[ULPIANUS libro secundo de officio consulis. ] §40.12.27.prDiui fratres Proculo et Munatio rescripserunt: 'Cum Romulus, de cuius statu quaeritur, pupillaris aetatis sit, an exigente Uaria Hedone matre et consentiente Uario Hermete tutore ad tempus pubertatis causa differenda sit, uestrae grauitatis est ex fide personarum quod utile est pupillo, constituere'. §40.12.27.1Si ea persona desit cognitioni, quae alicui status controuersiam faciebat, in eadem causa est qui de libertate sua litigat, qua fuit, priusquam de libertate controuersiam patiatur: sane hoc lucratur, quod is qui eam status controuersiam faciebat amittit suam causam.
[ULPIAN, in the second book on the Office of Consul.] The Divine Brothers wrote in a rescript to Proculus and Munatius: "Since Romulus, whose status is in question, is of pupillary age, whether the lawsuit ought to be postponed until the time of puberty, upon the demand of his mother Varia Hedone and with the consent of his tutor Vario Hermes, is for your gravity to decide, based on the trustworthiness of the persons, what is useful for the pupil." If that person is absent from the inquiry who was raising a controversy over someone's status, the one who is litigating for his own freedom is in the same condition as he was before he suffered the controversy over his freedom; certainly he gains this, that the one who was raising that controversy over his status loses his case.
nec ea res ingenuum facit eum qui non fuit: nec enim penuria aduersarii ingenuitatem solet tribuere.
Nor does this circumstance make him a freeborn person who was not one before; for the absence of an adversary is not accustomed to bestow free birth.
recte atque ordine iudices puto facturos, si hanc formam fuerint consecuti, ut, ubi deest is qui in seruitutem petit, electionem aduersario deferant, utrum malit cognitionem circumduci an audita causa sententiam proferri.
I think that judges will act rightly and properly if they follow this rule: namely, that when the person who claims someone into slavery is absent, they offer the adversary the choice of whether he prefers the inquiry to be discharged or a judgment to be rendered after the case has been heard.
et si cognouerint, pronuntiare debebunt seruum illius non uideri: neque haec res captionem ullam habet, cum non ingenuus pronuntietur, sed seruus non uideri.
And if they hear the case, they must pronounce that he does not appear to be his slave; nor does this result in any trickery, since he is not pronounced to be freeborn, but only not to appear to be a slave.
quod si ex seruitute in ingenuitatem se allegat, melius fecerint, si cognitionem circumduxerint, ne sine aduersario pronuntient ingenuum uideri, nisi magna causa suadeat et euidentes probationes suggerant secundum libertatem pronuntiandum: ut etiam rescripto Hadriani continetur.
But if he claims himself from slavery into free birth, they will have done better if they discharge the inquiry, lest they pronounce without the adversary that he appears to be freeborn, unless a major cause persuades them and clear proofs suggest that judgment should be pronounced in favor of freedom, as is also contained in a rescript of Hadrian.
§40.12.27.2Quod si is, qui pro sua libertate litigat, desit, contradictor uero praesens sit, melius erit inaugeri causam eius sententiamque proferri: si enim liquebit, contra libertatem dabit: euenire autem potest, ut etiam absens uincat: nam potest sententia etiam secundum libertatem ferri.
But if the one who is litigating for his own freedom is absent, while the challenger is present, it will be better for his case to be commenced and a judgment to be rendered; for if the matter is clear, the judge will decide against freedom, yet it can happen that even the absent party wins, for a judgment can also be rendered in favor of freedom.