[ULPIANUS libro quinto fideicommissorum. ] §40.5.26.prCum uero is qui rogatus est non alienum seruum manumittere mortalitatis necessitate uel bonorum publicatione ad alium seruum perduxit, magis opinor constitutionibus esse locum, ne deterior condicio fideicommissae libertatis fiat.
But when a person who has been requested to manumit a slave who is not another's has, by the necessity of death or by the confiscation of goods, transferred the slave to another, I think rather that there is room for the constitutions, lest the condition of the trust-bequeathed freedom become worse.
nam et cum quidam rogatus esset, cum moreretur, seruum manumittere isque decessisset libertate seruo non data, perinde eum habendum constitutum est atque si ad libertatem ab eo perductus esset: potest enim eo testamento dare libertatem utique directam.
For indeed, when a certain person had been requested to manumit a slave when he died, and he had passed away without freedom having been given to the slave, it was established that the slave should be treated just as if he had been led to freedom by him; for he could certainly give direct freedom by that testament.
sic fit, ut, quotiens quis libertatem accepit fideicommissariam, si ab alio quam qui erat rogatus manumittatur, auxilium constitutionum habeat perindeque habeatur atque si ab eo manumissus fuisset, quoniam fideicommissis libertatibus fauor exhibetur nec intercidere solet destinata fideicommissa libertas: qui enim ea donatus est, in possessionem libertatis interim esse uidetur.
Thus it happens that, as often as anyone has received a trust-bequeathed freedom, if he is manumitted by someone other than the one who was requested, he has the assistance of the constitutions and is treated just as if he had been manumitted by him, since favor is shown to trust-bequeathed freedoms, and a destined trust-bequeathed freedom is not accustomed to perish; for he who has been gifted with it is deemed in the meantime to be in possession of freedom.
§40.5.26.1Apparet igitur subuentum fideicommissis libertatibus, ut in re mora facta esse his uideatur et ex die quidem, quo libertas peti potuit, matri traderentur manumittendi causa, ex die uero, quo petita est, ingenui nascantur.
It is apparent, therefore, that assistance has been given to trust-bequeathed freedoms, so that there is deemed to be a default in the matter itself for them, and indeed from the day on which freedom could have been requested, they should be delivered to their mother to be manumitted, but from the day on which it was requested, they are born free.
plerumque enim per ignauiam uel per timiditatem eorum, quibus relinquitur libertas fideicommissa, uel ignorantiam iuris sui uel per auctoritatem et dignitatem eorum, a quibus relicta est, uel serius petitur uel in totum non petitur fideicommissa libertas: quae res obesse libertati non debet.
For mostly, either through the laziness or the timidity of those to whom the trust-bequeathed freedom is left, or through ignorance of their own right, or through the authority and dignity of those by whom it was left, a trust-bequeathed freedom is either requested later or not requested at all; which circumstance ought not to prejudice freedom.
quod igitur defendimus, ita determinandum est, ut ingenui quidem exinde nascantur, ex quo mora libertati facta est, manumitti autem partum dici debeat, ex quo peti libertas potuit, quamuis non sit petita.
Therefore, what we defend must be so determined that those born after default has been made in the freedom are indeed born free, but it must be said that the offspring is to be manumitted from the time freedom could have been requested, although it was not requested.
certe minoribus uiginti quinque annis et in hoc tribuendum est auxilium, ut uideatur in re mora esse: nam qua ratione decretum et a diuo Seuero constitutum est in re moram esse circa pecuniaria fideicommissa, quae minoribus relicta sunt, multo magis debet etiam in libertatibus hoc idem admitti.
Certainly, for those under twenty-five years of age, assistance must be granted in this matter as well, so that there is deemed to be a default in the matter itself; for by the same reasoning that it was decreed and established by the Divine Severus that there is a default in the matter itself regarding pecuniary trusts left to minors, much more ought this same thing to be admitted in freedoms.
§40.5.26.2Cum quidam Caecilius ancillam, quam pignori obligauerat, dimisso creditore per fideicommissum manumitti uoluisset et heredibus creditorem non liberantibus infantes, qui postea erant editi, uenissent a creditore, imperator noster cum patre rescripsit secundum ea, quae diuo Pio placuerint, ne pueri ingenuitate destinata fraudarentur, pretio emptori restituto perinde eos ingenuos fore, ac si mater eorum suo tempore manumissa fuisset.
When a certain Caecilius wished a female slave whom he had pledged as security to be manumitted by trust-bequest after the creditor was discharged, and, the heirs not releasing the creditor, the infants who were afterwards born were sold by the creditor, our Emperor with his father wrote back in accordance with what had pleased the Divine Pius, lest the children should be defrauded of their destined free birth, that upon the price being restored to the buyer, they should be free just as if their mother had been manumitted at her proper time.
§40.5.26.3Idem imperator noster cum patre rescripsit, si post quinquennium mortis testatoris tabulae testamenti apertae essent uel codicilli et partus medio tempore editus sit, ne fortuita mora seruitutem partui irrogauerit, matri partum tradendum, ut ab ea ad libertatem perducatur.
The same Emperor with his father wrote back that if, five years after the death of the testator, the tablets of the testament or codicils were opened and offspring was born in the meantime, lest an accidental delay should impose slavery on the offspring, the offspring must be delivered to the mother so that it may be led to freedom by her.