1.
Ulpianus, On Appeals, Book I.
There is no one who is not aware
how frequently appeals are employed, and how necessary they are to
correct the injustice or the ignorance of judges; although sometimes
sentences which have been properly imposed are changed for the worse,
as he who renders the last judgment does not, for this reason, render
a better one.
(1) The question arose whether
an appeal could be taken from a Rescript of the Emperor, when the
Governor of a province, or anyone else, asked his advice, and the
Rescript was issued by way of answer. It was also asked whether the
right of appeal remained. What should be done if the Governor, when
asking advice, had made a false statement? There is a Rescript of
the Divine Pius on this point, addressed to the Community of the Thracians,
by which it is shown that the right to appeal continues to exist.
The words of the Rescript are as follows: "If anyone should write
to us and we should state anything to him in a Rescript by way of
reply, he will be permitted to appeal from our decision. For if it
should be shown that what had been written to us was either untrue,
or was misrepresented, no decision will be considered to have been
rendered by us; and any statement made to us will be considered as
not having been made before the answer deciding against it was written."
(2) In consequence of this,
it is held to have been decided that an appeal should not be taken
after the consultation of the judge, if he happens to have rendered
an interlocutory decree setting forth that he will consult the Emperor,
since the party can take an appeal after the Rescript has been issued.
(3) When anyone makes a mistake
in an appeal, for instance, when he should appeal to one judge, and
he appeals to another, let us see whether his mistake will prejudice
him. And, indeed, if he ought to appeal to a superior judge, and errs
by appealing to one of inferior jurisdiction, the mistake will prejudice
him. If, however, he appeals to a superior judge, his mistake will
not be to his disadvantage, and this rule is contained in several
constitutions. Hence when anyone has accepted a judge appointed by
the Consuls under a Rescript of the Emperor, and afterwards appeals
to the Prefect of the City, relief is given him for his mistake, under
a Rescript of the Divine Brothers, the words of which are as follows:
"As you say that, through mistake, you have appealed from the
judge, whom you accepted under the terms of our Rescript from the
eminent Consuls, to our friend, Julius Rusticus, the Prefect of the
City, the said eminent Consuls shall take cognizance of the case,
just as if the appeal had been made to them." If, then, anyone
should appeal to a judge of equal or superior jurisdiction, or to
one instead of another, his mistake will not prejudice him; but if
he appeals to a judge of inferior jurisdiction, it will prejudice
him.
(4) The document presented by
the appellants ought to be drawn up in such a way as to contain the
names of the parties by whom it has been filed; that is to say, the
names of those who appeal, and state against whom they appeal, and
from what decision.
2. Macer, On Appeals, Book
I.
When anyone appeals at the time
when the judgment is rendered, it will be sufficient for him to say,
"I appeal."
3. Ulpianus, On Appeals,
Book I.
When anyone does not mention
in his petition against what adversary he appealed, I am aware that
it has been asked whether he can
be barred by an exception. I do not think that he can be barred in
this manner.
(1) Where the appellant had
several adversaries, and the names of some of them were included in
his appeal, and those of others were not, the question arose whether
he could be barred by an exception on the ground that, as their names
were not included, he had, as it were, acquiesced in the decision,
so far as they were concerned. As the cause of all is the same, I
think that he should not be barred by an exception.
(2) It is clear that if there
are several persons who have been convicted, and the names of some
of them are included in the appeal, and those of the others are not,
they only will be considered to have appealed whose names are mentioned
in the petition.
(3) But what if a certain ground
of appeal is mentioned? Can the appellant abandon it, and state another
V Or, indeed, will he be bound, as by a certain formula? I think that
when a party has once appealed, he should be permitted to give even
another cause for doing so, and to prosecute it in every way that
he can.
4. Macer, On Appeals, Book
I.
It is not permitted to appeal
from the execution of a judgment.
(1) It is, however, permitted
to appeal from the decision of one who is alleged to have placed a
wrong interpretation upon a judgment, if he had the authority to interpret
it, as, for instance, the Governor of a province, or the Imperial
Procurator; provided that, in discussing the causes for granting the
appeal the question alone is raised whether the interpretation was
according to law. This was also stated by the Divine Antoninus in
a Rescript.
(2) Where another person has
been convicted, he who has an interest in the case can appeal; for
instance, one who, having appointed an attorney, has been defeated,
and the attorney did not appeal in his name.
(3) Likewise, if the purchaser
is evicted of the property sold, and neglects to appeal, the vendor
can appeal. Or, if he brings suit and is defeated, the vendor should
not be denied the right to appeal. But what if the vendor who refused
to appeal is not solvent? And even if he should appeal, and appears
to be liable to suspicion when conducting the case, the defence for
this reason can be entrusted to the purchaser, just as if he himself
had appealed.
(4) This has been decided with
reference to the creditor, when the debtor is defeated and appeals,
for he did not faithfully defend his
case. This constitution should be understood to mean that the creditor
having intervened, the debtor lost his case involving a pledge and
took an appeal. For it has been decided that the debtor, in case of
the absence of his creditor, does not prejudice him in any way.
(5) Where an attorney who is
conducting a case loses it, let us see whether he himself can appeal
through another attorney, because it is established that one attorney
cannot appoint another. It must, however, be remembered that an attorney, by the joinder
of issue, becomes the master of the case, and therefore can appeal
by the agency of another attorney.
5. Marcianus, On Appeals,
Book I.
An appeal cannot be taken from
a decision affecting other parties, unless for some good reason; for
instance, where a man has permitted himself to be convicted to the
prejudice of his co-heir, or for some similar cause, although the
co-heir may be secure even without an appeal. Likewise, where sureties
appeal in behalf of him for whom they have become responsible. Therefore
the surety of a vendor can appeal if the purchaser is defeated, even
though both the purchaser and the vendor may acquiesce in the decision.
(1) When a testamentary heir
is defeated by someone who brings an action on the ground that a will
is inofficious, the legatees and those who have received their freedom
are permitted to appeal, if they complain that the judgment has been
obtained by collusion; as the Divine Pius stated in a Rescript.
(2) He also stated in a Rescript
that legatees could appeal.
(3) The same must be said if
they allege that the appellant has been concerned in a fraudulent
transaction, to their prejudice.
(4) The same rule has been laid
down in a Rescript as applicable, where a compromise has been effected
without an appeal. When anyone, upon the same day, appeals verbally
during the proceedings, this will be sufficient. If, however, he should
not do so, two or three days should be computed to enable him to file
his appeal.
6. Ulpianus, On Appeals,
Book II.
Not only is he who is brought
to punishment permitted to appeal, but also others in his name; and
not only when he himself directs this to be done, but where anyone
else desires to appeal he can do so, nor does it make any difference
whether he is nearly related to the defendant or not; for I think
that on the ground of humanity every persons who appeals should be
heard. Therefore, if the defendant himself acquiesces in the decision,
we do not ask whether anyone else has an interest in the matter. But
what should be done if the convicted person, hastening to lose his
life, opposes the appeal, and does not wish it to be entertained?
I still think that his punishment should be postponed.
7. Marcianus, On Appeals,
Book I.
When a certain man, being apprehensive
of the violence of the judge, gave notice of appeal, not only to the
court from which he appealed, but published it, the Divine Severus
excused him, and permitted him to prosecute the appeal.
8. Ulpianus, On Appeals,
Book IV.
It must be remembered that the
party who appeals should not abuse him from whom he appeals, for if
he does, he shall be punished. This was stated by the Divine Brothers
in a Rescript.
9. Macer, On Appeals, Book
II.
It must be remembered that neither
a ward, nor the State, can obtain complete restitution in a case where
freedom is involved, but an appeal is necessary. This has been stated
in various rescripts.
10. Ulpianus, Disputations,
Book VIII.
When several persons have been
convicted separately, although in the same case, they will be required
to file several appeals.
(1) If anyone should bring an
action which includes several claims, and the defendant is condemned
to pay several sums of money, no one of which is sufficient to be
submitted to the decision of the Emperor, but all of them united are
sufficient, he can appeal to the Emperor.
(2) Where evidence was produced
against several parties which caused them to be defeated, a single
appeal will be sufficient, because all of them were sued together,
and defeated by the same testimony.
(3) Whenever several persons
are condemned to pay a single sum of money, is there not a single
decision, and are they, as joint defendants, liable for the same amount,
so that each one of them is liable in full; or should the judgment
be divided into as many parts as there are persons? is a question
which has been asked. Papinianus answered that the judgment should
be divided among the persons, and therefore that those condemned were
liable for equal portions.
(4) The statement contained
in rescripts that, in a common cause, whenever one party appeals and
another does not, the success of the first will benefit the second
who did not appeal, is a rule which must be adopted, if there was
but one ground of defence. Where, however, there were several, it
is another thing; as happens in the case of two guardians, where one
of them administers a guardianship, and the other has nothing to do
with it, and the latter takes an appeal; for it is unjust that he
who acquiesces in the judgment, as he knows that he transacted the
business, should gain his case by the appeal of him who took no part
in the administration of the guardianship.
11. The Same, On All Tribunals,
Book III.
When money was paid on the execution
of a judgment, and on appeal a more favorable decision was rendered,
the party can recover the money which he paid.
12. The Same, Opinions, Book
II.
If it is established that a
duumvir has been created without observing the formalities prescribed
by law, but only because he was demanded by the voice of the people,
to which the Proconsul consented without having any right to do so,
an appeal in so plain a case is superfluous.
13. The Same, Opinions, Book
II.
It is no disadvantage to an
appellant if, in his petition, he did not indicate from what part
of the decision he appealed.
(1) It is not customary to reject
the appeal of those who have at least one good ground for appeal.
14. The Same, On the Edict,
Book XIV.
When a judgment is rendered
against a will, by collusion, let us see whether the decision of the
court will stand. The Divine Pius permitted the parties to appeal
when it was alleged that certain persons had joined together, through
collusion, to annul the rights of legatees, and slaves who had obtained
their freedom; and, at present, this is the law, that is to say, they
can appeal, and even appear in court before the same judge who tried
the case relating to the will, if they have reason to suspect that
the heir will not faithfully conduct the defence.
(1) Whenever the heir does not
answer, a decision is rendered in favor of his adversary, and it has
been stated in a Rescript that this does not prejudice either legacies
or grants of freedom. This Rescript of the Divine Brothers, addressed
to Domitius, is as follows: "Whenever the possessor is absent,
and no one answers in his name, it has been decided that the judgment
will not have the authority of res judicata, unless it is rendered
only against him alone who failed to appear. Therefore rights of action
are preserved for those who have received freedom, legacies, or trusts
by the will, if they are entitled to any, just as if no judgment had
been rendered; and therefore we permit them to proceed against the
party who gained the case."
15. Marcellus, Digest, Book
I.
Slaves cannot appeal, but their
masters, in order to assist them, can resort to an appeal, and anyone
else can do this in the name of the master. When, however, neither
the master appeals, nor anyone else does so for him, we do not refuse
the slave the privilege of imploring relief for himself, after having
received so severe a sentence.
16. Modestinus, Differences,
Book VI.
The constitutions which discuss
the question whether appeals should be received or not, so that nothing
new may be introduced against them, do not apply to those whom it
is for the interest of the public to be punished without delay; as,
for instance, notorious robbers, or persons who instigate sedition,
or the leaders of factions.
17. The Same, Rules, Book
VIII.
Where two separate decisions
have been rendered in a single case, for example, one with reference
to the principal and the other with reference to the interest, two
appeals will be necessary, lest it may be understood that the party
accepted one, and appealed from the other.
(1) When a guardian, appointed
for a ward, appeals, a curator will be appointed for the ward in the
meantime. If, however, the authority of the guardian should be necessary,
as, for instance, for the acceptance of an estate, a guardian will
necessarily be appointed, as the authority of a curator is not sufficient
for this purpose.
18. The Same, Opinions, Book
XVII.
Lucius Titius filed an appeal
for his slave, who had been condemned to be thrown to wild beasts.
I ask whether he can state the grounds for an appeal of this kind
by an attorney. Modestinus answered that he could do so.
19. The Same, Cases Explained.
If a decision has been rendered
directly against the strict interpretation of the law, it should not
be valid, and therefore the case can be heard again without an appeal.
A decision is not legally pronounced, if it is rendered specially
against the laws, a Decree of the Senate, or an Imperial Constitution.
Therefore, when anyone appeals from such a decision, and is barred
by an exception, the decision is by no means confirmed by this procedure,
hence the action can be brought again.
20. The Same, On Prescriptions.
Anyone who accuses a guardian
of being liable to suspicion, and calls in question his excuse for
not accepting the guardianship, is understood to act in the name of
another.
(1) He who is appointed an attorney
in his own behalf should appeal within two days, because he is conducting
his own case.
(2) No further time for appeal
is granted to soldiers, and if, after having been defeated, they do
not appeal and comply with the usual formalities, they shall not afterwards
be heard.
21. Papirius Justus, On the
Constitutions, Book I.
The Emperors Antoninus and Verus
stated in a Rescript that appeals which have been made directly to
the Emperor, without having been first presented to those magistrates
of inferior rank, before whom this ought to be done, are returned
to the Governors.
(1) They also stated in a Rescript
that an appeal is not properly taken to the Emperor from a judge appointed
by the Governor of the province, and therefore that it should be sent
back to the latter.
(2) When anyone who has been
appointed a magistrate appeals, his colleague, in the meantime, shall
discharge the duties of both. If both should appeal, another magistrate
shall temporarily be appointed in their stead, and he who did not
appeal justly must pay the damage sustained by the government. Where,
however, the appeal was well founded, and it was so decided, it shall
be determined who shall pay the damages sustained. Another should,
in the meantime, be appointed a curator, to take charge of the distribution
of provisions while the appeal is pending.
(3) They also stated in a Rescript
that although it is not customary, after an appeal has been taken,
for the crops of land in litigation to be deposited, still, as they
might be destroyed by the adverse party, it
seemed to them to be just that they should be placed in the hands
of a sequestrator.
22. Papinianus, Opinions,
Book II.
When a case is submitted to
the Emperor for examination, it can be recalled by the person who
sent it.
23. The Same, Opinions, Book
XIX.
When a judge has been appointed
by the Governor of a province for the purpose of compromising a case
with the consent of the litigants, the defeated party can appeal.
(1) When a representative of
the Emperor who did not discharge the duties of Governor, or have
the right to appoint a judge in private causes, gave a decision, it
was held that it was useless to appeal from a judgment which did not
render anyone liable.
(2) When a decision was rendered
against the father of a son under paternal control, involving property
which he could acquire through his son, I gave it as my opinion that
the son could not appeal except in the name of his father.
(3) It was decided that he who
knew that a peremptory Edict was granted him on account of his rank
had no right to appeal, since it was in his power to answer in court
before the day appointed, and thereby protect himself by avoiding
the denunciation of the Edict.
24. Scaevola, Opinions, Book
V.
Where anyone who transacts the
business of another in good faith or as a guardian, or a curator,
has been condemned, and has appealed; and, after the case had been
protracted for a long time, the appeal finally was decided not to
have been made on good grounds; the question arose whether, because
judgment was rendered subsequently, the interest on the principal
for the intermediate time is due. The answer is that, according to
the facts stated, a praetorian action should
be granted.
(1) The curator of a minor in
a suit brought against the heirs of his guardian filed an appeal.
As the young man had then passed the age of twenty-five years, and
was in the army, he neglected to prosecute his appeal. Having returned
from the army, I ask whether he himself should prosecute his appeal,
or should apply to his curator to do so. The answer was that, in accordance
with the facts stated, the soldier himself should proceed with the
case in which he was interested.
25. Paulus, Opinions, Book
XX.
"The Emperor Alexander
to the Community of the Greeks, who are in Bithynia. I do not see
how anyone can be prevented from appealing from a judgment, when there
is another way open to do the same thing, and to reach me more promptly.
We forbid curators and the heads of nations to make use of abuse and
violence against parties who appeal, and (to speak more plainly) to
prevent them from having access to us; and they must obey this my
decision, being well aware that the liberty of those who govern is
as much the object of my solicitude as their good will and obedience."
26. Hermogenianus, Epitomes
of Law, Book II.
When a case is sent to the Emperor,
the Governor can hear it with the consent of the parties, if it is
in his jurisdiction.
27. The Same, Epitomes of
Laiv, Book V.
Where a guardian takes an appeal
in a matter concerning his ward, or a curator does so in the case
of an adult, he can prosecute the appeal before
the heir of either renders his accounts; for after the accounts have
been rendered, neither the guardian nor the curator will be compelled
to sustain the merits of the appeal.
28. Scaevola, Digest, Book
XXV.
A creditor who had brought suit
against the sureties was not present at the trial of the case, after
issue had been joined, and when the sureties were discharged his slave
appealed. The question was asked whether the appeal which the slave
interposed in behalf of his master was of any force or effect. The
answer was that such an appeal should not receive any attention.
(1) A man having been ordered
by a judge to appear in court, in accordance with the command of the
Governor of the province, and produce certain accounts which he alleged
were in his possession, did not do so, even after delay had been granted
him for this purpose; and therefore, after the constitution had been
read to him, for the reason that through obstinacy he had failed to
produce the documents demanded, and the plaintiff proved the amount
of his interest in having them produced, by taking an oath, the defendant
was convicted. The question arose whether he could file an appeal
after the oath had been taken. The answer was that nothing had been
stated to show why the benefit of an appeal should be denied him.
