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Dig. 49.3.0. Quis a quo appelletur.
49.2.0. From whom it is not permitted to appeal.
Dig. 49.3.0. Who may be appealed from, and by whom.
Dig. 49.6.0. De libellis dimissoriis, qui apostoli dicuntur.
49.5.0. On appellations to be received or not.
Dig. 49.6.0. On dimissory letters, which are called "apostoli".
Dig. 49.9.0. An per alium causae appellationum reddi possunt.
49.8.0. Which judgments may be rescinded without an appeal.
Dig. 49.9.0. Whether the grounds of appeals can be presented by another.
Dig. 49.12.0. Apud eum, a quo appellatur, aliam causam agere compellendum.
49.11.0. That he who has appealed be defended in the province.
Dig. 49.12.0. Before him, from whom appeal is taken, to be compelled to plead another cause.
Dig. 49.15.0. De captivis et de postliminio et redemptis ab hostibus.
49.14.0. On the law of the fisc.
Dig. 49.15.0. On captives and on postliminy and those ransomed from the enemy.
Dig. 49.18.0. De veteranis.
49.17.0. On the castrense peculium.
Dig. 49.18.0. On veterans.
Appellandi usus quam sit frequens quamque necessarius, nemo est qui nesciat, quippe cum iniquitatem iudicantium vel imperitiam recorrigat: licet nonnumquam bene latas sententias in peius reformet, neque enim utique melius pronuntiat qui novissimus sententiam laturus est.
The use of appealing—how frequent and how necessary it is—there is no one who does not know, since indeed it corrects the iniquity of judges or their inexperience: although sometimes it reforms for the worse judgments well delivered, for he who is to deliver the sentence last does not necessarily pronounce better.
Quaesitum est, an adversus rescriptum principis provocari possit, forte si praeses provinciae vel quis alius consulerit et ad consultationem eius fuerit rescriptum: est enim quaesitum, an appellandi ius supersit. quid enim, si in consulendo mentitus est? de qua re extat rescriptum divi pii pros to koinon twn vrakwn, quo ostenditur provocari oportere.
It has been asked whether one can appeal against a rescript of the princeps, for instance if the provincial governor or someone else has consulted and a rescript has been issued in response to his consultation: for the question is whether the right of appealing remains. What, after all, if he has lied in putting the question? On this matter there exists a rescript of the deified Pius to the koinon of the Thracians, by which it is shown that one ought to appeal.
the words of the rescript are as follows: " if anyone sends to you matters about which you also send back transcripts however you please, it is open to those who wish to appeal against the decision. for if he has either been instructed falsely, or if the things that have been enjoined are not thus, nothing is to be thought by you to have been previously determined, in the case of those who, since the facts stand otherwise than is written, have sent replies to the documents".
Si quis in appellatione erraverit, ut puta cum alium appellare deberet, alium appellaverit, videndum, an error ei nihil offuit. et si quidem, cum maiorem iudicem appellare deberet, ita erravit, ut minorem appellet, error ei nocebit: si vero maiorem iudicem provocavit, error ei nihil oberit. et ita multis constitutionibus continetur.
If anyone has erred in an appeal, for example, when he ought to appeal to one person, he has appealed to another, it must be considered whether the error has not harmed him. And if indeed, when he ought to appeal to a greater judge, he has so erred as to appeal to a lesser, the error will harm him; but if he has appealed to a greater judge, the error will not harm him. And thus it is contained in many constitutions.
finally, when a certain man had received a judge from the consuls by a rescript of the princeps and had appealed to the prefect of the city, aid was afforded to his error by a rescript of the deified brothers, whose words are these: "since you say it was done through error, that from the judge whom you had received by our rescript from the most distinguished consuls you appealed to Junius Rusticus, our friend, prefect of the city, let the most distinguished consuls take cognizance just as if the appeal had been made to themselves." therefore, if anyone has appealed either to an equal or to a higher judge, yet one person in place of another, the case is such that the error does not harm him; but if to a lower, it will harm him.
Sed illud cecidit in quaestionem, si plures habuerit adversarios et quorundam nomina libellis sint complexa, quorundam non, an aeque praescribi ei possit ab his, quorum nomina comprehensa non sunt, quasi adversus ipsos adquieverit sententiae. et cum una causa sit, arbitror non esse praescribendum.
But this fell into question: if he has had several adversaries, and the names of some are included in the libelli, of others not, whether a praescriptio can equally be pleaded against him by those whose names are not included, as though he had acquiesced in the sentence against them. And since there is a single cause, I judge that praescriptio is not to be pleaded.
Quid ergo, si causam appellandi certam dixerit, an liceat ei discedere ab hac et aliam causam allegare? an vero quasi forma quadam obstrictus sit? puto tamen, cum semel provocaverit, esse ei facultatem in agendo etiam aliam causam provocationis reddere persequique provocationem suam quibuscumque modis potuerit.
What then, if he has stated a definite ground for appealing—may it be permitted to him to depart from this and allege another ground? Or indeed is he, as it were, bound by a certain form? I think, however, that once he has appealed, he has the faculty, in proceeding, to render even another ground of provocation and to pursue his provocation by whatever means he can.
Sed ab eo, qui sententiam male interpretari dicitur, appellare licet, si tamen is interpretandi potestatem habuit, velut praeses provinciae aut procurator caesaris: ita tamen, ut in causis appellationis reddendis hoc solum quaeratur, an iure interpretatum sit: idque etiam divus antoninus rescripsit.
But from him who is said to have misinterpreted the judgment, it is permitted to appeal—provided, however, that he had the power of interpreting, as, for example, a provincial governor or the emperor’s procurator; yet on this condition, that in the adjudication of appeals this alone be inquired into, whether it was interpreted according to law: and the deified Antoninus also rescribed this.
Item si emptor de proprietate victus est, eo cessante auctor eius appellare poterit: aut si auctor egerit et victus sit, non est deneganda emptori appellandi facultas. quid enim, si venditor, qui appellare noluit, idoneus non est? quin etiam si auctor appellaverit, deinde in causae defensione suspectus visus sit, perinde defensio causae emptori committenda est, atque si ipse appellasset.
Likewise, if the buyer has been defeated on ownership, he standing aside, his warrantor may appeal; or if the warrantor has brought the action and has been defeated, the faculty of appealing is not to be denied to the buyer. For what if the seller, who was unwilling to appeal, is not suitable? Nay more, even if the warrantor has appealed, then has seemed suspect in the defense of the cause, the defense of the cause must be entrusted to the buyer, just as if he himself had appealed.
Idque ita constitutum est in persona creditoris, cum debitor victus appellasset nec ex fide causam defenderet. quae constitutio ita accipienda est, si interveniente creditore debitor de pignore victus provocaverit: nam absenti creditori nullum praeiudicium debitor facit, idque statutum est.
And this has been thus established in the person of the creditor, when the debtor, having been defeated, had appealed and did not defend the case in good faith. This constitution is to be understood thus: if, the creditor intervening, the debtor, defeated on the matter of the pledge, shall have appealed; for to an absent creditor the debtor works no prejudice, and this has been established.
Si procurator, qui iudicio interfuit, victus sit, an ipse quoque per procuratorem appellare possit, videamus, quia constat procuratorem alium procuratorem facere non posse. sed meminisse oportet, quod procurator lite contestata dominus litis efficitur: et ideo et per procuratorem appellare potest.
If a procurator, who took part in the trial, has been defeated, let us consider whether he too can appeal through a procurator, since it is established that a procurator cannot appoint another procurator. But it must be remembered that, once the suit is joined (litis contestatio), the procurator becomes the master of the suit (dominus litis); and therefore he also can appeal through a procurator.
A sententia inter alios dicta appellari non potest nisi ex iusta causa, veluti si quis in coheredum praeiudicium se condemnari patitur vel similem huic causam ( quamvis et sine appellatione tutus est coheres): item fideiussores pro eo pro quo intervenerunt. igitur et venditoris fideiussor emptore victo appellabit, licet emptor et venditor adquiescant.
From a sentence pronounced between others one cannot appeal except from a just cause, as, for instance, if someone allows himself to be condemned to the prejudice of a coheir or a cause similar to this ( although even without an appeal the coheir is safe): likewise the sureties for him for whom they intervened. therefore even the seller’s surety will appeal, the buyer having been defeated, although the buyer and the seller acquiesce.
Non tantum ei, qui ad supplicium ducitur, provocare permittitur, verum alii quoque nomine eius, non tantum si ille mandaverit, verum quisquis alius provocare voluerit. neque distinguitur, utrum necessarius eius sit nec ne: credo enim humanitatis ratione omnem provocantem audiri debere. ergo et si ipse adquiescit sententiae: nec quaerimus, cuius intersit.
Not only is it permitted to him who is led to punishment to appeal, but others also on his behalf, not only if he has mandated it, but whoever else may have wished to appeal. No distinction is made whether he is his necessarius or not: for I believe, by the reason of humanity, that every appellant ought to be heard. Therefore even if he himself acquiesces in the sentence: nor do we inquire whose interest it is.
Quotiens autem plures in unam summam condemnantur, utrum una sententia est et quasi plures in unam summam rei sint promittendi, ut unusquisque eorum in solidum teneatur, an vero scinditur in personas sententia, quaeritur. et papinianus respondit scindi sententiam in personas atque ideo eos qui condemnati sunt viriles partes debere.
However, whenever several are condemned for one total sum, the question is whether there is one judgment and, as it were, several defendants are to be bound for one sum, so that each of them is held for the whole (in solidum), or whether rather the judgment is split by persons. And Papinian replied that the judgment is split by persons and therefore those who have been condemned owe virile shares (equal per-capita portions).
Quod est rescriptum in communi causa, quotiens alter appellat, alter non, alterius victoriam ei proficere qui non provocavit, hoc ita demum probandum est, si una eademque causa fuit defensionis: ceterum si diversae, alia causa est. ut in duobus tutoribus procedit, si alter tutelam gesserat, alter non attigerat et is qui non gesserat provocavit: iniquum est enim, qui idcirco adgnoverat sententiam, quoniam gessisse se scit, propter appellationem eius qui non gesserat optinere.
What has been rescripted in a common cause—that whenever one appeals, the other not, the other’s victory profits him who did not appeal—this is to be approved only if there was one and the same ground of defense; but if they were diverse, the case is different. As proceeds in the case of two guardians: if one had conducted the guardianship, the other had not touched it, and he who had not conducted appealed; for it is inequitable that he who for that reason had acknowledged the sentence, since he knows that he has conducted it, should prevail by reason of the appeal of him who had not conducted.
Si perlusorio iudicio actum sit adversus testamentum, an ius faciat iudex, videndum. et divus pius, cum inter coniunctas personas diceretur per collusionem in necem legatariorum et libertatium actum, appellare eis permisit. et hodie hoc iure utimur, ut possint appellare: sed et agere causam apud ipsum iudicem, qui de testamento cognoscit, si suspicantur non ex fide heredem causam agere.
If by a sham suit it has been proceeded against a testament, it must be considered whether the judge confers a right. And the deified Pius, when it was being said that among connected persons it had been done by collusion to the destruction of legatees and of manumissions, permitted them to appeal. And today we use this law, that they can appeal; but also to plead the cause before the very judge who takes cognizance of the testament, if they suspect that the heir is conducting the case not in good faith.
Quotiens herede non respondente secundum adversarium sententia datur, rescriptum est nihil nocere neque legatis neque libertatibus. et hoc divorum fratrum epistula continetur ad domitium in haec verba: " quod absente possessore nec quoquam nomine eius respondente pronuntiatum est, non habet rei iudicatae auctoritatem nisi adversus eum solum qui adesse neglexerit. quare his, qui testamento libertates vel legata vel fideicommissa acceperunt, salvae sunt actiones, si quas habuerunt, perinde ac si nihil esset iudicatum: et ideo adversus eum qui vicit permittimus eis agere".
Whenever, with the heir not responding, a judgment is given in favor of the adversary, it has been rescripted that it harms neither the legacies nor the liberties. And this is contained in a letter of the deified brothers to Domitius in these words: "That which has been pronounced with the possessor absent and with no one responding in any capacity in his name does not have the authority of a res judicata except against him alone who neglected to be present. Wherefore, for those who by the testament have received liberties or legacies or fideicommissa, their actions, if any they had, are safeguarded, just as if nothing had been adjudged: and therefore we permit them to sue against him who prevailed".
Servi appellare non possunt: sed domini eorum ad opem servo ferendam possunt uti auxilio appellationis, et alius domini nomine id facere potest. sin vero neque dominus neque alius pro domino appellaverit, ipsi ^ ipso^ servo, qui sententiam tristem passus est, auxilium sibi implorare non denegamus.
Slaves cannot appeal: but their masters, for bringing aid to the slave, can use the aid of an appellation, and another can do this in the master’s name. But if neither the master nor another has appealed on behalf of the master, we do not deny to the slave himself ^ himself^, who has suffered an adverse sentence, to implore aid for himself.
Si expressim sententia contra iuris rigorem data fuerit, valere non debet: et ideo et sine appellatione causa denuo induci potest. non iure profertur sententia, si specialiter contra leges vel senatus consultum vel constitutionem fuerit prolata. unde si quis ex hac sententia appellaverit et praescriptione summotus sit, minime confirmatur ex hac praescriptione sententia.
If expressly a judgment has been given against the rigor of the law, it ought not to be valid: and therefore even without an appeal the case can be introduced anew. a judgment is not lawfully delivered, if specifically it has been rendered against the laws or a senatorial decree or a constitution. whence, if someone has appealed from this judgment and has been repelled by a plea of prescription, the judgment is by no means confirmed by this plea of prescription.
Si magistratus creatus appellaverit, collegam eius interim utriusque officium sustinere debere: si uterque appellaverit, alium interim in locum eorum creandum: et eum, qui non iuste appellaverit, damnum adgniturum, si quod res publica passa sit: si vero iusta sit appellatio et hoc pronuntietur, eos aestimaturos, cui hoc adscribendum sit. in locum autem curatoris, qui annonam administraturus est, alium interim adsumendum, quoad usque appellatio pendeat.
If a magistrate who has been created shall appeal, his colleague ought in the interim to sustain the office of both: if both shall appeal, another is in the interim to be created in their place: and the one who shall not have appealed justly shall be held liable for the loss, if the commonwealth has suffered any: but if the appeal is just and this is pronounced, they will assess to whom this is to be ascribed. moreover, in place of the curator who is going to administer the grain-supply, another is to be taken up in the interim, so long as the appeal hangs pending.
Idem rescripserunt, quamvis usitatum non sit post appellationem fructus agri, de quo disceptatio sit, deponi, tamen, cum populi traherentur ab adversario, aequum sibi videri fructus apud sequestres deponi.
They likewise replied by rescript that, although it is not customary, after an appeal, for the fruits of the field about which there is a dispute to be deposited, nevertheless, since the people were being drawn away by the adversary, it seemed equitable to them that the fruits be deposited with sequestrators.
Negotiorum gestor vel tutor vel curator bona fide condemnati appellaverunt et diu negotium tractum est: quaesitum est appellatione eorum iniusta pronuntiata an, quia tardius iudicatum sit, usurae principalis pecuniae medii temporis debeantur. respondit secundum ea quae proponerentur dandam utilem actionem.
A manager of affairs or a tutor or a curator, having been condemned in good faith, appealed, and the matter was protracted for a long time: it was asked whether, their appeal having been pronounced unjust, or because judgment was rendered more tardily, interest on the principal money for the intervening time is owed. He answered that, according to the things that were proposed, a useful action should be granted.
Curator iuvenis adversus tutoris heredes iudicio expertus appellationem interposuit: cum implesset autem vicensimum quintum annum aetatis iuvenis et in militia ageret, exequi appellationem desiit. quaero, regressus a militia utrum ipse appellationem explicare deberet an vero curatorem in eam rem conveniri oporteret. respondit ipsum militem litem ad se pertinentem exsequi debere secundum ea quae proponerentur.
The curator of a young man, having proceeded by action against the tutor’s heirs, interposed an appeal: but when the young man had completed his 25th year of age and was serving in military service, he ceased to prosecute the appeal. I ask whether, upon his return from military service, he himself ought to carry through the appeal, or whether indeed the curator ought to be convened for that matter. He answered that the soldier himself ought to prosecute the suit pertaining to himself, according to the matters that were set forth.
Autokratwr alecandros tw koinw twn en bivunia hellynwn. ekkaleisvai men pws an tis kwluoito hupo twn dikazontwn, oux' horw, hopote ecestin tyn heteran hodon trepomenon tauto poiein kai vatton pros me afikneisvai. hubrei de kai bia xrysvai pros tous ekkaloumenous kai frouran stratiwtikyn periistan kai haplws eipein apofrattein autois tyn deuro anodon apagoreuomen tois epitropois kai tois hygoumenois twn evnwn.
Emperor Alexander to the common council of the Hellenes in Bithynia. How anyone could be prevented by the judges from lodging an appeal, I do not see, since it is permitted, by turning to the other route, to do the same thing and to come to me by a petition. But to use outrage and violence against those appealing, and to set a military guard around them, and, to speak simply, to block for them the ascent hither—we forbid this to the procurators and to the commanders of the units.
Creditor cum fideiussoribus egerat: sed post iudicium acceptum ad agendam causam ipse non adfuit et, cum absoluti essent fideiussores, servus eius appellavit. quaesitum est, an appellatio, quam servus interposuit nomine domini, nullius momenti esset. respondit eiusmodi appellationem non esse observandam.
The creditor had proceeded with the sureties; but after the case had been accepted, he himself was not present to prosecute the cause, and, when the sureties had been acquitted, his slave appealed. It was asked whether the appeal which the slave interposed in the name of his master was of no moment. He answered that an appeal of this kind was not to be observed.
Iussus a iudice exhibere secundum praeceptum praesidis provinciae rationes, quas apud se esse caverat, instrumentorum gratia data dilatione nec postea exhibuit ideoque secundum constitutionem recitatam, quia per contumaciam instrumenta non exhibuerat, cum petitor quanti sua interesset exhiberi iurasset, facta erat condemnatio. quaesitum est, an post iusiurandum appellationem interponere possit. respondit nihil proponi, cur denegandum esset appellationis auxilium.
Ordered by the judge to exhibit, according to the precept of the provincial governor, the accounts which he had covenanted were in his possession, and, a postponement having been granted for the sake of the instruments, he did not thereafter exhibit them; and therefore, according to the constitution that had been recited, because through contumacy he had not exhibited the instruments, when the petitioner had sworn how much it was to his interest that they be exhibited, a condemnation was rendered. It was asked whether, after the oath, he could interpose an appeal. He replied that nothing was put forward why the aid of an appeal should be denied.
Substituti tutores in locum legitimi tutoris experti cum eo tutelae iudicio, cum arbiter inique condemnavit, quam rei aequitas exigebat, a sententia eius provocaverunt: pendente causa appellationis iuvenes adoleverunt. quaesitum est, cum omnis exsecutio huius ad adultos pertineat et causam ad se pertinentem idonee tueri possunt, an postulatio eorum, contra quos appellatum erat, dicentium illos debuisse causas appellationis reddere, qui primi sunt experti, admittenda non sit. respondit eos, quorum tutela gesta esset, si vellent causam exsequi, non prohibendos.
