[ULPIANUS libro quinquagesimo ad edictum. ] §29.5.1.prCum aliter nulla domus tuta esse possit, nisi periculo capitis sui custodiam dominis tam ab domesticis quam ab extraneis praestare serui cogantur, ideo senatus consulta introducta sunt de publica quaestione a familia necatorum habenda.
[ULPIANUS, from the fiftieth book on the Edict.] Since no household can otherwise be safe, unless slaves are compelled, at the risk of their own lives, to provide protection to their masters as well from members of the household as from strangers, therefore senatusconsults were introduced concerning the holding of a public inquiry from the household of those who have been slain.
§29.5.1.1Domini appellatione continetur qui habet proprietatem, etsi usus fructus alienus sit.
By the term "master" is included one who has the ownership, even if the usufruct belongs to another.
§29.5.1.2Qui seruum bona fide possedit, domini appellatione non continebitur, nec qui usum fructum solum habuit.
He who has possessed a slave in good faith will not be included under the term "master", nor will he who had only the usufruct.
§29.5.1.3Seruus pignori datus, quod attinet ad debitoris necem, per omnia perinde habetur atque si pignori datus non esset.
A slave given in pledge, as far as concerns the death of the debtor, is treated in all respects just as if he had not been given in pledge.
§29.5.1.4Serui appellatione etiam hi continentur, qui sub condicione legati sunt: nam medio tempore heredis sunt, nec quod condicio existens efficit, ut desinant esse heredis, facit ne uideantur interim eius.
Under the term "slave" are also included those who have been bequeathed under a condition; for in the intermediate time they belong to the heir, and the fact that the fulfillment of the condition causes them to cease to belong to the heir does not prevent them from being deemed to belong to him in the meantime.
idemque erit dicendum in statulibero.
And the same must be said of a slave conditionally freed.
§29.5.1.5Sed in eo, cui fideicommissa libertas pure debetur, exstat rescriptum diui Pii ad Iuuentium Sabinum, quo ostenditur non esse festinandum ad tormenta eius, cui fideicommissa libertas debetur: et magis est, ne puniatur ob hoc quod sub eodem tecto fuit, nisi particeps sceleris fuerit.
But in the case of one to whom freedom by fideicommissum is unconditionally owed, there exists a rescript of the deified Pius to Iuventius Sabinus, in which it is shown that one should not hasten to the torture of him to whom freedom by fideicommissum is owed; and the better view is that he should not be punished on the ground of having been under the same roof, unless he was a participant in the crime.
§29.5.1.6Domini appellatione etiam pro parte dominum contineri dicendum est.
It must be said that by the term "master" is also included a master in part.
§29.5.1.7Domini appellatione et filius familias ceterique liberi, qui in potestate sunt, continentur: senatus consultum enim Silanianum non solum ad patres familias, uerum ad liberos quoque pertinet.
By the term "master" are also included a son of the family and other children who are in power; for the Silanian senatusconsult applies not only to heads of families, but also to children.
§29.5.1.8Quid deinde dicemus, si liberi non sint in potestate? Marcellus libro duodecimo digestorum dubitat: ego puto plenius accipiendum, ut etiam ad eos liberos pertineat, qui in potestate non sunt.
What then shall we say if the children are not in power? Marcellus, in the twelfth book of his Digests, doubts; I think that a broader interpretation should be accepted, so that it applies also to those children who are not in power.
§29.5.1.9In eo, qui est in adoptionem datus, non putamus locum habere senatus consultum, quamuis in adoptato locum habet.
In the case of one who has been given in adoption, we do not think the senatusconsult has application, although it applies to an adopted child.
§29.5.1.10Sed nec in alumno occiso locus est senatus consulto.
But neither is there room for the senatusconsult in the case of a foster child who has been slain.
§29.5.1.11De matris seruis filio filiaue occisis quaestio non habebitur.
No inquiry shall be held concerning the slaves of a mother when her son or daughter has been slain.
§29.5.1.12Si pater ab hostibus captus sit, quaestionem de seruis habendam et supplicium filio occiso eleganter Scaeuola ait: quod etiam post mortem patris probat, si ante, quam ei suus heres existat, occisus fuerit.
If a father has been captured by enemies, Scaevola elegantly says that on the slaying of his son, an inquiry must be held concerning the slaves and punishment inflicted; which he also approves after the death of the father, if the son was slain before a suus heres came into existence for him.
