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Justinian I · The Digest of Justinian §28.1.13.pr-28.1.13.2

Testamentary Capacity of Robbers' Captives, Envoys, and Appellants

Passage 4103 of 9271 · Latin

Summary

This passage rules on the validity of testaments made by those captured by robbers, ambassadors abroad, and those who die while their appeal against a capital conviction is pending.

[MARCIANUS libro quarto institutionum. ] §28.1.13.prQui a latronibus capti sunt, cum liberi manent, possunt facere testamentum.
[MARCIANUS, in the fourth book of the Institutes.] Those who have been captured by robbers, since they remain free, can make a testament.
§28.1.13.1Item qui apud externos legatione funguntur, possunt facere testamentum.
Likewise, those who perform an embassy among foreigners can make a testament.
§28.1.13.2Si quis in capitali crimine damnatus appellauerit et medio tempore pendente appellatione fecerit testamentum et ita decesserit, ualet eius testamentum.
If anyone condemned for a capital crime has appealed, and in the meantime, while the appeal is pending, has made a testament, and has so died, his testament is valid.

Notes

  1. §28.1.13.prcum liberi manent — The conjunction cum is followed by the indicative present manent. The indicative, rather than the subjunctive of cause, is used here to present an objective, indisputable fact: unlike capture by a lawful enemy (hostes), abduction by robbers (latrones) does not legally alter one's status as a free person.
  2. §28.1.13.2pendente appellatione — An ablative absolute construction consisting of the present participle pendente (from pendeo, 'to hang, be pending') and the noun appellatione (from appellatio, 'appeal'), expressing the attendant circumstance or temporal background 'while the appeal is pending'.
  3. §28.1.13.2in capitali crimine — The adjective capitalis means 'pertaining to the head or life (caput)'. In Roman law, a 'capital crime' refers to major offences that entail not only the loss of physical life (death penalty) but also the loss of citizenship or freedom (capitis deminutio).

Cite this passage

Justinian I, The Digest of Justinian §28.1.13.pr-28.1.13.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.1.13.pr-28.1.13.2

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