Substitute tutors, in place of the legitimate tutor, having tried a guardianship action with him, when the arbiter condemned beyond what the equity of the matter demanded, appealed from his sentence; while the appeal case was pending, the youths attained majority. It was asked, since every execution of this pertains to adults and they can adequately defend a cause pertaining to themselves, whether the petition of those against whom the appeal had been taken—saying that those who first tried the matter ought to have rendered the grounds of the appeal—should be admitted or not. He responded that those whose guardianship had been conducted, if they wished to prosecute the cause, were not to be prevented.
Si quidem in insulam deportandum adnotaverit praeses provinciae et imperatori scripserit, ut deportetur, videamus, quando sit provocandum, utrum cum imperator scripserit an cum ei scribitur? et putem tunc esse appellandum, cum recipi eum praeses iubet sententia prolata imperatori scribendum, ut deportetur. ceterum verendum est, ne sero sit, ut tunc provocetur, cum imperator insulam ei adsignaverit: comprobata enim sententia praesidis tunc solet insulam adsignare.
If indeed the provincial governor has annotated that a man is to be deported to an island and has written to the emperor that he be deported, let us consider when there should be a provocation—whether when the emperor has written, or when it is written to him? And I think that an appeal is to be made at the point when the governor, sentence having been pronounced, orders him to be taken into custody and that it be written to the emperor that he be deported. Moreover, there is a fear that it will be too late if one appeals only when the emperor has assigned him an island: for he is accustomed to assign an island then, after the governor’s sentence has been approved.
Again, this is to be feared: if, with lies, he has burdened before the emperor the man whom he was striving to have deported, the way of appealing may be cut off to him. What then? It will be rightly said, with humanity suggesting, that both at this time and at that time the appeal not be in vain, because he appealed not against the emperor, but against the judge’s cunning.
Si quis tutor datus fuerit vel testamento vel a quo alio, qui ius dandi habet, non oportet eum provocare ( hoc enim divus marcus effecit), sed intra tempora praestituta excusationem allegandam habet et, si fuerit repulsa, tunc demum appellare debebit: ceterum ante frustra appellatur.
If any guardian has been appointed either by testament or by some other who has the right of appointing, he ought not to challenge ( for the deified Marcus effected this), but within the prescribed times he has to allege an excuse; and, if it has been rejected, then only thereafter ought he to appeal: otherwise, beforehand an appeal is made in vain.
Solent plerumque praesides remittere ad ordinem nominatum ut gaium seium creent magistratum vel alius quis honor vel munus in eum conferatur. utrum igitur tunc appellandum est, cum ordo decretum interposuerit, an vero a remissione, quam praeses fecerit, appellatio sit interponenda? et magis est, ut tunc sit appellandum, cum ordo decreverit: magis enim consilium dedisse praeses videtur, quis sit creandus, quam ipse constituisse: denique ipse erit appellandus, non ab eo provocandum.
Governors are for the most part accustomed to remit to the designated council, so that they may elect Gaius Seius as magistrate, or that some other honor or munus be conferred upon him. Therefore, is it then that appeal is to be made when the council has interposed a decree, or rather should an appeal be interposed from the remittal which the governor has made? And the better view is that appeal should be made when the council has decreed: for the governor seems rather to have given counsel as to who is to be created, than to have himself established it; finally, he himself is to be appealed to, not appealed from.
Biduum vel triduum appellationis ex die sententiae latae computandum erit. quid ergo, si sententia fuerit sub condicione dicta? utrum ex die sententiae tempus computamus ad appellandum an vero ex die, quo condicio sententiae extitit?
A two-day or three-day period for appeal must be computed from the day on which the judgment was delivered. What then, if the judgment was pronounced under a condition? Do we compute the time for appealing from the day of the judgment, or rather from the day on which the condition of the judgment came to pass?
Quod in sententiis praeceptum est, ut vel altera die vel tertia provocetur, hoc etiam in ceteris observandum, ex quibus sententia quidem non profertur, appellari tamen oportere et posse supra relatum est.
What has been prescribed with respect to judgments, namely that an appeal be lodged either on the following day or on the third, is to be observed also in other matters from which no judgment is in fact delivered; nevertheless, it has been set forth above that one ought to appeal and is able to do so.
Dies autem istos, quibus appellandum est, ad aliquid utiles esse oratio divi marci voluit, si forte eius, a quo provocatur, copia non fuerit, ut ei libelli dentur: ait enim: " is dies servabitur, quo primo adeundi facultas erit". quare si forte post sententiam statim ictam copiam sui non fecerit is qui pronuntiavit ( ut fieri adsolet), dicendum est nihil nocere appellatori: nam ubi primum copiam eius habuerit, poterit provocare. ergo si statim se subduxit, similiter subveniendum est.
However, the oration of the deified Marcus wished those days, within which one must appeal, to be useful for something, if perchance there should not be copia of the person from whom the appeal is taken, so that libelli may be given to him: for he says: "That day will be preserved on which there will first be the faculty of approaching." Wherefore, if perchance after the sentence has been immediately pronounced he who announced it does not make copia of himself (as is wont to happen), it must be said that nothing harms the appellant: for when he first will have copia of him, he will be able to appeal. Therefore, if he withdrew himself at once, similarly help must be afforded.
Adeundi autem facultatem semper accipimus, si in publico sui copiam fecit: ceterum si non fecit, an imputetur alicui, quod ad domum eius non venerit quodque in hortos non accesserit, et ulterius quod ad villam suburbanam? magisque est, ut non debeat imputari. quare si in publico eius adeundi facultas non fuit, melius dicetur facultatem non fuisse adeundi.
However, we always accept that there is the faculty of approaching, if he has made himself available in public: but if he has not done so, is it to be imputed to anyone that he did not come to his house and that he did not enter the gardens, and further that he did not go to the suburban villa? and the more correct view is that it ought not to be imputed. therefore, if in public there was no faculty of approaching him, it will be better said that there was no faculty of approaching.
Si quis ipsius quidem, a quo appellabit, adeundi facultatem non habuit, eius autem, quem appellabit, habeat copiam: videndum est, an ei praescribi possit, quod eum non adierit. et hoc iure utimur, ut, si alterutrius adeundi fuit copia, praescriptio locum habeat.
If someone did not have the faculty of approaching the very person from whom he will appeal, but has the opportunity of the one to whom he will appeal, it must be considered whether a prescription can be pleaded against him on the ground that he did not approach him. And we use this rule, that, if there was the opportunity of approaching either of the two, the prescription has its place.
Quare procurator, nisi in suam rem datus est, tertium diem habebit: in suam autem rem datus magis est ut alteram diem observet. at si in partem proprio nomine, in partem pro alieno litigat, ambigi potest, utrum biduum an triduum observetur. et magis est, ut suo nomine biduum, alieno triduum observetur.
Wherefore the procurator, unless he has been appointed for his own affair, will have the third day; but if he has been appointed for his own affair, it is rather that he should observe the second day. But if he litigates partly in his own name and partly on behalf of another, it can be doubted whether a two-day or a three-day period is to be observed. And the sounder view is that, as to his own name, a two-day period be observed, and as to the other’s, a three-day period.
Tutores, item defensores rerum publicarum et curatores adulescentium vel furiosi, tertium diem habere debent, idcirco quia alieno nomine appellant. ex hoc apparet tertio die provocandum defensori, si modo quasi defensor causam egit, non suo nomine, cum optentu alieni nominis suam causam agens tertio die appellare possit.
Guardians, likewise defenders of municipalities and curators of youths or of a madman, are to have the third day, for this reason, because they appeal in another’s name. From this it appears that the defender should be allowed to appeal on the third day, provided that he conducted the case as a sort of defender, not in his own name, since, under the pretext of another’s name, a man conducting his own case can appeal on the third day.
Si adversus absentem fuerit pronuntiatum, biduum vel triduum ex quo quis scit computandum est, non ex quo pronuntiatum est. quod autem dicitur absentem posse provocare ex quo scit, sic accipimus, si non in causa per procuratorem defensus est: nam si ille non provocavit, difficile est, ut hic audiatur.
If judgment has been pronounced against an absent person, the two-day or three-day period is to be computed from when one knows, not from when it was pronounced. But as for what is said—that an absent person can appeal from the time he knows—we thus take it, if he was not defended in the case by a procurator; for if that man did not appeal, it is difficult that this man be heard.
Si procuratorio nomine egeris et victus appellaveris, deinde iniusta appellatio tua fuerit pronuntiata, potest dubitari, num secundo die appellare debeas, quia, cum de tua appellatione iniusta pronuntiatum sit, tua interfuisse videtur. sed rectius dicetur tertia die appellare te posse, quia nihilo minus alienam causam defenderis.
If you have proceeded in a procuratorial capacity and, having been defeated, have appealed, then if your appeal has been pronounced unjust, it can be doubted whether you ought to appeal on the second day, because, since pronouncement has been made about your unjust appeal, it seems to have concerned your own interest. But it will more correctly be said that you can appeal on the third day, because nonetheless you were defending another’s cause.
Sed si alius, quam qui iudicio expertus est, appellet, qualis est cuius interest, an etiam tertia die appellare possit, videamus. sed dicendum est secunda die appellare eum debere, quia verum est eum suam causam defendere. contrarium ei est.
But if someone other than the one who has been tried in judgment should appeal, such as one whose interest it is, let us see whether he can also appeal on the third day. But it must be said that he ought to appeal on the second day, because in truth he is defending his own cause. The contrary holds for him.
If he should say that for that reason it is permitted to him to appeal within three days, because he seems as it were to appeal in another’s name, then, if he wishes his own cause to seem another’s, he shuts himself out, because in another’s cause it is not permitted to appeal for one who has not experienced judgment.
Si is, qui ex libertinitate in ingenuitatem se defendebat, victus appellare omiserit, an pater eius appellare possit, maxime si dicat eum in potestate sua esse, quaeritur. sed si potest, quod magis probatur, secunda die, ut propria causa, appellare debet.
If one who, from freedman status, was defending himself as freeborn, having been defeated has omitted to appeal, it is asked whether his father can appeal, especially if he says that he is in his power. But if he can—which is the more approved view—he ought to appeal on the second day, as in his own cause.
Si pro eo, qui capite puniri iussus est, necessaria persona appellet, an tertia die audiri possit, paulus dubitat. sed dicendum est hanc quoque personam ut in propria causa secunda die appellare debere, quia qui sua interesse dicit, propriam causam defendit.
If, on behalf of one who has been ordered to be punished with capital punishment, a necessary person appeals, Paulus is in doubt whether he can be heard on the third day. But it must be said that this person too, as in his own case, ought to appeal on the second day, because he who says that it concerns his own interest is defending his own case.
Illud videamus, si, cum imperatori scriberetur, exemplum litterarum litigatori editum sit neque is appellaverit et postea contra eum rescriptum sit, an appellare a litteris pridem sibi editis possit? quia qui tunc non appellavit, vera esse quae scripta sunt consensisse videtur: nec audiendus est, si dicat eventum rescripti sacri se sustinuisse.
Let us consider this: if, when a petition was being written to the emperor, a copy of the letters was issued to the litigant and he did not appeal, and afterwards a rescript was made against him, can he appeal from the letters previously issued to him? For he who then did not appeal seems to have consented that the things written are true; nor is he to be heard if he says that he was awaiting the outcome of the sacred rescript.
Sed et cum mater filii rem sententia eversam animadverteret, provocaverit, pietati dandum est et hanc audiri debere: et si litem praeparandam curare maluerit, intercedere non videtur, licet ab initio defendere non potest.
But also, when the mother, on perceiving that her son’s matter has been overturned by a judgment, has appealed, deference to pietas must be given and she too ought to be heard; and if she prefers to see to the preparation of the suit, she is not considered to be interceding, although she cannot defend from the outset.
Sciendum est, cum appellatio non recipitur, praecipi sacris constitutionibus omnia in eodem statu esse nec quicquam novari, etiamsi contra fiscum appellatum sit: eumque, qui appellationem non receperit, opinionem suam confestim per relationem manifestare et causam, pro qua non recepit appellationem, eiusque exemplum litigatori edere debere mandatis cavetur.
It must be known that, when an appeal is not received, it is prescribed by the sacred constitutions that all things are to remain in the same status and that nothing be innovated, even if an appeal has been taken against the Fisc; and it is provided by mandates that he who has not received the appeal must at once make his opinion manifest by a report and furnish to the litigant a copy of it and the reason for which he did not receive the appeal.
Si res dilationem non recipiat, non permittitur appellare, velut ne testamentum aperiatur ( ut divus hadrianus constituit), ne frumentum in usum militum, in annonae subsidia contrahatur, neve scriptus heres in possessionem inducatur.
If the matter does not admit of dilatation, it is not permitted to appeal, for example to prevent a testament from being opened ( as the deified Hadrian decreed), to prevent grain from being contracted for the use of the soldiers, for the subsidies of the annona, or to prevent the instituted (written) heir from being put into possession.
Sufficit autem petisse intra tempus dimissorias instanter et saepius, ut et si non accipiat, id ipsum contestetur: nam instantiam petentis dimissorias constitutiones desiderant. aequum est igitur, si per eum steterit, qui debebat dare litteras, quo minus det, ne hoc accipienti noceat.
It suffices, moreover, to have asked within the time for dimissory letters urgently and repeatedly, so that even if he does not receive them, he may attest that very fact: for the constitutions require the insistence of the one requesting dimissory letters. It is equitable, therefore, if it is owing to him who ought to have given the letters that he does not give them, that this not harm the recipient.
Appellatione interposita, sive ea recepta sit sive non, medio tempore nihil novari oportet: si quidem fuerit recepta appellatio, quia recepta est: si vero non est recepta, ne praeiudicium fiat, quoad deliberetur, utrum recipienda sit appellatio an non sit.
With an appellation interposed, whether it be received or not, in the meantime nothing ought to be altered: if indeed the appellation has been received, because it has been received; but if it has not been received, lest prejudice be done, until it is deliberated whether the appellation is to be received or not.
Propter eandem rationem et si quis deportatus fuit ab eo, cui deportandi ius est, vel adnotatus, neque vincula patietur neque ullam aliam iniuriam, quam patitur, qui sententiae non adquieverat: integer enim status esse videtur provocatione interposita.
On account of the same reasoning, even if someone has been deported by the one who has the right of deporting, or annotated, he will suffer neither bonds nor any other injury than that which is suffered by one who had not acquiesced in the sentence: for an intact status seems to exist, an appeal having been interposed.
Si quis ex pluribus facinoribus condemnatus propter quaedam appellavit, propter quaedam non: utrum differenda poena eius sit an non, quaeritur. et si quidem graviora sint crimina, ob quae appellatio interposita est, levius autem id, propter quod non appellavit, recipienda est omnimodo appellatio et differenda poena: si vero graviorem sententiam meruit ex ea specie, ex qua non est appellatum, omnimodo poena imponenda est.
If someone, having been condemned for several crimes, has appealed with respect to some and not with respect to others, the question is whether his punishment should be deferred or not. And if indeed the graver crimes are those for which an appeal has been interposed, but the lighter is that for which he did not appeal, the appeal is in every way to be received and the punishment deferred; but if he has deserved a more severe sentence from that kind (species) with respect to which no appeal was made, the punishment is in every way to be imposed.
Item si calculi error in sententia esse dicatur, appellare necesse non est: veluti si iudex ita pronuntiaverit: " cum constet titium seio ex illa specie quinquaginta, item ex illa specie viginti quinque debere, idcirco lucium titium seio centum condemno": nam quoniam error computationis est, nec appellare necesse est et citra provocationem corrigitur. sed et si huius quaestionis iudex sententiam centum confirmaverit, si quidem ideo, quod quinquaginta et viginti quinque fieri centum putaverit, adhuc idem error computationis est nec appellare necesse est: si vero ideo, quoniam et alias species viginti quinque fuisse dixerit, appellationi locus est.
Likewise, if an error of calculation is said to be in the sentence, it is not necessary to appeal: for example, if the judge has thus pronounced: "since it is clear that Titius owes to Seius fifty under that head, likewise under that head twenty-five, therefore I condemn Lucius Titius to Seius in one hundred": for since it is an error of computation, neither is it necessary to appeal, and it is corrected without resort to an appeal. But also, if the judge of this question shall have confirmed the sentence of one hundred, if indeed for this reason, that he thought that fifty and twenty-five make one hundred, it is still the same error of computation and it is not necessary to appeal: but if for this reason, because he has said that there were also other heads of twenty-five, there is room for an appeal.
Item cum contra sacras constitutiones iudicatur, appellationis necessitas remittitur. contra constitutiones autem iudicatur, cum de iure constitutionis, non de iure litigatoris pronuntiatur. nam si iudex volenti se ex cura muneris vel tutelae beneficio liberorum vel aetatis aut privilegii excusare, dixerit neque filios neque aetatem aut ullum privilegium ad muneris vel tutelae excusationem prodesse, de iure constituto pronuntiasse intellegitur: quod si de iure suo probantem admiserit, sed idcirco contra eum sententiam dixerit, quod negaverit eum de aetate sua aut de numero liberorum probasse, de iure litigatoris pronuntiasse intellegitur: quo casu appellatio necessaria est.
Likewise, when judgment is given against the sacred constitutions, the necessity of appeal is remitted. One judges, however, against the constitutions when the pronouncement is about the law of the constitution, not about the right of the litigant. For if a judge, to someone wishing to excuse himself from the charge of a public duty or tutelage by the beneficium of children or of age or of a privilege, has said that neither children nor age nor any privilege avail for an excusation from the duty or tutelage, he is understood to have pronounced about the established law; but if he has admitted him as proving his own right, yet for that reason has given sentence against him because he has denied that he proved his age or the number of his children, he is understood to have pronounced about the right of the litigant: in which case an appeal is necessary.
Si apud eundem iudicem invicem petamus, si et mea et tua petitio sine usuris fuit et iudex me priorem tibi condemnavit, quo magis tu prior me condemnatum habeas: non est mihi necesse pro hac causa appellare, quando secundum sacras constitutiones iudicatum a me petere non possis, priusquam de mea quoque petitione iudicetur. sed magis est, ut appellatio interponatur.
If before the same judge we sue one another, if both my claim and yours were without interest, and the judge condemned me prior to you, so that all the more you have me condemned first: it is not necessary for me to appeal for this cause, since according to the sacred constitutions you cannot demand the adjudged sum from me before judgment is also rendered on my own claim. But rather, it is preferable that an appeal be interposed.
Quaeri solet, an per alium causae appellationis reddi possunt: quae res in rebus pecuniariis et in criminibus agitari consuevit. et in rebus pecuniariis sunt rescripta posse agi. verba rescripti ita se habent: " divi fratres longino.
It is wont to be asked whether the grounds of an appeal can be rendered through another: which matter is accustomed to be agitated both in pecuniary matters and in crimes. And in pecuniary matters there are rescripts that it can be done. The words of the rescript are thus: " the deified brothers to Longinus.
if the one who appealed has mandated to you that you defend him regarding the appeal which Pollia made against him, and it is a pecuniary matter: nothing prevents you from responding in his name. But if the cause is not pecuniary but capital, it is not permitted to proceed through a procurator. And even if it is a cause from which a penalty up to relegation is wont to follow, the case ought not to be conducted through another, but it must be understood that he himself ought to be present at the hearing". Clearly, if it is a pecuniary cause from which ignominy follows, this too can be transacted through a procurator.
