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Justinian I · The Digest of Justinian §2.4.8.pr-2.4.8.1

Summoning Parents and Patrons and Coerced Oaths

Passage 272 of 9271 · Latin

Summary

The chunk discusses the restrictions on summoning adoptive and natural fathers to court, defines the legal parameters of a patron, and explains the loss of immunity from summons when an undue oath is coerced.

[ULPIANUS libro quinto ad edictum. ] §2.4.8.prAdoptiuum patrem, quamdiu in potestate est, in ius uocare non potest iure magis potestatis quam praecepto praetoris, nisi sit filius qui castrense habuit peculium: tunc enim causa cognita permittetur.
[ULPIAN, in the fifth book on the Edict.] One cannot summon an adoptive father to court as long as one is under his power, more by right of power than by the precept of the praetor, unless he is a son who has military peculium; for in that case, it will be permitted after an investigation of the cause.
sed naturalem parentem ne quidem dum est in adoptiua familia in ius uocari.
But a natural parent cannot be summoned to court, not even while [the son] is in an adoptive family.
'Patronum', inquit, 'patronam'. patroni hic accipiendi sunt, qui ex seruitute manumiserunt: uel si collusionem detexit: uel si qui praeiudicio pronuntietur esse libertus, cum alioquin non fuerit, aut si iuraui eum libertum meum esse: quemadmodum per contrarium pro patrono non habebor, si contra me iudicatum est aut si me deferente iurauerit se libertum non esse.
He [the praetor] says, "A patron, a patroness." Here we must understand as patrons those who have manumitted from slavery; or if he [the master] has exposed collusion; or if someone is declared by a preliminary judgment to be a freedman, although otherwise he was not, or if I have sworn that he is my freedman; just as, conversely, I shall not be held as a patron if judgment is given against me, or if, upon my tendering the oath, he has sworn that he is not a freedman.
§2.4.8.1Sed si ad iusiurandum adegi, ne uxorem ducat, ne nubat, impune in ius uocabor.
But if I have compelled him to take an oath not to marry a wife, or her not to marry a husband, I shall be summoned to court with impunity.
et Celsus quidem ait in tali liberto ius ad filium meum me uiuo non transire: sed Iulianus contra scribit.
And Celsus indeed says that in the case of such a freedman, the right does not pass to my son during my lifetime; but Julian writes to the contrary.
plerique Iuliani sententiam probant.
Most jurists approve Julian's opinion.
secundum quod eueniet, ut patronus quidem in ius uocetur, filius quasi innocens non uocetur.
According to which it will happen that, while the patron is indeed summoned to court, the son, as being innocent, is not summoned.

Notes

  1. §2.4.8.prin ius uocari — Accusative with infinitive construction. It can be understood as depending on the negative potentiality of the preceding non potest ('cannot be summoned'), or as an indirect statement reporting the rule of the edict with an omitted verb of capability (such as non posse). The translations in all languages consistently express this legal prohibition.
  2. §2.4.8.pruel si collusionem detexit — In the context of patroni hic accipiendi sunt, the antecedent (such as is) is omitted before si, meaning 'or he [is to be accepted] if he has exposed collusion.' Collusionem detegere refers to the master exposing a fraudulent lawsuit (collusion) concerning the slave's status, thereby maintaining or acquiring patronal rights.
  3. §2.4.8.1me uiuo — An ablative absolute construction consisting of a pronoun and an adjective ('while I am alive' / 'during my lifetime'). Celsus argued that as long as the patron is alive, the patronal right (ius) over the freedman does not yet pass to his son, meaning the son would not be affected by the penalty of losing the summons immunity.

Cite this passage

Justinian I, The Digest of Justinian §2.4.8.pr-2.4.8.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:2.4.8.pr-2.4.8.1

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