(2) Guardians who had been substituted
in the place of a legal guardian, having brought an action on guardianship
against him, the arbitrator appointed condemned him unjustly, and
because the equity of the case required it, they appealed from his
decision. While the appeal was pending, the young men grew up. As
the entire procedure had reference to persons who were grown, and
they were in a condition to protect their own interests, the question
arose whether the demand of those against whom the appeal had been
taken, who alleged that the ground of the appeal must be stated by
those who first brought the suit, should be admitted. The answer was,
that if those whose guardianship had been administered desired to
proceed with the case, they ought to be prevented from doing so. The
same rule should be observed with reference to curators, if, in the
meantime, the youth should arrive at lawful age.
Tit. 2.
From what persons it is not permitted to appeal.
1. Ulpianus, On the Edict,
Book I.
Inquiry should be made from
whom it is not lawful to appeal.
(1) And, indeed, it would be
foolish to warn anyone that it is not lawful to appeal from the Emperor,
since he himself is the one to whom the appeal is made.
(2) It should be remembered
that an appeal cannot be taken from the Senate to the Emperor; and
this was established by an address of the Divine Hadrian.
(3) If anyone, before judgment
has been rendered, should assert that he will not appeal from the
decision of the judge, he unquestionably loses the benefit of the
appeal.
(4) Sometimes the Emperor appoints
a judge with the understanding that an appeal cannot be taken from
his decision; for I know that judges have very frequently been appointed
in this manner by the Divine Marcus. Let us see whether anyone else
can appoint a judge in this way. I do not think that he can do so.
2. Paulus, On Appeals, Book
I.
The question was asked whether
an appeal can be taken against arbitrators, who are appointed for
the purpose of accepting sureties. Although several authorities hold
that, in this case, even without an appeal, the decision can be amended
by the person who rendered it.
Tit. 3.
To whom and from whom an appeal can be taken.
1. Ulpianus, On Appeals,
Book I.
When it is said that an appeal
is taken from the judge who rendered the decision, this must be understood
to mean that one can also be taken from his successor. Hence, where
the Prefect of the City, or the Praetorian Prefect, renders a decision,
an appeal should be taken from him who rendered it.
(1) An appeal is not taken to
a person who has delegated his authority; for, generally speaking,
it ought to be taken from him to whom the authority was delegated
to him to whom the appeals would be taken from the official who delegated
the authority.
2. Venuleius Saturninus,
On the Duties of Proconsul, Book II.
One can appeal from the Governor
to the Proconsul, and if he has imposed a fine, the Proconsul can
take cognizance of his injustice, and decide whatever he thinks best.
3. Modestinus, Rules, Book
VIII.
Whenever a judge is appointed
by the magistrates of the Roman people, no matter of what rank they
may be, even though this was done by order of the Emperor, and he
may have designated the judge by name, an appeal can be taken to the
magistrates themselves.
Tit. 4.
when an appeal should be taken, and within what time.
1. Ulpianus, On Appeals,
Book I.
When the Governor of a province
notifies someone that he shall be deported to an island, and writes
to the Emperor in order that he may be deported, let us see when an
appeal should be taken, whether at the time the Governor wrote to
the Emperor, or when the latter wrote
to him. I think that the appeal should be taken when the Governor
orders the defendant to be taken into custody, and after he has rendered
his decision that the Emperor shall be written to, in order that the
defendant may be deported. It is, however, to be feared that it will
be too late to appeal after the Emperor has assigned him an island,
for the decision of the Governor having been confirmed, it is then
customary to assign an island as the place of deportation. Again,
it should be apprehended that if the Governor made false statements
to the Emperor concerning the person whom he was attempting to have
deported, the way of appeal will be closed to him. What then should
be done? It can properly be decided in compliance with the suggestions
of humanity that, in either case, an appeal will not be taken in vain,
because the defendant does not appeal from the Emperor, but against
the duplicity of the judge. This rule should also be adopted in the
case of a decurion, whom the Governor ought not to permit himself
to punish, but should confine in prison, and write to the Emperor
with reference to his punishment.
(1) When anyone is appointed
a guardian, either by will or by someone who has the right of appointment,
it will not be necessary for him to appeal (as this rule was established
by the Divine Marcus), but he should offer his excuse within the prescribed
time; and if it is rejected, he then should appeal, otherwise he will
do so in vain.
(2) The case is different with
those who are called to some office of honor when they allege that
they have an excuse; for they cannot allege their reasons for immunity
unless they interpose an appeal.
(3) Governors usually are accustomed
to send the name of a man to the order to which he belongs, asking
it to elect Gaius Seius magistrate, or to confer upon him some other
honor or office. Therefore, should an appeal be taken after the order
has rendered its decision, or must it be taken on the submission of
the name by the Governor? The better opinion is, that the appeal should
be taken at the time when the order renders its decision; for the
Governor appears rather to have given advice that someone should be
appointed than to have, himself, made the nomination. Finally, the
appeal should be taken to him, and not from him.
(4) But when the Governor himself
is a member of the order (as sometimes happens), at the time when
the person was appointed by it, an appeal can be taken to the Governor,
as from the order, and not from the Governor himself.
(5) The term of two or three
days should be computed from the time when the decision was rendered,
for the purpose of taking an appeal. What, however, must be done if
the decision was rendered under a condition? Should we compute the
time for taking the appeal from the day of the decision, or from the
day on which the condition of the decision was complied with? It is
clear that the decision ought not to be rendered under a condition,
but if this is done, what course must be pursued? It is proper that
the time for appeal should immediately begin to be computed.
(6) What has been ordered with
reference to decisions, namely, that an appeal should be taken upon
the second or third day, should also be observed in other cases in
which a decision has, indeed, not been rendered, but where, as was
stated above, a party can appeal.
(7) An Address of the Divine
Marcus prescribes that the days upon which a party can appeal should,
to a certain extent, be available ones, if the person from whom the
appeal is taken should not be present, so that the petition can be
presented to him; for the Rescript says: "That day shall be observed
upon which he shall first be able to appear." Therefore, if after
the appeal, the judge who rendered the decision should not be present,
as he is accustomed to be, it must be said that the appellant is in
nowise prejudiced; for he can appeal the first time that he has access
to the judge. Hence, if the judge should conceal himself, the litigant
should be entitled to the same relief.
(8) But what if the lateness
of the hour caused him to retire, the judgment having been pronounced
during the latter part of the day? In this instance, the judge will
not appear to have withdrawn.
(9) We understand the opportunity
of access to be when the judge appears in public. If, however, he
has not done so, will the party be to blame for not having gone to
his house; or not to have approached him in his garden; or even at
any house in the country? The better opinion is that he should not
be liable to censure. Therefore, if he did not have access to him
in public, it will be better to hold that he did not have access to
him at all.
(10) When, indeed, anyone has
no opportunity to obtain access to the magistrate from whom he appeals,
but has access to the appellee, let us see whether an exception can
be pleaded against him, because he did not apply to the latter. The
rule at present is, that if he had the opportunity to apply to either
of them, there will be ground for an exception.
(11) The term of two days is
understood to have reference to one's own case. But how shall we distinguish
one's own case from that of another? It is clear that one's own case
is that whose profit or loss affects a litigant personally.
(12) Therefore an attorney,
unless he is acting in his own behalf, will be entitled to the term
of three days. When he is appointed to conduct his own case, the better
opinion is that he will only be entitled to two days. But if he is
acting partly in his own name, and partly in that of another, it may
be doubted whether he will be entitled to two or three days. The better
opinion is that he will be entitled to two days, when he acts in his
own name, and to three, when he acts in the name of another.
(13) Guardians, as well as the
defenders of public matters, and the curators of minors or insane
persons, should have three days, for the reason that they appeal in
the name of others. From this it appears that a defender can appeal
upon a third day, provided he is conducting the case as a defender,
and not in his own name; for as he is conducting it in behalf of another,
he can appeal on the third day.
(14) Where anyone who has accused
a guardian of being suspicious loses his case, Julianus, in the Fortieth
Book of the Digest, states that
he can appeal within three days, just as the defender of a minor.
(15) Where judgment has been
rendered against an absent person, the term of two or three days must
be computed from the date when he learned of the judgment, and not
from the day on which it was rendered. When, however, it is said that
an absent party can appeal from the day on which he learns of the
judgment, this must be understood to mean if he was not defended in
the case by an attorney; for if the latter did not appeal, it will
be difficult for the former to obtain a hearing.
2. Macer, Appeals, Book I.
If you have conducted a case
as an attorney, and, having been defeated, appeal, and your appeal
has been decided to be ill founded, it may be doubted whether you
should appeal on the second day, for as judgment has been rendered
against your appeal, you appear to be the party in interest. It is,
however, better to hold that you can appeal on the third day, because
you have, nevertheless, defended the case of another.
(1) If, however, another than
a party litigant should appeal, for example, one who has an interest,
let us see whether he can appeal on the third day. It must, however,
be said that he ought to appeal on the second day, because it is true
that he is defending his own case. It would be opposing himself if
he should allege that he has a right to appeal within three days,
because it is held that if he takes an appeal in the name of another,
when if he wishes his own case to appear to be that of another, he
excludes himself, for the reason that he who was not a party in the
beginning has no right to appeal in another's case.
(2) If, however, one who is
alleged to be a freedman should defend himself on the ground that
he is freeborn, and, having been beaten, neglects to appeal, the question
arises whether his father can do so, especially if he states that
he is under his control. But if he can appeal, it is better to hold
that he should do so on the second day, as conducting his own case.
(3) Where a near relative appeals
in behalf of a person who has been sentenced to death, Paulus doubts
whether he should be heard on the third day. It must, however, be
said that a person of this kind should appeal upon the second day,
as representing himself; because he who alleges that he is interested
is defending his own case.
3. The Same, Appeals, Book
II.
When a letter is written to
the Emperor, and a copy of the same is shown to one of the litigants,
who did not appeal, and afterwards the Emperor decides against him
in a Rescript, let us see whether he can appeal from the letter which
was previously shown to him, since as he did not do so at the time,
he seems to have admitted its contents were true. He should not be
heard, if he should state that he was waiting for the issue of the
Imperial Rescript.
Tit. 5.
Concerning the acceptance or rejection of appeals.
1. Ulpianus, On the Edict,
Book XXIX.
Appellants are not usually heard
unless they have an interest in the suit, or have been commissioned
to act, or are conducting the business of others, and their acts are
ratified immediately.
(1) When, however, a mother
sees the case of her son overthrown by a decision, and, induced by
maternal affection, appeals, it must be said that she should be heard;
and if she prefers to prepare the case, she should not be considered
to have interfered, although in the beginning she could not have undertaken
the defence.
2. Scaevola, Rules, Book
IV.
An appeal can be taken before
final judgment, if a judge has rendered an interlocutory decree for
the purpose of applying torture in a civil case, or in a criminal
case, if he does this contrary to law.
3. Paulus, Rules.
He who institutes proceedings
against a suspected guardian can appeal within three days if he should
be defeated.
4. Macer, Appeals, Book I.
He should not be heard who attempts
to cause delay in a suit in which he alleges in reply that he has
presented a petition to the Emperor, and is waiting for the issue
of the Rescript, and, if he takes an appeal on this ground, the Imperial
Constitutions forbid it to be received.
5. Ulpianus, On Appeals,
Book IV.
It is sufficient for him whose
appeal is not received merely to state this fact, and in whatever
way he does so, his appeal will be admitted.
(1) When an appeal is not received,
and it becomes necessary to appeal to the Emperor, a petition should
be presented to him. If, howr ever, an appeal should be taken to anyone
but the Emperor, the former must be applied to.
(2) Where, after the appeal
has been received, any impediment is interposed, he must be applied
to before whom the litigant wishes to bring the appeal.
(3) It is clear that if the
appeal should not be received, and the appellant did not apply to
the proper official, but to the Emperor, it will be the same as if
he had gone before the magistrate whom he should have applied to;
and this is stated in different Rescripts of our Emperor Antoninus.
(4) It is also evident that
if a party litigant has appealed to one magistrate instead of another,
and not to the Emperor, this mistake will be of no advantage to him,
although he will not be considered to have failed to appeal.
(5) During the time prescribed
for taking an appeal, the party whose appeal was not accepted can
either apply to a competent judge, or to the Emperor.
6. Macer, On Appeals, Book
II.
It must be remembered that,
when an appeal is rejected, it has been decided by the Imperial Constitutions
that everything must remain in the same condition, and nothing new
be done, even if the appeal is taken against the Treasury; and he
who refuses to receive the appeal must immediately make a report giving
his opinion, and the reason for its rejection; and it is provided
by the Imperial Mandates that he shall furnish the litigant with a
copy of his report.
7. Paulus, On Appeals.
If the matter does not admit
of delay, it is not permitted to appeal to prevent the opening of
a will, as the Divine Hadrian decided that grain collected for the
use of soldiers should not be used for the sustenance of the public,
and that an appointed heir should not be placed in possession.
(1) Again, if anything has been
decided in accordance with the Perpetual Edict, an appeal cannot be
taken to prevent its being carried into effect.
(2) In like manner, an appeal
cannot be taken to prevent the sale of a pledge.
Tit. 6.
Concerning notices of appeal called dispatches.
1. Marcianus, On Appeals,
Book II.
After an appeal has been filed,
letters should be sent by the official from whom the appeal is taken,
to him who is to hear it, whether this be the Emperor, or someone
else; which letters are called notices, or dispatches.
(1) The form of these letters
is as follows, for instance: "Lucius Titius has appealed from
the decision of So-and-So, rendered between him and So-and-So."
(2) It is sufficient to have
demanded these notices earnestly and frequently within the prescribed
time, and if the judge does not accede to the demand, this can be
proved by witnesses; for the Imperial Constitutions require that the
party who applies for such a notice should do so with vehemence. Therefore,
it is but just that, if he who should grant the notice is to blame
for not doing so, this shall not prejudice the person who made the
demand.
Tit. 7.
No change shall be made after the appeal has been interposed.
1. Ulpianus, On Appeals,
Book IV.
After an appeal has been interposed,
whether it is received or not, nothing must be altered in the meantime,
if the appeal is received, for this reason; but if it is not received,
in order that nothing may be prejudiced while it is being decided,
whether the appeal should be received or not.
(1) If the appeal is received,
no change shall be made until a decision has been rendered with reference
to the appeal.
(2) If anyone should happen
to be relegated, and takes an appeal, he will not be restricted to
Italy, nor to any single province to which he may have been relegated.
(3) For the same reason, if
anyone has been deported, or notified by a magistrate who has a right
to deport him, he shall not be put in chains, nor shall he be subjected
to any of the severe treatment which those are liable who do not acquiesce
in a decision; for his condition is considered to remain unimpaired
after the appeal has been interposed.
(4) Therefore, if he has been
ordered to withdraw from his order, and he appeals, for the same reason
he can attend its meetings; as it has been decided, and is a rule
of law, that no further steps can be taken while an appeal is pending.
(5) When anyone is convicted
of several crimes, and has appealed on account of some of them, but
not on account of others, the question arises whether his punishment
should be postponed, or not. If the appeal was taken on account of
the more serious crimes, but he did not appeal for those which were
less serious, the appeal should by all means be received, and the
punishment deferred. Where, however, he deserves a heavier sentence
for offences on account of which he did not appeal, the penalty must
certainly be imposed.
Tit. 8.
What decisions can be rescinded without an appeal.
1. Macer, On Appeals, Book
II.
We must remember that when an
inquiry is made whether a case has been decided or not, and the judge
of this question declares that it has not been decided, even though
it may have been, it is rescinded, even if no appeal has been taken.
(1) Likewise, if an error in
the calculation is alleged to exist in the decision, it is not necessary
to appeal, for instance, if the judge decides as follows: "As
it is proved that Titius owes Seius fifty sesterces for such-and-such
an article, and also twenty-five for another; therefore
I hold that Lucius Titius shall pay Seius a hundred sesterces;"
because, as the mistake is one of computation, it is not necessary
to appeal, and it can be corrected without doing so. If, however,
the judge of this question should render a decision for a hundred
sesterces, for the reason that he thought that fifty and twenty-five
made a hundred, still, the same mistake is one of computation, and
it is not necessary to appeal. But when the judge decides that there
is another sum of twenty-five sesterces due, there will be
ground for appeal.
(2) Likewise, when the decision
is contrary to the Imperial Constitutions, the necessity for appeal
does not exist. A decision is rendered against the constitutions when
it is pronounced in compliance with the law as laid down by them,
and not with reference to the rights of the litigant; for if the judge,
in the case of a person desiring to be excused from the charge of
a public office, or of a guardianship, on account of having children,
or through age, or by reason of some privilege, should hold that neither
children, nor age, nor any privilege will avail to excuse anyone from
office, or from guardianship, he is understood to have decided with
reference to the law as set forth in the constitutions. If, however,
he should permit a person to establish his right, and then renders
a decision against him because he did not prove his age, or the number
of his children; he is understood to have decided with reference to
the rights of the litigant, in which case an appeal will be necessary.
(3) Likewise when, under a peremptory
Edict which has not been published, and of which the party has not
been notified, he is convicted while absent, the constitutions declare
that a decision of this kind is of no effect.
(4) If you and I both apply
to the same judge, and neither of our petitions asks for interest,
and the judge renders a decision against me before doing so against
you, in order that you may be the first to have a judgment in your
favor; it is not necessary for me to appeal on this ground, as, according
to the Sacred Constitutions, you cannot ask for an execution against
me before judgment has been rendered with reference to my claim; but
the better opinion is that an appeal should be taken.
