[ULPIANUS libro quinto fideicommissorum. ] §40.5.24.prGeneraliter dicemus eos posse fideicommissariam libertatem adscribere, qui fideicommissum pecuniarium possunt relinquere.
[ULPIANUS, from the fifth book on trusts.] Generally we shall say that those can write down a trust-freedom who can leave a pecuniary trust.
§40.5.24.1Et principis seruo uel municipii et cuius alterius fideicommissa libertas adscripta ualet.
And the trust-freedom written down for a slave of the emperor, or of a municipality, or of anyone else, is valid.
§40.5.24.2Hostium seruo si fideicommissaria libertas fuerit adscripta, potest tractari, an non sit inefficax.
If trust-freedom has been written down for a slave of the enemy, it can be discussed whether it is not ineffective.
et fortassis quis dixerit indignum esse ciuem Romanum fieri hostium seruum: sed si in casum relinquatur, in quem noster esse incipit, quid prohibet dicere libertatem ualere?
And perhaps someone might say that it is unworthy for a slave of the enemy to become a Roman citizen; but if it is left for the event in which he begins to be ours, what prevents us from saying that the freedom is valid?
§40.5.24.3Si homini libero fuerit libertas per fideicommissum adscripta et is in seruitutem redactus proponatur, petere potest libertatem, si modo mortis tempore uel condicionis existentis inueniatur seruus.
If freedom has been written down for a free man by trust, and he is supposed to have been reduced to slavery, he can seek freedom, provided that he is found to be a slave at the time of death or when the condition is fulfilled.
§40.5.24.4Seruo eius, qui nondum in rebus humanis est, libertas recte per fideicommissum relinquitur.
Freedom is rightly left by trust to the slave of one who is not yet among human affairs.
§40.5.24.5Si seruus in metallum fuerit damnatus, libertatem sperare non poterit.
If a slave has been condemned to the mines, he cannot hope for freedom.
quid ergo, si fideicommissaria libertas ei relicta sit et poena metalli indulgentia principis sit liberatus? et est rescriptum ab imperatore nostro hunc in dominium prioris domini non restitui: cuius tamen sit, non adicitur.
What then, if trust-freedom has been left to him, and he has been released from the punishment of the mines by the indulgence of the emperor? And it has been written in a rescript by our emperor that this man is not restored to the ownership of his former master; yet to whom he belongs is not added.
certe cum fisci efficiatur, sperare potest fideicommissariam libertatem.
Certainly, since he becomes the property of the treasury, he can hope for trust-freedom.
§40.5.24.6Ex damnata in metallum concepto et nato fideicommissaria libertas dari poterit: quid mirum, cum etiam uenumdari eum posse quasi seruum diuus Pius rescripsit?
Trust-freedom can be given to one conceived by and born of a woman condemned to the mines; what wonder is this, since the divine Pius also answered by rescript that he can even be sold like a slave?
§40.5.24.7Si petitum a testatore fuerit, ne postea Stichus seruiret, placuit fideicommissariam libertatem datam uideri: nam qui hoc petit, ne postea seruiat, uidetur petere, ut libertas ei praestetur.
If it has been requested by the testator that Stichus should not serve hereafter, it has been decided that trust-freedom seems to have been given; for he who requests this, that he should not serve hereafter, seems to request that freedom be granted to him.
§40.5.24.8Sed et si ita scripsit: 'ne cum alienes' 'ne eum uendas', idem erit dicendum, si modo hoc animo fuerit adscriptum, quod uoluerit eum testator ad libertatem perduci.
But even if he wrote thus: 'do not alienate him' 'do not sell him', the same must be said, provided it was written with this intention, that the testator wished him to be brought to freedom.
ceterum si alia mente id scripsit, ut puta quia consilium dabat heredi retinere talem seruum uel quia coercere uoluit seruum et cruciare, ne meliorem dominum experiatur, uel aliqua mente, non tribuendae libertatis animo, dicendum est cessare libertatis praestationem: et ita Celsus libro uicensimo tertio digestorum scribit.
