restricted access 19. PUNISHMENTS
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BOOK FORTY-EIGHTIPUNISFIMENTS 359 any time should not be denied it, so much so that for that reason persons in custody may [have their appearance] deferred and postponed. 10. Persons in custody can be heard and condemned not only before the tribunal but also outside the court. 19 TRYPHONINUS, Disputations, book 4: A person to whom freedom is due under a jideicommissum may not be subjected to interrogation as a slave unless and only unless he is accused as a result of the interrogations of others. 20 PAUL,Decrees, book 3: A certain husband as his wife's heir was claiming from Surus money which he said the dead woman had lodged with Surus, while he himself was absent, and he had produced a single witness to this, the son of his freedman, before the procurator; he had also sought the interrogation under torture of Surus's handmaid . Surus continued to deny that he had received [the money], and [said] that the testimony of a single person should not be admitted, and that it was not customary to begin with interrogations under torture, even if the handmaid had belonged to a third party. The procurator put the maid to the torture. When the case came to the cognizance of the emperor on appeal, he pronounced that the torture had been conducted unlawfully, that reliance should not be placed on the evidence of one witness, and that therefore the appeal had been rightly lodged. 21 PAUL,Punishments o f Civilians, sole book: The deified Hadrian wrote in a rescript that no one should be condemned for the purpose of putting him to the torture. 22 PAUL,Views, book 1 :Persons taken into custody without accusers are not to be subject to torture unless there are any suspicions strongly attaching to them. PUNISHMENTS 1 ULPIAN,Disputations, book 8: Whenever an investigation is made into an offense, it is accepted that [the accused] should suffer, not the punishment which his status allows at the time when sentence is passed on him but that which he would have undergone if he had been sentenced at the time he committ,edthe offense. 1. Similarly, if a slave has committed an offense and is said subsequently to have attained his freedom, he ought to undergo that punishment which he would have undergone if he had been sentenced when he committed the offense. 2. On the other hand, too, if someone has been reduced to a meaner status, he ought to suffer that punishment which he would have undergone had he remained in his former status. 3. It is generally agreed that, in terms of the statutes which deal with criminal proceedings or private charges, prefects or governors conducting proceedings extra ordinem should impose punishment extra ordinem on those who escape a monetary penalty by their lack of means. 2 ULPIAN,Edict, book 48: We should understand a person condemned on a capital charge [as condemned]on grounds for which the appropriate [punishment] for the condemned is death or loss of citizenship or slavery. 1. It is agreed that since the time that deportation replaced interdict from fire and water, a person does not lose his citizenship before the emperor has ordered him to be deported to an island; for there is no doubt that a governor does not have the power to deport. However, the urban prefect does have the right of deportation, and immediately after the prefect has passed sentence , [the condemned man] is seen to have lost his citizenship. 2. A person who has not lodged an appeal we shall take to be condemned; but if he should appeal he is regarded as not yet condemned. If, however, a person be condemned by someone who does not have the right to condemn on a capital charge, he is in the same position [as if not yet condemned]. For a man is only condemned where the condemnation was valid. 3 ULPIAN,Sabinus, book 14: The punishment of a pregnant woman who has been condemned to death is deferred until she gives birth. Indeed, I know that it is the practice that she is not to be interrogated under torture so long as she is pregnant. 4 MARCIAN, Institutes, book 13: Those who have been relegated or deported to an island must stay away from prohibited places. We also use this rule to mean that a relegated BOOK FORTY-EIGHT /PUNISHMENTS 359 any time should not be denied it, so much so that for that reason...


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