2. Paulus, Opinions, Book
III.
Paulus held that he who was
not alive at the time when judgment was rendered against him is understood
to have been condemned to no purpose.
(1) He also held with reference
to a person who was not alive at the time when the judge was appointed
to decide his case that the appointment of the judge was void, and
any decision rendered against him would be of no force or effect.
3. The Same, Opinions, Book
XVI.
Paulus gave it as his opinion
that a judicial order which is impossible was void.
(1) He also gave it as his opinion,
that there was no ground for appeal where a decision had been rendered,
which, in the nature of things, could not be complied with.
Tit. 9.
Whether the reasons for an appeal can be presented by another.
1. Ulpianus, Appeals, Book
IV.
It is frequently asked whether
the reasons for an appeal can be stated by another person, and this
point is usually discussed in pecuniary and criminal cases. It is
established by Rescripts that this can be done in pecuniary cases.
The terms of one Rescript are as follows: "The Divine Brothers,
to Longinus. If he who appealed directed you to defend him against
the appeal which Pollia took against him, and the case is a pecuniary
one, there is nothing to prevent you from answering in his name. If,
however, the case is not a pecuniary one, but one involving the punishment
of death, it is not permitted to proceed by an attorney. But if it
is one in which a penalty as serious as relegation can be enforced,
it is not necessary to act by another, but it should be noted that
the party himself must appear in court." It is clear that if
the case is a pecuniary one, from which infamy may result, it can
be conducted by means of an attorney. This opinion should be adopted,
not only if the accuser should appeal, but also with reference to
him against whom the appeal was taken; and, generally speaking, an
appeal cannot be taken by another in any case where one person cannot
appear by another.
2. Macer, Appeals, Book II.
When the attorney of an absent
party appeals, and afterwards gives his reasons for doing so, he will,
nevertheless, be obliged to answer. If, however, he fails to do so,
can the party to the suit answer, as in the case of a minor? is a
question which we should consider. We rather incline to the opinion
that he ought to be heard in giving the reasons for the appeal, who,
as the attorney of the absent party, applied for it.
Tit. 10.
Where a guardian, a curator, or a magistrate having been appointed,
appeals.
1. Ulpianus, On the Duties
of Proconsul, Book III.
When persons who have been appointed
to public offices appeal, and do not establish a justification for
doing so, they are hereby notified that it is at their risk if the
State should suffer any loss by reason of the appeal being delayed.
When it is apparent that the appeal was necessary, the Governor of
the province, or the Emperor, shall decide who was responsible for
the damage sustained.
2. Hermogenianus, Epitomes
of Law, Book V.
When a guardian or a curator
is retained in office, and appeals, and dies before a decision has
been rendered, his successors will be required to state the grounds
of appeal, on account of the responsibility attaching to the intermediate
time.
Tit. 11.
He who appeals should be defended in his own province.
1. Ulpianus, On Appeals,
Book IV.
He who appeals must be defended
in his own province, in all other cases of his own, even though he
may be absent for the purpose of conducting his appeal. This the Divine
Brothers stated in a Rescript addressed to Decimus Philo.
2. Marcianus, On Appeals,
Book II.
This privilege is granted to
those who are absent on business for the State, in order that they
may not be required to defend themselves.
Tit. 12.
Where a party litigant is compelled to bring another action before
the judge from whose decision he has already appealed.
1. Ulpianus, On Appeals,
Book IV.
When anyone has appealed from
a judge in one case, and is compelled to have the same judge preside
in another, let us see what course must be pursued. It is the law,
at present, that even though an appeal has been taken, the party will
still be required to appear before the same judge from whom he has
appealed, and conduct other cases if he has any; nor can he avail
himself of the pretext that he should not try them before a judge
who may be hostile to him, as he can appeal again.
Tit. 13.
If death should occur while an appeal is pending.
1. Macer, On Appeals, Book
II.
Where the appellant dies without
leaving an heir, an appeal of this kind is extinguished. If, however,
an heir of the appellant should appear, and no one else has any interest
in stating the ground for the appeal, the heir cannot be forced to
prosecute it. But when the Treasury, or any other party against whom
the appeal was taken, is interested in the case, the heir will be
required to state the grounds for
the appeal. No one has any interest, where, for example, the party
has been relegated without having been deprived of his property. In
case he should be relegated after having been deprived of his property,
or be deported to an island, or sentenced to the mines, or should
die after the appeal was taken, our Emperor Alexander made the following
statement in a Rescript addressed to Pletorius, a soldier, as being
applicable: "Although, while the appeal is pending, the accusation
of the defendant is annulled by death, still, as it is alleged that
a part of his property has been confiscated under the judgment, be
who is entitled to the benefit of the succession can only obtain it
if he gives good reasons for the appeal, and establishes the injustice
of the decision."
(1) If a guardian, after having
taken an appeal pertaining to the business of his ward, should die,
his heir will be compelled to state the grounds for the appeal, even
if he has already rendered his account of the guardianship, for the
reason that it is sufficient that he would have been obliged to state
the grounds for it at the time of his death. The Divine Severus and
Antoninus, however, stated in a Rescript that a guardian, after having
rendered his accounts, should not be compelled to set forth the grounds
of the appeal.
(2) The Divine Pius stated in
a Rescript to Coelius Amarantus that notice to the Treasury of an
estate without an owner was prescribed after four years, and that
this time should be computed from the day when it began to be certain
that there was no heir, and no possessor under Praetorian Law.
(3) The prescription of twenty
years, however, which is observed with reference to the property of
persons who have been notified, and do not institute proceedings to
recover it is, according to a Constitution of the Divine Titus, usually
reckoned from the day on which anything could begin to belong to the
Treasury.
(4) Cases which have already
been begun and continued beyond the twentieth year can also be prosecuted
after the twentieth year has elapsed.
(5) Cases which are alleged
to have been abandoned by the first person who gave notice of them
can still be reported to the Treasury after the term of years by which,
as we have stated, they are prescribed, has elapsed.
2. The Same, On the Rights
of the Treasury, Book II.
There are certain reasons for
which the reputation of those who give information is not injured;
for instance, when this is not done in order to obtain a reward, and
where persons denounce an adversary for the purpose of avenging a
wrong; or where anyone prosecuted the case in the name of a municipality;
and it is to be observed that this has many times been set forth in
the Imperial Constitutions.
Tit. 14.
Concerning the rights of the Treasury.
1. Callistratus, On the Rights
of the Treasury, Book I.
There are various reasons for
which notice ordinarily is given to the Treasury; for anyone himself
can state that he has no right to take property which is tacitly bequeathed
by a trust, or where one has been denounced as a criminal by another;
or this can be done in the case where the death of a relative is not
avenged by the heirs; or because an heir has been denounced as unworthy;
or because the Emperor was appointed heir, notice can be given that
the will or the codicil has been suppressed; or because anyone may
be alleged to have found a treasure; or to have purchased an article
of great value which belonged to the Treasury, at a very low price;
or on the ground that the Treasury had been defeated in the case by
prevarication; or for the reason that a person accused of a capital
crime has died; or because someone was accused after his death; or
a house had been rebuilt; or an accusation abandoned; or property
in litigation sold; or because a penalty was due to the Treasury under
some private contract ; or because an act had been committed contrary
to law.
(1) Where property is not sufficient
for payment, the question arises whether it belongs to the Treasury
by operation of law. Labeo says that, even if it is not sufficient
to discharge the liabilities, it will still belong to the Treasury
by operation of law. The Perpetual Edict, however, contradicts his
opinion, because the property is sold when none of it can be acquired
by the Treasury.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lacunas :
1, 2 – 2 pr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The Divine Hadrian stated
in a Rescript addressed to Favius Arrianus: "There is no doubt
that he injures his own case who, being able to introduce documents
having reference to the case of the Treasury does not do so, when
the truth cannot otherwise be ascertained, and the documents are suppressed
because it is thought that they will injure his case. "But there
is no question that the said documents will not injure any other case
than the one in which their production is demanded."
(2) In like manner, the Divine
Brothers stated in a Rescript, in answer to the petition of Cornelius
Rufus, that documents should be produced whenever an inquiry is made
with reference to the right to receive property, or the right of ownership,
or anything of this kind, in a pecuniary case, but not in one in which
the death penalty is involved.
(3) The Senate decreed that,
if neither the informer nor the possessor summoned by the three edicts
should appear, the sureties of the informer will be liable; and he
will be deprived of the right to bring an accusation afterwards in
a public case, and the right of the possessor will remain the same
as if he had not been denounced.
(4) Whenever an informer who
has been ordered to appear fails to do so, and this is not proved
to have been effected by the fraudulent conduct of the possessor,
the Divine Hadrian stated in a Rescript that judgment should be rendered in favor of the latter, in
such a way that it shall be mentioned therein that the informers are
also included in the edict.
(5) The Divine Pius stated in
a Rescript addressed to Caecilius Maximus that the Constitution of
his Father, by which an informer is required to give the name of his
principal, and if he does not do so, he shall be placed in chains,
does not cause the informer to be released from punishment, if he
has a principal, but that the principal shall be punished, just as
if he alone had made the denunciation.
(6) Our Emperor, Severus Augustus,
decided that slaves who denounced their masters should not be heard,
but should be punished; and also that freedmen who instigated other
persons against their patrons should be punished by the Governors
of provinces.
(7) Many Imperial Rescripts
exist by which it is provided that no one is injured by a mistake,
when, being ignorant of the law, he denounced himself. But there is
also a Rescript of the same Emperor extant, by which it appears that
it can be maintained that anyone who informs against himself will
only not be injured in case he is such a person as can be ignorant
of the law merely because of his rusticity, or where the person is
a woman.
3. The Same, On the Rights
of the Treasury, Book III.
A person is not understood
to have defrauded the law if he has publicly been asked to make restitution.
When, however, anyone inserts the following into his will: "I
charge you to faithfully execute what I have requested you to do,
and I beseech you in the name of God to do so," the question
was asked whether this request was made publicly. Julianus answered
that, indeed, it did not appear that anything was asked of the heirs
by words of this kind, but that it was usual to inquire when anyone
was understood to have pledged his honor for the purpose of defrauding
the law; and it had been almost definitely settled that the law was
considered to have been defrauded whenever anyone was not requested
by will or by codicil, but by a private promise, or by a note to bind
himself to give something to a person who was not entitled to receive
it; and therefore it could be said that no fraud was committed against
the law by the words above mentioned.
(1) If anyone should, both publicly
and privately, be charged to execute a trust, the question arises
which would prevail, and whether what he was asked to do secretly,
or what he was requested to do openly, would prejudice him. The Divine
Hadrian stated in a Rescript that, where anything had been publicly
confided to the honor of anyone, it should not be believed that he
had made use of it in order to defraud the law.
(2) When fraud has been committed,
let us see whether the result or the design should be considered;
for instance, if, when the trust was tacitly created, he who was ordered
to receive it was not capable of doing so, but at the time of his
death was qualified to take it, or vice versa. It has been
decided that the result should be considered.
(3) Implied trusts are frequently
disclosed as follows: namely, where a document is produced by which
the person in whom confidence is reposed binds himself to deliver
whatever may come into his hands from the estate of the deceased.
This also takes place when other evident proofs exist.
(4) When, on account of an implied
trust, property is confiscated to the Treasury, everything which is
properly left by the will is valid. This the Divine Pius stated in
a Rescript.
(5) The Divine Brothers stated
in a Rescript that, in sales in which the Treasury is interested,
good faith and diligence are exacted from the Agent of the Treasury,
and that the just price should be determined, not from past sales,
but from the present estimation of the value of the property. For
the value of land is increased by diligent cultivation, just as it
is necessarily diminished, if it is carelessly tilled.
(6) When the term of five years,
for which a person binds himself under a public lease, has elapsed,
he will not afterwards be liable; and this has been decided by the
Imperial Rescripts. For the Divine Hadrian stated in a Rescript: "That
is an extremely inhumane custom by which the lessees of public lands
and farmers of the revenue are retained, when the taxes cannot be
farmed, or the lands leased for the same price; for lessees could
be more readily secured if they knew that, should they desire to depart
after their terms had expired, they would not be retained."
(7) If the Treasury should succeed
to a last creditor, it will enjoy the same rights which he to whom
it succeeded would have enjoyed.
(8) Many Imperial Rescripts
exist, by which it is provided that the Treasury can not sue those
indebted to its debtors, unless the principals fail to pay; or where
it is clearly proved that the notes had been executed for the benefit
of the Treasury; or that the debtors are sued under a contract made
with the latter.
(9) When a slave who forms part
of the property of the Treasury demands his freedom, the Divine Hadrian
stated in a Rescript addressed to Flavius Proculus that the case ought
to be argued before those who are accustomed to be present and act
in matters in which the Treasury is interested; and that if questions
of this kind relating to freedom have been determined in the absence
of the Advocate of the Treasury, they shall be restored to their former
condition.
(10) If a treasure should be
found on land belonging to the Treasury, or in public or religious
places, or in monuments, the Divine Brothers decide that half of it
can be claimed by the Treasury. Likewise, if treasure should be found
on property belonging to the Emperor, half of it also can be claimed
by the Treasury.
(11) No one is obliged to give
notice that he has found a treasure, unless the Treasury is entitled
to a part of it. He, however, who finds a treasure in a place belonging
to the Treasury, and appropriates that portion to which the latter
is entitled, is compelled to surrender it all, and as much more.
4. Ulpianus, On the Edict,
Book VI.
In cases in which the Treasury
is interested, those who make agreements with the informers are considered
as having confessed, provided they have given them any money, no matter
how small an amount.
5. The Same, On the Edict,
Book XVI.
If the curator of the Emperor
should sell anything, even though he may promise double or triple
the amount in case of eviction, the Treasury shall only be liable
for the original sum.
(1) When anything belonging
to the Treasury is sold by one who has the right to dispose of such
property, it will immediately belong to the purchaser, as soon as
the price has been paid.
6. The Same, On the Edict,
Book LXIII.
When the Treasury succeeds to
the private rights of an individual, it makes use of this right for
the time which preceded, its succession, but after it has succeeded,
it will be entitled to its own privilege. But will a claim immediately
begin to belong to it; or will it only do so after an action has been
brought against the debtor; or will this be the case after the claim
has been entered upon its register? are questions which may be asked.
And, indeed, it demands the interest due to the Treasury from that
time, although lower interest may have been due after it has sued
the debtor, and he has acknowledged the debt. The Rescripts, however,
do not agree with reference to the privilege. Still, I think that
there will be ground for the privilege, when the claim has been recorded
with those of other debtors.
(1) Any privileges to which
the Treasury is entitled are also ordinarily enjoyed by the Emperor
and the Empress.
7. The Same, On the Edict,
Book LIV.
If the Treasury raises a controversy
with reference to the condition of anyone, the Advocate of the Treasury
should be present. Therefore, if a decision is rendered without the
presence of the Advocate of the Treasury, the Divine Marcus stated
in a Rescript that the proceedings were void, and therefore it was
necessary to begin them over again.
8. Modestinus, Rules, Book
V.
The stewards of property sold
by the Treasury cannot themselves be sold by the agents of the same,
and if they should be, it is stated in rescripts that the sale will
be void.
9. The Same, Opinions, Book
XVII.
Lucius Titius appointed his
sister his heir to three-fourths of his estate, and his wife, Maevia,
and his father-in-law, his heirs to the remainder. His will was invalidated
by the death of a posthumous child, who himself died soon afterwards;
and hence the entire estate was acquired by the mother of the said
posthumous child. The sister of
the testator accused Maevia of having poisoned Lucius Titius. Having
failed to prove this, she appealed, and in the meantime, the defendant
died, but nevertheless, notices were issued. I ask whether you think
that the defendant having died, the appeal could be heard on account
of the estate which was acquired. Modestinus answered that, although
the accusation was annulled by the death of the defendant, still the
Treasury had a right to recover the property, if it could be proved
that it had been acquired by crime.
10. The Same, Prescriptions.
I do not think that he violates
his duty who, in questions which are doubtful, readily answers against
the Treasury.
11. Javolenus, Epistles,
Book IX.
No property can be claimed by
the Treasury, except that which remains after the creditors have been
satisfied; for that only is considered to belong to anyone which remains
after the indebtedness has been paid.
12. Callistratus, On Judicial
Inquiries, Book VI.
Persons condemned to the mines
are deprived of their freedom, as they are punished with the blows
of a slave. The Divine Pius stated in a Rescript that nothing is acquired
by the Treasury through persons of this kind; and therefore he decided
that anything which was bequeathed to a man who was afterwards condemned
to the mines would not belong to the Treasury, for he says that such
persons are rather penal slaves than slaves of the Treasury.
13. Paulus, On the Lex Julia
et Papia, Book VII.
By the Edict of the Divine Trajan,
which I have cited, it is decided that if anyone, before information
of his case was given to the Treasury, should declare that he had
no right to retain the property in his possession, he could surrender
half of it to the Treasury, and retain the other half for himself.
(1) The same Emperor afterwards
determined by an Edict that where any woman stated, either publicly
or privately, that a legacy had been bequeathed to her which she had
no right to receive, and proved that it belonged to the Treasury,
even if she did not have possession of the property, she would be
entitled to half of what could be recovered by the Prefect of the
Treasury.
(2) It makes no difference what
the reason was which interfered with the right of receiving the legacy.
(3) Property which is concealed
should be denounced, and not that which is in possession of the Treasury.
