Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/132

104 A law of 320 prescribed that in all cases, whether a private person or an official was prosecuting, the trial should take place immediately. If accuser were not present or the accused's accomplices were required, they should be sent for at once, and meantime any chains that were put on the accused should be long ones, not close-fitting handcuffs; nor should he be confined in the inmost and darkest prison but enjoy light, and at night, when the guard is doubled, be allowed in the vestibules and more healthy parts of the prison. The judge should take care that the accusers do not bribe the gaolers to keep the accused back from a hearing and starve them: if they do, the officers should be capitally punished. The sexes were to be kept apart (340). Justinian in 529 forbad anyone being imprisoned without an order from the higher magistrates, and directed the bishops to examine once a week into the cause of imprisonment, and to ascertain whether the prisoners were slave or free and whether imprisoned for debt or crime. Debtors were to be let out on bail: if they had no bail they were to have a hearing and be let out on oath, their property being forfeited if they fled. Freemen charged with lesser crimes to be let out on bail, but if the charge were capital and no bail was allowed, imprisonment was not to extend beyond one year. Slaves to be tried within 20 days. The bishops, as ordered by Honorius, had to report any remissness in the magistrates. Private prisons were forbidden altogether by Justinian (529).

The accused was examined by the judge. If a slave was accused, torture was sometimes applied to elicit a confession. In republican times a freeman was not liable to this. Under the Empire the rule was broken, but persons of high rank were exempt, except where the charge was treason (majestas) or magical arts.

The judge could compel anyone to give evidence except bishops and high officers and old and sick persons or soldiers or attendants on magistrates at a distance. A private accuser had similar powers, but for a limited number. Defendant could call witnesses, but had no power of compulsion.

Parents and children were not admissible as witnesses against one another, nor were other near relatives ; nor freedmen against their patron. Slaves were not admissible to give evidence against their master, except in cases of treason, adultery or fraud on the revenue. As a rule slaves were used as witnesses only in default of others. They were examined, and if their statements were not satisfactory, torture was applied.

If after trial the accused was acquitted, the old practice (retained by Justinian) was for the judge to examine into the conduct of the accuser, and, if he found no reasonable ground for the accusation, to hold him guilty of calumny. For collusion with the accused he might be held guilty of prevarication. Nor was an accuser allowed to withdraw from an accusation once undertaken, especially if the accused had been long