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[001] flogging, the pillory and the ducking-stool17 and a judgment with infamy. Others
[002] bring about deposition from a dignity or an order or the prohibition or denial of some
[003] activity.18 One is not punished in any way other than that provided in his condemnation,
[004] 19as where he ought to be executed by the sword he shall not be put to
[005] death in any other way, neither by the axe nor the spear, by cudgels nor by the rope.20
[006] Similarly, those condemned to be burned alive ought not to be injured by floggings,
[007] whippings, or tortures, since many perish while under torture;21 this [is so] unless
[008] the enormity of the offence demands otherwise. 22It is the custom of the authorities
[009] to injure those detained in prisons by keeping them in chains, but such things are
[010] forbidden by law, for a prison ought to be used to detain men not to punish them.23
[011] 24It is the duty of the judge to impose a sentence no more and no less severe than
[012] the case demands; he must seek a reputation neither for severity nor clemency
[013] but, having weighed the circumstances, should determine as each case requires. In
[014] less serious cases they ought to be more inclined to leniency; in the imposition of
[015] the heavier penalties to temper the severity of the law with a degree of benignity.25
[016] Punishments are rather to be mitigated than increased.26 27[Offences are committed
[017] intentionally, by impulse or by accident]. Robbers commits offences intentionally,
[018] by deliberation; those who are drunk, by impulse, moved by their drunkenness,
[019] when a matter comes to blows or the sword; by accident, when they occur through
[020] misadventure, as where in hunting one kills a man by a spear thrown at a beast,28
[021] or does some similar act. [The crime or punishment of the father can impose no
[022] stigma on the son.]29 [Those who plot against the safety of their lord are burned
[023] by fire.]30 31Deeds are punished, as thefts and homicides; [words, as insults and
[024] unfaithful advocacy];32 writings, as forgeries and libels; advices, as conspiracies.
[025] But these four kinds of offences must be considered from seven points of view:
[026] motive, person, place, time, quality, quantity and fortuity. Motive, as in whippings,
[027] which are not punishable if imposed by a master or parent (unless they are
[028] immoderate) since they are taken to be inflicted to correct not injure, but are
[029] punished when one is struck in anger by a stranger. Person has two aspects, he
[030] who committed the act and he who suffered it. Because of the same misdeeds33
[031] bondsmen are punished differently from free men; he who commits an offence against
[032] his lord or his father from him who injures a stranger, one who injures a magistrate
[033] from one who injures a private citizen. Age must also be taken into account.
[034] Place, for that determines whether the same act is theft or sacrilege, and accordingly
[035] brings about a lesser or a greater punishment. Time distinguishes one who
[036] exceeds his furlough from a deserter, or a burglar or34 thief by day from one by
[037] night.35 [Quality, whether the deed is vicious or slight],36 distinguishes a robber from
[038] a thief. Quantity, whether the theft is large or small, distinguishes a thief from a
[039] cattle-lifter; if one steals a pig, he is a thief, if a herd of swine, a cattle-lifter.
[040] Fortuity,37 as where one does some act intentionally and with full understanding, as



Notes

17. Supra 290, infra 340; C.R.R., xiii, no. 2787, xiv, no. 1994

19-20. D. 48.19.8.1

21. D. 48.19.8.2-3 (modified)

22-23. D. 48.19.8.9

24-25. D. 48.19.11. pr.

26. D. 48.19.42; Decretum: C. 33, qu. 3, ca. 18

27-28. D. 48.19.11.2, adding the preliminary sentence from D. ‘Delinquitur autem aut proposito aut impetu aut casu,’ as Kantorowicz, 72-3; ‘per telum in feram missum’: infra 341, 384

29. D. 48.19.26

30. D. 48.19.28.11; P. & M., ii, 504 n.; cf. Cal. Cl. Rolls, 1227-31, 53: woman convicted of husband's death, ‘pro cuius morte judicata fuit ut combureretur’.

31-37. D. 48.19.16 pr., 1-8; C. 33, qu. 3, ca 19

32. As D., omitted (? inadvertently) as ‘quatuor’ in the next sentence indicates

33. ‘facinoribus,’ as D; Kantorowicz, 44, 75; cf. Woodbine in Yale L. Jour., lii, 437

34. ‘vel,’ as D; supra 283

35. D. 48.19.16.5: ‘Tempus discernit emansorem a fugitivo et effractorem vel furem diurnum a nocturno’; Kantorowicz, 75

36. As D., inadvertently omitted


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