(4) The reward of a person who
has denounced himself is not considered to pass to his heirs; but
the Divine Hadrian stated in a Rescript that even if he who denounced
himself should die before the property of which he gave notice was
seized by the Treasury, the reward should be given to his heir.
(5) A letter of the same Hadrian
is extant which says that if he who could have denounced himself was
prevented from doing so by death, and his heir gives the information,
he will obtain the reward; provided that it is clear that the deceased
had the intention of denouncing himself, but if he dissimulated because
he expected to conceal the property, his heir will be entitled to
nothing but the ordinary reward.
(6) The Divine Brothers also
stated in a Rescript that the heirs of those to whom an implied trust
had been left could denounce themselves by the privilege of Trajan,
if he to whom it had been granted was surprised by death, and was
not able to denounce himself for want
of time.
(7) When an implied trust was
denounced before a will was opened by those who had undertaken to
execute it, and then, after the will had been opened, it was again
denounced by the beneficiary of the trust, the Divine Antoninus ordered
the statement of the latter to be received, on the ground that the
exceeding haste of the first informers was unworthy of reward; and
as the beneficiary declared that he could not receive it, he appeared
rather to make a disclosure with reference to his own right than to
denounce another.
(8) The privilege of Trajan
has reference to those who cannot take what is left to them by the
will of the deceased. Therefore I cannot denounce what has been left
to me by my slave.
(9) Those who are rejected as
unworthy should be barred from claiming a reward of this kind; for
instance, those who have proceeded against a will on the ground of
its being inofficious, or have alleged that a will is forged, and
have attacked its validity until the case was terminated.
(10) The Divine Hadrian and
the Divine Pius stated in Rescripts that anyone who denounced himself
by mistake, when he was entitled to receive the entire amount bequeathed
to him, was not prejudiced by doing so.
14. Gaius, On the Lex Julia
et Papia, Book XI.
It is said that when, under
the terms of the Silanian Decree of the Senate, the Treasury claims
the entire estate, neither grants of freedom nor legacies are protected;
which is plainly contrary to reason, when, in all other cases where
estates are claimed by the Treasury, the rights to grants of freedom
and legacies continue to exist unimpaired.
15. Junius Mauricianus, On
the Lex Julia et Papia, Book III.
The Senate decreed that when
an informer asks that his denunciation be withdrawn, because he alleges
that he was mistaken, the judge must investigate, and ascertain whether
there is any good reason for the withdrawal of the notice, and if
the informer appears to have been mistaken, he should pardon his imprudence;
but if he has been guilty of malice, he must so decide, and the condition
of the accuser will be the same as if he had made the denunciation,
and then been guilty of treachery.
(1) Where anyone suborns an
informer, he must pay as much into the Treasury as the informer would
have obtained, by way of reward, if he had proved his allegations.
(2) The Divine Hadrian stated
in a Rescript that the informer should suffer the same penalty, if,
after having been cited, he does not answer the Edict, as he would
have been liable to if he had not proved his case.
(3) The Senate, in the time
of Hadrian, decreed that when anyone denounced himself to the Treasury,
for the reason that he could not receive a bequest, the entire property
should be surrendered to the Treasury, and half of it should be given
to the informer, in accordance with the privilege of the Divine Trajan.
(4) When an informer is ordered
by three Edicts, issued by the Prefect of the Treasury, to be present,
and is unwilling to appear, judgment shall be rendered in favor of
the possessor, but there shall be collected from him who was ordered
to be present and did not do so (the possessor having appeared to
answer), as much as would have been paid into the Treasury in the
matter in which he gave information, if he had proved his allegations.
(5) The Senate decreed that
he who is evicted of an entire estate, or of all legacies, by the
Treasury, must deliver to it all his accounts, just as he is obliged
to do who has been evicted of a part of an estate, or a legacy.
(6) Where anyone is proved to
have rendered false accounts, the Prefect of the Treasury shall make
an investigation, and shall order to be paid into the Treasury a sum
of money equal to that which he finds to have been acquired by fraud.
16. Ulpianus, On the Lex
Julia et Papia, Book XVIII.
The Divine Trajan says, "Whoever
shall have stated." We must understand "whoever" to
mean either a man or a woman, for although women are forbidden to
act as informers, still they are permitted to denounce themselves
by the privilege of Trajan. Likewise, it does not make any difference
what the age of the informer may be, whether he is of lawful age,
or a minor, for minors are permitted to denounce themselves in cases
where they are not entitled to receive property.
17. Modestinus, On Punishments,
Book II.
Women are not permitted to act
as informers on account of the weakness of their sex, and this has
been provided in the Sacred Constitutions.
(1) In like manner, illustrious
men cannot act as informers.
(2) Also, persons who have been
convicted cannot act as informers, as was stated by the Divine Brothers
in a Rescript with reference to a person who had been beaten with
rods, and then sentenced to the public works.
(3) Again, those who have been
condemned to the mines are forbidden to act as informers by the Imperial
Constitutions, for the reason that, being desperate, they may readily
have recourse to denunciation without cause.
(4) It has, however, been stated
in Rescripts that where good reasons existed for giving information
before their conviction, they could give it after this had taken place.
(5) Veterans are also prohibited
by the Sacred Constitutions from acting as informers, on account of
the honor and the merits of the military profession.
(6) In like manner, soldiers
are forbidden to act as informers on account of the honor of the military
service.
(7) Anyone, however, can give
information with reference to a case in which he is interested with,
the Treasury; that is to say, he can make a claim, nor will he become
infamous on this account even though he may not succeed.
(8) Again, it was stated by
the Divine Severus and Antoninus in Rescripts that those who have
been guardians or curators could not act as informers in favor of
their wards or their minors. The same rule should be observed with
reference to one who transacts business as an agent; and this was
also stated by the same Emperors in Rescripts. They also decreed that
the interrogation of an agent was not prohibited by any constitution,
but that he could not accuse the person whose business he transacted;
and they published in a Rescript that a guardian, who either acted
as informer, or caused this to be done, should be severely punished.
(9) But not only he who sold
property should not, either himself, or through another who has been
substituted, furnish information concerning it, lest otherwise he
may be liable to a personal penalty, as it is stated has been decided.
(10) Papinianus, in the Sixth
and Eleventh Books of his Opin ions, says finally that public money
shall be taken from anyone who is a creditor, and who as such, received
it in payment of a debt, if he either knew at the time when he received
it that his debtor also owed the Treasury, or if he learned this afterwards,
before he had used the money. It is, however, settled that, by all
means, he should be deprived of the money, even if he was ignorant
of the facts at the time that he used it. And the Emperors afterwards
stated in a Rescript that he would be entitled to a direct action
after the money had been taken from him, as Marcellus also says in
the Seventh Book of the Digest.
19. Papinianus, Opinions,
Book X.
Finally, when the money is recovered,
it is established that interest should not be paid, as the property
and not the person is involved.
20. The Same, Opinions, Book
XI.
The money having been recovered,
an equitable action will be granted against the surety who was released.
21. Paulus, Questions, Book
III.
Titius, who owed me money, the
payment of which was secured by pledges, and who was, at the same
time, a debtor of the Treasury, paid me
what he owed me, and the Treasury afterwards, taking advantage of
its right, deprived me of the money. The question arose whether the
pledges should be released. Marcellus very properly thinks that if
the Treasury deprived me of what I had been paid, the release of the
pledges would not take place. I do not think that the distinction
of those who hold that it makes a difference whether the identical
money Jpaid, or a sum equal to it was recovered, should be admitted.
22. Marcianus, On Informers.
Property which is in dispute
should not be sold by the Manager of the Imperial Revenues, but its
sale should be postponed; as the Divine Severus and Antoninus stated
in a Rescript. And if a person accused of high treason should die,
and his heir is ready to prove the innocence of the deceased, they
ordered the sale of the property to be suspended; and, in general
they forbade property which is in litigation to be sold by the Manager
of the Imperial Revenues.
(1) Managers of the Imperial
Revenues can, however, sell property which has been pledged. If, however,
it has been encumbered to another by the right of pledge, the Manager
of the Imperial Revenues should not injure the rights of creditors;
but if any of the property remains, the Manager of the Imperial Revenues
is permitted to dispose of it under the condition of first satisfying
the preferred creditors, and if there is any excess remaining, it
will be paid into the Treasury; or if the Treasury receives the entire
price, he himself must make payment; or if the Manager of the Imperial
Revenues has merely sold the property, he shall order the money proved
to be due to any private creditor to be paid to him. This the Divine
Severus and Antoninus stated in a Rescript.
(2) The Divine Pius stated in
a Rescript that he was not willing to accept the gift of a lawsuit,
even though the party offering to give it should say that he intended
to leave his entire estate to the Emperor; and also that he would
not accept a part of the property as a donation. He added that a person
of this kind should be punished for entertaining such a base and malicious
design, and that the penalty should be inflicted at the very moment
of his appearance, unless it appeared to be too severe.
(3) As no one is compelled to
give information, he who has once done so is not permitted to desist,
as the Divine Severus and Antoninus stated in a Rescript; and the
same rule applies even though the informer may have given the notice
by the direction of another. It was clearly stated in the Rescript
that the informer should be heard if he desires to withdraw the denunciation,
provided he complains that the person who employed him has desisted.
23. Callistratus, On the
Rights of the Treasury, Book II.
When an informer, who began
proceedings alone without mentioning anyone as having directed him
to do so, afterwards desists, giving as an excuse that the person
who employed him has withdrawn, the Divine Brothers stated in a Rescript
that he should be punished.
24. Marcianus, On Informers.
Not only is the informer punished
if he does not prove his allegations, but also the person who directed
him to make them, and whom the informer should compel to appear.
25. Ulpianus, On Sabinus,
Book XIX.
It was decreed and established
by the Emperor Severus that, under no circumstances, should anyone
be required to show when he obtained the property denounced to the
Treasury, but that the informer should prove what he alleges.
26. The Same, On Sabinus,
Book XXXI.
When anyone accused of a capital
crime emancipates his son, in order that he may accept an estate,
it is provided in a Rescript that he is not considered to have done
this for the purpose of defrauding creditors, for the reason that
the property was not acquired by him.
27. The Same, On the Edict,
Book XXXIV.
When a husband does not prosecute
the murderer of his wife, the Divine Severus stated in a Rescript
that the dowry should be confiscated to the Treasury, to the extent
of the husband's interest.
28. The Same, Disputations,
Book III.
When anyone binds himself to
me, by encumbering any property "which he has, or may have,"
and afterwards makes a contract with the Treasury; it should be remembered
that the Treasury will have the preference so far as anything subsequently
acquired is concerned. This was the opinion of Papinianus, and was
also established by the constitutions, for the Treasury anticipates
the lien of the pledge.
29. The Same, Disputations,
Book VIII.
The condition of anyone who
corrupts his informer is that he is considered as having been defeated,
for this rule has been established in fiscal cases. The better opinion
is that this penalty renders the person who corrupts his informer
individually liable, but it is not transmitted against his heir. For
the case in which the money was paid is not at an end; nor is the
right of action extinguished, nor is conviction held to have taken
place; but it is necessary for evidence to first be offered, and judgment
be rendered with reference to the crime; as it is clear that the case
which was once decided by means of the corruption of the informer
must be reviewed. If the corrupter should be dead, this does not prevent
it from being heard again, for, in this instance, not the restitution
of the penalty but that of the case itself is involved.
(1) It is established that he
who has asserted that a will is forged can enter upon the estate;
but if actions are refused him, there will be ground for the Treasury
to interfere; and the obligations which were merged by the acceptance
of the estate are not restored.
(2) For, where a man did not
avenge the death of the deceased, after having entered upon his estate,
Our Emperor, together with his Father, stated in a Rescript that obligations
which had been merged should not be re-established.
30. Marcianus, Institutes,
Book III.
The Managers of the Imperial
Revenues should not sell the stewards having charge of property acquired
by the Treasury, which was stated by the Emperors Severus and Antoninus
in a Rescript, and if they have been manumitted, they shall be returned
to slavery.
31. The Same, Institutes,
Book IV.
The Divine Commodus stated in
a Rescript that the property of hostages, just like that of captives,
should be turned over to the Treasury.
32. The Same, Institutes,
Book XIV.
If, however, they had assumed
the use of the Roman toga, and had always acted as Roman citizens,
the Divine Brothers stated in a Rescript addressed to the Managers
of the Imperial Revenues having charge of estates that their rights
were undoubtedly, by the indulgence of the Emperor, distinct from
those attaching to the condition of hostages, and therefore that the
same rights would be preserved to them if they were appointed heirs
by competent Roman citizens.
33. Ulpianus, Opinions, Book
I.
He who has entered upon the
estate of a fiscal debtor begins to be subject to the privileges of
the Treasury.
34. Macer, Public Prosecutions,
Book II.
The Emperors Severus and Antoninus
stated in a Rescript to Asclepiades: "You who, having failed
to make a defence, preferred to purchase the judgment when you were
accused of crime, are with reason ordered to pay fifty solidi to
the Treasury, since, leaving out of consideration the examination
of your case, you have rendered yourself liable to this penalty; for
it must be maintained that those who are involved in matters in which
the Treasury is interested, should undertake the defence of their
cases in good faith, and not attempt to1 buy their adversaries,
or their judges."
35. Pomponius, Epistles,
Book XI.
It is stated in Julianus that
if a private individual should allege that the estate of Lucius Titius
belongs to him, when the same estate is claimed by the Treasury, the
question arises whether the right of the Treasury should be first
inquired into, and the actions of the other parties be allowed; or
whether collection of the claims of the individual creditors should
be stopped, in order to prevent the case of the government from being
prejudiced. This was set forth in the Decrees of the Senate.
36. Papinianus, Opinions,
Book III.
Where lands have been sold by
the Treasury, it was decided that the purchaser is liable for any
taxes already due thereon.
37. The Same, Opinions, Book
X.
When it was established that
a penalty should not be demanded by the Treasury, unless the creditors
recover what is owing to them, this means that the privilege relating
to the penalty should not be exercised against the creditors, and
not that the Treasury should lose the ordinary right enjoyed by private
individuals.
38. The Same, Opinions, Book
XIII.
The Treasury was defeated in
a case where it was alleged that a will was forged, but, before this
question was decided, it was established by the information of another
that the estate was without an owner. I held that the crops which
had been gathered after the first action should not be separated from
it, for, after issue has been joined, the appointed heir is not entitled
to the benefit of the Decree of the Senate.
(1) I gave it as my opinion
that he has not performed the part of an informer who contended that
the money which another person had in his possession belonged to the
administration of his time, although he was not able to prove it,
for the reason that he had acted in his own behalf.
39. The Same, Opinions, Book
XVI.
A sentence cannot adjudge property
to the Treasury without including the penalty for perpetual exile.
(1) I gave it as my opinion
that he who asked that the risk of a common conviction be divided,
because the parties convicted would be solvent if the alienations
which they had fraudulently made should be revoked, did not appear
to have given information to the Treasury of a case in which money
was involved.
40. Paulus, Questions, Book
XXI.
An heir was charged as follows:
"I ask you to give Titius the tract of land which I have already
requested you to give him." If Titius is not capable of receiving
the land, the heir cannot escape the penalty of an implied trust;
for it is not publicly left, as it cannot be learned what it is from
reading the will. In like manner, he does not openly make a bequest
who does so as follows, "I ask you, my heirs, to faithfully execute
what I have requested of you." And, indeed, in the first instance,
the testator apipears to have meditated a greater fraud, as he not
only intended to evade the law, but also its interpretation with reference
to implied trusts; for although he mentioned a tract of land, it cannot
be known with the transfer of which one the heir was charged, as the
want of identity of the property renders the devise obscure.
(1) Where a patron charges himself
with a secret trust, in order that he may pay it out of his own share,
he is not said to have committed a fraud, because it was taken out
of his own property.
41. The Same, Opinions, Book
XXI.
He who purchased from the Treasury
property which had no owner is liable to an action which could have
been brought against the deceased.
42. Valens, Trusts, Book
V.
Arrianus Severus, Prefect of
the Treasury, in a case where the estate of one who had been secretly
charged with a trust for the benefit of a person who could not receive
it, and the property of the trustee was confiscated, decided that
he to whom the trust had been left had still the right to give information,
according to the Constitution of the Divine Trajan.
(1) Moreover, for the reason
that some persons display ingratitude towards the privilege granted
by the Divine Trajan, and, after they have revealed the existence
of a secret trust, compromise with the possessors, and, after having
been summoned by the Edict, fail to answer, it was decreed by the
Senate that as much should be collected from him who had acted in
this manner as the Senate would have obtained through the informer,
if he had proved his allegations; and if the fraud of the possessor
should be established before the Prefect, as much should be collected
from him as he would have been compelled to pay if he had been convicted.
43. Ulpianus, Trusts, Book
VI.
Our Emperor stated in a Rescript
that the Treasury would be entitled to a real action where the existence
of a secret trust is established.
44. Paulus, Sentences, Book
I.
He is not an informer who, for
the purpose of protecting his own case, furnishes information to the
Treasury.
45. The Same, Sentences,
Book V.
Alienation of property, either
by donation or in any other way, for the purpose of defrauding the
Treasury, is revoked. The same rule of law applies, even if it is
not claimed, for fraud is equally punished in all cases.
(1) The estates of those who
expire in prison, in chains, or in shackles, whether they die testate
or intestate, are not taken away from their heirs.