Si procurator absentis appellaverit, deinde rationes reddiderit, nihilo minus ipse respondere debet. sed an eo cessante dominus litis respondere possit exemplo adulescentis, videamus: magis tamen observatur, ut audiri debeat in causis appellationis reddendis is, cuius absentis procurator appellavit.
If the procurator of an absentee has appealed, and then has rendered his accounts, nonetheless he himself ought to answer. But whether, upon his ceasing, the master of the suit can answer, on the example of the adulescens, let us consider: however, it is more observed that, in rendering the grounds of the appeal, there ought to be heard the one on whose behalf the procurator appealed, though absent.
Si qui ad munera publica nominati appellaverint nec causas probaverint, scient ad periculum suum pertinere, si quid damni per moram appellationis rei publicae acciderit. quod si apparuerit eos necessario provocasse, cui adscribendum sit id damnum, praeses vel princeps aestimabit.
If any who have been nominated to public burdens shall have appealed and shall not have proved their causes, they shall know that it pertains to their peril, if any loss to the State should occur through the delay of the appeal. But if it shall appear that they appealed of necessity, the governor or the Princeps will assess to whom that loss is to be ascribed.
Si quis ex alia causa appellaverit a iudice, an in alia causa eundem iudicem habere necesse habeat, videamus. et hodie hoc iure utimur, et, tametsi appellatio interposita sit, tamen apud eundem iudicem, a quo quis provocavit, compelletur alias causas si quas habet agere: nec utetur hoc praetextu, quasi ad offensum iudicem non debeat experiri, cum possit denuo provocare.
If someone has appealed from a judge on another cause, let us see whether in another cause he must have the same judge. And today we use this law, and, although an appeal has been interposed, nevertheless before the same judge from whom one has appealed he will be compelled to prosecute other causes, if he has any: nor will he use this pretext, as though he ought not to make trial before an offended judge, since he can appeal anew.
Appellatore defuncto, si quidem sine herede, cuiuscumque generis appellatio fuit, evanescit. quod si appellatori heres extiterit, si quidem nullius alterius interest causas appellationis reddi, cogendus non est peragere appellationem: si vero fisci vel alterius, contra quem appellatum est, interest, heres causas appellationis reddere necesse habet. nullius autem interest, veluti cum sine ademptione bonorum relegatus est.
Upon the appellant’s death, if indeed he is without an heir, the appeal, of whatever kind, lapses. But if an heir has arisen to the appellant, then, if it is no other’s concern that the grounds of the appeal be rendered, he is not to be compelled to prosecute the appeal; but if it concerns the fisc or another against whom the appeal was taken, the heir is obliged to render the grounds of the appeal. Yet it is no one’s concern, for instance, when he has been relegated without confiscation of goods.
for if, his goods having been taken away, he has been relegated or deported into an island or assigned to the mines, and has died with an appeal interposed, our emperor alexander wrote back thus to the soldier Plaetorius: " although with the appeal pending the death of the accused extinguished the charge, nevertheless a sentence given also concerning a part of his goods is put forward, against which he who has the emolument of succession can obtain no otherwise than if, in rendering the causes of the appeal, he has uncovered the iniquity of the sentence".
Tutor quoque in negotio pupilli appellatione interposita si decesserit, heredem eius causas appellationis reddere necesse est, etiamsi rationes tutelae heres reddiderit, quia sufficit mortis tempore ad causas appellationis reddendas obligatum fuisse. sed divi severus et antoninus rescripserunt non cogendum tutorem post rationes redditas causas appellationum reddere.
The guardian also, if in the affair of the ward an appeal has been interposed and he has died, must have his heir render the grounds of the appeal, even if the heir has rendered the accounts of the guardianship, because it suffices that at the time of death he had been obligated to render the grounds of the appeal. But the deified Severus and Antoninus wrote in a rescript that a guardian is not to be compelled, after the accounts have been rendered, to render the grounds of the appeals.
Variae causae sunt, ex quibus nuntiatio ad fiscum fieri solet. aut enim se quis, quod tacite relictum est, profitetur capere non posse vel ab alio praeventus defertur: vel quod mors ab heredibus non vindicatur: vel quod indignus quis heres nuntiatur: vel quod princeps heres institutus et testamentum sive codicilli subrepti esse nuntiantur: vel quod dicatur quis thensaurum invenisse: vel magni pretii rem minoris ex fisco comparasse: vel praevaricatione fiscum victum esse: vel eum decessisse, qui in capitali crimine esset: vel etiam post mortem aliquem reum esse: vel domum destructam esse: vel ab accusatione recessum: vel rem litigiosam venumdari: vel poenam fisco ex contractu privato deberi: vel adversus leges commissum factum esse.
There are various causes, from which a notification to the fisc is wont to be made. For either someone professes that he cannot take what has been left tacitly, or, being forestalled by another, is denounced: or because the death is not vindicated by the heirs: or because someone unworthy is reported as heir: or because the emperor has been instituted heir and the testament or codicils are reported to have been filched: or because someone is said to have found a treasure: or to have bought from the fisc a thing of great value for a lesser price: or that by prevarication the fisc has been defeated: or that the one who was under a capital charge has died: or even that someone is a defendant after death: or that a house has been destroyed: or that there has been a withdrawal from an accusation: or that a litigious thing is being sold: or that a penalty is owed to the fisc from a private contract: or that an act has been committed against the laws.
An bona, quae solvendo non sint, ipso iure ad fiscum pertineant, quaesitum est. labeo scribit etiam ea, quae solvendo non sint, ipso iure ad fiscum pertinere. sed contra sententiam eius edictum perpetuum scriptum est, quod ita bona veneunt, si ex his fisco adquiri nihil possit.
It has been asked whether goods that are not solvent pertain by the law itself to the fisc. Labeo writes that even those which are not solvent pertain by the law itself to the fisc. But contrary to his opinion, the Perpetual Edict has been written, which provides that the goods are sold in such a way, if nothing can be acquired from them for the fisc.
Ex quibusdam causis delatione suscipientium fama non laeditur, veluti eorum, qui non praemii consequendi, item eorum, qui ulciscendi gratia adversarium suum deferunt, vel quod nomine rei publicae suae quis exsequitur causam: et haec ita observari plurifariam principalibus constitutionibus praecipitur.
In certain causes the fame (reputation) of those who undertake delation is not injured, as in the case of those who do not act for the sake of obtaining a reward, likewise those who, for the sake of avenging, denounce their adversary, or because someone prosecutes a case in the name of his own republic: and that these things be thus observed is prescribed in many places by imperial constitutions.
Divus hadrianus flavio arriano in haec verba rescripsit: " quin ei, qui instrumenta ad causam fisci pertinentia, cum possit exhibere, non exhibet, nocere debeat, si verum aliter non invenitur, ea subtracta esse credantur, quae nocitura causae eius fuerint, dubitatum non est. sed nec alias dubitari oportet, quin non in aliam rem nocere debeant, quam in eam qua desiderata sunt".
the deified hadrian issued a rescript to flavius arrianus in these words: " that, as to one who, though able to produce the instruments pertaining to the fiscus’ case, does not produce them, it ought to harm him; if the truth is not otherwise discovered, there has been no doubt that those things are to be believed to have been withheld which would have been harmful to his case. but neither otherwise should it be doubted that they ought not to harm in any other matter than that in which they were desired".
Item divi fratres ad libellum cornelii rufi rescripserunt totiens edenda esse instrumenta, quotiens de iure capiendi vel de iure dominii vel de aliqua causa simili re nummaria quaeratur, non si de capitali causa agatur.
Likewise the deified brothers, in a rescript to the petition of Cornelius Rufus, declared that the instruments are to be exhibited as often as inquiry is made about the right of taking or the right of dominion, or about any similar cause in a pecuniary matter, but not if a capital cause is being litigated.
Senatus censuit, ut, si neque delator neque possessor tribus edictis evocati adfuerint, delatoris quidem fideiussores teneantur et ei postea publicam causam deferendi ius adimatur, possessoris autem ius idem esset, quod si delatus omnino non esset.
The Senate decreed that, if neither the informer nor the possessor, summoned by three edicts, should appear, then the informer’s sureties shall be held, and thereafter the right of bringing a public cause shall be taken away from him; but that the possessor’s right shall be the same as if he had not been denounced at all.
Quotiens tamen delator adesse iussus cessat nec hoc fraude possessoris factum esse probabitur, divus hadrianus rescripsit secundum possessorem pronuntiari oportere, ita ut sententia comprehendatur etiam delatores edicto id comprehendisse.
Whenever, however, the informer, though ordered to be present, fails to appear, and it is not proven that this was done by the possessor’s fraud, the deified Hadrian rescripted that judgment ought to be pronounced in favor of the possessor, in such wise that the sentence also includes that the informers have by the edict comprehended this.
Divus pius caecilio maximo rescripsit constitutionem patris sui, qua compelleretur delator edere mandatorem ac, nisi edidisset, ut in vincula deduceretur, eo pertinere, non ut delator poena subduceretur, si mandatorem haberet, sed ut mandator quoque perinde atque si ipse detulisset puniretur.
the deified Pius replied by rescript to Caecilius Maximus that the constitution of his father, by which the delator was compelled to produce the mandator and, unless he produced him, to be led into custody, pertains to this: not that the delator should be withdrawn from punishment if he had a mandator, but that the mandator also should be punished just as if he himself had brought the charge.
Complura sunt rescripta principalia, quibus cavetur non obesse errorem cuiquam, quod ignotus iuris sui ipse se detulerit. sed extat eorundem principum rescriptum, ex quo videtur posse defendi ita demum non nocere cuiquam se detulisse, si ea persona sit, quae ignorare propter rusticitatem vel propter sexum femininum ius suum possit.
There are several imperial rescripts by which it is provided that a mistake does not prejudice anyone, because, being ignorant of his own right, he has reported himself. But there exists a rescript of those same emperors, from which it seems one may defend the position that only then does it not harm anyone that he has reported himself, if the person is such as can be ignorant of his right by reason of rusticity or by reason of the female sex.
Non intellegitur fraudem legi fecisse, qui rogatus est palam restituere. sed cum quidam testamento suo ita scripsisset: " vos rogo, ut in eo, quod a vobis peti, fidem praestetis: perque deum, ut faciatis, rogo" et quaereretur, an id palam datum intellegeretur: iulianus respondit non quidem apparere, quid ab heredibus ex huiusmodi verbis petitum est. quaeri autem solere, quando intellegatur quis in fraudem legis fidem suam accommodare: et fere eo iam decursum, ut fraus legi fieri videatur, quotiens quis neque testamento neque codicillis rogaretur, sed domestica cautione et chirographo obligaret se ad praestandum ei qui capere non potest: ideoque dici posse ex supra dictis verbis non esse legi fraudem factam.
He is not understood to have committed fraud upon the law who has been asked openly to restore. But when a certain man had written thus in his testament: "I ask you, that in that which is sought from you, you furnish faith; and by God I beg that you do it," and it was asked whether that was understood to have been given openly, Julian answered that it does not indeed appear what was asked from the heirs from such words. But it is wont to be inquired when someone is understood to accommodate his faith in fraud of the law; and it has pretty much now come down to this, that fraud upon the law seems to be done whenever a person is asked neither by testament nor by codicils, but by a domestic caution (security) and by a chirograph he binds himself to render to one who cannot take: and therefore it can be said that from the above-mentioned words no fraud has been done to the law.
Si quis palam rogatus et tacite esset, agitabatur, quid magis praevaleret: utrum id ipsum noceret, quod tacite rogatus esset, an prodesset, quod palam petitum esset. et divus hadrianus rescripsit in eo, quod cuiusque fidei palam commissum est, non esse existimandum fidem suam in fraudem legis accommodasse.
If someone had been asked both openly and tacitly, it was debated which should prevail more: whether the very fact that he had been asked tacitly would harm, or that it had been sought openly would benefit. And the deified Hadrian replied by rescript that, in that which has been openly committed to anyone’s good faith, one ought not to suppose that he has accommodated his good faith in fraud of the law.
Quando autem fraus interposita videatur, agendum est, id est utrum exitus spectari deberet an consilium: forte si tunc, cum tacite fideicommittebatur, non capiebat is, cui restitui iubebatur, mortis vero tempore capere poterat, vel contra. et placuit exitum esse spectandum.
When, however, fraud seems to have been interposed, the matter must be handled—namely, whether the outcome ought to be looked at or the intention: for example, if at the time when it was tacitly fideicommitted, the one to whom it was ordered to be restored could not take, but at the time of death he could take, or the reverse. And it has been decided that the outcome is to be looked at.
Divi fratres rescripserunt in venditionibus fiscalibus fidem et diligentiam a procuratore exigendam et iusta pretia non ex praeterita emptione, sed ex praesenti aestimatione constitui: sicut enim diligenti cultura pretia praediorum ampliantur, ita, si neglegentius habita sint, minui ea necesse est.
The deified brothers wrote in a rescript that, in fiscal sales, good faith and diligence are to be required of the procurator, and that just prices are to be determined not from the prior purchase but from the present estimation: for just as by diligent cultivation the prices of estates are increased, so, if they have been held more negligently, it is necessary that they be reduced.
Cum quinquennium, in quo quis pro publico conductore se obligavit, excessit, sequentis temporis nomine non tenetur: idque principalibus rescriptis exprimitur. divus etiam hadrianus in haec verba rescripsit: " valde inhumanus mos est iste, quo retinentur conductores vectigalium publicorum et agrorum, si tantidem locari non possint. nam et facilius invenientur conductores, si scierint fore ut, si peracto lustro discedere voluerint, non teneantur".
When the five-year period, in which someone bound himself as a public contractor, has elapsed, he is not held for the time thereafter; and this is expressed in imperial rescripts. The deified Hadrian also rescripted in these words: " very inhumane is that custom by which the contractors (lessees) of public taxes and of fields are held, if they cannot be leased for the same amount. For contractors will also be found more easily, if they know that, when the five-year lustrum has been completed, if they should wish to depart, they will not be held".
Multa principalia sunt rescripta, quibus cavetur non aliter fiscum debitorum suorum debitores convenire, nisi principales debitores defecerint, vel ex ratione fisci nomina facta liquido probentur, vel ex contractu fiscali debitores conveniantur.
Many imperial rescripts provide that the fisc is not otherwise to proceed against the debtors of its own debtors, unless the principal debtors have defaulted, or unless the names entered are clearly proven from the account of the fisc, or unless the debtors are proceeded against on a fiscal contract.
Divus hadrianus flavio proculo rescripsit, cum in libertatem proclamat qui ex bonis ad fiscum pertinentibus esse dicitur, iudicium dari praesentibus et agentibus etiam his, qui negotiis fisci solent intervenire: et huiusmodi liberales causae, si non interveniente fisci advocato decisae sint, in integrum restituuntur.
The deified Hadrian wrote in a rescript to Flavius Proculus that, when someone proclaims for freedom who is said to belong among the goods pertaining to the fisc, a trial is to be granted with the parties present, and with those also acting who are accustomed to intervene in the fisc’s business; and freedom-causes (liberales causae) of this sort, if decided without the fisc’s advocate intervening, are restored in full (in integrum).
Deferre autem se nemo cogitur, quod thensaurum invenerit, nisi ex eo thensauro pars fisco debeatur. qui autem, cum in loco fisci thensaurum invenerit, partem ad fiscum pertinentem suppresserit, totum cum altero tanto cogitur solvere.
However, no one is compelled to report himself, because he has found a treasure, unless from that treasure a portion is owed to the fisc. But he who, when he has found a treasure in a place of the fisc, has suppressed the portion pertaining to the fisc, is compelled to pay the whole together with another sum as much again.
Fiscus cum in privati ius succedit, privati iure pro anterioribus suae successionis temporibus utitur: ceterum posteaquam successit, habebit privilegium suum. sed utrum statim atque coepit ad eum pertinere nomen, an vero posteaquam convenit debitorem, an posteaquam relatum est inter nomina debitorum, quaeritur. et quidem usuras exinde petit fiscales, etsi breviores debeantur, ex quo convenit certum debitorem et confitentem.
The fisc, when it succeeds to the right of a private person, uses the right of a private person with respect to the times prior to its succession; but after it has succeeded, it will have its own privilege. But whether immediately, as soon as the claim (nomen) began to pertain to it, or rather after it has convened the debtor, or after it has been entered among the names of debtors, is the question. And indeed from then on it demands fiscal interest, even though shorter would be owed, from the time when it has convened a specific debtor who confesses.
Lucius titius fecit heredes sororem suam ex dodrante, uxorem maeviam et socerum ex reliquis portionibus: eius testamentum postumo nato ruptum est, qui postumus brevi et ipse decessit, atque ita omnis hereditas ad matrem postumi devoluta est. soror testatoris maeviam veneficii in lucium titium accusavit: cum non optinuisset, provocavit: interea decessit rea: nihilo minus tamen apostoli redditi sunt. quaero, an putes extincta rea cognitionem appellationis inducendam propter hereditatem quaesitam.
Lucius Titius made his sister heir from a dodrans (three-quarters), and his wife Maevia and his father-in-law from the remaining portions: his testament was broken by a posthumous child having been born, which posthumous child soon also died, and so the whole inheritance devolved to the mother of the posthumous child. The testator’s sister accused Maevia of poisoning Lucius Titius: when she did not prevail, she appealed; meanwhile the defendant died; nevertheless the apostoli (letters of appeal) were nonetheless delivered. I ask whether you think, with the defendant deceased, the hearing of the appeal should be instituted on account of the inheritance obtained.
In metallum damnatis libertas adimitur, cum etiam verberibus servilibus coercentur. sane per huiusmodi personam fisco nihil adquiri divus pius rescripsit: et ideo quod legatum erat ei, qui postea in metallum damnatus erat, ad fiscum non pertinere rescripsit magisque ait poenae eos quam fisci servos esse.
For those condemned to the mines, liberty is taken away, since they are also coerced by servile lashes. Indeed, the deified Pius rescripted that through a person of this kind nothing is acquired for the fisc; and therefore he rescripted that what had been bequeathed to one who afterwards was condemned to the mines does not pertain to the fisc, and he said that they are rather slaves of the penalty than of the fisc.
Edicto divi traiani, quod proposui, significatur, ut, si quis, antequam causa eius ad aerarium deferatur, professus esset eam rem quam possideret capere sibi non licere, ex ea partem fisco inferret, partem ipse retineret.
By the edict of the deified Trajan, which I have published, it is indicated that, if anyone, before his case is referred to the aerarium (public treasury), has declared that it is not permitted to him to take as his own the thing which he possesses, he shall pay a part of it into the fisc and retain a part himself.
Idem postea edicto significavit, ut, quaecumque professa esset vel palam vel tacite relictum sibi quod capere non posset et probasset iam id ad fiscum pertinere: etiamsi id non possideret, ex eo, quod redactum esset a praefectis aerario, partem dimidiam ferat.
