ENACTMENTS OF JUSTINIAN.
|~ Book XLIX ~|
( S. P. Scott, The Civil Law, XI, Cincinnati, 1932 ).
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.
(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.