(2) The estate of a person who
kills himself is not acquired by the Treasury, before it has been
proved that he laid violent hands on himself because of some crime
which he had committed. The estate of one who killed himself on account
of some serious crime which he has perpetrated is confiscated to the
Treasury. If, however, he committed the act through weariness of life,
or from mortification arising from indebtedness, or because of his
inability to suffer illness, his heirs will not be disturbed, but
will be allowed to take the succession.
(3) It has been decided that
any grants of freedom made by a debtor for the purpose of defrauding
the Treasury will be revoked. When, however, he purchases a slave
from another in order to manumit him, this is not forbidden, as then
he can grant him his freedom.
(4) Among the property which
can be denounced to the Treasury are written instruments, or notes;
but it is settled that such documents as have reference to the rights
of private individuals should be returned to those who ask for them.
(5) No one can be compelled
to furnish instruments or public documents against the Treasury.
(6) The Treasury itself furnishes
copies of its documents, under the condition that he who has the right
to obtain copies shall not make use of them either against the Treasury,
or the State. The recipient is obliged to furnish security not to
do this, and if he makes use of them contrary to the prohibition,
he will lose his case.
(7) Whenever any business is
transacted with the Treasury, permission must be obtained to introduce
its documents, in order for this legally to be done; and they should
be certified by the clerk. If they are introduced in any other way,
he who produces them will lose his case.
(8) Whenever the same case is
heard a second time before the Treasury, the reading of documents,
the production of which had not heretofore been requested, can legally
be demanded.
(9) He who, after having been
sued by the Treasury on account of another, pays the debt, can very
justly bring suit to recover the property of him for whom he made
payment, under which circumstances it is customary for him to be offered
special relief.
(10) When debtors of the Treasury
request a delay for the purpose of obtaining money, it has been established
that they should not be refused. The allotment of the time is left
to the discretion of the court; provided that in the case of large
sums, not more than three months, and in the case of small ones, not
less than two, shall be granted. A longer period should be requested
of the Emperor.
(11) When the property of the
principal debtor is acquired by the Treasury, the sureties will be
released, unless his solvency is questionable, and they have become
responsible for the remainder of the unpaid indebtedness.
(12) When more than what is
due has been obtained from the sale of the property of a debtor by
the Treasury, the restitution of the surplus can be demanded according
to justice and reason.
(13) A lessor can transfer nothing
from the land of the Treasury, and he cannot sell cypress or olive
trees if he does not substitute others for them; nor can he cut down
any other fruit trees; and, after an estimate of the value of the
property has been made, he can be sued for fourfold damages.
(14) Neither land can be rented,
nor taxes farmed by minors under twenty-five years of age, to prevent
them from availing themselves of the privilege of age as against the
Treasury.
46. Hermogenianus, Epitomes
of Law, Book VI.
He will be deprived of the succession
as being unworthy, who, having been appointed an heir, as a son, is
declared to be supposititious, after the death of the person who is
said to have been his father.
(1) He who knowingly attempts
to defraud the Treasury is obliged to return not only the property
which he acquired by fraud, but as much more.
(2) When anything is purchased
by a Governor, a Manager of the Imperial Revenue, or anyone else in
a province in which he holds office, even though this has been accomplished
by the agency of some other person, he shall be punished by the annulment
of the contracts, and the appraised value of the property shall be
paid into the Treasury. For anyone who has charge of the affairs of
a province is even forbidden to build a ship therein.
(3) The Treasury has always
the right of pledge.
(4) Anyone who pleads a set
off against the Treasury must show within two months what is due to
him.
(5) It has frequently been decided
that what the Treasury owes can be set off against what is due from
debtors to it, except in the case of tribute and taxes and payments
for property purchased from the Treasury, as well as what is due on
account of subsistence.
(6) He who has been accused
of an offence can administer his property, and his debtor can pay
him in good faith.
(7) Agents holding any official
employment and Managers of the Imperial Revenues are forbidden to
sell property without first consulting the Emperor, and if they do
so, the sale will be invalid.
(8) A slave of the Emperor,
who enters upon an estate by the order of a Manager of the Imperial
Revenues, acquires the estate for the benefit of the Emperor, if the
latter consents.
(9) Where several persons have
defrauded the Treasury, it does not follow that each of them is liable
in full, as in the action of theft; but all will owe a penalty of
fourfold the amount, each in proportion to his individual share. It
is clear that those who are solvent will be liable for those who are
not.
47. Paulus, Decrees, Book
I.
A woman named Moschis,
who was indebted to the Treasury on account of a lease for the farming
of taxes, left several heirs, from whom, after the estate had been
accepted, Faria Senilla and others, purchased certain lands. When
suit was brought against them for a balance due from Moschis, they
having alleged that the heirs of the latter were solvent, and that
many other persons had bought property from them, the Emperor considered
it just that recourse should first be had to the heirs, and that all
the possessors should be sued for the balance. And this was his decision.
(1) Aemilius Ptolemy leased
land from the Treasury, and gradually sublet it to several persons
for a higher rent than he himself had agreed to pay. Suit was brought
against him by the Managers of the Imperial Revenues for all that
he had collected. This seemed to the Treasury to be both unjust and
useless, as he had leased the land to the others at his own risk,
and therefore it was decided that he could be sued only for the amount
for which he, as lessor, had rendered himself liable.
48. The Same, Decrees, Book
II.
Statius Florus, in his written
will, had secretly charged his heir Pompey to give a tract of land
and a certain sum of money to someone who had no right to receive
it, and took the precaution of exacting a bond from Pompey obligating
him to surrender what he had left to him as a preferred legacy. Afterwards
the said Florus, having appointed the same Pompey and one Faustinus
his heirs by a second will, did not bequeath any preferred legacies
to Pompey. The person who had no right to receive the bequest informed
against himself. The Emperors, having been consulted by the Managers
of the Imperial Revenues, stated in a Rescript that if it could not
be proved that the testator had changed his mind, the trust must be
executed. And Pompey, having had judgment rendered against him in
consequence, requested that the burden be borne by the entire estate,
for the reason that he did not receive the preferred legacies, and
it could not be held that the testator had only persevered in a part
of his original intention. It was decided, in general, that the first
will no longer existed, and if a preferred legacy had been left by
the testator in his first will, it could not be demanded under the
second, unless the second directed that this should be done. It was
also decided that, because the heir could not prove that preferred
legacies had been left to him, that he
was obliged only to carry out the trust under the bond which he had
executed.
(1) A mother, who had been appointed
an heir, was requested to transfer the estate to Cornelius Felix,
after her death. The appointed heir, having been condemned by the
Treasury, and all her property seized, Felix alleged that he was not
liable to the penalty, for this had been already decided. But as the
day of the trust had not yet arrived, for the reason that he himself
might die first, or that the mother might acquire other property,
his application was in the meantime rejected.
49. The Same, On Implied
Trusts.
He to whom a secret trust has
been left, having given information that he had no right to receive
it, the question arose whether, according to the privilege of the
Divine Trajan, he was entitled to three-fourths of the amount of the
trust, or only half of it. A Rescript of the Emperor Antoninus on
this point is extant as follows: "The Emperor Antoninus to Julius
Rufus. If he who has secretly pledged his faith to deliver an estate
to someone not legally qualified to receive it should deliver it after
having deducted the fourth part of the same, he cannot retain anything;
for the fourth belonging to the heir himself will be taken from him
and transferred to the Treasury. Wherefore, the person who gave the
information can only receive the half of three-fourths."
50. The Same, Decrees, Book
III.
Valerius Patronus, Imperial
Procurator, adjudged to Flavius Stalticius certain lands at a fixed
price. The property was afterwards offered at an auction, and the
same Stalticius purchased it, and was placed in full possession of
the property. A question arose with reference to the crops gathered
in the meantime. Patronus asserted that they belonged to the Treasury.
And if they were gathered in the interim between the first sale at
auction and the following adjudication, it is evident that they would
belong to the vendor; for it is ordinarily said that when the adjudication
is made within a certain time, then a better condition is secured.
We should not experience any difficulty, for the reason that the person
to whom the land had first been adjudged was the same. But as the
two adjudications had been made before the vintage, this opinion was
not adhered to, and it was decided that the crops belonged to the
purchaser. Papinianus and Messius introduced a new decision on the
ground that as the lands were leased to a tenant, it was unjust that
he should be deprived of all the crops; but they held that he had
a right to gather them, and that the purchaser should receive the
rent for that year, for fear that the Treasury could be held liable
by the tenant, as he had not been permitted the enjoyment of his lease,
just as if this had been agreed upon at the time of the sale. It was
also decided, in accordance with their opinion, that if the land had
been cultivated by the owner, the purchaser would be entitled to all
the crops, but as it was leased by the tenant, the purchaser should
receive the rent. Having been asked by Tryphoninus what opinion they
would hold with reference to certain dried fruits which had been formerly
gathered on the land, they answered that if, after the decision had
been rendered, the day for the payment of the rent had not yet arrived,
the purchaser would also be entitled to them.
Tit. 15.
Concerning captives, the right of postliminium, and persons ransomed
from the enemy.
1. Marcellus, Digest, Book
XXII.
If a slave of anyone who has
been taken prisoner by the enemy should afterwards enter into a stipulation,
or if a legacy should be bequeathed to his slave after he has fallen
into the hands of the enemy, his heirs will be entitled to it, for
the reason that if he should die during his captivity it would be
acquired by his heir.
2. The Same, Digest, Book
XXXIX.
The right of postliminium
attaches to large ships and those used for the transport of merchandise
on account of the custom of war; but it does not apply to those of
fishermen, or to fast sailing vessels built for pleasure.
(1) Likewise, a horse or a mare
broken to the bridle is acquired by the right of postliminium,
for they have been able to escape without the fault of the rider.
(2) The same rule of law does
not apply to arms, for they are not lost without disgrace. Hence arms
cannot be recovered by the right of postliminium, since it
is dishonorable to lose them.
3. Pomponius, On Quintus
Mucius, Book XXXVII.
The same rule applies to clothing.
4. Modestinus, Rules, Book
III.
It was formerly held that those
who are taken by the enemy, or who surrender to him, were entitled
to the right of postliminium, after their return. But is he
who surrendered to the enemy, and after his return is not received
by us, a Roman citizen? This was decided differently by Brutus and
Scaevola. The result is that he cannot recover his citizenship.
5. Pomponius, On Quintus
Mucius, Book XXVII.
The right of postliminium
exists both in war and in peace.
(1) In war, when those who are
our enemies seize one of us, and take him within their fortifications,
for if he returns during the same war, he will have the right of postliminium;
that is to say, all his rights will be restored to him, just as
if he had not been captured. Before he is taken into the fortifications
of the enemy, he remains a citizen, and he is understood to have returned if he comes
to our friends, or within our defences.
(2) The right of postliminium
is also granted in time of peace; for if there is a nation between
which and us there exists neither friendship, hospitality, nor any
bond of attachment, it indeed is not our enemy. Anything, however,
which belongs to us, and passes under its control becomes its property,
and any freeman of our people taken in captivity by such a nation
becomes its slave. The same rule applies if anything belonging to
the said nation comes into our hands, and therefore the right of postliminium
is conceded in this instance.
(3) If a captive has been manumitted
by us, and returns to his friends, he is only understood to have returned
under the right of postliminium, if he prefers to go to them,
rather than to remain in our country. And, therefore, in the case
of Attilius Regulus, whom the Carthaginians sent to Rome, it was decided
that he did not return under the right of postliminium, because
he had sworn that he would return to Carthage, and did not have the
intention of remaining at Rome. Hence, when a law was enacted with
reference to a certain interpreter, named Menander, who, after having
been manumitted while in our hands and sent back to his people, providing
that he should remain a Roman citizen, this was not considered necessary,
for if he had the intention of remaining with his own relatives, he
would cease to be a citizen; but if he expected to return he would
still remain a citizen, and therefore the law was superfluous.
6. The Same, Various Passages,
Book I.
Where a woman who, on account
of some offence, had been sentenced to labor in the salt-pits, was
afterwards captured by thieves belonging to a foreign nation, sold
by the right of commerce, and then ransomed, was restored to her former
condition, the price of her ransom should be paid by the Treasury
to the Centurion Coccius Firmus.
7. Proculus, Epistles, Book
VIII.
I have no doubt that there are
free and united nations which are strangers to us, and that between
us and them the right of postliminium does not exist. For what
need would there be for any right of postliminium between us
and them, as they, when with us, retain their liberty, and the ownership
of their property, just as they do at home; and the same happens to
us when we are with them.
(1) A free people is one which,
when united, is not subjected to the dominion of any other. Likewise,
it may be united in friendship by an alliance on equal terms, or the
provision that this people will zealously defend the majesty of another
may be included in a treaty; for this is added in order that it may
be understood that the latter is entitled to supremacy, and not that
the former is not free. And just as we regard our clients as free,
although, while being good men, they are not superior to us in authority
or dignity; so those who should zealously defend our majesty should
also be understood to be free.
(2) Where persons from allied
states are accused of crime while with us, we punish them after they
have been convicted.
8. Paulus, On the Lex Julia
et Papia, Book III.
A wife cannot be recovered by
her husband under the right of postliminium as a son can be
recovered by his father, but only when the woman desires it, and provided
that she has not married another after the prescribed time. If she
should be willing, and there is no legal reason to prevent it, she
will be liable to the penalties of separation.
9. Ulpianus, On the Lex Julia
et Papia, Book IV.
When a child born in the hands
of the enemy returns under the law of postliminium, he will
be entitled to the privileges of a son; for, according to a Rescript
of the Emperor Antoninus and his Divine Father, addressed to Ovinius
Tertullus, Governor of the Province of lower Mysia, there is no doubt
that he has the right of postliminium.
10. Papinianus, Questions,
Book XXIX.
A father, having appointed his
son, who had not yet arrived at puberty, his heir, and made a substitution
for him, was captured by the enemy, and died in their hands; and the
minor, having afterwards died, it was held by some authorities that
the heir at law should be admitted to the succession, and that the
pupillary substitution did not apply to one who had become his own
master during the lifetime of his father. The reason of law, however,
is opposed to this opinion; for the reason that as the father, who
did not return, is understood to have been dead at the very time that
he was taken prisoner, the pupillary substitution would necessarily
be valid.
(1) If, after the death of the
father, a minor who had been appointed or disinherited should be taken
prisoner, it might be said that the Cornelian Law, not having mentioned
pupillary substitutions, only had reference to a person who had testamentary
capacity. It is clear, however, that the right to the lawful estate
of a minor who is a captive does not immediately vest by the terms
of the Cornelian Law, because it is true that a minor is not qualified
to make a will, and therefore it would not be improper to hold that
the Praetor should follow the intention of the father no less than
that of the law, and grant the substitute equitable actions against
the estate.
11. The Same, Questions,
Book XXXI.
If the son should die first
at home, there is no reason for discussing the pupillary substitution,
either because the son under paternal control is understood to have
died during the lifetime of his father; or because his father not
having returned, the son, on this account, is considered to have become
his own master from the very moment when his father was taken by the
enemy.
(1) If, however, both of them
should be in captivity, and the father dies first, the Cornelian Law
will suffice to establish the pupillary substitution,
just as if the son should die at home after the father had expired
in the hands of the enemy.
12. Tryphoninus, Disputations,
Book IV.
The right of postliminium
exists in war, as well as in peace, with reference to such as
have been taken captive during hostilities, and concerning whom no
agreement was made. Servius says that this decision was made because
the Romans wished that their citizens should have more hope of returning
with military prestige than during peace. But, if war should suddenly
break out, will those who during peace have come under the control
of others, become the slaves of those who are now our enemies, and
through their own act have been seized by them? They will be entitled
to the right of postliminium both in war and peace, unless
it was provided by a treaty that they should not enjoy that right.
(1) When anyone is taken prisoner
by the enemy, those under his control remain uncertain whether they
are their own masters, or whether they should still be considered
sons under paternal authority; for if the father should die while
in the hands of the enemy, they become independent from the very moment
when he was captured; and if he returns, they are considered never
to have been free from his control. Therefore, with reference to any
property that they may acquire in the meantime, whether by stipulation,
delivery, or legacy, (for they cannot become lawful heirs), it should
be considered—for example, when he does not return, and, some of them
have been appointed heirs to the entire estate, or to a portion of
the same, or where certain ones have been disinherited—whether this
property, according to the terms of the Cornelian Law, should be held
to belong to the estate of the captive, or whether it should be considered
to be their own. The latter opinion is the better one. The rule is
otherwise with reference to anything acquired by the slaves of the
captive; and this is reasonable, because the slaves formed and continue
to be a portion of his estate, and those who become their own masters
are in consequence understood to have acquired the property for themselves.
(2) It can be established by
no constitution that what has been done has not been done. Therefore,
the usucaption of property which was obtained by the party who possessed
it himself, and who afterwards recovered it, is interrupted, because
it is certain that he has ceased to possess it. Hence Julianus says
it should be held with reference to property of which he obtained
possession through persons subject to his authority, and acquired
by usucaption, or which was afterwards included under the term peculium,
that the usucaption was completed in the time prescribed by law,
if the same persons always remained in possession. Marcellus says
that it makes no difference whether the party himself had possession,
or obtained it through someone under his authority, but the opinion
of Julianus should be adopted.
(3) The son whom the captive
had under his control can in the meantime marry, although his father
cannot consent to the marriage, nor can he withhold his consent. Therefore,
his grandson will be under his control from the moment that he returns
from captivity, and will be his proper heir, to a certain extent,
in spite of him, as he did not consent to the marriage. There is nothing
surprising about this, because the circumstances and necessities of
the occasion, as well as the public welfare, required a marriage.
