§7.1.55cur non conamur et sic quaerere, num, cuicunque quis non adfuerit? facimus hoc saepe ex iis controversiis, ex quibus petuntur ex vincula qui parentes suos non alunt, ut eam quae testimonium ex filium peregrinitatis reum dixit, eum, qui filium lenoni vendidit.
Why do we not try to inquire also in this way: "Whomever it was, did one fail to assist anyone?" We often do this in those controversies in which those who do not support their parents are demanded for imprisonment, as against her who gave testimony against her son when he was accused of being a foreigner, or him who sold his son to a procurer.
in hoc, de quo loquimur, patre quid apprehendi potest? damnatus est.
In this father of whom we are speaking, what can be laid hold of? He was convicted.
§7.1.56numquid igitur lex ad absolutos tantum patres pertinet? dura prima fronte quaestio.
Does the law, then, apply only to fathers who have been acquitted? A difficult question at first sight.
non desperemus; credibile est hoc voluisse legumlatorem, ne auxilia liberorum innocentibus deessent.
Let us not despair; it is credible that the lawgiver wished this, lest the assistance of children should be wanting to the innocent.
sed hoc dicere rustico verecundum est, quia innocentem fuisse patrem fatetur.
But to say this is embarrassing for the rustic, because he confesses that his father was innocent.
§7.1.57dat aliud argumentum controversiae damnatus proditionis cum advocato exulet. vix videtur posse fieri, ut poena filio ex eodem patre, et si adfuerit et si non adfuerit, constitute sit.
The circumstances of the controversy give another argument: "He who is convicted of treason shall go into exile with his advocate." It seems hardly possible that a penalty should be appointed for a son from the same father, whether he assisted or did not assist him.
praeterea lex ad exules nulla pertinet.
Besides, no law applies to exiles.
non ergo credibile est de advocato damnati scriptum; an possunt enim bona esse ulla exulis?
Therefore, it is not credible that it was written concerning the advocate of a convicted person; for can an exile have any goods?
§7.1.58rusticus ex utramque partem dubium facit; disertus et verbis inhaerebit, ex quibus nulla exceptio est, et propter hoc ipsum poenam esse constitutam eis qui non adfuerint, ne periculo exilii deterreantur advocatione, et rusticum innocenti non adfuisse dicet.
The rustic makes it doubtful on both sides; the eloquent son will stick to the words, from which there is no exception, and will say that for this very reason the penalty was established for those who did not assist, lest they should be deterred from advocacy by the danger of exile, and he will say that the rustic did not assist an innocent man.
illud protinus non indignum quod adnotetur, posse ex uno statu duas generales fieri quaestiones, an quisquis? an cuicunque? §7.1.59haec ex duabus personis quaesita sunt.
This is immediately not unworthy of being noted, that from one status two general questions can arise: "Whether anyone?" and "Whether to anyone?" These questions have been drawn from the two persons.
ex tertia autem, quae est adversarii, nulla oriri quaestio potest, quia nulla fit ei de sua parte controversia.
But from the third, who is the adversary, no question can arise, because no controversy is made concerning his part.
nondum tamen cura deficiat.
Yet let not our care yet fail.
ista enim omnia dici possent etiam non restituto patre.
For all those things might be said even if the father had not been restored.
nec statim eo tendamus, quod occurrit ultro, a rustico restitutum.
Nor let us immediately tend to that which occurs of itself, that he was restored by the rustic.
qui subtiliter quaeret, aliquid spectabit ultra; nam, ut genus species sequitur, ita species genus praecedit.
He who inquires subtly will look at something beyond; for, as species follows genus, so species precedes genus.
fingamus ergo ab alio restitutum: §7.1.60ratiocinativa seu collectiva quaestio orietur, an restitutio pro sublatione iudicii sit et proinde valeat, ac si iudicium non fuisset.
Let us therefore pretend that he was restored by someone else: a ratiocinative or collective question will arise, whether restoration is equivalent to the removal of the trial and therefore has the same force as if the trial had not existed.
ubi temptabit rusticus dicere ne impetrare quidem aliter potuisse suorum restitutionem uno praemio nisi patre proinde ac si accusatus non esset revocato, quae res advocati quoque poenam, tanquam is non adfuisset, remiserit.
Where the rustic will try to say that he could not even have obtained the restoration of his relations by a single reward in any other way than by his father being recalled just as if he had not been accused, which thing also remitted the penalty of the advocate, as if he had not failed to assist.
§7.1.61tum venimus ad id, quod primum occurrebat, a rustico esse restitutum patrem.
Then we come to that which first occurred, that the father was restored by the rustic.
ubi rursus ratiocinamur, an restitutor accipi debeat pro advocate, quando id praestiterit quod advocatus petiit, nec improbum sit pro simili accipi quod plus est.
Where we again reason, whether the restorer ought to be accepted in place of an advocate, since he has performed what the advocate sought, and it is not unreasonable that what is greater should be accepted for what is similar.
§7.1.62reliqua iam aequitatis, utrius iustius sit desiderium.
The remaining matters now belong to equity, as to whose desire is more just.
id ipsum adhuc dividitur; etiamsi uterque sibi totum vindicaret, nunc utique, cum alter semissem, alter universa fratre excluso.
This itself is still divided; even if each claimed the whole for himself, but especially now, when one claims a half, and the other the whole, excluding his brother.
sed his tractatis etiam habet magnum momentum apud iudices patris memoria, cum praesertim de bonis eius quaeratur.
But even after these are treated, the memory of the father still has great weight with the judges, especially since the inquiry is about his property.
erit ergo coniectura, qua mente pater intestatus decesserit.
There will therefore be a conjecture, with what mind the father died intestate.
sed ea pertinet ad qualitatem; alterius status instrumentum est.
But that belongs to quality; it is an instrument of another status.
§7.1.63plerumque autem ex fine causarum de aequitate tractabitur, quia nihil libentius iudices audiunt.
But for the most part equity will be treated at the end of cases, because judges listen to nothing more willingly.
aliquando tamen hunc ordinem mutabit utilitas, ut, si ex iure minus fiduciae erit, aequitate iudicem praeparemus.
Sometimes, however, utility will change this order, so that, if there is less confidence from the law, we may prepare the judge by equity.
§7.1.64nihil habui amplius quod ex universum praeciperem.
I had nothing more to prescribe in general.
nunc eamus per singulas causarum iudicialium partes, quas ut persequi ad ultimam speciem, id est ad singulas lites controversiasque, non possum, ita de generalibus scribere licet, ut, quae ex quemque statum frequentissime incidant, tradam.
Now let us go through the single parts of judicial cases, which although I cannot pursue to the last species, that is, to single lawsuits and controversies, yet it is permitted to write about general things, so that I may deliver those which most frequently occur in each status.
et, quia natura prima quaestio est, factumne sit, ab hoc ordiar.
And, since by nature the first question is whether it was done, I shall begin from this.