[ULPIANUS libro primo ad edictum aedilium curulium. ] §21.1.17.9Idem ait nec eum, qui ad fugam gradum unum alterumue promouit uel etiam currere coepit, si dominum sequentem non potest euadere, non esse fugitiuum.
The same says that neither is he not a runaway, who has moved one or two steps toward flight or even begun to run, if he cannot escape his master pursuing him.
§21.1.17.10Idem recte ait libertatis cuiusdam speciem esse fugisse, hoc est potestate dominica in praesenti liberatum esse.
The same correctly says that to have fled is a kind of appearance of liberty, that is, to be freed for the present from masterly power.
§21.1.17.11Pignori datus seruus debitorem quidem dominum habet, sed si, posteaquam ius suum exercuit creditor, ei se subtraxit, potest fugitiuus uideri.
A slave given in pledge indeed has his master as a debtor, but if, after the creditor has exercised his right, the slave has withdrawn himself from him, he can be seen as a runaway.
§21.1.17.12Apud Labeonem et Caelium quaeritur, si quis in asylum confugerit aut eo se conferat, quo solent uenire qui se uenales postulant, an fugitiuus sit: ego puto non esse eum fugitiuum, qui id facit quod publice facere licere arbitratur.
In Labeo and Caelius, it is asked whether, if anyone has fled to a sanctuary or betaken himself to that place where those who demand to be sold are accustomed to come, he is a runaway. I think that he is not a runaway who does that which he believes is publicly permitted to be done.
ne eum quidem, qui ad statuam Caesaris confugit, fugitiuum arbitror: non enim fugiendi animo hoc facit.
Neither do I judge him to be a runaway who has fled to the statue of Caesar; for he does not do this with the intention of fleeing.
idem puto et in eum, qui in asylum uel quod aliud confugit, quia non fugiendi animo hoc facit: si tamen ante fugit et postea se contulit, non ideo magis fugitiuus esse desinit.
I think the same also of him who has fled to a sanctuary or to some other place, because he does not do this with the intention of fleeing; yet if he fled beforehand and afterwards betook himself there, he does not on that account any more cease to be a runaway.
§21.1.17.13Item Caelius scribit placere eum quoque fugitiuum esse, qui eo se conferat, unde eum dominus reciperare non possit, multoque magis illum fugitiuum esse, qui eo se conferat, unde abduci non possit.
Likewise, Caelius writes that it is agreed that he also is a runaway who betakes himself to a place from which his master cannot recover him, and much more is he a runaway who betakes himself to a place from which he cannot be taken away.
§21.1.17.14Erronem ita definit Labeo pusillum fugitiuum esse, et ex diuerso fugitiuum magnum erronem esse.
Labeo defines a stroller thus, as a petty runaway, and conversely, a runaway as a great stroller.
sed proprie erronem sic definimus: qui non quidem fugit, sed frequenter sine causa uagatur et temporibus in res nugatorias consumptis serius domum redit.
But properly we define a stroller thus: one who indeed does not flee, but frequently wanders about without cause, and having consumed times in trifling matters, returns home later.
§21.1.17.15Apud Caelium scriptum est: liberti apud patronum habitantis sic, ut sub una claue tota eius habitatio esset, seruus ea mente, ne rediret ad eum, extra habitationem liberti fuit, sed intra aedes patroni, et tota nocte oblituit: uideri esse fugitiuum Caelius ait.
In Caelius it is written: a slave of a freedman living with his patron in such a way that his whole habitation was under a single key, with the intention of not returning to him, stayed outside the habitation of the freedman but inside the house of the patron, and lay hid for the whole night; Caelius says he is seen to be a runaway.
plane si talem custodiam ea habitatio non habuit et in ea cella libertus habitauit, cui commune et promiscum plurium cellarum iter est, contra placere debere Caelius ait et Labeo probat.
Clearly, if that habitation did not have such custody and the freedman lived in that cell to which there is a common and promiscuous passageway of several cells, Caelius says that the contrary ought to be approved, and Labeo agrees.
§21.1.17.16Idem Caelius ait seruum in prouinciam missum a domino, cum eum mortuum esse et testamento se liberum relictum audisset et in eodem officio permansisset tantumque pro libero se gerere coepisset, hunc non esse fugitiuum: nec enim mentiendo se liberum, inquit, fugitiuus esse coepit, quia sine fugae consilio id fecit. §21.1.17.17Quod aiunt aediles noxa solutus non sit, sic intellegendum est, ut non hoc debeat pronuntiari nullam eum noxam commississe, sed illud noxa solutum esse, hoc est noxali iudicio subiectum non esse: ergo si noxam commisit nec permanet, noxa solutus uidetur.
The same Caelius says that a slave sent into a province by his master, when he had heard that he was dead and that he had been left free by will, and had remained in the same service and only begun to conduct himself as a free person, is not a runaway; "for he did not," he says, "begin to be a runaway by lying that he was free, because he did this without the intention of flight." What the aediles say, "let him not be released from liability for harm," must be understood in this way, that it ought not to be pronounced that he committed no harm, but that he is released from liability for harm, that is, he is not subject to a noxal action; therefore, if he committed harm and it does not remain, he is seen as released from liability for harm.
§21.1.17.18Noxas accipere debemus priuatas, hoc est eas, quaecumque committuntur ex delictis, non publicis criminibus, ex quibus agitur iudiciis noxalibus: denique specialiter cauetur infra de capitalibus fraudibus.
We ought to understand liabilities for harm as private ones, that is, whatever are committed from delicts, not from public crimes, from which action is taken in noxal trials; in short, special provision is made below concerning capital offenses.
ex priuatis autem noxiis oritur damnum pecuniarium, si quis forte noxae dedere noluerit, sed litis aestimationem sufferre.
Moreover, from private harms arises a pecuniary loss, if anyone by chance has refused to surrender the slave for harm, but rather to bear the assessment of the suit.
§21.1.17.19Si quis talis sit seruus, qui omnino manumitti non possit ex constitutionibus, uel si sub poena uinculorum distractus sit a domino (uel ab aliqua potestate damnatus) uel si exportandus: aequissimum erit etiam hoc praedici.
If a slave should be such as cannot be manumitted at all under the constitutions, or if he was sold by his master under the penalty of chains (or condemned by some authority), or if he is to be exported: it will be most equitable that this also be declared beforehand.
§21.1.17.20Si quis adfirmauerit aliquid adesse seruo nec adsit, uel abesse et adsit, ut puta si dixerit furem non esse et fur sit, si dixerit artificem esse et non sit: hi enim, quia quod adseuerauerunt non praestant, aduersus dictum promissumue facere uidentur.
If anyone has asserted that something is present in a slave and it is not, or that it is absent and it is present, as for example if he has said he is not a thief and he is a thief, if he has said he is an artisan and he is not: for these, because they do not make good what they have asserted, are seen to act contrary to what was said or promised.