(4) The wife of the captive
is not in the married state, although she may extremely desire it,
and remain in the house of her husband.
(5) Any codicil which the prisoner
may have written during his captivity cannot, by the strict construction
of the law, be confirmed by a will which was made by the prisoner
while at home, and a trust cannot be claimed under it, because it
was not executed by a person having testamentary capacity. But, for
the reason that the true principle of these matters, that is to say,
the confirmation of them as dependent upon the will, originated while
the captive was in his own country, and as he afterwards returned,
and recovered his rights by the law of postliminium, it is
agreeable to the dictates of humanity that such a codicil should take
effect, as if no captivity had in the meantime intervened.
(6) After the captive returns
under the right of postliminium, all legal questions, so far
as he is concerned, are to be considered just as if he had never been
in the hands of the enemy.
(7) When anyone ransoms a slave
from the enemy, he becomes his property at the moment of his ransom,
although he knows that he belonged to someone else; but by tendering
him the price which he paid, he will be held to have returned with
the right of postliminium to be received as a slave.
(8) Where anyone purchases a
captive, being ignorant that he is such, and believing that he belongs
to the vendor, will he appear to have, as it were, acquired him by
usucaption, so that his first master will not have the power to tender
the second the price, after the prescribed time has elapsed? is a
point which we should consider. It was stated in opposition to this
that the constitution which was enacted with reference to ransomed
captives renders such a captive the slave of the person who ransomed
him, and what is mine already, I cannot be understood to acquire by
usucaption. On the other hand, as the constitution has not rendered
the condition of him who paid the ransom any worse, but, on the contrary,
has made it better, it is unjust as well as contrary to the intention
of the constitution that the more ancient right of the bona fide
purchaser should be extinguished; and therefore, after the prescribed
time has elapsed, during which, if the constitution should not render
the captive the property of him who ransomed him, he might acquire
him by usucaption, it may properly be said that, by the terms of this
constitution, his first master has no further right over the slave.
(9) However, by manumitting
the slave, will he merely cease to be his master, and will the slave
abandoned by him return to the control of
his former master; or does he render him free in such a way that the
gift of liberty merely operates to bring about a change of ownership?
It is certain that anyone who is manumitted while in the hands of
the enemy becomes free; and still, if his former master finds him
within our defences, although he may not have embraced our cause,
and has returned with a design of going back to the enemy, the master
can retain the slave by the right of postliminium; which rule
is not the same with reference to persons who are free. For the latter
do not return by the right of postliminium, unless they have
gone back to their own people with the intention of espousing their
cause, and have left those from whom they came; because, as Sabinus
says, each one has free power to determine his citizenship, but not
his right of ownership. This, however, does not render the point very
difficult of solution, because the manumission made while the slave
was in the hands of the enemy presents no impediment to our fellow
citizen, the master of the slave; but the party in question, under
our law established by a constitution, has had for his master a Roman
citizen, and we are considering whether he can obtain his freedom
from him. For what if the slave did not tender the price of his freedom
to his master, and the latter should not have the power to sue him?
Will the slave be free who, through no merit of his own, could have
obtained freedom from his master? This is unjust, and contrary to
the favor granted by our ancestors to liberty. It is certain that,
by the ancient law, any man having knowingly purchased a slave belonging
to another from one who had ransomed him, could acquire him by usucaption,
and could liberate him; and in this way the former master to whom
the slave had belonged before his captivity, lost all his title to
him. Therefore, why should he not have the right to manumit him?
(10) If a slave to be free under
a certain condition should be captured by the enemy, and be ransomed
while the condition is pending, he will remain in his former state.
(11) But what would be the rule
if he had received his freedom on condition of paying ten thousand
sesterces? The question was asked, out of what should he pay
it? For if the slave was permitted to pay it out of his peculium,
could it not also be said that what he possesses in the hands
of the person who ransomed him takes the place of what he might have
obtained while in the hands of the enemy? This is certainly the case,
where the peculium was derived from the property of him who
ransomed him, or from his own services; but if it came from any other
source, he can pay the sum out of it, as we indulgently hold that
he has, in this way, complied with the condition.
(12) Where a slave was given
by way of pledge, before his captivity, after the person who ransomed
him has been paid, he again becomes subject to his former obligation;
and if the creditor should tender the price of his ransom to him who
paid it, he will then have a double obligation, one arising from the
debt itself, and the other from the payment of the sum for which the
slave was released; just as if this obligation was established by
a certain constitution resembling that by which a subsequent creditor
satisfies a former one, for the purpose of strengthening his own pledge,
unless, in this instance, the case is reversed, and the last creditor,
who now is the first because he has caused the slave to return to
us should be satisfied by him who is prior in time, but has a weaker
claim.
(13) When a slave belongs to
several persons, and the amount of his ransom was paid to the man
who ransomed him, in the name of all of them, he will revert to their
common ownership. Where, however, the amount of his ransom was paid
in the name of only one, or of some of his owners, he will belong
to him, or to them, who made the payment; so that they will regain
their former rights, according to the portion paid by each, and will
succeed him who purchased the slave to the extent of the share of
the others.
(14) When a captive is entitled
to freedtfm under the terms of a trust, he cannot claim it, after
having been ransomed, unless he reimburses the person who ransomed
him.
(15) Where enemies capture a
person, who has been deported, in the island to which he has been
sent, and he is ransomed, if he should then return to his country,
he will be restored to the condition in which he would have been if
he had not been taken captive, therefore he shall be deported.
(16) Where, however, in the
case of a captured slave some reason existed which prevented the acquisition
of his freedom either temporarily or perpetually, his condition will
not be changed by his ransom from the enemy; for instance, if it should
be proved that he had violated the Favian Law, or that he had been
sold under the condition that he should not be manumitted. The person
who ransomed him can, in the meantime, hold him without incurring
any penalty.
(17) Hence, anyone who was captured
while laboring in the mines, and has been ransomed, will be returned
to his punishment; but he should not be punished as a fugitive from
the mines, but he who ransomed him shall receive the amount of the
ransom from the Treasury; as was decided by our Emperor and the Divine
Severus.
(18) Where a child born of Pamphila
is bequeathed to you, and you ransom its mother, and she brings forth
a child while in your possession, you will not be considered to have
acquired the child by a lucrative title, but an estimate shall be
made according to the judgment of the court, who will fix the value
of the child, just as if it had been sold at the same time as its
mother, and purchased for the same price. If the child was born in
the hands of the enemy (the mother being pregnant at the time when
she was captured) and it is ransomed with its mother for one and the
same price, and an offer is made equal to the sum paid for both, this
will be the estimate of the value of the child, and it will be held
to have returned under the right of postliminium. There is
much more reason for this when there are different purchasers of both,
or of one of them. Where, however, anyone has ransomed each for a
separate price, the different amounts must be tendered to the person who ransomed them by payment to
the enemy, so that they can return separately under the right of postliminium.
13. Paulus, On Sabinus, Book
II.
If I should give myself to be
arrogated by you, and I should afterwards be emancipated, it is established
that when my son returns from captivity, he will be considered as
your grandson.
14. Pomponius, On Sabinus,
Book III.
As there are two kinds of the
right of postliminium, one under which we return to our friends
from the enemy, and the other by which we recover something; when
a son under paternal control returns the double right of postliminium
is united in him, for his father regains his authority over him,
and he himself recovers all his rights.
(1) A husband does not recover
his wife under the law of postliminium in the same way that
a father does his son, but the marriage can be renewed by consent.
15. Ulpianus, On Sabinus,
Book XII.
Where the father, after he has
been ransomed, dies before reimbursing the person who ransomed him,
and his son tenders the amount of his ransom after his death, it must
be said that he can be the proper heir of his father; unless someone
may say with more subtlety that the father, when he died, recovered
the right of postliminium, as it were by the release of a pledge,
and died without any liability for his debt, so that he is entitled
to have a proper heir. This opinion is not destitute of reason.
16. The Same, On Sabinus,
Book XIII.
He who returns from the enemy
is considered always to have been in his own country previous to his
return.
17. Paulus, On Sabinus, Book
II.
Those who, having been conquered
by force of arms, surrender to the enemy, are not entitled to the
right of postliminium.
18. Ulpianus, On Sabinus,
Book XXXV.
Under all the rules of law,
anyone who does not return from the enemy is considered to have died
at the time when he was captured.
19. Paulus, On Sabinus, Book
XVI.
The right of postliminium
is that of recovering from a stranger property which has been
lost, and of restoring it to its former condition; and this right
has been established among us and other free peoples and kings, by
custom and by law. For when we recover anything that we have lost
by war or even outside of war, we are said to recover it by the right
of postliminium. This rule has been introduced by natural equity,
so that anyone who has been detained unjustly by strangers will recover
his former rights whenever he returns to his own country.
(1) A truce is established where
it is agreed for a short time and for the present that adversaries
shall not attack one another; and during this time the right of postliminium
does not exist.
(2) Persons who have been captured
by pirates or robbers remain free.
(3) Anyone is considered to
have returned with the right of postliminium when he passes
our frontiers, just as he loses the right as soon as he goes beyond
them. When, however, he visits an allied or friendly state, or an
allied or friendly king, he is understood to immediately return with
the right of postliminium, because, while there, he began to
be secure through reliance on the public honor.
(4) The right of postliminium
is not enjoyed by a deserter, for he who abandons his country
with evil intent, and with the designs of a traitor, is considered
an enemy. This rule only applies to a deserter who is free, whether
it be a man or a woman.
(5) If, however, a slave should
desert to the enemy, as his master has the right of postliminium
over him, when he is taken by accident, it can very properly be
held that he also has the right of postliminium, that is to
say, his master will recover all his former rights over him; in order
that a contrary rule may not be as injurious to the slave who remains
permanently in servitude, as it would be prejudicial to his master.
(6) If a slave who is to be
free under a condition returns after having deserted, and the condition
is fulfilled after his return, he will become free. The rule is different,
however, when the condition was fulfilled while he was in the hands
of the enemy; for in that case he cannot return for himself, so as
to become free, nor will the heir have the right of postliminium
over him, because he cannot complain, as he has sustained no damage;
provided that the slave would have obtained his freedom, if he had
not forfeited it by becoming a deserter.
(7) Again, a son under paternal
control, who is a deserter, cannot return with the right of postliminium,
even during the lifetime of his father; because his father as
well as his country have lost him, as well as for the reason that
the discipline of the camp has always been more valued by Roman parents,
than attachment to their children.
(8) Moreover, not only is he
understood to be a deserter who joins the enemy, or abandons the service
during war, but also he who deserts during a truce, or goes over to
a nation between which and us no friendship exists, and enters into
an agreement with its representatives.
(9) If anyone who has purchased
a captive from the enemy assigns to another, for a larger sum, the
right of pledge which he himself is entitled to for having ransomed
him, the person who has been ransomed should not pay this amount,
but the former one; and the purchaser will be entitled to an action
on purchase against the party who made the sale.
(10) The right of postliminium
applies to persons of both sexes, and all conditions. Nor does
it make any difference whether they are freemen or slaves; for not
only those are recovered by this privilege who are able to fight,
but all human beings, because they are of such a character that they
can be of use, either by giving advice, or in other ways.
20. Pomponius, On Sabinus,
Book XXXVI.
If a captive, for whom security
has been given that he will return voluntarily, remains with the enemy,
he will • not afterwards be entitled to the right of postliminium.
(1) It is true that when the
enemy have been driven from the territory which they have taken, this
territory will revert to its former owners, and it will neither become
the property of the State, nor be considered as booty; for land becomes
the property of the State which is captured from the enemy.
(2) Ransom confers the power
of returning to one's country, and does not change the right of postliminium.
21. Ulpianus, Opinions, Book
V.
If anyone, after having ransomed
a freeborn woman from the enemy, should keep her with him with the
intention of having children by her, and afterwards manumits a child
born from her, together with its mother, giving it the title of his
natural son, the ignorance of the husband and father ought not to
affect the condition of those whom he has appeared to manumit; and
it should be understood that from the time that he made up his mind
to have children by the mother, that the obligation of pledge to which
she was liable is extinguished; and therefore it is established that
she who returned under the right of postliminium was free and
freeborn, and brought forth a freeborn child. Where, however, she
was publicly taken as booty by the bravery of a soldier, and the father
did not pay anyone money as her ransom, she is said, at the time of
her return under the right of postliminium, not to have been
with her master, but with her husband.
(1) Although the State is frequently
injured by civil dissensions, still its destruction is not the object
of the contest. Those who divide into different factions do not occupy
the position of enemies between whom the rights of captivity and postliminium
exist, and therefore persons who have been captured and sold,
and afterwards manumitted, have been held to have fruitlessly demanded
from the Emperor the right of free birth which they do not lose by
captivity.
22. Julianus, Digest, Book
LXII.
The property of those who have
fallen into the hands of the enemy, or have died there, whether they
had testamentary capacity or not, belongs to those to whom it would
have belonged, if they had not been captured. The same rule is laid
down by the Cornelian Law with reference to everything which may take
place in cases where those interested in
inheritances and guardianships would have been concerned, if they
had not fallen into the hands of the enemy.
(1) Hence it is evident that
everything will belong to the heir of him who has been taken by the
enemy, which the latter would have been entitled to if he had returned
under the right of postliminium. Moreover, whatever the slaves
of captives stipulate for, or obtain, is understood to be acquired
by their masters, when they return under the right of postliminium;
wherefore it will also necessarily belong to those who enter upon
an estate under the Cornelian Law. If, however, no heir should appear
under the Cornelian Law, the property will belong to the State. Any
legacies bequeathed to their slaves, either absolutely or conditionally,
will belong to their heirs. Likewise, if a slave is appointed an heir
by a stranger, he can accept an estate by order of the heir of the
captive.
(2) Where, however, the son
of him who is in the power of the enemy, accepts or stipulates for
anything, it is understood to be acquired for him, if his father should
die before returning under the law of postliminium; and it
will belong to the heir of his father, if the son should die during
the lifetime of the latter, for the condition of men whose fathers
are in the power of the enemy is uncertain. When, however, the father
returns, the son is never considered to have been his own master;
but where the father dies a prisoner of war, then his son becomes
independent for the entire time that his father remained in captivity.
(3) The ownership of any property
which the slaves of captives possess as peculium remains in
abeyance; for if their masters return with the right of postliminium
it will be understood to belong to them; and if they die in captivity,
it will belong to their heirs under the Cornelian Law.
(4) If anyone, having a wife
who is pregnant, falls into the hands of the enemy, and dies there,
and a son is afterwards born to him, and it dies, his will is void;
for the reason that the wills of those who remain in their own country
are invalidated under such circumstances.
23. The Same, Digest, Book
LXIX.
Where anyone, having left his
wife pregnant, falls into the power of the enemy, and a son is born
to him soon afterwards, who ultimately marries and has a son or a
daughter, and then the grandfather returns under the law of postliminium,
he will be entitled to all the rights over his grandchildren which
he would have had if his son had been born in his own country.
24. Ulpianus, Institutes,
Book I.
Enemies are those against whom
the Roman people have publicly declared war, or who themselves have
declared war against the Roman people; others are called robbers,
or brigands. Therefore, anyone who is captured by robbers, does not
become their slave, nor has he any need of the right of postliminium.
He, however, who has been taken
by the enemy, for instance, by the Germans or Parthians, becomes their
slave, and recovers his former condition by the right of postliminium.
25. Marcianus, Institutes,
Book XIV.
The Divine Severus and Antoninus
stated in a Rescript that if a wife was captured with her husband,
and had a child by him while in the hands of the enemy, and both of
them should return, the parents and child are legitimate, and the
son will be under the control of his father, just as if he had returned
under the right of postliminium. If, however, he should return
with his mother alone, he will be considered illegitimate, as having
been born without a husband.
26. Florentinus, Institutes,
Book VI.
It makes no difference in what
way a captive returns, whether he has been sent back, or has escaped
from the power of the enemy by force, or strategy; provided that he
conies with the intention of not returning thither; for it is not
sufficient for anyone merely to return bodily, when his intention
is otherwise. Those, however, who are recovered from defeated enemies,
are considered to have returned with the right of postliminium.
27. Javolenus, On the Last
Works of Labeo, Book IX.
Robbers stole your slave from
you, and afterwards the said slave fell into the hands of the Germans,
and then, the Germans having been defeated in battle, the slave was
sold. Labeo, Ofilius, and Trebatius deny that the slave can be acquired
through usucaption by the purchaser, because it was true that he had
been stolen, and although he belonged to the enemy, and returned with
the right of postliminium, this would be an obstacle.
28. Labeo, Epitomes of Probabilities
by Paulus, Book IV.
If anything captured in war
forms part of the booty, it does not return by the right of postliminium.
Paulus: But if a prisoner taken in war flees to his home, after
peace has been declared, and then the war having been renewed he again
is captured, he returns by the right of postliminium, to which
he was entitled when taken during the first war; provided that it
was not agreed in the treaty of peace that captives should be returned.
29. The Same, Epitomes of
Probabilities by Paulus, Book VI.
If you should return under the
right of postliminium, you have not been able to acquire any
property by usucaption while you were in the power of the enemy. Paulus:
But if your slave should have obtained anything as peculium, while
you were in that condition, you can acquire it by usucaption during
that time, as we are accustomed to acquire by usucaption property
of this kind, even without our knowledge; and in this manner an estate
can be increased by a slave forming part of the
same, although a posthumous child may not yet have been born, or the
estate have been entered upon.
