16. SENATUS CONSULTUM TURPlLLlANUM AND THE ANNULMENT OF CHARGES
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BOOK FORTY-EIGHTIANNULMENT OF CHARGES 349 the man who entices or steals others' slaves is liable to the charge of kidnapping brought against him or not is a question of fact; and, therefore, the correct course is not to consult me, but the judge should follow what is found to be most true in the matter before him. It should, however, be clearly understood that a person can be liable to a charge of theft for stealing others' slaves without immediately being reckoned a kidnapper on that account." 1. The same emperor wrote in a rescript on the same subject in the following words: "The man on whose premises are found one or two runaway slaves who have hired out their services for food, particularly if they have previously done such work for others, cannot rightfully be called a concealer [of another's slave]." 2. It is laid down by the lex Fabia that a freeman who hides another , freeborn or freed, against his will, or keeps him in fetters or buys him, knowingly and with malicious intent, or who is an accomplice in any of these things, and anyone who persuades another's slave, male or female, to run away from his master or mistress, or conceals him or her against the will or without the knowledge of the master or mistress, or keeps him in fetters, or buys him, knowingly and with malicious intent, or who is an accomplice in the matter, is liable to the penalty [of the statute]. 7 HERMOGENIAN, Epitome o f Law, book 5: The money penalty laid down by the lex Fabia has fallen out of use; for those detected in this crime are punished according to the degree of their wrongdoing, and are mostly condemned to the mines. SENATUS CONSULTUM TURPlLLlANUM AND THE ANNULMENT OF CHARGES 1 MARCIAN,The Senatus Consulturn Tuv-pillianum, sole book: Rashness in accusers is revealed in three ways and subject to three penalties: they may calumniate, prevaricate , or tergiversate. 1. Calumny is the bringing of false charges, prevarication the concealment of genuine ones, while tergiversation means the complete abandonment of accusations [once made]. 2. Calumniators are subjected to the penalty of the lex Remmia. 3. It is, however, not the case that a person who fails to prove what he set out to do is forthwith regarded as a calumniator; for the investigation of that matter is entrusted to the discretion of the judge in the case who, on the acquittal of the accused , begins to look into the intention of the accuser and the state of mind which led him to bring the accusation. If he finds that there was a reasonable mistake on his part he clears him; but if he catches him in a manifest calumny, he inflicts the penalty of the law on him. 4. Which of the two [verdicts he reaches] is made clear by the words themselves of his pronouncement. For if, indeed, he pronounces, "you have not proved [your case]," he has acquitted him; but if, on the other hand, he pronounces, "you have committed calumny," he has condemned him. And although the judge makes no suggestion of penalty, the power of the statute will still be exercised against him; for, as Papinian said in an opinion, a question of fact is at the judgment of the person conducting the trial, but the infliction of punishment is not left to his discretion but is reserved for the authority of statute. 5. The question may be asked whether, if the judge's decision is in the words: "Lucius Titius appears to have brought a rash accusation," he would seem to have pronounced him a calumniator. Papinian['s view is that] the heedlessness of his fluency contains [grounds for] a pardon, that his sudden heat lacks the essential fault of calumny and that on this account he should not suffer any penalty. 6. The prevaricator we demonstrate to be the man who colludes with the accused and discharges his duty of accusation negligently by concealing his own proofs and accepting the accused's spurious defenses. 7. If anyone drops an accusation short of its annulment , he is punished. 8. It is customary for annulment in a private capacity to be BOOK FORTY-EIGHT / ANNULMENT OF CHARGES 349 the man who entices or steals others' slaves is liable to the charge of kidnapping brought against him or not is a question of fact; and, therefore, the correct course is not to consult me...