The same man later signified by edict that, whoever had professed, whether openly or tacitly, that something had been left (bequeathed) to oneself which one could not take, and had proved that it already pertained to the fisc: even if one did not possess it, from that which had been brought by the prefects into the aerarium, let one take a half share.
Exstat eiusdem hadriani epistula, ut, si is qui se deferre poterat morte praeventus fuerit, heres eius, si detulerit, praemium consequatur: " si tamen", inquit, " liquebit defunctum eius animi fuisse, ut se vellet deferre": si vero idcirco dissimulaverit, dum rem occultari sperat, heredem eius ultra vulgare praemium nihil consecuturum.
There exists a letter of that same Hadrian, to the effect that, if he who could denounce himself should be forestalled by death, his heir, if he shall have denounced, obtains the reward: " if however", he says, " it will be clear that it was the intention of the deceased to wish to denounce himself": but if for that reason he shall have dissembled, while he hopes the matter may be concealed, his heir will obtain nothing beyond the common reward.
Item divi fratres rescripserunt heredes eorum, quibus tacitum fideicommissum relictum est, ita demum ex beneficio traiani deferre se posse, si is, cui datum fuerat, morte praeventus esset et ideo per angustias temporis deferre se non potuerit.
Likewise the deified brothers rescripted that the heirs of those to whom a tacit fideicommissum has been left can only then, by the beneficium of Trajan, present the claim, if the person to whom it had been given was anticipated by death and therefore, through the straits of time, was not able to present it.
Cum ante apertum testamentum tacitum fideicommissum nuntiatum esset ab his, qui fidem tacitam susceperunt, deinde post apertas a fideicommissario delatum esset, divus antoninus recipi professionem eius iussit: neque enim dignam esse praemio tam praecipitem festinationem prioris, et cum quis se nuntiet non capere, potius confiteri de suo iure quam aliud deferre videtur.
Since, before the will was opened, a tacit fideicommissum had been announced by those who had undertaken the tacit trust, and then, after it was opened, it was reported by the fideicommissary, the deified Antoninus ordered that his profession be received: for the headlong hastening of the earlier party is not worthy of a reward, and when someone announces that he does not take, he seems rather to confess concerning his own right than to bring something against another.
Senatus censuit, si delator abolitionem petat, quod errasse se dicat, ut idem iudex cognoscat, an iusta causa abolitionis sit, et si errasse videbitur, det imprudentiae veniam, si autem calumniae, hoc ipsum iudicet eaque causa accusatori perinde cedat, ac si causam egisset et prodidisset.
The Senate decreed that, if an informer seeks abolition on the ground that he says he has erred, the same judge shall inquire whether there is a just cause for abolition; and if he appears to have erred, let him grant pardon for imprudence, but if (it be) of calumny, let him so judge this, and on that ground let judgment go against the accuser just as if he had pleaded the case and betrayed it.
Quod si tribus edictis a praefecto aerario adesse delator iussus venire noluerit, secundum possessorem sit pronuntiandum: sed ab eo, qui ita adesse iussus respondente possessore non adfuerit, tantum exigendum, quantum apud aerarium ex ea causa quam detulerit remaneret, si professionem eam implesset.
But if, after three edicts by the prefect of the treasury, the informer who was ordered to be present should be unwilling to come, judgment is to be pronounced in favor of the possessor; but from him who, having been so ordered to be present, has not appeared, the possessor having made his response, there is to be exacted only so much as would have remained with the treasury from the cause which he denounced, if he had fulfilled that profession.
Ait divus traianus: " quicumque professus fuerit". " quicumque" accipere debemus tam masculum quam feminam: nam feminis quoque, quamvis delationibus prohibentur, tamen ex beneficio traiani deferre se permissum est. nec non illud aeque non intererit, cuius aetatis sit is qui se defert, utrum iustae an pupillaris: nam pupillis etiam permittitur deferre se, ex quibus non capiunt.
A divine Trajan says: " whoever shall have professed." " whoever" we ought to take as including both male and female: for to females also, although they are prohibited from delations, nevertheless by Trajan’s beneficium it is permitted to report themselves. Nor likewise will it make any difference of what age is he who reports himself, whether of full age or of pupillary age: for to pupils also it is permitted to report themselves, in matters from which they do not take.
Item eos, qui tutores vel curatores fuerunt, non oportere deferre causas pupillorum vel adulescentium suorum divi severus et antoninus rescripserunt. quod consequens est observari et in eo, qui quasi procurator negotia gessit: et ita idem principes rescripserunt. idem decreverunt nulla constitutione prohibitum esse procuratorem interrogari, sed accusare eum, cuius negotia gessit.
Likewise, the deified Severus and Antoninus rescripted that those who have been tutors or curators ought not to bring charges concerning their own pupils (wards) or adolescents. It is consistent that the same be observed also in the case of one who has transacted affairs as a quasi-procurator; and thus the same princes rescripted. They likewise decreed that by no constitution is it prohibited to interrogate a procurator, but it is prohibited to accuse the person whose affairs he has managed.
Papinianus tam libro sexto quam undecimo responsorum scribit ita demum publicam auferri pecuniam ei, qui, cum erat creditor, in solutum pecuniam accepit, si aut sciebat, cum accipiebat, publicum quoque esse debitorem, aut postea cognovit, antequam consumeret pecuniam. sed placet omnimodo ei pecuniam auferendam esse, etiamsi ignoravit, cum consumeret: et postea quidam principes directam actionem competere ablata pecunia rescripserunt, ut et Marcellus libro septimo digestorum scribit.
Papinian writes both in the sixth and in the eleventh book of his Responses that only then is public money to be taken away from him who, when he was a creditor, accepted money in satisfaction (in solutum), if either he knew, when he was receiving it, that the debtor was also a public debtor, or later learned it before he consumed the money. But it is held that in every case the money must be taken from him, even if he was ignorant when he consumed it; and afterwards certain emperors, by rescripts, declared that a direct action lies for the abstracted money, as Marcellus also writes in the seventh book of his Digests.
Titius, qui mihi sub pignoribus pecuniam debebat, cum esset fisci debitor, solvit mihi quae debebat: postea fiscus iure suo usus abstulit mihi pecuniam. quaerebatur, an liberata essent pignora. Marcellus recte existimabat, si id quod mihi solutum est fiscus abstulit, non competere pignorum liberationem.
Titius, who owed me money under pledges, since he was a debtor of the fisc, paid me what he owed; afterwards the fisc, using its own right, took the money away from me. It was asked whether the pledges had been released. Marcellus rightly thought that, if the fisc took away that which was paid to me, the liberation of the pledges does not obtain.
Res, quae in controversia sunt, non debent a procuratore caesaris distrahi, sed differenda est eorum venditio, ut divus quoque severus et antoninus rescripserunt, et defuncto maiestatis reo, parato herede purgare innocentiam mortui, distractionem bonorum suspendi iusserunt, et generaliter prohibuerunt rem distrahi a procuratore, quae esset in controversia.
Things which are in controversy ought not to be sold by the procurator of the Caesar, but the sale of them must be deferred, as the deified Severus and Antoninus also rescripted; and, with the defendant on a charge of treason deceased, the heir being ready to purge the innocence of the dead man, they ordered the sale of the goods to be suspended, and in general they forbade a thing which was in controversy to be sold by a procurator.
Res autem nexas pignori distrahere procuratores possunt. sed si ante alii res obligatae sunt iure pignoris, non debet procurator ius creditorum laedere: sed si quidem superfluum est in re, permittitur procuratori vendere ea lege, ut imprimis creditoribus praecedentibus satisfiat et si quid superfluum est, fisco inferatur, aut, si acceperit totum fiscus, solvat ipse: vel simpliciter si vendidit procurator, iubebit pecuniam, quam deberi creditori privato fuerit probatum, exsolvi ei. et ita divus severus et antoninus rescripserunt.
Moreover, procurators can sell off things bound in pledge. But if beforehand the things have been obligated to others by right of pledge, the procurator ought not to injure the right of the creditors: but if indeed there is a surplus in the thing, it is permitted to the procurator to sell on this condition, that first the preceding creditors be satisfied and, if there is any surplus, it be paid into the fisc; or, if the fisc has received the whole, let it itself make payment; or, simply, if the procurator has sold, he will order that the money which it has been proved is owed to the private creditor be paid out to him. And thus the deified Severus and Antoninus issued a rescript.
Lites donatas se non suscipere divus pius rescripsit, licet bona relicturum se quis profiteatur: vel partem bonorum donatam non suscipere. et adiecit et illum dignum fuisse puniri pro tam turpi tamque invidioso commento, et nisi durum esse videbatur in ultro venientem poenam statuere.
The deified Pius wrote in a rescript that he did not take up donated lawsuits, even if someone professes that he will bequeath his goods; or to not accept a part of the goods that has been donated. And he added that that man was worthy to be punished for so base and so invidious a contrivance, unless it seemed harsh to set a penalty upon one who came of his own accord.
Sicut nuntiare causam nemo cogitur, ita liberum arbitrium desistendi ei non datur qui detulit: et ita divi severus et antoninus rescripserunt: et idem esse, licet alieno mandato detulisset. plane rescripserunt delatorem audiendum volentem a lite desistere, si sibi mandatorem subtractum queratur.
Just as no one is compelled to announce a case, so the free discretion of desisting is not given to the one who has laid information: and thus the deified Severus and Antoninus wrote in rescript; and that it is the same, even if he had laid information by another’s mandate. Clearly they wrote in rescript that the informer is to be heard who wishes to desist from the suit, if he complains that his mandator has been withdrawn from him.
Si qui mihi obligaverat quae habet habiturusque esset cum fisco contraxerit, sciendum est in re postea adquisita fiscum potiorem esse debere papinianum respondisse: quod et constitutum est. praevenit enim causam pignoris fiscus.
If someone who had pledged to me what he has and what he would have has contracted with the fisc, it must be understood that Papinian replied that, in property acquired thereafter, the fisc ought to be the superior; and this too has been established. For the fisc anticipates the cause of the pledge.
Eius, qui delatorem corrupit, ea condicio est, ut pro victo habeatur: nam in fiscalibus causis id constitutum est. sed enim haec poena magis est ut adversus ipsum locum habeat, qui delatorem redemit: ceteroquin adversus heredem eius transire non debet. nec enim exinde perit causa, ex quo redempta est, vel actio peremitur vel condemnatio facta videtur, verum oportet constare prius et de crimine pronuntiare.
The condition of him who has corrupted an informer is that he be held as the defeated party: for in fiscal causes this has been constituted. But indeed this penalty is rather to have effect against the person himself who bought off the informer; otherwise it ought not to pass against his heir. For neither does the case perish on that account, because he has been bought off, nor is the action extinguished nor does a condemnation seem to have been made; rather, it must first be established and a pronouncement made concerning the crime.
plainly, if perchance there is proceeding about retracting a case which has once been adjudicated, because of the informer’s corruption, the corrupter, though dead, will not bring it about that the case cannot be proceeded with and reconsidered: for here it is not a matter of punishment, but of the restitution of the case.
Et obligationes, quas adeundo confudit, non restituuntur: nam et in eo, qui post aditam hereditatem defuncti mortem non defendit, imperator noster cum patre rescripsit obligationes confusas non resuscitari.
And the obligations which he has confounded by entering upon the inheritance are not restored: for even in the case of one who, after the inheritance has been entered upon, does not defend a suit concerning the deceased’s death, our emperor, together with his father, rescripted that confounded obligations are not to be resuscitated.
Sed si accepto usu togae romanae ut cives romani semper egerint, divi fratres procuratoribus hereditatium rescripserunt sine dubitatione ius eorum ab obsidis condicione separatum esse beneficio principali, ideoque idem ius eis servandum, quod habent, si a legitimis civibus romanis heredes instituti fuissent.
But if, upon receiving the use of the Roman toga, they have always conducted themselves as Roman citizens, the deified brothers rescripted to the procurators of inheritances that, without doubt, their right was separated from the condition of hostage by imperial beneficium; and therefore the same right must be observed for them as they would have if they had been instituted heirs by lawful Roman citizens.
Imperatores severus et antoninus asclepiadi ita rescripserunt: " tu, qui defensione omissa redimere sententiam maluisti, cum tibi crimen obiceretur, non immerito quingentos solidos inferre fisco iussus es: omissa enim ipsius causae inquisitione ipse te huic poenae subdidisti. optinendum est enim, ut hi, quibus negotia fiscalia moventur, ad defensiones causae bona fide veniant, non adversarios aut iudices redimere temptent".
The emperors Severus and Antoninus wrote back to Asclepiades as follows: "You, who, with the defense omitted, preferred to buy off the sentence when a charge was being brought against you, were not undeservedly ordered to pay five hundred solidi into the fisc: for, the inquiry into the case itself having been omitted, you subjected yourself to this penalty. It must be maintained that those against whom fiscal matters are set in motion come to the defense of the case in good faith, and do not attempt to buy off their adversaries or the judges."
Apud iulianum scriptum est: si privatus ad se pertinere hereditatem lucii titii dicat, altero eandem hereditatem fisco vindicante: quaeritur, utrum ius fisci ante excutiendum sit et sustinendae actiones ceterorum, an nihilo minus inhibendae petitiones creditorum singulorum, ne publicae causae praeiudicetur. idque senatus consultis expressum est.
It is written in Julianus: if a private person says that the inheritance of Lucius Titius pertains to himself, while another vindicates the same inheritance for the fisc, the question is whether the right of the fisc must first be examined and the actions of the others stayed, or nonetheless the petitions of individual creditors inhibited, lest prejudice be done to the public cause. And this has been expressed by decrees of the Senate.
Fiscus in quaestione falsi testamenti non optinuit: priusquam autem ea quaestio decideretur, alio nuntiante bona postea vacare constitit. fructus post primam litem absumi non oportuisse respondi: neque enim ad senatus consulti beneficium scriptum heredem pertinere controversia mota.
The fisc did not prevail in the question of a forged testament: but before that question was decided, another announcing, it was established that the goods afterwards stood vacant. I answered that the fruits ought not to have been consumed after the first lawsuit: for the instituted (written) heir does not pertain to the benefit of the senatus consultum, the controversy having been set in motion.
Ita fidei heredis commisit: " rogo fundum titio des, de quo te rogavi". si titius capere non possit, non evitabit heres poenam taciti fideicommissi: non enim est palam relinquere, quod ex testamento sciri non potest, cum recitatum est. quemadmodum nec ille palam dat, qui ita scribit: " rogo vos, heredes, in eo, quod a vobis peti, fidem praestetis". immo in priore specie maiorem fraudem excogitasse videtur, qui non tantum legem circumvenire voluit, sed etiam interpretationem legis, quae circa tacitum fideicommissum habetur: quamvis enim fundum nominaverit, non tamen cognosci potest, de quo sit rogatus heres, cum diversitas rerum obscurum faciat legatum.
He thus committed it to the faith of the heir: " I ask that you give the estate to Titius, about which I asked you." If Titius cannot take, the heir will not avoid the penalty of the tacit trust: for it is not to leave something openly, when it cannot be known from the testament as it is recited. Just as neither does he give it openly who writes thus: " I ask you, heirs, that in that which is asked from you, you provide good faith." Nay rather, in the former case he seems to have devised a greater fraud, who wished not only to circumvent the law, but also the interpretation of the law which is held concerning a tacit trust: for although he has named the estate, nevertheless it cannot be known about which one the heir has been asked, since the diversity of things makes the legacy obscure.
Arrianus severus praefectus aerarii, cum eius, qui tacite rogatus fuerat non capienti fideicommissum reddere, bona publicata erant, pronuntiavit nihilo minus ius deferendi ex constitutione divi traiani habere eum cui fideicommissum erat relictum.
Arrianus Severus, prefect of the treasury, when the goods of the man who had been tacitly asked to return a fideicommissum to one not capable of taking it had been confiscated, declared that nonetheless, by virtue of the constitution of the deified Trajan, the person to whom the fideicommissum had been left had the right of delation (the right to have it tendered).
Quia autem nonnulli ingrati adversus beneficium divi traiani post professionem quoque de tacito fideicommisso factam cum possessoribus transigunt atque tribus edictis evocati non respondent, placuit senatui tantum ab eo qui id fecisset exigi, quantum apud aerarium ex ea causa quam detulerat remanere oporteret, si professionem suam implesset: et si possessoris quoque fraus apud praefectum convicta fuisset, ab eo quoque quod convictus inferre debuisset exigi.
Because, however, certain ungrateful persons, contrary to the beneficium of the deified Trajan, even after a profession made concerning a tacit fideicommiss, transact with the possessors and, summoned by three edicts, do not respond, it pleased the senate that only so much be exacted from him who had done this as ought to remain in the aerarium (state treasury) on account of that cause which he had reported, if he had fulfilled his profession; and if the possessor’s fraud also were proven before the prefect, that from him likewise there be exacted what, upon conviction, he ought to pay.
Eius bona, qui sibi mortem conscivit, non ante ad fiscum coguntur, quam prius constiterit, cuius criminis gratia manus sibi intulerit. eius bona, qui sibi ob aliquod admissum flagitium mortem conscivit et manus intulit, fisco vindicantur: quod si id taedio vitae aut pudore aeris alieni vel valetudinis alicuius impatientia admisit, non inquietabuntur, sed suae successioni relinquuntur.
The goods of one who has contrived death for himself are not compelled to the fisc before it has first been established for what crime’s sake he laid hands upon himself. The goods of one who, on account of some admitted flagitious offense, has contrived death for himself and laid hands upon himself, are vindicated to the fisc; but if he did this from weariness of life, or from the shame of indebtedness, or from impatience of some illness, they will not be disturbed, but are left to his own succession.
Ipse autem fiscus actorum suorum exempla hac condicione edit, ut is, cui describendi fit potestas, adversus se vel rem publicam his actis ne utatur: de quo cavere compellitur, ut, si usus is contra interdictum fuerit, causa cadat.
The fisc itself issues exemplars of its acts under this condition: that he to whom power of transcribing is granted shall not use these acts against itself or the commonwealth; and he is compelled to give a caution concerning this, that, if he shall have used them contrary to the interdiction, his case falls.
Quotiens apud fiscum agitur, actorum potestas postulanda est, ut merito is uti liceat, eaque manu commentariensis adnotanda sunt. quod si ea aliter proferantur, is qui ita protulerit causa cadit.
Whenever litigation is before the fisc (the imperial treasury), the authority over the acts (official records) must be requested, so that one may rightly be permitted to use them; and they must be annotated in the hand of the commentariensis (the record‑clerk). But if they are produced otherwise, the one who has so produced them loses the case.
Fiscalibus debitoribus petentibus ad comparandam pecuniam dilationem negari non placuit. cuius rei aestimatio ita arbitrio iudicantis conceditur, ut in maioribus summis non plus quam tres menses, in minoribus vero non plus quam duo prorogentur: prolixioris autem temporis spatium ab imperatore postulandum est.
It has not been approved to deny a deferment to fiscal debtors who request time to procure the money. The appraisal of this matter is thus entrusted to the discretion of the judge, so that in greater sums not more than three months, but in smaller not more than two, be extended: but a span of more prolonged time must be requested from the emperor.