30. The Same, Epitomes of
Probabilities by Paulus, Book VIII.
If anything which our enemies
have taken from us is of such a nature that it can return by the law
of postliminium, as soon as it escapes from the enemy for the
purpose of returning to us and comes within the boundaries of our
empire, it should be considered to have returned under the law of
postliminium. Paulus: But when a slave of one of our citizens,
after having been captured by the enemy, escapes from them, and remains
at Rome without either being under the control of his master, or in
the service of anyone else, it should be held that he has not yet
returned under the law of postliminium.
Tit. 16.
Concerning military affairs.
1. Ulpianus, On the Edict,
Book VI.
A soldier who is on furlough
is not considered to be absent on business for the State.
2. Arrius Menander, On Military
Affairs, Book I.
Offences committed by soldiers
are either special or common to other persons, therefore their prosecution
is either special or general. A purely military offence is one which
a man commits as a soldier.
(1) It is considered a serious
crime for anyone to enlist as a soldier who is not permitted to do
so, and its gravity is increased, as in the case of others, by the
dignity, the rank, and the branch of the service.
3. Modestinus, Concerning
Punishments, Book IV.
The Governor of a province shall
send back a deserter to his own commander, after he has been heard,
with a report, unless the deserter has committed some serious offence
in the province in which he was found; for the Divine Severus and
Antoninus stated in a Rescript that the penalty should be inflicted
upon him in the place where he perpetrated the crime.
(1) Military punishments are
of the following kinds: namely, castigation, fines, the imposition
of additional duties, transfer to another branch of the service, degradation
from rank, and dishonorable discharge; for soldiers are neither condemned
to labor in the mines nor subjected to torture.
(2) A vagabond is one who having
wandered for a long time, voluntarily returns to the camp.
(3) A deserter is one who, after
having been absent for some time, is brought back.
(4) He who leaves the army for
the purpose of scouting in the presence of the enemy, or who goes
beyond the ditch surrounding the camp, shall be punished with death.
(5) He who abandons the post
to which he has been assigned commits a greater offence than a vagabond;
and he is therefore either punished in proportion to the gravity of
his crime, or is deprived of his rank.
(6) He who leaves while performing
the duty of sentinel for the Governor of a province, or any commander
whomsoever, is guilty of the crime of desertion.
(7) When a soldier does not
return on the day when his furlough expires, he must be treated as
if he had wandered away, or deserted, according to the time he has
been absent. He should, however, be given the opportunity of showing
that he has been detained by accident, on acount of which he may appear
to be excusable.
(8) Anyone who remains a deserter
for the entire time of his service is deprived of the privileges of
a veteran.
(9) If several soldiers desert
simultaneously, and return within a certain time; after having been
reduced in rank, they shall be distributed in different places, but
indulgence should be shown to new recruits. If, however, they repeat
the offence, they shall undergo the prescribed punishment.
(10) He who escapes to the enemy
and returns shall be tortured, and sentenced to be thrown to wild
beasts, or to the gallows, although soldiers are not liable to either
of these penalties.
(11) He who, intending to escape,
is caught, is punished with death.
(12) But where a soldier is
captured by the enemy unexpectedly, while he is on a journey, he shall
be granted pardon after the conduct of his former life has been investigated;
and if he returns to the army after his term of service has expired,
he shall be restored as a veteran, and shall be entitled to the privileges
which veterans enjoy.
(13) A soldier who has lost
his arms in time of war, or has sold them, is punished with death,
and it is only through indulgence that he may be transferred to another
branch of the service.
(14) Anyone who steals the arms
of another should be degraded from his rank in the army.
(15) He who, in time of war,
does something • which has been forbidden by his commander, or does
not obey his orders, is punished with
death; even if the transaction was brought to a successful conclusion.
(16) He, however, who leaves
the ranks, shall, according to circumstances, be beaten with rods,
or compelled to change his branch of the service.
(17) When anyone crosses the
intrenchments of the camp, or returns to it by the wall, he is punished
with death.
(18) Anyone who leaps over the
ditch shall be dismissed from the army.
(19) He who excites a violent
sedition among the soldiers is punished with death.
(20) Where a tumult attended
with clamor or moderate complaints arises, the soldier will then be
degraded from his rank.
(21) When several soldiers conspire
to commit some crime, or where a legion revolts, it is customary for
them to be disbanded.
(22) Those who refuse to protect
their commander, or abandon him, are punished with death if he should
be killed.
4. Arrius Menander, On Military
Affairs, Book I.
He who is born with only one
testicle, or has lost one by accident, can legally serve in the army,
in accordance with the Rescript of the Divine Trajan; for both the
Generals Sylla and Cotta are said to have been in this condition.
(1) Where anyone who has been
condemned to be thrown to wild beasts enlists in the army, he shall
be punished with death, whenever he is found. The same rule applies
to one who permits himself to be enrolled.
(2) When anyone who has been
deported to an island escapes, and enlists in the army; or, having
been enrolled, conceals his condition, he must be punished with death.
(3) Temporary exile incurs the
penalty of relegation to an island in the case of a soldier who voluntarily
enlists, and concealment of his condition renders him liable to perpetual
exile.
(4) Where a soldier has been
relegated for a certain time, and then, after his term has expired,
enlists, the cause of his conviction must be ascertained, and if it
involves perpetual infamy, the same rule shall be observed. Where,
however, a compromise has been made with reference to the future,
he can re-enter the ranks, and is not forbidden to claim any military
honors to which he may be entitled.
(5) When a volunteer is guilty
of a capital crime, he must be punished with death, according to a
Rescript of the Divine Trajan, and should not be sent back to the
place where he was accused, but he ought to be tried as if he had
committed a military offence, even though his case already may have
been begun, or a warrant may have been issued for his arrest.
(6) If he is dishonorably discharged,
he should be sent back to his judge; nor should he be accepted if
he afterwards desires to serve in the army, even though he may have
been acquitted.
(7) Persons who have been convicted
of adultery, or any other public crime, should not be admitted into
the army.
(8) Everyone who is involved
in litigation, and enters the military service on this account, should
not be ordered to be discharged from the army, but only he who enlisted
with the intention of rendering himself, as a soldier, more formidable
to his adversary. Those who have had a lawsuit previous to their enlistment
should not readily be exculpated without an inquiry into the facts;
and they should be excused if they have compromised it. A soldier
who is dismissed from the service on this account does not, by any
means, become infamous, nor, after his lawsuit has terminated, should
he be prohibited from entering the same branch of the service; otherwise
if he either abandons the suit, or compromises it, he should be retained.
(9) Those who, after desertion,
voluntarily enlist, or permit themselves to be enrolled in another
part of the army, should be punished by military law; as was stated
by Our Emperor in a Rescript.
(10) It is a more serious offence
to decline military service than to intrigue to obtain it. For formerly,
those who did not answer the call to arms were reduced to servitude
as traitors to liberty. But as the condition of the army has been
changed, capital punishment in this instance has been abandoned, because,
for the most part, the army is composed of volunteers.
(11) He who, in time of war,
withdraws his son from the army, should be punished with exile and
a loss of a part of his property; if he does this in time of peace,
he is ordered to be whipped with rods; and if the young man who was
conscripted is afterwards produced by his father he should be placed
in an inferior corps, for he does not deserve pardon who allowed himself
to be solicited by another.
(12) A Decree of the Divine
Trajan sentenced to deportation a man who, in order that his son might
be rendered incapable of military service, mutilated him after he
had been conscripted for war.
(13) The Edicts of Germanicus
Caesar classed as a deserter one who had been absent long enough to
be considered a vagabond, but whether he voluntarily returns and presents
himself, or whether, having been caught, he is produced, he escapes
the penalty of desertion; and it does not make any difference to whom
he presents himself, or by whom he was seized.
(14) The offence of vagabondage
is considered of less gravity than the same offence is in the case
of slaves; and that of desertion is more serious, as it corresponds
to the case of fugitive slaves.
(15) The reasons for vagabondage,
however, are examined, and also why the soldier departed, and where
he was, and what he did; and pardon is granted in case of absence
caused by illness, or affection for relatives and connections, and
also where the accused was pursuing a fugitive slave, or where some
reason of this kind is given; and a new recruit, who was still unfamiliar
with discipline, is also excused.
5. The Same, On Military
Affairs, Book II.
All deserters should not be
punished in the same way, but their rank, the amount of their pay,
the place where they deserted, and their conduct previous to that
time, should all be taken into account. The number of the offenders
should also be considered, whether there was but one, or whether one
deserted with another, or with several; or if he added some crime
to desertion. The time during which the soldier was a deserter, and
whatever occurred afterwards, should also be ascertained. If, however,
he returned of his own accord, and without being compelled to do so,
his fate will be different.
(1) If a cavalry soldier deserts
in time of peace, he shall be degraded from his rank, and a foot soldier
must change the corps in which he serves. An offence of this kind
committed in time of war should be punished with death.
(2) He who adds another crime
to desertion must be punished more severely; and if he has committed
theft, or kidnapping, or has attacked anyone, or has driven away cattle,
or done anything else of this kind, it will be just as if he had been
guilty of a second desertion.
(3) When a deserter is found
in a city, it is usual for him to be punished with death; if he is
caught elsewhere, he can be reinstated after a first desertion, but
if he deserts a second time, he must be punished capitally.
(4) Anyone who has deserted,
and presents himself, will be deported to an island by the indulgence
of Our Emperor.
(5) He who has been captured
and does not return when he is able to do so is considered a deserter.
Likewise, it is certain that one who has been captured in one of our
fortresses is in the same condition. Still, if anyone is captured
unexpectedly while on a journey, or while carrying a letter, he deserves
pardon.
(6) Hadrian stated in a Rescript
that soldiers who had been returned by barbarians should be reinstated,
where it was proved that after having been captured they had escaped,
and had not fled to the enemy as deserters. But although this cannot
positively be established, still it can be ascertained by sufficient
evidence, and if the person in question had previously been considered
a good soldier, his statements should almost absolutely be credited;
but if he was a vagabond, or negligent in the performance of his duties,
or lazy, or often left his tent, he should not be believed.
(7) When a soldier who had been
captured by the enemy returns after a long time, and it is established
that he was not a deserter, he should be reinstated as a veteran,
and will be entitled to the rewards and privileges of one.
(8) The Divine Hadrian stated
in a Rescript that a soldier who deserted and afterwards had seized
several robbers, and detected other deserters, might be spared, but
nothing should be promised to one who agreed to do anything of this
kind.
6. The Same, On Military
Affairs, Book V.
A military crime is every offence
committed against what is demanded by ordinary discipline, as, for
instance, those of laziness, insubordination, and cowardice.
(1) Anyone who raises his hand
against his commander shall be punished with death; and the crime
of his audacity is increased in gravity by the rank of his superior
officer.
(2) All disobedience of a general
or the Governor of a province should be punished with death.
(3) He who was the first to
take to flight in battle must be put to death in the presence of the
soldiers, by way of example.
(4) Spies who have betrayed
any secrets to the enemy are traitors, and should suffer the penalty
of death.
(5) A private soldier is in
the same condition, who pretends to be ill, through fear of the enemy.
(6) If anyone should wound a
fellow-soldier, and this is done by means of a stone, he shall be
expelled from the army; if it was done with a sword, he commits a
capital crime.
(7) The Emperor Hadrian stated
in a Rescript that when a soldier has wounded himself in an attempt
at suicide, an investigation should be made of the case, and he should
not be punished, but dishonorably discharged, if he had preferred
to die because he was unable to bear pain, or was influenced by weariness
of life, or by disease, insanity, or the fear of dishonor; and if
he did not allege any of these things as an excuse, that he should
be punished with death. Those who commit such an act as the result
of indulgence in wine or debauchery should not be put to death, but
should be sentenced to change their corps.
(8) Anyone who did not defend
his superior in rank when he could have done so is in the same condition
as if he had attacked him; but if he was unable to resist, he should
be pardoned.
(9) It has been decided that
those should be punished who abandoned their centurion when he was
attacked by robbers.
7. Tarruntenus Paternus,
On Military Affairs, Book II.
Traitors and deserters are generally
tortured and punished with death, after having been discharged; for
they are considered as enemies, and not as soldiers.
8. Ulpianus, Disputations,
Book VIII.
Those whose condition is in
dispute, although, in fact, they may be free, should not enlist during
the time that their status is undetermined, and especially during
the trial of the case; whether an attempt is being made to reduce
them to slavery from freedom, or vice versa,. Nor can those
who are freeborn and who are serving in good faith as slaves, nor
persons who have been ransomed from the enemy, before they have paid
the amount of their ransom, enlist in the army.
9. Marcianus, Institutes,
Book II.
Soldiers are forbidden to purchase
land in the provinces in which they serve, except where property of
their parents is sold by the Treasury; for Severus and Antoninus made
an exception under such circumstances. They are, however, permitted
to make such purchases when their terms of service have expired. Where
land is unlawfully purchased, it is confiscated to the Treasury, if
information of the fact is given, but there will be no ground for
such information if it is not given until the term of service has
expired, or the soldier has been discharged.
(1) When soldiers are heirs,
they are not forbidden to have possession of land where they are serving.
10. Paulus, Rules.
Anyone who deserts the palace-guard
is punished with death.
(1) When a soldier, after desertion,
has been restored to his place in the army, he shall receive no pay
or gifts for the intermediate time, unless the liberality of the Emperor
permits this to be done as a special favor.
11. Marcianus, Rules, Book
II.
Slaves are forbidden every kind
of military service, under penalty of death.
12. Macer, On Military Affairs,
Book I.
The duty of the commander of
an army consists not only in enforcing discipline, but also in observing
it.
(1) Paternus says that he who
commands an army should remember to grant furloughs very sparingly,
and not to permit a horse belonging to the military service to be
taken out of the province where the soldiers are; and not to send
a soldier to perform any private labor, or to fish or hunt; for this
is laid down in the rules of discipline prescribed by Augustus. Although
I know that it is not unlawful for soldiers to perform mechanical
labor, still, I fear if I should allow any act to be performed for
my benefit, or for yours, this would not be done in a way which would
be tolerated by me.
(2) It is the duty of the tribunes,
or of those who command the army, to confine the soldiers in camps;
to compel them to go through their exercises; to keep the keys of
the gates; sometimes to make the rounds of the watch; to oversee the
distribution of grain; to test it to prevent fraud from being committed
by those who measure it; to punish offences according to their authority;
to be frequently present at headquarters to hear the complaints of
their fellow-soldiers; and to inspect those who are ill.
13. The Same, On Military
Affairs, Book II.
Soldiers are forbidden to purchase
land in the province in which they are carrying on warlike operations,
for fear that, through the desire
of cultivating the soil, they may be withdrawn from military service,
and therefore they are not forbidden to purchase houses. They can,
however, buy land in another province, but they are not allowed to
do so, even in the name of another or in the one to which they have
come for the purpose of battle; otherwise, the land will be confiscated
by the Treasury.
(1) He who purchases land contrary
to the rule of military discipline cannot be molested if he has received
his discharge before any action has been taken with reference to his
purchase.
(2) It is established that soldiers
who have been dishonorably discharged have no right to the benefit
of this provision, as it is understood to have been granted to veterans
as a reward; and therefore it may be said to apply to those who have
been discharged for some good reason, because they also are entitled
to rewards.
(3) There are three general
kinds of discharges, namely, those which are honorable, those which
are for some cause, and those which are ignominious. An honorable
discharge is one which is granted after the term of military service
has expired. A discharge for cause is where anyone is dismissed because
he has become incapable of military duty, through some defect of mind
or body. An ignominious discharge is where a soldier is released from
his military oath, on account of the commission of a crime. Anyone
who has been ignominiously discharged can neither remain at Rome,
nor in the Imperial household. When soldiers are discharged without
any mention of disgrace, they can still be understood to have been
dishonorably discharged.
(4) A soldier who is guilty
of disrespect should be punished, not only by the tribune or the centurion,
but also by the Emperor, for the ancients branded with infamy anyone
who resisted a centurion who desired to chastise him. If he seizes
the staff of the centurion, he must change his corps; if he breaks
it on purpose, or raises his hand against the centurion, he is punished
with death.
(5) Menander says that he who
takes to flight while under guard or in prison should not be considered
a deserter, because he has escaped from custody, and is not a deserter
from the army. Paulus says that he who breaks out of prison, even
if he has not previously deserted, should be punished with death.
(6) The Divine Pius ordered
a deserter, who had been produced by his father, to be placed in an
inferior corps, in order to prevent his father from appearing to have
surrendered him to undergo the extreme penalty. Likewise, the Divine
Severus and Antoninus ordered a soldier to be deported who gave himself
up after five years of desertion. Menander says that we should follow
this example in the case of other deserters.
14. Paulus, On Military Punishments.
He who exceeds the time of his
furlough is considered a vagabond, or a deserter. The number of days
by which he has exceeded his leave of absence, when he returns, should
be taken into consideration; as well as the time consumed by a sea voyage, or by his journey.
If he proves that he was prevented by illness, or detained by robbers,
or delayed by some reason of this kind, and shows that he had not
departed from the place, where he was, too late to return within the
time granted by his furlough, he should be restored to his rank.