But if he wrote it with another mind, as for instance because he was giving advice to the heir to retain such a slave, or because he wished to coerce and torture the slave so that he might not experience a better master, or with some other mind, not with the intention of granting freedom, it must be said that the granting of freedom ceases; and so Celsus writes in the twenty-third book of the Digests.
non tantum enim uerba fideicommissi, sed et mens testatoris tribuere solet libertatem fideicommissariam.
For not only the words of the trust, but also the mind of the testator is accustomed to grant trust-freedom.
sed cum ex praesumptione libertas praestita esse uidetur, heredis est contrariam uoluntatem testatoris probare.
But since by presumption freedom seems to have been granted, it is for the heir to prove the contrary will of the testator.
§40.5.24.9Si quis tutorem ideo scripserit, quia liberum putauit, certissimum est neque libertatem peti posse neque tutelam libertatis praestationi patrocinari: et ita et Marcellus libro quinto decimo digestorum et imperator noster cum patre rescripsit.
If anyone wrote someone as a tutor for the reason that he thought him to be free, it is most certain that neither can freedom be sought, nor does the guardianship patronize the granting of freedom; and so both Marcellus writes in the fifteenth book of the Digests, and our emperor with his father answered by rescript.
§40.5.24.10Si quis seruo pignerato directam libertatem dederit, licet uidetur iure suptili inutiliter reliquisse, attamen quasi et fideicommissaria libertate relicta seruus petere potest, ut ex fideicommisso liber fiat: fauor enim libertatis suadet, ut interpretemur et ad libertatis petitionem procedere testamenti uerba, quasi ex fideicommisso fuerat seruus liber esse iussus: nec enim ignotum est, quod multa contra iuris rigorem pro libertate sint constituta.
If anyone has given direct freedom to a pledged slave, although he seems by strict law to have left it uselessly, nevertheless, as if trust-freedom had also been left, the slave can seek to become free from the trust; for the favor of freedom persuades us to interpret that the words of the testament proceed even to the petition of freedom, as if the slave had been ordered to be free from a trust; for it is not unknown that many things have been established for freedom against the rigor of the law.
§40.5.24.11Ex testamento, quod adgnatione postumae ruptum esse constitit, neque directas libertates competere neque fideicommissarias deberi, quas non a legitimis quoque heredibus pater familias reliquerit, satis constat.
It is well established that from a testament which is known to have been broken by the adgnatio of a posthumous daughter, neither direct freedoms are competent, nor are trust-freedoms owed, unless the head of the family has left them to be performed also by the statutory heirs.
§40.5.24.12Si quis alienum uel suum seruum rogatus sit manumittere et minus sit in eo quod accepit iudicio testatoris, plus sit in pretio serui, an cogatur uel alienum redimere uel suum manumittere, uidendum est.
If anyone has been requested to manumit another's slave or his own, and there is less in what he received by the judgment of the testator, and more in the price of the slave, we must see whether he is compelled either to redeem the other's or to manumit his own.
et Marcellus scripsit, cum ceperit legatum, cogendum omnimodo suum manumittere: et sane hoc iure utimur, ut multum intersit, suum quisque rogatus sit manumittere an alienum: si suum, cogetur manumittere, etiamsi modicum accepit: quod si alienum, non alias erit cogendus, quam si tanti possit redimere, quantum ex iudicio testatoris consecutus sit.
And Marcellus wrote that when he has taken the legacy, he must be compelled by all means to manumit his own; and indeed we use this law, that there is a great difference whether anyone was requested to manumit his own or another's: if his own, he will be compelled to manumit even if he received a small amount; but if another's, he will not be compelled otherwise than if he can redeem him for as much as he obtained from the judgment of the testator.
§40.5.24.13Proinde consequenter Marcellus ait cum quoque, qui heres institutus est, si quidem aliquid ad eum deducto aere alieno peruenit, cogendum esse suum manumittere: si uero nihil peruenit, non esse cogendum.
Accordingly, consequently, Marcellus says that he also who has been instituted heir, if indeed something reached him after deducting the debt, must be compelled to manumit his own; but if nothing reached him, he must not be compelled.