Quod a praeside seu procuratore vel quolibet alio in ea provincia, in qua administrat, licet per suppositam personam comparatum est, infirmato contractu vindicatur et aestimatio eius fisco infertur: nam et navem in eadem provincia, in qua quis administrat, aedificare prohibetur.
Whatever has been acquired by a governor or procurator or by any other person in that province in which he administers, even through an interposed person, the contract being invalidated is claimed, and its valuation is brought into the fisc: for it is also prohibited to build a ship in the same province in which one administers.
Si multi fisco fraudem fecerint, non ut in actione furti singuli solidum, sed omnes semel quadrupli poenam pro virili portione debent. sane pro non idoneis qui sunt idonei conveniuntur.
If many have committed fraud upon the fiscus, then not, as in the action of theft, does each individual owe the whole (solidum), but all together owe once the quadruple penalty, in proportion to their virile portion (pro rata). Indeed, on behalf of those who are not solvent, those who are solvent are sued.
Moschis quaedam, fisci debitrix ex conductione vectigalis, heredes habuerat, a quibus post aditam hereditatem faria senilla et alii praedia emerant. cum convenirentur propter moschidis reliqua et dicebant heredes moschidis idoneos esse et multos alios ex isdem bonis emisse, aequum putavit imperator prius heredes conveniri debere, in reliquum possessorem omnem: et ita pronuntiavit.
A certain Moschis, a debtor to the fisc from the lease of a tax, had had heirs, from whom, after the inheritance was entered upon, Faria Senilla and others had purchased estates. When they were being sued on account of Moschis’s arrears and said that the heirs of Moschis were solvent and that many others had bought from the same goods, the emperor judged it equitable that the heirs should first be proceeded against, and, for the remainder, any possessor; and so he pronounced.
Aemilius ptolemaeus conduxerat a fisco possessionem eamque paulatim pluribus locaverat maiore quantitate quam ipse susceperat: conveniebatur a procuratoribus caesaris in eam quantitatem quam ipse perciperet. hoc iniquum et inutile fisco videbatur, ut tamen suo periculo ipse eos quibus locaverat conveniret: ideoque pronuntiavit in eam solam quantitatem eum conveniri debere, qua ipse conductor exstiterat.
Aemilius Ptolemaeus had taken on lease from the fiscus a possession, and little by little had let it to several for a greater quantity than he himself had undertaken; he was being proceeded against by the procurators of Caesar for that quantity which he himself was receiving. This seemed unfair and unprofitable to the fiscus, though he himself should, at his own peril, sue those to whom he had let it; and therefore he pronounced that he ought to be sued only for that quantity for which he himself had stood as lessee.
Statius florus testamento scripto heredis sui pompeii tacitae fidei commiserat, ut non capienti fundum et certam pecuniae quantitatem daret, et eo nomine cautionem a pompeio exigi curaverat se restituturum ea, quae ei per praeceptionem dederat. postea idem florus facto secundo testamento et eodem pompeio et faustino heredibus institutis nullas praeceptiones pompeio dederat. haec persona, quae capere non poterat, se detulerat.
Statius Florus, by a written testament, had committed to the tacit faith of his heir Pompeius that he should give to one who could not take a farm and a certain quantity of money, and under that heading he had taken care that security be exacted from Pompeius that he would restore those things which he had given to him by praeception. Afterwards the same Florus, a second testament having been made and the same Pompeius and Faustinus instituted as heirs, had given no praeceptions to Pompeius. This person, who could not take, had reported himself.
the emperors, having been consulted by the procurators, had rescripted that, if it were not proven that the intention had been changed, the fideicommissum must be performed: and thus Pompeius, having been condemned, maintained that this ought to be a burden of the inheritance, because he had not received the preemptions (praeceptiones), nor could the testator seem to have persevered in his first intention only as to a part, but as to the whole. the pronouncement was that neither did the prior testament subsist, nor, even if he had made a grant in the first testament, could it have been sought under the later, unless it had been sought. it was decided that, because he did not prove that the preemptions (praeceptiones) had been given to him by his bond alone, he ought to furnish only the fideicommissum.
Cornelio felici mater scripta heres rogata erat restituere hereditatem post mortem suam. cum heres scripta condemnata esset a fisco et omnia bona mulieris occuparentur, dicebat felix se ante poenam esse ( hoc enim constitutum est). sed si nondum dies fideicommissi venisset, quia posset prius ipse mori vel etiam mater alias res adquirere, repulsus est interim a petitione.
To Cornelius Felix the mother, instituted heir, had been asked to restore the inheritance after her own death. When the instituted heir had been condemned by the fisc, and all the woman’s goods were seized, Felix said that he had precedence over the penalty (for this has been established). But if the day of the fideicommissum had not yet come, because he might himself die earlier or even the mother might acquire other assets, he was in the meantime repulsed from the petition.
Cum tacitum fideicommissum is cui datum erat capere se nihil posse detulisset, in quaestionem venit, dodrantis an totius assis partem dimidiam ex beneficio divi traiani recipere debeat. de qua re exstat rescriptum imperatoris antonini in haec verba: " imperator antoninus iulio rufo. qui tacitam fidem accommodavit, ut non capienti restitueret hereditatem, si deducta parte quarta restituit, nihil retinere debet.
When the person to whom a tacit fideicommiss had been given reported that he could take nothing, the question arose whether he ought, by the beneficium of the deified Trajan, to recover a half of a dodrans or of the whole as. On which matter there exists a rescript of Emperor Antoninus in these words: " Emperor Antoninus to Julius Rufus. He who has accommodated a tacit fideicommiss, in order to restore the inheritance to one not capable of taking, if, a fourth part having been deducted, he has restored it, ought to retain nothing.
Valerius patruinus procurator imperatoris flavio stalticio praedia certo pretio addixerat. deinde facta licitatione idem stalticius recepta ea licitatione optinuerat et in vacuam possessionem inductus erat. de fructibus medio tempore perceptis quaerebatur: patruinus fisci esse volebat.
Valerius patruinus, procurator of the emperor, had awarded the estates to Flavius Stalticius at a fixed price. Then, an auction having been held, the same Stalticius, having taken up that bidding, had prevailed and had been inducted into vacant possession. There was inquiry about the fruits gathered in the meantime: patruinus wanted them to belong to the fisc.
Clearly, if in the meantime between the first bidding and the subsequent addition they had been collected, they would have pertained to the vendor (as is wont to be said, when an adjudication for a day has been made, then a better condition is brought), nor ought we to be moved by the fact that it was the same person to whom the estates had also first been adjudicated. But since both adjudications had been made within the time of the vintage, there was a departure from this line of treatment; and so it was decided that the fruits were the buyer’s. Papinian and Messius introduced a new opinion, because the estates were under a colonus, that it was unjust for all the fruits to be taken away from him: rather, the colonus should indeed collect them, while the buyer would receive the rent of that year, so that the fisc be not held to the colonus, because it had not been permitted him to enjoy the use: and the same would hold even if this very point had been agreed upon in the purchase.
He nevertheless pronounced, according to their opinion, that—if indeed they were being cultivated by the owner—he was to have all the fruits; but if under a colonus (tenant farmer), to receive the rent. Tryphoninus suggesting what he thought about dry fruits which had previously been gathered on the estates, he replied that, if the day of the rent had not yet come when they were awarded, the purchaser would receive those also.
Eos, qui ab hostibus capiuntur vel hostibus deduntur, iure postliminii reverti antiquitus placuit. an qui hostibus deditus reversus nec a nobis receptus civis romanus sit, inter brutum et scaevolam varie tractatum est: et consequens est, ut civitatem non adipiscatur.
Those who are captured by enemies or are surrendered to the enemies have, by the right of postliminy, been allowed of old to return. Whether one who, having been surrendered to the enemies, returns and is not received back by us is a Roman citizen was variously treated between Brutus and Scaevola; and the consequence is that he does not acquire citizenship.
In bello, cum hi, qui nobis hostes sunt, aliquem ex nostris ceperunt et intra praesidia sua perduxerunt: nam si eodem bello is reversus fuerit, postliminium habet, id est perinde omnia restituuntur ei iura, ac si captus ab hostibus non esset. antequam in praesidia perducatur hostium, manet civis. tunc autem reversus intellegitur, si aut ad amicos nostros perveniat aut intra praesidia nostra esse coepit.
In war, when those who are enemies to us have taken one of our people and have led him within their lines: for if in the same war he has returned, he has postliminium, that is, all his rights are restored to him just as if he had not been captured by the enemy. Before he is led into the enemies’ lines, he remains a citizen. Then he is understood to have returned, if either he reaches our friends or has begun to be within our lines.
In pace quoque postliminium datum est: nam si cum gente aliqua neque amicitiam neque hospitium neque foedus amicitiae causa factum habemus, hi hostes quidem non sunt, quod autem ex nostro ad eos pervenit, illorum fit, et liber homo noster ab eis captus servus fit et eorum: idemque est, si ab illis ad nos aliquid perveniat. hoc quoque igitur casu postliminium datum est.
In peace also postliminy is granted: for if with some nation we have made neither friendship nor hospitality nor a treaty for the sake of friendship, these indeed are not enemies; but whatever of ours reaches them becomes theirs, and our free man, captured by them, becomes a slave and theirs: and the same is so if anything from them reaches us. Therefore in this case too postliminy is granted.
Captivus autem si a nobis manumissus fuerit et pervenerit ad suos, ita demum postliminio reversus intellegitur, si malit eos sequi quam in nostra civitate manere. et ideo in atilio regulo, quem carthaginienses romam miserunt, responsum est non esse eum postliminio reversum, quia iuraverat carthaginem reversurum et non habuerat animum romae remanendi. et ideo in quodam interprete menandro, qui posteaquam apud nos manumissus erat, missus est ad suos, non est visa necessaria lex, quae lata est de illo, ut maneret civis romanus: nam sive animus ei fuisset remanendi apud suos, desineret esse civis, sive animus fuisset revertendi, maneret civis, et ideo esset lex supervacua.
A captive, however, if he has been manumitted by us and has arrived among his own people, only then is he understood to have returned by postliminium, if he prefers to follow them rather than to remain in our city. And therefore in the case of Atilius Regulus, whom the Carthaginians sent to Rome, it was answered that he had not returned by postliminium, because he had sworn that he would return to Carthage and did not have the intention of remaining at Rome. And therefore in the case of a certain interpreter Menander, who, after he had been manumitted among us, was sent to his own people, the statute which was passed concerning him, that he should remain a Roman citizen, did not seem necessary: for whether he had had the intention of remaining among his own, he would cease to be a citizen; or whether he had had the intention of returning, he would remain a citizen, and therefore the statute was superfluous.
Non dubito, quin foederati et liberi nobis externi sint, nec inter nos atque eos postliminium esse: etenim quid inter nos atque eos postliminio opus est, cum et illi apud nos et libertatem suam et dominium rerum suarum aeque atque apud se retineant et eadem nobis apud eos contingant?
I do not doubt that the federates and the free are foreigners to us, and that there is no postliminium between us and them: for indeed what need is there of postliminium between us and them, since both they among us retain both their liberty and the dominion of their goods equally as they do among themselves, and the same things befall us among them?
Liber autem populus est is, qui nullius alterius populi potestati est subiectus: sive is foederatus est item, sive aequo foedere in amicitiam venit sive foedere comprehensum est, ut is populus alterius populi maiestatem comiter conservaret. hoc enim adicitur, ut intellegatur alterum populum superiorem esse, non ut intellegatur alterum non esse liberum: et quemadmodum clientes nostros intellegimus liberos esse, etiamsi neque auctoritate neque dignitate neque viri boni nobis praesunt, sic eos, qui maiestatem nostram comiter conservare debent, liberos esse intellegendum est.
Moreover, a free people is one that is subject to the power of no other people: whether it is likewise federated by treaty, or has come into friendship by an equal treaty, or it is included in a treaty that that people should courteously preserve the majesty of another people. For this is added, so that it may be understood that the other people is superior, not so that it may be understood that the other is not free: and just as we understand our clients to be free, even if they are not our superiors either in authority or in dignity or as good men, so those who ought courteously to preserve our majesty are to be understood as free.
Non ut a patre filius, ita uxor a marito iure postliminii recuperari potest, sed tunc, cum et voluerit mulier et adhuc alii post constitutum tempus nupta non est: quod si noluerit nulla causa probabili interveniente, poenis discidii tenebitur.
Not as a son from a father, so a wife from a husband can be recovered by the right of postliminy, but only when both the woman is willing and she has not yet been married to another after the appointed time: but if she is unwilling, with no probable cause intervening, she will be liable to the penalties of divorce.
Pater instituto impuberi filio substituerat et ab hostibus captus ibi decessit: postea defuncto impubere legitimum admitti quibusdam videbatur neque tabulas secundas in eius persona locum habere, qui vivo patre sui iuris effectus fuisset. verum huic sententiae refragatur iuris ratio, quoniam, si pater, qui non rediit, iam tunc decessisse intellegitur, ex quo captus est, substitutio suas vires necessario tenet.
A father, with his underage son instituted, had appointed a substitute and, captured by the enemy, died there: afterwards, when the underage son had died, it seemed to some that the legitimate heir should be admitted, and that the second tablets had no place in the person of one who would have become sui iuris while his father was alive. But the reasoning of the law opposes this opinion, since, if the father who did not return is understood to have already died from the time he was captured, the substitution necessarily holds its own force.
Si mortuo patre capiatur impubes institutus vel exheredatus, in promptu est dicere legem corneliam de tabulis secundis nihil locutam eius dumtaxat personam demonstrasse, qui testamenti factionem habuisset. plane captivi etiam impuberis legitimam hereditatem per legem corneliam deferri, quoniam verum est ne impuberem quidem factionem testamenti habuisse: et ideo non esse alienum praetorem subsequi non minus patris quam legis voluntatem et utiles actiones in hereditatem substituto dare.
If, with the father dead, an impubes who had been instituted or disinherited is taken captive, it is easy to say that the Cornelian law on the second tablets, though saying nothing, nevertheless pointed only to that person who would have had testamentary capacity. Clearly, the legitimate (statutory) inheritance even of an impubes taken captive is delated by the Cornelian law, since it is true that not even the impubes had testamentary capacity; and therefore it is not out of place for the praetor to follow the intention of the father no less than that of the law and to grant useful actions to the substitute heir with respect to the inheritance.
Quod si filius ante moriatur in civitate, nihil est quod de secundis tabulis tractari possit, sive quoniam vivo patre filius familias mori intellegitur, sive quoniam non reverso eo exinde sui iuris videtur fuisse, ex quo pater hostium potitus est.
But if the son dies earlier in the state, there is nothing that can be dealt with concerning the second tablets, either because a filius familias is understood to die with his father alive, or because, if he does not return, from then on he is deemed to have been sui iuris from the time when the father came into the power of the enemy.
In bello postliminium est, in pace autem his, qui bello capti erant, de quibus nihil in pactis erat comprehensum. quod ideo placuisse servius scribit, quia spem revertendi civibus in virtute bellica magis quam in pace romani esse voluerunt. verum in pace qui pervenerunt ad alteros, si bellum subito exarsisset, eorum servi efficiuntur, apud quos iam hostes suo facto deprehenduntur.
In war there is postliminy; in peace, however, it applies to those who had been captured in war, about whom nothing had been included in the treaties. Servius writes that this was therefore approved, because the Romans wanted citizens’ hope of returning to rest more on martial virtue than on peace. But those who in peace have come over to the other side, if war has suddenly flared up, become the slaves of those among whom, by their own act, they are now apprehended as enemies.
Si quis capiatur ab hostibus, hi, quos in potestate habuit, in incerto sunt, utrum sui iuris facti an adhuc pro filiis familiarum computentur: nam defuncto illo apud hostes, ex quo captus est, patres familiarum, reverso numquam non in potestate eius fuisse credentur. ideo et de his, quae medio tempore adquirunt stipulatione traditione legato ( nam hereditate non possunt), tractatum est, ubi non est reversus, si forte alii vel in totum ( his exheredatis testamento) vel in partem instituti sunt heredes, utrum in hereditate captivi, quae lege cornelia inducitur, an propria ipsorum sint. quod verius est: diversumque in his, quae per servos adquiruntur, merito: quia hi bonorum fuerunt et esse perseverant, hi sui iuris exinde sibique ideo adquisisse intelleguntur.
If anyone is captured by the enemy, those whom he had in his power are in uncertainty whether they have been made sui iuris or are still to be counted as sons in the family: for if that man dies among the enemy, from the time he was captured they are fathers of families; if he returns, they are deemed never not to have been in his power. Therefore there has also been discussion about those things which in the meantime they acquire by stipulation, by tradition (delivery), by legacy (for by inheritance they cannot): where he has not returned, if perchance others have been instituted heirs either in whole (they being disinherited by the testament) or in part, whether these things belong in the inheritance of the captive, which is introduced by the Lex Cornelia, or are their own property. The latter is truer; and, deservedly, the opposite holds in those things which are acquired through slaves: because the latter were of the estate and continue to be, whereas these are from then on sui iuris and are therefore understood to have acquired for themselves.
Facti autem causae infectae nulla constitutione fieri possunt. ideo eorum, quae usucapiebat per semet ipsum possidens qui postea captus est, interrumpitur usucapio, quia certum est eum possidere desisse. eorum vero, quae per subiectas iuri suo personas possidebat usuque capiebat, vel si qua postea peculiari nomine comprehenduntur, iulianus scribit credi suo tempore impleri usucapionem remanentibus isdem personis in possessione.
But causes of fact cannot be made as if not done by any constitution. Therefore, as to those things which someone, possessing by himself, was acquiring by usucapion, and who was later captured, the usucapion is interrupted, because it is certain that he has ceased to possess. But as to those things which he possessed and was acquiring by usucapion through persons subject to his legal power, or if any are later included under the special name of a peculium, Julian writes that it is believed that the usucapion is completed in its due time, with the same persons remaining in possession.
Medio tempore filius, quem habuit in potestate captivus, uxorem ducere potest, quamvis consentire nuptiis pater eius non posset: nam utique nec dissentire. susceptus ergo nepos in reversi captivi potestate ut avi erit suusque heres ei quodammodo invito, cum nuptiis non consenserit. non mirum, quia illius temporis condicio necessitasque faciebat et publica nuptiarum utilitas exigebat.
In the meantime the son, whom the captive had in his power, can take a wife, although his father could not consent to the nuptials: for of course he could not even dissent. Therefore the grandson, once received (i.e., born), will be in the power of the returned captive, as of a grandfather, and will be his own heir (suus heres), in a certain manner unwilling, since he did not consent to the nuptials. No wonder, because the condition and necessity of that time brought it about, and the public utility of marriages required it.
Codicilli, si quos in tempore captivitatis scripserit, non creduntur iure suptili confirmati testamento, quod in civitate fecerat. sed nec fideicommissum ex his peti potest, quia non sunt ab eo facti, qui testamenti factionem habuit. sed quia merum principium eorum in civitate constituto captivo factum est, id est in testamento confirmatio codicillorum, et is postea reversus est et postliminio ius suum recepit, humanitatis rationi congruum est eos codicillos ita suum effectum habere, quasi in medio nulla captivitas intercessisset.