§29.5.1.13Idem Scaeuola ait constantius defendendum herede instituto filio de his quaestionem habendam et supplicium, qui pure legati uel manumissi sunt, ante aditam hereditatem filio occiso: quamuis enim, si uiueret, herede eo existente ipsius non essent futuri, attamen ubi decessit, qua extinctum legatum et libertas est, senatus consulto fore locum dicit.
The same Scaevola says that it must be maintained more firmly that, if a son has been instituted heir and is slain before the inheritance is accepted, an inquiry must be held and punishment inflicted concerning those who have been unconditionally bequeathed or manumitted; for although, if he were alive and became heir, they would not have belonged to him, nevertheless since he has died, whereby the legacy and the freedom are extinguished, he says that there will be room for the senatusconsult.
§29.5.1.14Si pater necatus sit, an de seruis filii quaestio habeatur, si forte castrensi peculio seruos habuit? et magis est quaestionem de seruis filii habendam suppliciumque sumendum, licet non sit in potestate filius.
If a father has been slain, is an inquiry to be held concerning the slaves of his son, if by chance he held slaves in his castrense peculium? And the better view is that an inquiry must be held concerning the slaves of the son and punishment inflicted, although the son is not in power.
§29.5.1.15Si uir aut uxor occisi esse proponantur, de seruis eorum quaestio habetur, quamquam neque uiri serui proprie uxoris dicantur neque uxoris proprie uiri: sed quia commixta familia est et una domus est, ita uindicandum atque in propriis seruis senatus censuit.
If a husband or wife is proposed to have been slain, an inquiry is held concerning their slaves, although the husband's slaves cannot strictly be said to be the wife's, nor the wife's strictly the husband's; but because the household of slaves is mixed and there is one house, the senate resolved that vengeance should be taken just as in the case of their own slaves.
§29.5.1.16Sed neque uxore occisa neque marito de seruis soceri quaestionem habendam senatus censuit: Marcellus autem libro duodecimo digestorum etiam in soceri seruis idem quod in mariti recte dixit.
But the senate resolved that neither on the slaying of a wife nor of a husband should an inquiry be held concerning the slaves of a father-in-law; Marcellus, however, in the twelfth book of his Digests, rightly said that the same applies to the slaves of a father-in-law as to those of a husband.
§29.5.1.17Occisorum appellatione eos contineri Labeo scribit, qui per uim aut caedem sunt interfecti, ut puta iugulatum strangulatum praecipitatum uel saxo uel fuste uel lapide percussum uel quo alio telo necatum.
Labeo writes that under the term "slain" are included those who have been killed by violence or slaughter, as, for instance, one whose throat is cut, or who is strangled, or thrown headlong, or struck with a rock, a club, or a stone, or killed by any other weapon.
§29.5.1.18Quod si quis puta ueneno uel etiam quo alio quod clam necare soleat interemptus sit, ad hoc senatus consultum uindicta mortis eius non pertinebit: hoc idcirco, quia totiens puniendi sunt serui, quia auxilium domino non tulerunt, quotiens potuerunt ei aduersus uim opem ferre et non tulerunt: ceterum quid potuerunt facere aduersus eos, qui ueneno uel quo alio more insidiantur?
But if anyone has been destroyed, say, by poison, or by any other means which is accustomed to kill secretly, the vengeance for his death will not belong to this senatusconsult; and this is because slaves are to be punished for not having brought aid to their master only so often as they were able to bring help to him against violence and did not bring it; but what could they have done against those who plot by poison or some other secret method?
§29.5.1.19Plane si uenenum per uim infusum sit, senatus consultum locum habet.
Clearly, if poison has been administered by force, the senatusconsult has application.
§29.5.1.20Ubicumque igitur uis adhibita est quae interemere solet, ibi dicendum est locum senatus consulto fore.
Wherever, therefore, violence is employed which is accustomed to kill, there it must be said that there will be room for the senatusconsult.
§29.5.1.21Quid ergo, si dominus ueneno non per uim necatus esse proponatur? impunitum erit factum? nullo modo: licet enim cessat senatus consultum Silanianum nec quaestio suppliciumque de his qui sub eodem tecto fuerunt habeatur, tamen si qui conscii uel factores sceleris fuerunt, hi demum supplicio adficiuntur: et adiri hereditas aperirique tabulae etiam ante quaestionem habitam possunt.
What then if it is proposed that a master has been slain by poison and not by force? Will the deed go unpunished? By no means; for although the Silanian senatusconsult does not apply, and no inquiry is held or punishment inflicted on those who were under the same roof, nevertheless if there were any who were accomplices or perpetrators of the crime, these indeed are punished; and the inheritance can be entered upon and the tablets opened even before an inquiry has been held.