(1) It is a serious crime for
a soldier to sell his arms, and it is considered equal to that of
desertion where he disposes of all of them, but if he only sells a
portion, his punishment will depend upon what he sold. For if he sells
the armor for his legs or shoulders, he shall be punished by scourging;
if, however, he sells his breastplate, his shield, his helmet, and
his sword, he resembles a deserter. A new recruit is more readily
pardoned for this crime, and generally the custodian of the arms is
to blame if he gave them to the soldier at an improper time.
15. Papinianus, Opinions,
Book XIX.
A soldier who has been branded
with infamy because of desertion, and reinstated, is deprived of his
pay during the time of his desertion; because if he has a good excuse,
and it appears that he was not a deserter, all his pay will be given
him without deducting the time of his absence.
16. Paulus, Sentences, Book
V.
He who enlists in the army through
fear of a crime of which he has already been accused must immediately
be released from his oath.
(1) A soldier who is a disturber
of the peace is punished with death.
Tit. 17.
Concerning castrense peculium.
1. Ulpianus, On the Edict,
Book XLII.
Where the peculium of
a son under paternal control, who is a soldier, remains in the hands
of his father, and the son dies intestate, his father will not become
his heir; but he will, nevertheless, become the heir of those from
whom the son has a right to inherit.
2. The Same, On the Edict,
Book LXVII.
When a son under paternal control,
who is a soldier, dies intestate, his property will pass to his father,
not as his estate, but as his peculium. If, however, he made
a will, his castrense peculium will be considered as his estate.
3. The Same, On the Lex Julia
et Papia, Book VIII.
If a woman should leave money
for the purchase of articles suitable for military service to the
son of her husband, who is in the army, anything purchased with it
by him will be included in his castrense peculium.
4. Tertullianus, On Castrense
Peculium.
A soldier should be especially
entitled to any articles which he took with him into camp with the
consent of his father.
(1) The son has always, even
against the will of his father, the right of action and recovery of
the property constituting his castrense peculium.
(2) If the head of a household,
during the term of his military service, and after his discharge,
should offer himself to be arrogated, let us see if he should not
be understood to have the free administration of any property which
he acquired in camp before his arrogation, although the Imperial Constitutions
only mention those who, as sons under paternal control, served from
the time when they entered the army. This rule should be adopted.
5. Ulpianus, On Sabinus,
Book VI.
A son under paternal control,
serving as a soldier, who is appointed an heir either by a fellow-soldier,
or by one whom he has known through being in the service, can of his
own accord become his heir, without the order of his father.
6. The Same, On Sabinus,
Book LII.
If the wife of a son under paternal
control should give him a slave to be manumitted, let us see whether
this makes him his freedman, for he can hold both slaves and freedmen
as part of his peculium. The better opinion is that the slave
in question should not be included in the castrense peculium, because
he did not become acquainted with his wife through being in the army.
It is clear, however, that if you suppose the wife gave the slave
to her husband while he was on his way to camp, in order that he might
manumit him, and he renders the freedman fit for military service,
it may be said that if he manumits the slave by his own will, and
without the consent of his father, he will grant him his freedom.
7. The Same, On the Edict,
Book XXXIII.
If the husband has a castrense
peculium, judgment will be rendered against him to the extent
of his means; for he will be compelled to make payment out of his
peculium, even to those who are not castrensian creditors.
8. The Same, On the Edict,
Book XLV.
If his wife, or a relative,
or anyone else who did not become known to him through his service
in the army, donates, or bequeaths anything to a son under paternal
control, and expressly states that he shall hold it as his castrense
peculium, can this be added to it? I do not think that it can,
for we consider the truth and whether the acquaintance or the affection
was derived from military service, and not something which anyone
may have imagined.
9. The Same, Disputations,
Book IV.
The following case was stated.
A son under paternal control, who was a soldier, and who was appointed
a foreign heir by will, afterwards died during the lifetime of his
father; and, while the appointed heir was deliberating whether to
accept the estate or not, the father himself died; and then the appointed
heir rejected the estate. The question arose to whom the castrense
peculium would belong. I held that if the son died testate, it
would belong to the appointed heir, as the estate of the son, whether
he had appointed a foreign heir, or his father. If, however, the son
made no disposition of his peculium, it would not appear to
pass to his father, but would seem to always have been a part of the
property of the latter. Finally, if the father should grant freedom
to a slave forming part of the castrense peculium of his son,
and his son should afterwards die during the lifetime of his father,
the grant of freedom would not be interfered with, but if the son
survived his father, this would not be the case. Wherefore, Marcellus
thinks that a slave who formed part of the peculium of the
son would become the necessary heir of the latter, if his father should
survive him. I gave the same opinion where the father bequeathed the
peculium of his son; for, in the same case, in which we stated
that the grant of freedom would stand, we also stated that the legacy
would either be due, or be annulled. These matters having been disposed
of, I said with reference to the case stated, that, as the heir did
not enter upon the estate, the peculium was retroactively added
to the property of the father; hence it might be held that the estate
of the father was even increased by this refusal. It is not a new
principle that anyone may appear to have a successor on account of
the occurrence of some subsequent event. For if the son of a man who
had been captured by the enemy should die while the father was living
and in captivity, and his father should return, he would be entitled
to the estate of his son as his peculium. If, however, his
father should die in captivity, his son, as the head of a household,
would have a lawful heir, and his successor would, by retroactive
effect, be considered to be entitled to whatever the said son had
acquired in the intermediate time; and this would appear to have been
obtained not for the heir of the father, but for the son himself.
10. Pomponius, Rules,
According to a note of Marcellus,
it is settled that nothing is due to a father from the castrensian
property of his son.
11. Macer, On Military Affairs,
Book II.
Castrense peculium is
what has been given by parents or relatives to one who is serving
in the army, or what a son under paternal control has himself obtained
while in the service, and which he would not have acquired if he had
not been a soldier; for whatever he might have acquired without being
in the army does not constitute any part of his peculium, castrense.
12. Papinianus, Questions,
Book XIV.
A father who gives his son,
who is a soldier, in adoption, does not take from him the peculium
which he has already acquired by the right of
military service. For which reason, he does not deprive his son of
his peculium by emancipating him, since he cannot take it from
him even if he remains in his family.
13. The Same, Questions,
Book XVI.
The Divine Hadrian stated in
a Rescript that where a wife appointed a son under paternal control
her heir, he would become her heir; and that any slaves belonging
to the estate who were manumitted by him would become his own freedmen.
14. The Same, Questions,
Book XXVII.
When a son under paternal control,
who is a soldier, is captured and dies in the hands of the enemy,
the Cornelian Law will come to the relief of the appointed heirs,
and if they do not accept the estate, the father will be entitled
to the peculium by virtue of his prior right.
(1) The following case seems
to resemble the one previously stated; so that while the testamentary
heirs are deliberating, whatever a slave in the meantime stipulates
for, or receives from another person by delivery to himself, is of
no legal effect, so far as the father is concerned, if the peculium
remained in his hands, as the slave did not belong to the father
at that time. But with reference to the appointed heirs, both the
delivery and the stipulation are understood to remain in suspense;
for the slave will be considered to have belonged to the estate after
it has been accepted. The respect due to the father, however, induces
us to say that in the case where the peculium remains in his
hands by virtue of his former right, any acquisition obtained by the
stipulation, or any property delivered to the slave, will be to his
advantage.
(2) A legacy left to such a
slave is not acquired by any of the heirs, because it is still uncertain
whether it will be accepted or not. But if the will should not be
executed, the legacy will be at once acquired by the father through
the slave; for if it had been acquired by the peculium, as
in the case of an estate, the right of the father would not at present
be considered.
15. The Same, Questions,
Book XXXV.
What a father gives to his son
after he has returned from the army does not form part of his castrense
peculium, but belongs to another peculium, just as if his
son had never been in military service.
(1) If a father should promise
his son by a stipulation that whatever he acquires will be for the
benefit of his peculium castrense, the stipulation will stand;
but it will be void under any other circumstances.
(2) When a father stipulates
with his son for his own benefit, the same distinction shall be observed.
(3) If a slave, forming part
of the peculium of the son, should stipulate for or receive
by delivery anything from a stranger, the property will belong to
the son, without making any distinction between the considerations
for the stipulation or the delivery. For, as the
son sustains the double part of the head of a household and a son
under paternal control, so the slave, who forms part of the peculium
castrense, and who, under no circumstances, is subject to the
authority of the father as long as the son lives, cannot acquire for
the benefit of the father what he has merely stipulated for, or has
received. Hence, if a slave, who belongs to the son, stipulates for
anything, or receives anything from the father, the property delivered
or stipulated for is acquired for the son, just as if the contract
had been made with a stranger, since the person who stipulates or
receives is such that the transaction is carried on for the benefit
of the son, no matter what the consideration may be.
(4) If a father has lost the
usufruct of a slave, the ownership of whom formed part of the castrense
peculium of the son, the latter will have the entire ownership
of the slave.
16. The Same, Opinions, Book
XIX.
I held that a dowry given or
promised to a son under paternal control will not form part of his
peculium castrense. This does not appear to be opposed to the
opinion published in the time of the Divine Hadrian, by which it was
decided that a son under paternal control, who is in the army, could
be the heir of his wife, and that her estate would form part of his
castrense peculium, for an inheritance is acquired by adventitious
right, while a dowry is inseparable from marriage, and is bestowed
with its charges for the benefit of the common children belonging
to the family of their grandfather.
(1) I also gave it as my opinion
that anything which one paternal uncle left to another paternal uncle,
with whom he had never served in the army, and which he had acquired
in another province, should not be considered as a part of the peculium
castrense of him to whom it was bequeathed; as the consideration
of blood relationship, and not that of military service, was the cause
of his receiving the estate.
17. The Same, Definitions,
Book II.
A father having the right to
retain the castrense peculium of his son who died intestate
is compelled by the Praetorian Law to pay his debts during the available
year, as far as the peculium will allow. Likewise, if he should
become the testamentary heir of his son, he will always be liable
for these debts as his heir, under the Civil Law.
(1) A father who was appointed
heir by his son, who either was or had been in the army, did not accept
the estate under the will, and kept possession of his castrense
peculium. He can, just as an heir at law, be compelled without
limit of time to pay any legacies bequeathed by his son, to the extent
that the peculium will permit. If, however, the son, having
made his will according to the Common Law, should die within a year
after leaving the army, a fourth of his estate can be retained by
his father under the Falcidian Law. But if his father should fail
to accept the estate under the will, because the peculium was
not sufficient to satisfy the creditors, he will not be considered
to have acted fraudulently; although he may be obliged to discharge
the indebtedness during the prescribed time.
18. Marcianus, Trusts, Book
I.
A slave forming part of the
castrense peculium of a son may be appointed heir by his father,
and in this way make the son the necessary heir of his father.
(1) And, in a word, all matters
or acts of the father which, for the time, may cause any alienation
of a right belonging to the castrense peculium are prohibited,
but any of these things which do not become operative immediately,
but do so afterwards, are considered with reference to the time when
they ordinarily take effect; so that if a son is deprived of any of
his rights by his father, his act will be void, but this will not
be the case if the son is already dead.
(2) Therefore, we deny that
a father who brings an action in partition, while his son is living,
cannot alienate the property; as is the case with land forming a part
of the dowry. And if a partner of the son should make any agreement
with the father, it will be void, just as if he had contracted with
someone who had been forbidden to manage his own estate.
(3) A father can release from
usufruct slaves who form part of the peculium castrense of
his son, and he can also release land from usufruct, as well as from
other servitudes imposed upon it; and he can also acquire servitudes
for the land. It is true that he who is forbidden to manage his own
property has this privilege. A father, however, cannot impose an usufruct
or a servitude on the slaves or land constituting part of the peculium.
(4) If a son in good faith holds
as part of his peculium property which belongs to another,
the question arises whether a real action or one to compel the production
of the property can be brought against his father, as in the case
of other sons. The better opinion is that as this peculium is
separate from the property of the father, the necessity of making
a defence should not be imposed upon him.
(5) Nor can a father be compelled
to defend an action De peculia, based on indebtedness which
his son is said to have incurred on account of the peculium which
he acquired in the service; and if he voluntarily submits to be sued,
he should, like any other defender, give security for the entire amount
involved, and not merely to the extent of the peculium. He
cannot, however, bring an action in the name of his son without giving
security that the latter will ratify his act.
19. Tryphoninus, Disputations,
Book XVIII.
Our Scaevola is in doubt with
reference to an estate left to a soldier by one of his relatives and
comrades in arms, for the reason that if he had been known to him,
and had been connected with him before he entered the army, he could
have appointed him his heir, and he also might not have done so, if
his military service with him had not increased his affection. It
seems to us that if the will had been made before the parties served
together in the army, the estate would not form part of the
peculium castrense, but if it
was made afterwards, the opposite opinion should prevail.
(1) If a slave, forming part
of the castrense peculium, is appointed heir by anyone whomsoever,
he should enter upon the estate by the order of his master, and it
will become part of the property composing the castrense peculium.
(2) A son under paternal control,
who was at the time in civil life, made a will disposing of his castrense
pecidium, and while he was not aware that he was the proper heir
of his father, died. It can not be held that he died testate, so far
as the property of his castrense peculium was concerned, and
intestate with reference to the estate of his father; although this
is now stated in rescripts with reference to a soldier, because he
can die partly testate in the beginning, and afterwards partly intestate;
but this man did not enjoy this right, as he could not have made a
will without observing all the legal formalities. Therefore, the appointed
heir would be entitled to all the property of the castrense peculium,
just as if a person who believed himself to be extremely poor
should die after making a will, without being aware that he had been
enriched by the acts of his slaves elsewhere.
(3) A father ordered a slave,
who formed part of the castrense peculium of his son, to be
free by his will. The son under paternal control having died, and
his father, also, soon afterwards, the question arose whether the
slave was entitled to his freedom, for the objection was made that
the absolute ownership could not belong to two persons; and, on the
other hand, Hadrian decided that a son could not manumit a slave forming
part of such a peculium. If the slave had received his freedom
by the wills of both the son and the father, and both of them had
died, there could be no doubt that he would become free by the will
of the son. But, in the first instance, it can be said in favor of
the freedom granted by the father that the right of the latter did
not cease until the son used that which had been granted him with
reference to his castrense peculium; because if the son should
die intestate, the father would be entitled to his peculium by
his prior right, resembling that of postliminium, and the ownership
of the property would appear to have had a retroactive effect.
(4) Still, it should not be
said that, if the father, during the lifetime of his son and as his
heir, should publicly manumit the slave, the latter would become free
by such a manumission after the son had died intestate.
(5) But what if the son should
make a will, and his estate should not be entered upon? It is not
so easy to decide that the ownership of the property constituting
the peculium would continue to belong to the father, after
the death of the son, as the intermediate time, during which the testamentary
heirs deliberate, offers the appearance of a succession. Otherwise,
even if the estate of the son were entered upon by the testamentary
heir, it might be said that the ownership passed to him from the father,
which is absurd, if we hold that the property is in suspense in this
case as well as in others; and we believe that by retroactive effect
it either belonged or did not belong to the father. In accordance
with this, if, while the heirs were deliberating, the time should
arrive for the delivery of the legacy to the slave forming part of
the peculium, under the will of someone, from which the father
could obtain nothing, it is difficult to determine whether the legacy
should belong to the father himself or not, as, otherwise, it would
pass to the son's heir. The decision of the question relating to the
freedom of the slave is more easy to arrive at in the case in which
the son is presumed to have died intestate. There is, therefore, no
reason to state that he was entitled to freedom granted at the time
when he did not belong to the father; still, we do not refuse a contrary
opinion in either instance.
20. Paulus, On the Rule of
Cato.
If you suppose that a son has
made a will, and appointed his father his heir, after the father by
his will has granted freedom to his son's slave, who began to belong
to him by the will of his son, let us see whether this slave should
be compared to one who belonged to another at the time he was manumitted,
and the ownership of whom was afterwards acquired. It is favorable
to freedom to admit that it was granted by the father, and to hold
that the slave belonged to the latter from the beginning; which is
shown from what afterwards occurred.
Tit. 18. Concerning veterans.
1. Arrius Menander, On Military
Affairs, Book III.
Veterans, among other privileges,
have one relating to their offences, namely, that they are distinguished
from other persons with reference to the penalties imposed upon them;
therefore a veteran is neither thrown to wild beasts, nor beaten with
rods.
2. Ulpianus, Opinions, Book
II.
The immunity granted to soldiers
who have been honorably discharged, they also enjoy in the towns in
which they reside; nor is it lost if one of them should voluntarily
accept an honor or a public employment.
(1) They must all pay taxes,
and sustain any other ordinary burdens attaching to patrimonial estates.
3. Marcianus, Rules, Book
II.
The same distinction is conferred
upon veterans and their children as upon decurions. Therefore they
shall neither be condemned to the mines, nor to labor on the public
works, nor be thrown to wild beasts, nor be beaten with rods.
4. Ulpianus, On the Duties
of Proconsul, Book IV.
It was stated in a Rescript
addresed to Julius Sossianus, a veteran, that veterans are not exempt
from contributing to the repair of highways, for it is clear that
they are not excused from paying taxes on their property.
(1) It is stated in a Rescript
addressed to Sillius Firmus and Antoninus Clarus that requisitions
can be made for their ships.
5. Paulus, On Judicial Inquiries.
The Great Divine Antoninus,
with his Father, stated in a Rescript that veterans were excused from
building ships.
(1) They also enjoy immunity
from the collection of taxes, that is to say, they cannot be appointed
tax collectors.
(2) Veterans, however, who permit
themselves to be elected members of an order, will be compelled to
perform its duties.