Codicils, if he wrote any during the time of captivity, are not considered, by a fine-spun legal reasoning, to have been confirmed by the testament which he had made in the city. But neither can a fideicommissum be sought from these, because they were not made by one who had testamenti factio. Yet since the mere starting-point of them was effected with the captive established in the city—that is, the confirmation of codicils in the testament—and he later returned and by postliminy recovered his right, it accords with the rationale of humanity that those codicils should thus have their effect as if in the meantime no captivity had intervened.
Et si ignorans captivum, existimans vendentis esse redemit, an quasi usucepisse videatur, scilicet ne post legitimum tempus offerendi pretii priori domino facultas sit, videamus. nam occurrit, quod constitutio, quae de redemptis lata est, eum redimentis servum facit, et quod meum iam usucapere me intellegi non potest. rursum cum constitutio non deteriorem causam redimentium, sed si quo meliorem effecerit, peremi ius bonae fidei emptoris vetustissimum et iniquum et contra mentem constitutionis est: ideoque transacto tempore, quanto, nisi constitutio eum proprium fecisset, usucapi potuisset, nihil ex constitutione domino superesse recte dicetur.
And if, being ignorant that he was a captive, he redeemed him supposing him to belong to the seller, let us consider whether he is to be regarded as if he had acquired by usucapion—namely, so that after the lawful time for tendering the price there should be no faculty for the prior owner. For it occurs that the constitution which was enacted concerning those redeemed makes him the slave of the redeemer, and that I cannot be understood to usucapt what is already mine. Again, since the constitution does not make the condition of redeemers worse, but, if in any respect, has made it better, to take away the most time-honored right of the good-faith purchaser is inequitable and contrary to the intention of the constitution: and therefore, once there has elapsed the period within which, unless the constitution had made him the redeemer’s own, he could have been usucapted, it will rightly be said that nothing remains to the owner from the constitution.
Manumittendo autem utrum desinit tantum dominus esse et relictus ab eo servus in ius prioris domini redit? an et liberum eum facit, ne praestatio libertatis dominii fiat translatio? certe apud hostes manumissus liberatur, et tamen si eum nanctus dominus ipsius vetus intra praesidia nostra fuisset, quamvis non secutum res nostras, sed dum eo consilio venisset, ut ad illos reverteretur, servum retineret iure postliminii.
By manumitting, does he merely cease to be master, and does the slave, left by him, return into the right of the prior master? Or does he also make him free, lest the bestowal of liberty become a translation (transfer) of dominion? Certainly, when manumitted among the enemies, he is liberated; and yet, if his old master had encountered him within our garrisons, although he had not followed our cause, but had come with this design, that he might return to them, he would retain him as a slave by the right of postliminy.
which in the case of free persons was otherwise: for he did not return by postliminy, unless he had come back to his own with this intent, that he should follow their fortunes and leave those from whom he had gone away; because, as Sabinus writes, the faculty of determining for oneself of which civitas one is to be is free, not a matter of the right of dominion. Yet this does not much burden the present inquiry, because manumission under the enemy’s law could not prejudice our citizen who was the slave’s master; but the person about whom inquiry is made, by our law which the constitution established, had a Roman citizen as master, and we are treating whether he can attain liberty from him. For what, indeed, if he should never tender the price for him?
certainly, even under the old law, if another had in good faith bought from this man who, knowing it to belong to another, had redeemed it, he could acquire by usucapion and lead it to liberty; and in this way too the prior owner, who had been before the captivity, lost his right. why, therefore, does this man not have the right of manumitting?
Quid ergo, si ita libertatem acceperat, si decem milia dederit? quaesitum est, unde dare debebit, quoniam etsi concessum est statulibero de peculio dare, hoc tamen, quod apud hunc qui redemit habet, numquid vice illius sit, quod apud hostes quaesisset? utique, si ex re illius aut ex operis suis quaesitum est: ex alia autem causa parto peculio potest dare, ita ut condicioni benigne eum paruisse credamus.
What then, if he had thus received liberty, namely if he should give ten thousand? It has been asked whence he ought to give, since although it is conceded to a statuliber to give from his peculium, yet whether that which he has with the one who redeemed him is in the stead of that which he would have acquired among enemies? Certainly, if it was acquired out of his property or out of his own works: but from a peculium obtained from another cause he can give, so that we may kindly deem him to have complied with the condition.
Si pignori servus datus fuerat ante captivitatem, post dimissum redemptorem in veterem obligationem revertitur, et si creditor obtulerit ei qui redemit, quanto redemptus est, habet obligationem et in priorem debiti causam et in eam summam qua eum liberavit, quasi ea obligatione quadam constitutione inducta: ut cum posterior creditor priori satisfacit confirmandi sui pignoris causa: nisi quod in hoc conversa res est et posterior, quia eum servum, ut apud nos esset, efficit, ab eo, qui tempore prior fuit, ut infirmiore dimittendus est.
If a slave had been given in pledge before captivity, then, once the redeemer has been dismissed, he returns into the former obligation; and if the creditor offers to the one who redeemed him the amount for which he was redeemed, he has a claim both on the prior cause of the debt and for that sum by which he freed him, as if, by a certain constitution, that obligation had been introduced: as when a later creditor satisfies an earlier one for the sake of confirming his own pledge; except that in this matter the position is inverted, and the later, because he brings it about that the slave is among us, must be dismissed by the one who was earlier in time, as the weaker.
Si plurium servus fuerat et omnium nomine ei qui redemit restitutum pretium erit, in communionem redibit: si unius tantum vel quorundam nec omnium, ad eum eosve qui solverunt pertinebit, ita ut in portione sua pristinum ius optineant et in parte ceterorum ei qui redemit succedant.
If he had been the slave of several, and the price is restored, in the name of all, to him who redeemed, he will return into co-ownership: if only of one, or of some and not of all, he will pertain to him or to those who paid, in such a way that in their own portion they hold their former right, and in the share of the others they succeed to him who redeemed.
Sed si in captivo servo talis praecesserat causa, quae eius vel ad tempus vel in perpetuum libertatem impediret, nec redemptione ab hostibus mutabitur: veluti si in legem faviam commisisse eum constiterat, vel ita venierat ne manumitteretur: habebit autem interim sine poena sua qui redemit.
But if, in the case of a captive slave, such a cause had preceded as would impede his liberty either for a time or in perpetuity, it will not be changed by redemption from the enemy: for instance, if it had been established that he had committed an offense under the Lex Fabia, or had been sold on the condition that he not be manumitted: however, the one who redeemed will meanwhile have him without penalty to himself.
Si natum ex pamphila legatum tibi fuerit tuque matrem redemeris et ea apud te pepererit, non videri te partum ex causa lucrativa habere, sed officio arbitrioque iudicis aestimandum constituto pretio partus, perinde atque si, quanto mater est empta, simul et partus venisset. quod si iam natum apud hostes, quod eo tempore quo capiebatur utero gerebat, cum matre redimatur ab eodem uno pretio: oblato tanto, quantum ex pretio, quod pro utroque unum datum est, aestimationem contingere partus: et videtur is postliminio reversus. multo magis, si diversi emptores utriusque extiterint vel unius.
If one born of Pamphila shall have been bequeathed to you, and you shall have ransomed the mother and she gives birth while with you, you are not seen to have the offspring from a lucrative cause; rather, under the duty and discretion of the judge the offspring is to be appraised with a price set, just as if, for the amount for which the mother was bought, the offspring too had been sold along with her. But if one already born among the enemy—whom she was carrying in her womb at the time when she was captured—be ransomed together with the mother by the same person for a single price: upon the tender of as much as, out of the price which was given as one for both, pertains to the appraisal of the offspring; and he is deemed to have returned by postliminy. Much more so, if there have been different purchasers of both, or of one.
Si patre redempto et ante luitionem defuncto filius post mortem eius redemptionis quantitatem offerat, dicendum est suum ei posse existere. nisi forte quis suptilius dicat hunc dum moritur, quasi iure pignoris finito, nactum postliminium et sine obligatione debiti obisse, ut potuerit suum habere. quod non sine ratione dicetur.
If, the father having been redeemed and having died before payment, the son after his death should offer the amount of the redemption, it must be said that his own estate can come into existence for him. Unless perhaps someone more subtle should say that this man, at the moment he dies, as though the right of pledge were ended, obtained postliminy and died without obligation of the debt, so that he could have what was his own; which would not be said without reason.
Postliminium est ius amissae rei recipiendae ab extraneo et in statum pristinum restituendae inter nos ac liberos populos regesque moribus legibus constitutum. nam quod bello amissimus aut etiam citra bellum, hoc si rursus recipiamus, dicimur postliminio recipere. idque naturali aequitate introductum est, ut qui per iniuriam ab extraneis detinebatur, is, ubi in fines suos redisset, pristinum ius suum reciperet.
Postliminium is the right for a lost thing to be recovered from an outsider and to be restored to its former status, established by customs and laws among us and among free peoples and kings. For what we have lost in war, or even short of war, if we receive it back again, we are said to receive by postliminium. And this was introduced by natural equity, so that one who was detained through injustice by outsiders, when he had returned within his own borders, should recover his former right.
Postliminio redisse videtur, cum in fines nostros intraverit, sicuti amittitur, ubi fines nostros excessit. sed et si in civitatem sociam amicamve aut ad regem socium vel amicum venerit, statim postliminio redisse videtur, quia ibi primum nomine publico tutus esse incipiat.
He is deemed to have returned by postliminium when he has entered our borders, just as he is lost when he has gone beyond our borders. But also, if he has come into an allied or friendly city, or to a king who is an ally or friend, he is deemed to have returned by postliminium at once, because there for the first time he begins to be safe under the public authority.
Si vero servus transfugerit ad hostes, quoniam, et cum casu captus est, dominus in eo postliminium habet, rectissime dicitur etiam ei postliminium esse, scilicet ut dominus in eo pristinum ius recipiat, ne contrarium ius non tam ipsi iniuriosum sit, qui servus semper permanet, quam domino damnosum constituatur.
If indeed a slave has defected to the enemies, since even when he has been captured by chance the master has postliminy in him, it is most correctly said that he too has postliminy, namely that the master may receive back his pristine right in him, lest a contrary law be established that is not so much injurious to himself, who remains always a slave, as damaging to the master.
Si statuliber transfuga reversus sit, existente condicione postquam redit, liber efficitur. diversum est, si condicio extitisset, dum apud hostes est: in eo enim casu neque sibi reverti potest, ut liber sit, neque heredi in eo ius postliminii est, quia non potest queri, cum nullum damnum patiatur, libertate iam optingente, si non impediret, quod transfuga factus est.
If a statuliber who has become a deserter returns, with the condition existing after he returns, he becomes free. It is different if the condition has arisen while he is among the enemy: for in that case neither can it revert to him so that he be free, nor does the heir have in him the right of postliminium, because no complaint can be made, since he suffers no loss—the liberty already being due to him, were it not hindered by the fact that he became a deserter.
Postliminium hominibus est, cuiuscumque sexus condicionisve sint: nec interest, liberi an servi sint. nec enim soli postliminio recipiuntur, qui pugnare possunt, sed omnes homines, quia eius naturae sunt, ut usui esse vel consilio vel aliis modis possint.
Postliminy pertains to human beings, of whatever sex or condition they may be: nor does it matter whether they are free or slaves. For not only are those received by postliminy who are able to fight, but all human beings, because they are of such a nature that they can be of use either by counsel or by other means.
Verum est expulsis hostibus ex agris quos ceperint dominia eorum ad priores dominos redire nec aut publicari aut praedae loco cedere: publicatur enim ille ager qui ex hostibus captus sit.
It is true that, once the enemies have been expelled from the fields which they had seized, the ownership of them returns to the prior owners, and they are neither to be made public property nor to pass into the category of booty: for that land is made public property which has been captured from enemies.
Si quis ingenuam ab hostibus redemptam eo animo secum habuerit, ut ex ea susciperet liberos, et postea ex se natum sub titulo naturalis filii cum matre manumiserit: ignorantia mariti eiusdemque patris neque statui eorum, quos manumisisse visus est, officere debet, et exinde intellegi oportet remissum matri pignoris vinculum, ex quo de ea suscipere liberos optaverat: ideoque eam, quae postliminio reversa erat libera et ingenua, ingenuum peperisse constat. quod si publice praeda virtute militum reciperata nulli pretium matris pater numeraverit, protinus postliminio reversa non cum domino, sed cum marito fuisse declaratur.
If anyone has kept with him a freeborn woman ransomed from the enemy with this intent, to beget children from her, and afterward has manumitted a child born of himself under the title of a natural son together with the mother: the ignorance of the husband and likewise father ought not to prejudice the status of those whom he is seen to have manumitted, and from that point it ought to be understood that the pledge‑lien upon the mother has been released, since he had desired to beget children from her: and therefore it is established that she, who had returned by postliminium, being free and freeborn, bore a freeborn child. But if, the booty having been recovered publicly by the valor of the soldiers, the father paid the price of the mother to no one, then immediately upon her return by postliminium she is declared to have been not with a master, but with a husband.
In civilibus dissensionibus quamvis saepe per eas res publica laedatur, non tamen in exitium rei publicae contenditur: qui in alterutras partes discedent, vice hostium non sunt eorum, inter quos iura captivitatium aut postliminiorum fuerint. et ideo captos et venumdatos posteaque manumissos placuit supervacuo repetere a principe ingenuitatem, quam nulla captivitate amiserant.
In civil dissensions, although the commonwealth is often harmed by them, nevertheless there is no contending unto the destruction of the commonwealth: those who go over to either side are not, as regards those among whom the rights of captivity or of postliminy obtain, in the position of enemies. And therefore, as to persons captured and sold and afterward manumitted, it has been held superfluous to seek from the prince restoration of freeborn status, which they had lost by no captivity.
Bona eorum, qui in hostium potestatem pervenerint atque ibi decesserint, sive testamenti factionem habuerint sive non habuerint, ad eos pertinent, ad quos pertinerent, si in potestatem hostium non pervenissent: idemque ius in eadem causa omnium rerum iubetur esse lege cornelia, quae futura esset, si hi, de quorum hereditatibus et tutelis constituebatur, in hostium potestatem non pervenissent.
The goods of those who have come into the power of the enemy and have died there, whether they had testamentary capacity or did not have it, pertain to those to whom they would pertain if they had not come into the power of the enemy: and the same right in the same case for all things is ordered to obtain by the Lex Cornelia, namely that which would be, if those, about whose inheritances and tutelages provision was being made, had not come into the power of the enemy.
Apparet ergo eadem omnia pertinere ad heredem eius, quae ipse, qui hostium potitus est, habiturus esset, si postliminio revertisset. porro quaecumque servi captivorum stipulantur vel accipient, adquiri dominis intelleguntur, cum postliminio redierint: quare necesse est etiam ad eos pertineant, qui ex lege cornelia hereditatem adierint. quod si nemo ex lege cornelia heres extiterit, bona publica fient.
it appears, therefore, that all the same things pertain to his heir which he himself, who fell into the power of the enemy, would have had, if he had returned by postliminium. furthermore, whatever the slaves of captives stipulate or receive are understood to be acquired for their masters, when they have returned by postliminium: wherefore it is necessary that they also pertain to those who have entered upon the inheritance under the lex cornelia. but if no heir has arisen under the lex cornelia, the goods will become public property.
Quod si filius eius, qui in hostium potestate est, accipit aut stipulatur, id patre priusquam postliminio rediret mortuo ipsi adquisitum intellegitur, etsi vivo patre decesserit, ad heredem patris pertinebit. nam status hominum, quorum patres in hostium potestate sunt, in pendenti est, et reverso quidem patre existimatur nunquam suae potestatis fuisse, mortuo tunc pater familias fuisse, cum pater eius in hostium potestate perveniret.
But if the son of one who is in the power of the enemy receives or stipulates, that is understood to have been acquired for himself, the father having died before he returned by postliminium; and even if he should die with his father still alive, it will pertain to the heir of the father. For the status of persons whose fathers are in the power of the enemy is in suspense; and, the father having returned, he is considered never to have been in his own power, but if the father has died, then he is deemed to have been pater familias from the time when his father came into the power of the enemy.
Pater familias qui habebat filios in potestate duos et ^ in bonis^ viginti milia, ab hostibus captus est: alter ex filiis acceptis decem milibus alia decem milia adquisivit: quaeritur patre apud hostes defuncto quid filii habituri sint. respondit, si reversus esset pater, etiam postea adquisita decem milia eius futura fuisse: at cum in captivitate mortuus sit, communia non fore, sed eius qui adquisivit. viginti autem milia aequaliter dividenda.
A paterfamilias, who had two sons in his power and ^among his goods^ 20,000, was captured by the enemy: one of the sons, having received 10,000, acquired another 10,000: the question is, the father having died among the enemy, what the sons are to have. He answered that, if the father had returned, even the 10,000 acquired afterwards would have been his; but since he died in captivity, they will not be common, but belong to the one who acquired them. The 20,000, however, are to be divided equally.
Si quis praegnate uxore relicta in hostium potestatem pervenerit, mox natus filius eius uxore ducta filium vel filiam procreaverit ac tunc postliminio avus reversus fuerit: omnia iura nepotis nomine perinde capiet, ac si filius natus in civitate fuisset.
If someone, his wife left pregnant, should come into the power of the enemy, and soon his son, once born, after taking a wife, should procreate a son or a daughter, and then the grandfather should have returned by postliminy: he will take all rights under the name of the grandson, just as if the son had been born in the commonwealth.
Hostes sunt, quibus bellum publice populus romanus decrevit vel ipse populo romano: ceteri latrunculi vel praedones appellantur. et ideo qui a latronibus captus est, servus latronum non est, nec postliminium illi necessarium est: ab hostibus autem captus, ut puta a germanis et parthis, et servus est hostium et postliminio statum pristinum recuperat.
Enemies are those against whom the roman people has publicly decreed war, or who themselves against the roman people; the rest are called bandits or pirates. And therefore he who has been captured by bandits is not a slave of the bandits, nor is postliminy necessary for him; but one captured by enemies, for instance by the germans and parthians, is both a slave of the enemies and by postliminy recovers his former status.
Divi severus et antoninus rescripserunt, si uxor cum marito ab hostibus capta fuerit et ibidem ex marito enixa sit: si reversi fuerint, iustos esse et parentes et liberos et filium in potestate patris, quemadmodum iure postliminii reversus sit: quod si cum matre sola revertatur, quasi sine marito natus, spurius habebitur.
The deified Severus and Antoninus issued a rescript: if a wife together with her husband has been captured by enemies and there has brought forth, by her husband; if they have returned, both the parents and the children are lawful, and the son is in the power of the father, just as if, by the right of postliminy, he had returned: but if he returns with the mother alone, as if born without a husband, he will be held spurious.
Nihil interest, quomodo captivus reversus est, utrum dimissus an vi vel fallacia potestatem hostium evaserit, ita tamen, si ea mente venerit, ut non illo reverteretur: nec enim satis est corpore domum quem redisse, si mente alienus est. sed et qui victis hostibus recuperantur, postliminio redisse existimantur.
