[IDEM libro decimo ad Sabinum. ] §28.3.6.7Eius qui deportatur non statim irritum fiet testamentum, sed cum princeps factum comprobauerit: tunc enim et capite minuitur.
The testament of one who is deported does not immediately become inoperative, but when the emperor has approved the act; for then he also suffers a loss of status.
sed et si de decurione puniendo uel filio nepoteue praeses scribendum principi interlocutus est, non puto statim seruum poenae factum, licet in carcere soleant diligentioris custodiae causa recipi.
But also, if the governor has issued an interlocutory decree that he must write to the emperor concerning the punishment of a decurion, or of his son or grandson, I do not think that he immediately becomes a slave of punishment, although they are customarily held in prison for the sake of more diligent custody.
nec huius igitur testamentum irritum fiet, priusquam princeps de eo supplicium sumendum rescripserit: proinde si ante decesserit, utique testamentum eius ualebit, nisi mortem sibi consciuit.
Therefore, neither will the testament of this person become inoperative before the emperor has written in a rescript that punishment must be inflicted on him. Consequently, if he dies before [this], his testament will certainly be valid, unless he has committed suicide.
nam eorum, qui mori magis quam damnari maluerint ob conscientiam criminis, testamenta irrita constitutiones faciunt, licet in ciuitate decedant: quod si quis taedio uitae uel ualetudinis aduersae inpatientia uel iactationis, ut quidam philosophi, in ea causa sunt, ut testamenta eorum ualeant.
For the imperial constitutions make inoperative the testaments of those who, because of consciousness of a crime, preferred to die rather than be condemned, although they die in the state. But if anyone [has died] from weariness of life, or from impatience of ill health, or for ostentation like certain philosophers, they are in such a position that their testaments are valid.
quam distinctionem in militis quoque testamento diuus Hadrianus dedit epistula ad Pomponium Falconem, ut, si quidem ob conscientiam delicti militaris mori maluit, irritum sit eius testamentum: quod si taedio uitae uel dolore, ualere testamentum aut, si intestato decessit, cognatis aut, si non sint, legioni ista sint uindicanda.
This distinction was also made by the divine Hadrian in a letter to Pomponium Falco regarding the testament of a soldier, namely, that if indeed he preferred to die because of consciousness of a military offense, his testament is inoperative; but if [he did so] from weariness of life or pain, his testament is valid, or, if he died intestate, those things must be claimed by his cognates, or, if there are none, by the legion.
H §28.3.6.8i autem omnes, quorum testamenta irrita damnatione fieri diximus, si prouocauerint, capite non minuuntur atque ideo neque testamenta quae antea fecerunt inrita fient et tunc testari poterunt: hoc enim saepissime est constitutum nec uidebuntur quasi de statu suo dubitantes non habere testamenti factionem: sunt enim certi status nec ipsi de se interim incerti.
H wever, all these, whose testaments we have said become inoperative by condemnation, if they appeal, do not suffer loss of status, and therefore neither do the testaments they previously made become inoperative, and they can make a testament at that time: for this has been very often established, nor will they be seen as not having the capacity to make a testament as if they were doubting their own status; for they are of a certain status, and are not themselves uncertain about themselves in the meantime.
§28.3.6.9Quid tamen si appellationem eius praeses non recepit, sed imperatori scribendo poenam remoratus est? puto hunc quoque suum statum interim retinere nec testamentum irritum fieri: nam, ut est oratione diui Marci expressum, tametsi prouocantis uel eius pro quo prouocatur appellatio non fuerit recepta, poena tamen sustinenda est, quoad princeps rescripserit ad litteras praesidis et libellum rei cum litteris missum, nisi forte latro manifestus uel seditio praerupta factioque cruenta uel alia iusta causa, quam mox praeses litteris excusabit, moram non recipiant, non poenae festinatione, sed praeueniendi periculi causa: tunc enim punire permittitur, deinde scribere.
What, however, if the governor did not accept his appeal, but delayed the punishment by writing to the emperor? I think that this person also retains his status in the meantime, and his testament does not become inoperative: for, as is expressed in an address of the divine Marcus, although the appeal of the one appealing or of the one on whose behalf it is appealed has not been accepted, the punishment must nevertheless be stayed until the emperor has replied to the letters of the governor and the petition of the accused sent with the letters, unless by chance an obvious robber, or an abrupt sedition and a bloody faction, or another just cause, which the governor will soon justify in his letters, do not admit delay, not from haste for punishment, but for the sake of preventing danger; for then it is permitted to punish, and then to write.
§28.3.6.10Quid si quis fuerit damnatus illicite poena non sumpta, an testamentum eius irritum fiat, uideamus: ut puta decurio ad bestias an capite minuatur testamentumque eius irritum fiat? et non puto, cum sententia eum non tenuerit.
Let us see: if someone has been unlawfully condemned but the punishment has not been inflicted, does his testament become inoperative? For example, if a decurion is condemned to the beasts, does he suffer loss of status and does his testament become inoperative? And I do not think so, since the sentence did not bind him.
ergo et si quis eum, qui non erat iurisdictionis suae, damnauerit, testamentum eius non erit irritum, quemadmodum est constitutum.
Therefore, also if someone has condemned a person who was not of his jurisdiction, his testament will not be inoperative, just as has been established.
§28.3.6.11Sed ne eorum quidem testamenta rata sunt, sed irrita fient, quorum memoria post mortem damnata est, ut puta ex causa maiestatis, uel ex alia tali causa.
But not even the testaments of those are valid, but they will become inoperative, whose memory is condemned after death, as, for example, on account of treason, or for another such cause.
§28.3.6.12Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adiciendum est postliminio reuersi uires suas recipere iure postliminii aut, si ibi decedat, lege Cornelia confirmari.
However, insofar as we have said that the testament of one captured by the enemy becomes inoperative, it must be added that [the testament] of one who has returned by postliminium recovers its force by the right of postliminium, or, if he dies there, it is confirmed by the Lex Cornelia.
ergo et si quis damnatus capite in integrum indulgentia principis sit restitutus, testamentum eius conualescet.
Therefore, also if someone condemned to death has been restored to his former position by the indulgence of the emperor, his testament will regain its validity.
§28.3.6.13Filii familias ueterani sui iuris morte patris facti testamentum irritum non fieri constat: nam quantum ad testandum de castrensi peculio pro patre familias habendus est, et ideo nec emancipatione irritum fieri militis uel ueterani testamentum uerum est.
It is well established that the testament of a veteran who is a son in power and who becomes independent by the death of his father does not become inoperative: for as far as making a testament concerning his camp peculium is concerned, he must be regarded as a father of a family, and therefore it is true that neither by emancipation does the testament of a soldier or a veteran become inoperative.