himself down from a height, this shall be held to be the soldier's fault, that is, he shall be corporallypunished. 4. If the guard himself kills his prisoner, he is guilty of homicide . 5. For this reason, if the prisoner is said to have died by accident, this must be proved by the evidence of witnesses, and thus a pardon will be given. 6. Furthermore, it is customary that where a prisoner has escaped by the fault [of his guard], if it is important that he be caught, the soldier is given, on cause shown, time to look for him, and another soldier is attached to him. 7. But Saturninus says approvingly that if anyone loses a runaway slave who is due to be returned to his master, he shall, if he has the means, be ordered to pay the master the price [of the slave]. LEX JULIA ON TREASON' 1 ULPIAN,Duties o f Proconsul, book 7: Closest to sacrilege is that crime which is called treason. 1. The crime of treason is that which is committed against the Roman people or against their safety. He is liable, by whose agency a plan is formed with malicious intent to kill hostages without the command of the emperor; or that men armed with weapons or stones should be, or should assemble, within the city against the interests of the state, or should occupy places or temples; or that there should be an assembly or gathering or that men should be called together for seditious purposes; or by whose agency a plan is formed with malicious intent to kill any magistrate of the Roman people, or anyone holding imperium or power; or that anyone should bear arms against the state; or who sends a messenger or letters to the enemies of the Roman people, or gives them a password, or does anything with malicious intent whereby the enemies of the Roman people may be helped with his counsel against the state; or who persuades or incites troops to make a sedition or tumult against the state; 2 ULPIAN,Disputations, book 8: or who has failed to relinquish his province although his successor has arrived; or who has deserted the army, or, as a private citizen, has fled to the enemy; or has knowingly written or dictated a falsehood onto the public records; for this also is set out in the first chapter of the statute on treason. 3 MARCIAN, Institutes, book 14: The Law o f the Twelve Tables commands capital punishment for the man who stirs up the enemy...


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