It makes no difference how a captive has returned, whether released or whether by force or by trickery he has escaped the power of the enemies, provided, however, that he has come with this intention, that he would not return there: for it is not enough that someone has returned home in body, if he is alien in mind. But even those who are recovered with the enemies conquered are considered to have returned by postliminy.
Latrones tibi servum eripuerant: postea is servus ad germanos pervenerat: inde in bello victis germanis servus venierat. negant posse usucapi eum ab emptore labeo ofilius trebatius, quia verum esset eum subreptum esse, nec quod hostium fuisset aut postliminio redisset, ei rei impedimento esse.
Robbers had snatched your slave away from you: afterwards that slave had come to the Germans: thence, with the Germans conquered in war, the slave had been sold. Labeo, Ofilius, Trebatius deny that he can be acquired by usucapion by the buyer, because it is true that he was surreptitiously taken (stolen), and that neither the fact that he had been among the enemy nor that he had returned by postliminy is an impediment to that matter.
Si quid bello captum est, in praeda est, non postliminio redit. paulus. immo si in bello captus pace facta domum refugit, deinde renovato bello capitur, postliminio redit ad eum, a quo priore bello captus erat, si modo non convenerit in pace, ut captivi redderentur.
If anything is captured in war, it is part of the booty; it does not return by postliminium. paulus. Rather, if one captured in war, when peace has been made, takes refuge back home, then, the war having been renewed, he is captured, he returns by postliminium to the one by whom he had been captured in the earlier war, provided only that it was not agreed in the peace that captives be returned.
Si postliminio redisti, nihil, dum in hostium potestate fuisti, usucapere potuisti. paulus. immo si quid servus tuus peculii nomine, dum in eo statu esses, possederit, id eo quoque tempore usucapere poteris, quoniam eas res etiam inscientes usucapere solemus et eo modo etiam hereditas nondum nato postumo aut nondum adita augeri per servum hereditarium solet.
If you have returned by postliminy, you could usucapt nothing while you were in the power of the enemy. paulus. nay rather, if your slave, in the name of a peculium, while you were in that status, has possessed anything, you will be able to usucapt that also for that time, since we are accustomed to usucapt such things even without knowing it; and in that way even an inheritance is accustomed to be increased through an inheritance-slave, whether for a posthumous child not yet born or for an inheritance not yet entered upon.
Si id, quod nostrum hostes ceperunt, eius generis est, ut postliminio redire possit: simul atque ad nos redeundi causa profugit ab hostibus et intra fines imperii nostri esse coepit, postliminio redisse existimandum est. paulus. immo cum servus civis nostri ab hostibus captus inde aufugit et vel in urbe roma ita est, ut neque in domini sui potestate sit neque ulli serviat, nondum postliminio redisse existimandum est.
If that which our enemies have taken is of such a kind that it can return by postliminy: as soon as, having fled from the enemies for the sake of returning to us, it has begun to be within the borders of our empire, it must be considered to have returned by postliminy. paulus. Rather, when a slave of one of our citizens, captured by the enemies, has escaped from there and is in the city of Rome in such a way that he is neither in his own master’s power nor serves anyone, he is not yet to be considered to have returned by postliminy.
Desertorum auditum ad suum ducem cum elogio praeses mittet, praeterquam si quid gravius ille desertor in ea provincia, in qua repertus est, admiserit: ibi enim eum plecti poena debere, ubi facinus admissum est, divi severus et antoninus rescripserunt.
The governor shall send the hearing of deserters to their own commander with a written elogium, except if that deserter has committed something more serious in the province in which he was found: for there he ought to be punished by penalty where the crime was committed, the deified Severus and Antoninus have rescripted.
Si ad diem commeatus quis non veniat, perinde in eum statuendum est, ac si emansisset vel deseruisset, pro numero temporis, facta prius copia docendi, num forte casibus quibusdam detentus sit, propter quos venia dignus videatur.
If someone does not come by the day of furlough, it must be determined against him just as if he had overstayed or deserted, in proportion to the amount of time—after first granting him the opportunity to show whether perhaps he was detained by certain contingencies, on account of which he may appear worthy of pardon.
Sed si ex improviso, dum iter quis facit, capitur ab hostibus, inspecto vitae eius praecedentis actu venia ei dabitur, et, si expleto tempore militiae redeat, ut veteranus restituetur et emerita accipiet.
But if, unexpectedly, while one is making a journey, he is captured by enemies, after an inspection of the prior conduct of his life pardon will be granted to him; and, if he returns with the time of his military service completed, he will be restored as a veteran and will receive his emerita (earned discharge benefits).
Ad tempus relegatus si expleto spatio fugae militem se dedit, causa damnationis quaerenda est, ut, si contineat infamiam perpetuam, idem observetur, si transactum de futuro sit et in ordinem redire potest et honores petere, militiae non prohibetur.
One relegated for a time, if after the term of exile has elapsed he enlisted as a soldier, the cause of the condemnation must be inquired into, so that, if it contains perpetual infamy, the same is observed; but if a settlement has been made as to the future and he can return into his order and seek honors, he is not prohibited from military service.
Reus capitalis criminis voluntarius miles secundum divi traiani rescriptum capite puniendus est, nec remittendus est eo, ubi reus postulatus est, sed, ut accedente causa militiae, audiendus: si dicta causa sit vel requirendus adnotatus, ignominia missus ad iudicem suum remittendus est nec recipiendus postea volens militare, licet fuerit absolutus.
A defendant on a capital charge who is a volunteer soldier, according to the rescript of the deified Trajan, is to be punished with capital punishment, nor is he to be remitted to the place where he was called to trial; rather, with the cause of military service supervening, he must be heard. If the cause has been pleaded or he has been annotated as “to be required,” then, dismissed with ignominy, he must be remitted to his own judge, and he is not thereafter to be received as willing to serve as a soldier, although he has been acquitted.
Non omnis, qui litem habuit et ideo militaverit, exauctorari iubetur, sed qui eo animo militiae se dedit, ut sub optentu militiae pretiosiorem se adversario faceret. nec tamen facile indulgendum, iudicationis qui negotium antehabuerunt: sed si in transactione reccidit, indulgendum est. exauctoratus eo nomine non utique infamis erit nec prohibendus lite finita militiae eiusdem ordinis se dare: alioquin et si relinquat litem vel transigat, retinendus est.
Not everyone who has had a lawsuit and on that account has served is ordered to be discharged, but only the one who gave himself to military service with the intention that, under the pretext of military service, he might make himself more precious to his adversary. Nor, however, should indulgence be readily granted to those who have preferred the business of adjudication; but if the matter falls into a transaction (settlement), indulgence is to be granted. One discharged on that ground will not on that account be infamous, nor is he to be prohibited, once the lawsuit is finished, from giving himself to military service of the same order; otherwise, even if he abandons the suit or settles, he is to be retained.
Gravius autem delictum est detrectare munus militiae quam adpetere: nam et qui ad dilectum olim non respondebant, ut proditores libertatis in servitutem redigebantur. sed mutato statu militiae recessum a capitis poena est, quia plerumque voluntario milite numeri supplentur.
However, the more grave delict is to shirk the duty of military service rather than to seek it: for even those who once did not answer to the levy, as betrayers of liberty, were reduced into servitude. But with the condition of the military changed, there has been a retreat from capital punishment, because for the most part the ranks are filled up by voluntary soldiers.
Qui filium suum subtrahit militiae belli tempore, exilio et bonorum parte multandus est: si in pace, fustibus caedi iubetur et requisitus iuvenis vel a patre postea exhibitus in deteriorem militiam dandus est: qui enim se sollicitavit ab alio, veniam non meretur.
He who withdraws his son from military service in time of war must be punished with exile and with a portion of his goods; if in peace, he is ordered to be beaten with cudgels, and the youth when sought for, or later produced by the father, is to be assigned to a worse military service: for he who allowed himself to be solicited by another does not deserve pardon.
Edicta germanici caesaris militem desertorem faciebant, qui diu afuisset, ut is inter emansores haberetur. sed sive redeat quis et offerat se, sive deprehensus offeratur, poenam desertionis evitat: nec interest, cui se offerat vel a quo deprehendatur.
The edicts of Germanicus Caesar made a soldier who had been away a long time a deserter, so that he would be reckoned among the long-absent; but whether someone returns and offers himself, or, having been apprehended, is presented, he avoids the penalty of desertion; nor does it matter to whom he offers himself or by whom he is apprehended.
Examinantur autem causae semper emansionis et cur et ubi fuerit et quid egerit: et datur venia valetudini, affectioni parentium et adfinium, et si servum fugientem persecutus est vel si qua huiusmodi causa sit. sed et ignoranti adhuc disciplinam tironi ignoscitur.
The causes of emansion are always examined, and why and where he was and what he did; and pardon is granted for ill-health, for the affliction of parents and relations by marriage (affines), and if he pursued a fleeing slave, or if there be any cause of this kind. But a tyro still ignorant of discipline is also forgiven.
Non omnes desertores similiter puniendi sunt, sed habetur et ordinis stipendiorum ratio, gradus militiae vel loci, muneris deserti et anteactae vitae: sed et numerus, si solus vel cum altero vel cum pluribus deseruit, aliudve quid crimen desertioni adiunxerit: item temporis, quo in desertione fuerit: et eorum, quae postea gesta fuerint. sed et si fuerit ultro reversus, non cum necessitudine, non erit eiusdem sortis.
Not all deserters are to be punished similarly, but account is taken also of the order of stipends, the grade of military service or of place, the duty that was deserted and the prior life: and also of number, whether he deserted alone or with another or with several, or whether he added any other crime to the desertion: likewise of the time during which he was in desertion: and of those things which were afterwards done. But also if he returned of his own accord, not under constraint, he will not be of the same lot.
Qui desertioni aliud crimen adiungit, gravius puniendus est: et si furtum factum sit, veluti alia desertio habebitur: ut si plagium factum vel adgressura abigeatus vel quid simile accesserit.
He who adds another crime to desertion is to be punished more gravely; and if theft has been committed, it will be regarded as, as it were, another kind of desertion: as if plagiary (kidnapping/man‑stealing) had been committed, or an attempt at abigeatus (cattle‑rustling), or something similar had supervened.
Qui captus, cum poterat redire, non rediit, pro transfuga habetur. item eum, qui in praesidio captus est, in eadem condicione esse certum est: si tamen ex improviso, dum iter facit aut epistulam fert, capiatur quis, veniam meretur.
He who, having been captured, when he was able to return, did not return, is held as a deserter. Likewise, it is certain that the one who was captured while in a garrison is in the same condition: nevertheless, if someone is taken unawares, while he is making a journey or carrying a letter, he merits pardon.
A barbaris remissos milites ita restitui oportere hadrianus rescripsit, si probabunt se captos evasisse, non transfugisse. sed hoc licet liquido constare non possit, argumentis tamen cognoscendum est. et si bonus miles antea aestimatus fuit, prope est, ut adfirmationi eius credatur: si remansor aut neglegens suorum aut segnis aut extra contubernium agens, non credetur ei.
Hadrian wrote in a rescript that soldiers sent back by the barbarians ought to be reinstated on this condition: if they prove that, having been captured, they escaped, and did not defect. But although this cannot be established with liquid (i.e., clear) certainty, nevertheless it must be determined by arguments. And if he had previously been esteemed a good soldier, it is likely that credence be given to his affirmation; if he was a stay-behind or negligent of his own, or sluggish, or acting outside his contubernium (tent-party), he will not be believed.
Qui se vulneravit vel alias mortem sibi conscivit, imperator hadrianus rescripsit, ut modus eius rei statutus sit, ut, si impatientia doloris aut taedio vitae aut morbo aut furore aut pudore mori maluit, non animadvertatur in eum, sed ignominia mittatur, si nihil tale praetendat, capite puniatur. per vinum aut lasciviam lapsis capitalis poena remittenda est et militiae mutatio irroganda.
He who has wounded himself or otherwise procured death for himself— the emperor Hadrian wrote in a rescript that a rule be established for this matter— namely, that if he chose to die from impatience of pain, or weariness of life, or illness, or madness, or shame, no punishment be inflicted on him, but he be sent away with ignominy; if he puts forward nothing of that sort, let him be punished with the death penalty. For those who have lapsed through wine or wantonness, the capital penalty is to be remitted and a change of military service imposed.
Qui status controversiam patiuntur, licet re vera liberi sunt, non debent per id tempus nomen militiae dare, maxime lite ordinata, sive ex libertate in servitutem sive contra petantur. nec hi quidem, qui ingenui bona fide serviunt: sed nec qui ab hostibus redempti sunt, priusquam se luant.
Those who undergo a status controversy, although in truth they are free, ought not during that time to give their name for military service, especially when the lawsuit has been instituted, whether they are claimed from liberty into servitude or the contrary. Nor indeed may those do so who, though freeborn, serve in bona fide as slaves; nor those who have been redeemed from the enemy, before they redeem themselves.
Milites prohibentur praedia comparare in his provinciis, in quibus militant, praeterquam si paterna eorum fiscus distrahat: nam hanc speciem severus et antoninus remiserunt. sed et stipendiis impletis emere permittuntur. fisco autem vindicatur praedium illicite comparatum, si delatus fuerit.
Soldiers are prohibited from purchasing estates in those provinces in which they serve, except if their paternal estates are being auctioned by the fisc; for Severus and Antoninus remitted the rule in this kind of case. But when their terms of service have been completed, they are permitted to buy. Moreover, an estate illicitly acquired is claimed for the fisc, if it has been reported.
Paternus quoque scripsit debere eum, qui se meminerit armato praeesse, parcissime commeatum dare, equum militarem extra provinciam duci non permittere, ad opus privatum piscatum venatum militem non mittere. nam in disciplina augusti ita cavetur: " etsi scio fabrilibus operibus exerceri milites non esse alienum, vereor tamen, si quicquam permisero, quod in usum meum aut tuum fiat, ne modus in ea re non adhibeatur, qui mihi sit tolerandus".
Paternus likewise wrote that he who remembers that he is in command of men under arms ought to grant leave very sparingly, not permit a military horse to be led outside the province, not send a soldier to private work, fishing, or hunting. For in the discipline of Augustus it is thus provided: " although I know it is not unfitting for soldiers to be employed in craft-works (fabrile works), I nevertheless fear that, if I permit anything to be done for my use or yours, no measure will be applied in that matter, which I would have to tolerate".
Officium tribunorum est vel eorum, qui exercitui praesunt, milites in castris continere, ad exercitationem producere, claves portarum suscipere, vigilias interdum circumire, frumentationibus commilitonum interesse, frumentum probare, mensorum fraudem coercere, delicta secundum suae auctoritatis modum castigare, principiis frequenter interesse, querellas commilitonum audire, valetudinarios inspicere.
The duty of the tribunes, or of those who preside over the army, is to keep the soldiers in the camp, to lead them out for exercise, to take charge of the keys of the gates, to make the rounds of the watches from time to time, to be present at the grain-issues of their fellow soldiers, to approve the grain, to coerce the fraud of the measurers, to chastise delicts according to the measure of their authority, to attend frequently at the headquarters, to hear the complaints of their fellow soldiers, to inspect the sick.
Milites agrum comparare prohibentur in ea provincia, in qua bellica opera peragunt, scilicet ne studio culturae militia sua avocentur. et ideo domum comparare non prohibentur. sed et agros in alia provincia comparare possunt.
Soldiers are prohibited from acquiring land in that province in which they carry out warlike operations, namely lest by zeal for cultivation they be diverted from their military service. and therefore they are not prohibited from acquiring a house. but also they can acquire fields in another province.
Illud constat huius praescriptionis commodum ad eos, qui ignominiae causa missi sunt, non pertinere, quod praemii loco veteranis concessum intellegitur: et ideo et ad eum, qui causaria missus est, potest dici pertinere, cum huic quoque praemium praestatur.
It is agreed that the benefit of this prescription does not pertain to those who have been dismissed for ignominy, because it is understood to have been conceded to veterans as a reward; and therefore it can be said to pertain also to him who has been dismissed causaria (on medical grounds), since a reward is furnished to him as well.
Missionum generales causae sunt tres: honesta causaria ignominiosa. honesta est, quae tempore militiae impleto datur: causaria, cum quis vitio animi vel corporis minus idoneus militiae renuntiatur: ignominiosa causa est, cum quis propter delictum sacramento solvitur. et is, qui ignominia missus est, neque romae neque in sacro comitatu agere potest.
the general grounds for discharges are three: honorable, for-cause, disgraceful. honorable is that which is given when the time of service has been completed; for-cause, when someone is declared less fit for military service by a defect of mind or body; disgraceful is the ground when someone is released from the sacramentum on account of an offense. and he who has been discharged in disgrace can act neither at rome nor in the sacred comitatus.
Inreverens miles non tantum a tribuno vel centurione, sed etiam a principali coercendus est. nam eum, qui centurioni castigare se volenti restiterit, veteres notaverunt: si vitem tenuit, militiam mutat: si ex industria fregit vel manum centurioni intulit, capite punitur.
An irreverent soldier is to be restrained not only by the tribune or the centurion, but even by a principalis as well. For the ancients recorded concerning him who has resisted a centurion wishing to chastise him: if he seized the vine-staff, he changes his military service; if he deliberately broke it or laid a hand upon the centurion, he is punished with death.
Eius fugam, qui, cum sub custodia vel in carcere esset discesserit, in numero desertorum non computandam menander scripsit, quia custodiae refuga, non militiae desertor est. eum tamen, qui carcere effracto fugerit, etiamsi ante non deseruerit, capite puniendum paulus scripsit.
Menander wrote that the flight of one who, while under custody or in prison, has departed is not to be counted in the number of deserters, because he is a fugitive from custody, not a deserter from military service. Nevertheless, Paulus wrote that one who has fled with the prison broken open, even if he had not deserted before, is to be punished with death.
Desertorem, qui a patre suo fuerat oblatus, in deteriorem militiam divus pius dari iussit, ne videatur, inquit, pater ad supplicium filium optulisse. item divus severus et antoninus eum, qui post quinquennium desertionis se optulit, deportari iusserunt. quod exemplum et in ceteris sequi nos debere menander scripsit.
A deserter who had been delivered by his father, the deified Pius ordered to be assigned to an inferior military service, “lest,” he says, “the father seem to have offered his son to punishment.” Likewise the deified Severus and Antoninus ordered that the man who, after five years of desertion, presented himself, be deported. Menander wrote that we ought to follow this example also in the other cases.
Qui commeatus spatium excessit, emansoris vel desertoris loco habendus est. habetur tamen ratio dierum, quibus tardius reversus est: item temporis navigationis vel itineris. et si se probet valetudine impeditum vel a latronibus detentum similive casu moram passum, dum non tardius a loco profectum se probet, quam ut occurrere posset intra commeatum, restituendus est.
He who has exceeded the term of furlough is to be held in the position of an emansor (over-stayer) or a deserter. Nevertheless account is taken of the days by which he returned later; likewise of the time of the voyage by sea or the journey. And if he proves himself to have been hindered by ill health, or detained by brigands, or by a like mischance to have suffered delay—provided he proves that he did not set out from his location so late that he could not have arrived within the furlough—he must be reinstated.
Arma alienasse grave crimen est et ea culpa desertioni exaequatur, utique si tota alienavit: sed et si partem eorum, nisi quod interest. nam si tibiale vel umerale alienavit, castigari verberibus debet, si vero loricam scutum galeam gladium, desertori similis est. tironi in hoc crimine facilius parcetur armorumque custodi plerumque ea culpa imputatur, si arma militi commisit non suo tempore.
To have alienated arms is a grave crime, and that fault is equated with desertion, especially if he alienated the whole; but even if only a part of them—save to the extent of the interest. For if he alienated a greave or a shoulder-guard, he ought to be castigated with lashes; but if a cuirass, shield, helmet, or sword, he is like a deserter. A recruit will be spared more easily in this offense; and this fault is for the most part imputed to the custodian of arms, if he entrusted the arms to the soldier not at the proper time.
Si pater familias militiae tempore vel post missionem adrogandum se praebuerit, videndum erit, ne huic quoque permissa intellegatur earum rerum administratio, quas ante adrogationem in castris adquisierit, quamvis constitutiones principales de his loquantur, qui ab initio cum essent filii familias militaverint. quod admittendum est.
If a father of the household, during the time of military service or after discharge, has offered himself to be adrogated, it must be considered whether the administration also is to be understood as permitted to him of those things which he acquired in the camp before the adrogation, although the principal constitutions speak about those who from the beginning served in the army when they were sons of the household. This is to be admitted.
Si militi filio familias uxor servum manumittendi causa donaverit, an suum libertum fecerit, videamus, quia peculiares et servos et libertos potuit habere. et magis est, ut hoc castrensi peculio non adnumeretur, quia uxor ei non propter militiam nota esset. plane si mihi proponas ad castra eunti marito uxorem servos donasse, ut manumittat et habiles ad militiam libertos habeat, potest dici sua voluntate sine patris permissu manumittentem ad libertatem perducere.
If a wife has gifted to a soldier who is a filius familias a slave for the purpose of manumission, let us see whether she has made him her own freedman, since he could have, as part of his peculium, both slaves and freedmen. And it is more correct that this not be reckoned to the camp peculium, because the wife would not be his by reason of his soldiery. Clearly, if you put to me the case that, as her husband was going to the camp, the wife gifted slaves so that he might manumit and have freedmen fit for military service, it can be said that, of his own will and without his father’s permission, the manumitter brings them to freedom.
Si forte uxor vel cognatus vel quis alius non ex castris notus filio familias donaverit quid vel legaverit et expresserit nominatim, ut in castrensi peculio habeat: an possit castrensi peculio adgregari? et non puto: veritatem enim spectamus, an vero castrensis notitia vel affectio fuit, non quod quis finxit.
If perchance a wife or a kinsman or some other person not known from the camp to a son under paternal power should donate something or bequeath it and expressly specify by name that he is to have it in the castrense peculium: can it be aggregated to the castrense peculium? And I do not think so: for we look to the truth, whether there truly was camp acquaintance or affection, not to what someone has feigned.
Proponebatur filius familias miles testamento facto extraneum heredem scripsisse, patre deinde superstite decessisse, pater deliberante herede instituto et ipse diem functus, deinde heres institutus repudiasse hereditatem. quaerebatur, ad quem castrense peculium pertineret. dicebam castrense peculium filii familias, si quidem testatus decessit, quasi hereditatem deferri heredi scripto, sive extraneum scripsit heredem sive patrem.
It was put forward that a son under paternal power, a soldier, after making a testament, had appointed an outsider as heir, and then had died with his father surviving; while the instituted heir was deliberating, the father himself also paid his day (died); thereafter the instituted heir repudiated the inheritance. It was asked to whom the castrense peculium belonged. I said that the castrense peculium of a son under paternal power, if indeed he died testate, is as though the inheritance devolved upon the written heir, whether he wrote an outsider as heir or his father.
but when the son decrees nothing concerning the peculium, it is believed not that it has now accrued to the father, but that it has not proceeded from him. finally, if the father has inscribed liberty for the son’s castrense slave and soon the son has died with the father still alive, the liberty is not impeded, whereas, if the son has outlived the father, the liberty is impeded. whence Marcellus thinks that a necessary heir too—the son’s peculium-slave—can come to exist for the father, if the father has outlived the son.
I was reporting the same also if the father has bequeathed a thing belonging to the son’s peculium; for in the same case in which we said liberty would accrue, the legacy likewise will either be owed or be impeded. With these things thus premised, and as to the matter proposed, I said that, when the heir did not enter upon the inheritance, the peculium had retroactively acceded to the father’s goods; whence it can be said that the father’s goods were even increased by this repudiation. Nor is it new that, ex post facto, someone should seem to have had a successor.
for also, if the son of one who has been captured by the enemy has died while the father is alive in captivity, if indeed the father should return, he would have the peculium as though a son-in-power; but if in that same place the father should die, he will, as a paterfamilias, have a legitimate successor, and retroactively it will be believed that his successor had also those things which in the meantime this son acquired, and they will seem to have been acquired not for the father’s heir, but for the son himself.
Castrense peculium est, quod a parentibus vel cognatis in militia agenti donatum est vel quod ipse filius familias in militia adquisiit, quod, nisi militaret, adquisiturus non fuisset. nam quod erat et sine militia adquisiturus, id peculium eius castrense non est.
Castrense peculium is that which has been donated by parents or cognates to one serving in military service, or that which a son under paternal power himself acquired in military service—something which, unless he were soldiering, he would not have acquired. For what he would also have acquired without military service is not his castrense peculium.
Pater, qui dat in adoptionem filium militem, peculium ei auferre non potest, quod semel iure militiae filius tenuit. qua ratione nec emancipando filium peculium ei aufert, quod nec in familia retento potest auferre.
A father who gives into adoption a son who is a soldier cannot take from him the peculium, which the son has once held by the right of military service. For the same reason, neither by emancipating the son does he take the peculium from him, which he cannot take even with him retained in the family.
Proxima species videtur, ut scriptis heredibus deliberantibus, quod servus interim stipulatus est vel ab alio sibi traditum accepit, quod quidem ad patris personam attinet, si forte peculium apud eum resederit, nullius momenti videatur, cum in illo tempore non fuerit servus patris: quod autem ad scriptos heredes, in suspenso fuisse traditio itemque stipulatio intellegatur: ut enim hereditarius fuisse credatur, post aditam fit hereditatem. sed paterna verecundia nos movet, quatenus et in illa specie, ubi iure pristino apud patrem peculium remanet, etiam adquisitio stipulationis vel rei traditae per servum fiat.
The next category seems to be this: while the instituted heirs are deliberating, what the slave in the meantime has stipulated, or what he has received as delivered to himself by another—so far as it pertains to the person of the father, if perchance the peculium has remained with him, seems of no moment, since at that time the slave was not the father’s slave; but as regards the instituted heirs, the delivery and likewise the stipulation are to be understood to have been in suspense: for in order that he be believed to have been hereditary, the inheritance comes into effect after it is entered upon. But paternal reverence moves us, inasmuch as even in that case, where by the former law the peculium remains with the father, the acquisition too of the stipulation or of the thing delivered may be made through the slave.
Legatum, quod ei servo relictum est, quamvis tunc propter incertum nulli sit adquisitum, omisso testamento patri tunc primum per servum adquiretur, cum, si fuisset exemplo hereditatis peculio adquisitum, ius patris hodie non consideraretur.
The legacy which was left to that slave, although then on account of uncertainty it was acquired by no one, the testament being disregarded will then for the first time be acquired to the father through the slave, since, if it had been acquired to the peculium by the example of inheritance, the father's right would not today be considered.
Servus peculii, quod ad filium spectat, ab extero si stipuletur aut per traditionem accipiat, sine distinctione causarum res ad filium pertinebit: non enim ut filius duplex ius sustinet patris et filii familias, ita servus, qui peculii castrensis est quique nullo iure, quamdiu filius vivit, patri subiectus est, aliquid adquirere simpliciter stipulando vel accipiendo patri potest. quae ratio suadet, ut, si ab ipso patre servus, qui ad filium pertinet, stipuletur ex quacumque causa vel traditum accipiat, sic adquiratur filio res et stipulatio, quemadmodum si exter promisisset, quoniam persona stipulantis et accipientis ea est, ut sine differentia causarum quod per eum agitur emolumentum filii spectet.
A slave of the peculium which pertains to the son, if he stipulates from an outsider or receives by tradition, the thing will pertain to the son without distinction of causes: for it is not the case that, just as the son sustains a double right, that of a paterfamilias and of a filiusfamilias, so the slave, who is of the castrense peculium and who by no right, so long as the son lives, is subject to the father, can acquire anything for the father by simply stipulating or receiving. This rationale persuades that, if from the father himself the slave who pertains to the son stipulates from whatever cause or receives something delivered, the thing and the stipulation are thereby acquired for the son, just as if an outsider had promised, since the person of the stipulator and of the recipient is such that, without difference of causes, what is transacted through him looks to the son’s emolument.
Dotem filio familias datam vel promissam in peculio castrensi non esse respondi. nec ea res contraria videbitur ei, quod divi hadriani temporibus filium familias militem uxori heredem extitisse placuit et hereditatem in castrense peculium habuisse. nam hereditas adventicio iure quaeritur, dos autem matrimonio cohaerens oneribus eius ac liberis communibus, qui sunt in avi familia, confertur.
I answered that a dowry given to, or promised for, a son under paternal power is not in the military peculium. Nor will this seem contrary to that which, in the times of the deified Hadrian, was settled: that a son under paternal power, being a soldier, became heir to his wife and held the inheritance in the military peculium. For an inheritance is acquired by adventitious right; but the dowry, cohering to the marriage, is contributed to its burdens and to the common children, who are in the grandfather’s household.
Hereditatem castrensi peculio non videri quaesitam respondi, quam frater patruelis in alia provincia stipendia merens fratri patrueli, cum quo numquam militavit, reliquit: sanguinis etenim ratio, non militiae causa meritum hereditatis accipiendae praebuerat.
I replied that the inheritance did not seem to have been acquired for the castrense peculium, which a paternal cousin, serving for pay in another province, left to his paternal cousin, with whom he had never served: for the consideration of blood, not any cause of soldiery, furnished the title for receiving the inheritance.
Pater a filio milite vel qui militavit heres institutus testamenti causam omisit et castrense peculium possidet: legitimi heredis exemplo cogetur ad finem peculii perpetuo legata praestare. quod si filius post annum quam militare desierat iure communi testamento facto vita decessit, ratione falcidiae retinebitur quarta. ceterum si testamenti causam pater omisit, cum peculium creditoribus solvendo non esset, nihil dolo videbitur fecisse, quamvis temporis incurrat compendium.
the father, instituted as heir by a son who is a soldier or who has served as a soldier, omitted the testamentary cause and possesses the castrense peculium: by the example of the legitimate heir he will be compelled to furnish the legacies in perpetuity up to the limit of the peculium. but if the son, after a year from when he had ceased to soldier, departed this life with a testament made under the common law, a fourth will be retained by reason of the falcidia. moreover, if the father omitted the testamentary cause when the peculium was not sufficient for paying the creditors, he will seem to have done nothing by fraud, although he incurs a saving of time.
Et in summa ea res hi actus patris, qui ad praesens alienationem alicuius iuris de castrensi peculio praestant, impediuntur: hi vero, qui non statim quidem, sed postea efficere solent, eo tempore animadvertentur, quo habere effectum consuerunt, ut, si sit filius, cui auferatur, nihil agatur, si ante decesserit, actus patris non impediatur.
And in sum, in this matter those acts of the father which at present effectuate the alienation of some right from the castrense peculium are impeded; but those which are wont not indeed immediately, but afterwards, to produce effect, will be considered at the time at which they are accustomed to have effect, with the result that, if there is a son from whom it would be taken away, nothing is done; but if he has died beforehand, the act of the father is not impeded.
Itaque negabimus patrem filio salvo communi dividundo agentem proprietatem alienaturum, exemplo dotalis praedii. sed nec si socius ultro cum eo agat, quicquam agetur, veluti si cum eo ageret, cui bonis interdictum est.
Therefore we will deny that a father, with the son safe, bringing an action communi dividundo, would alienate proprietorship, on the analogy of a dotal estate. But not even if a partner should of his own accord litigate together with him will anything be achieved, just as if he were litigating together with one who has been interdicted from his goods.
Servos ex eo peculio usu fructu, item praedia tam usu fructu quam ceteris servitutibus pater liberare poterit: sed et servitutes his adquirere. id enim et eum, cui bonis interdictum est, verum est consequi posse. neque autem servis ex eo peculio neque praediis usum fructum vel servitutem imponere pater potest.
The father will be able to liberate from that peculium the slaves from usufruct, and likewise the estates both from usufruct and from the other servitudes; and he can also acquire servitudes for these. For it is true that even one who is interdicted from his goods can achieve this. However, the father cannot impose a usufruct or a servitude either upon the slaves from that peculium or upon the estates.
Si quando ex eo peculio filius rem alienam bona fide tenebit, an pater eius in rem vel ad exhibendum actionem pati debeat, ut ceterorum nomine, quaeritur. sed verius est, cum hoc peculium a patris bonis separetur, defensionis necessitatem patri non imponendam.
If at any time from that peculium a son should hold another’s property in good faith, the question is whether his father ought to submit to an action in rem or an actio ad exhibendum, as in the case of others. But the truer view is that, since this peculium is separated from the father’s goods, the necessity of a defense is not to be imposed upon the father.
Sed nec cogendus est pater aes alienum, quod filius peculii nomine, quod in castris adquisiit, fecisse dicetur, de peculio actionem pati: et, si sponte patiatur, ut quilibet defensor satisdato filium in solidum, non peculio tenus defendere debet. sed et eius filii nomine non aliter movere actiones potest, quam si satis dederit eum ratam rem habiturum.
But neither is the father to be compelled, for an alien debt which the son will be said to have contracted under the name of a peculium which he acquired in camp, to submit to an action de peculio; and, if he should submit of his own accord, like any defender, upon giving security, he ought to defend the son in solidum, not only up to the peculium. But also, in the name of that son, he cannot otherwise move actions, than if he has given security that he will have the matter ratified by him.
De hereditate ab adgnato commilitone data scaevola noster dubitabat, quia potuit et ante notus et amicus dare, potuit et non dare, nisi commilitium caritatem auxisset. nobis ita videtur, si ante commilitium factum sit testamentum, non esse peculii castrensis eam hereditatem, si postea, contra.
Concerning an inheritance given by an agnate who was a fellow-soldier, our Scaevola was in doubt, because he could have given it also as one previously known and a friend; he might also not have given it, unless the comradeship-in-arms had increased his affection. It seems to us thus: if the testament was made before the comradeship-in-arms, that inheritance is not military peculium (peculium castrense); if afterwards, the contrary.
Filius familias paganus de peculio castrensi fecit testamentum et, dum ignorat patri se suum heredem extitisse, decessit. non potest videri pro castrensibus bonis testatus, pro paternis intestatus decessisse, quamvis id in milite etiamnunc rescriptum sit, quia miles ab initio pro parte testatus, pro parte intestatus potuerat mori, quod ius iste non habuerit, non magis quam sine observatione legum facere testamentum. necessario ergo castrensis peculii heres scriptus universa bona habebit, perinde ac si pauperrimus facto testamento decessisset ignorans se locupletatum per servos alio loco agentes.
A son-in-power, a civilian, made a testament from his castrense peculium and, while he is unaware that he has become his own father’s heir, died. He cannot be deemed to have died testate as to the castrense goods and intestate as to the paternal goods, although this has even now been decreed by rescript in the case of a soldier, because a soldier from the beginning could die partly testate and partly intestate—a right which this man has not had, no more than to make a testament without observance of the laws. Therefore, of necessity, the instituted heir of the castrense peculium will have all the goods, just as if a very poor man, having made a testament, had died unaware that he had been enriched by slaves conducting business elsewhere.
Pater peculii castrensis filii servum testamento liberum esse iussit: intestato defuncto filio familias, mox patre quaeritur, an libertas servo competat. occurrebat enim non posse dominium apud duos pro solido fuisse: denique filium posse manumittere talis peculii servum hadrianus constituit: et si testamento tam filii quam patris idem servus accepisset libertatem et utrique pariter decessissent, non dubitaretur ex testamento filii liberum eum esse. sed in superiore casu pro libertate a patre data illa dici possunt, numquid, quoad utatur iure concesso filius in castrensi peculio, eousque ius patris cessaverit, quod si intestatus decesserit filius, postliminii cuiusdam similitudine pater antiquo iure habeat peculium retroque videatur habuisse rerum dominia.
The father ordered by his testament that the slave of the son’s peculium castrense be free: the filius familias having died intestate, and soon after the father, it is asked whether liberty belongs to the slave. For it occurred that ownership could not have been with two persons in solidum: indeed Hadrian decreed that the son could manumit a slave of such a peculium: and if by the testament both of the son and of the father the same slave had received liberty and both alike had died, it would not be doubted that he is free by the testament of the son. But in the earlier case, in favor of the liberty given by the father, the following can be said—whether, so long as the son made use of the right granted in the peculium castrense, to that extent the father’s right had ceased; but if the son died intestate, by a certain likeness to postliminium the father has the peculium by his ancient right and seems to have had ownership of the things retroactively.
Quid autem, si testamentum fecerit filius et non sit eius adita hereditas? non tam facile est dicere continuatum patri post mortem filii rerum peculii dominium, cum medium tempus, quo deliberant instituti heredes, imaginem successioni praestiterit. alioquin et si adita sit ab instituto hereditas filii, dicetur a patre ad eum transisse proprietatem, quod absurdum est.
But what, if the son has made a testament and his inheritance has not been entered upon? It is not so easy to say that, after the son’s death, the dominium of the things of the peculium is continued to the father, since the intermediate time, in which the instituted heirs deliberate, has supplied a semblance to succession. Otherwise, even if the son’s inheritance has been entered upon by the instituted heir, it would have to be said that proprietas passed from the father to him—which is absurd.
if, while in suspense, as in other matters, we also in this case should have dominium, so that from the fact we believe retroactively that it had been or had not been the father’s? according to which it will be difficult to resolve whether, if, while the heirs are deliberating, the day has accrued for a legacy—of a slave of this peculium given by his testament, from which the father could have taken nothing—that pertains to the father, whereas assuredly it would pertain to the son’s heir. however, the deliberation about the liberty of the slave is easier in the case in which the son is put forward to have died intestate.
Sed si ponas filium testamentum fecisse et patrem heredem instituisse: cum utique pater testamento suo servo filii libertatem dedisset, qui ad eum ex testamento filii pertinere coeperit, videndum est, numquid ei comparari debeat, qui, cum manumitteretur, alienus erat, deinde postea adquisitus est. sed favorabile est libertatem a patre relictam admittere: et ab initio patris esse eum videri ex hoc, quod postea contigit, ostenditur.
But if you posit that a son has made a testament and has instituted his father as heir: since indeed the father, by his own testament, had granted liberty to the son’s slave, who began to pertain to him by the son’s testament, it must be considered whether he ought to be assimilated to one who, when he was being manumitted, was alien, and afterwards was acquired. But it is favorable to admit the liberty left by the father: and it is shown, from what later befell, that he is seen to have been the father’s from the beginning.