Humanitext Reader

Justinian I · The Digest of Justinian §42.1.36.pr

Judgment by Remaining Judges After Recusal

Passage 6888 of 9271 · Latin

Summary

It explains that if one of several judges in a freedom suit cannot clarify the case and recuses himself under oath, the remaining agreeing judges can deliver the judgment, along with the rationale.

[PAULUS libro septimo decimo ad edictum. ] §42.1.36.prPomponius libro trigensimo septimo ad edictum scribit, si uni ex pluribus iudicibus de liberali causa cognoscenti de re non liqueat, ceteri autem consentiant, si is iurauerit sibi non liquere, eo quiescente ceteros, qui consentiant, sententiam proferre, quia, etsi dissentiret, plurium sententia optineret.
[PAULUS, in the seventeenth book on the Edict.] Pomponius writes in the thirty-seventh book on the Edict that, if the matter is not clear to one of several judges hearing a case concerning freedom, but the others are in agreement, if he takes an oath that it is not clear to him, while he remains inactive, the others, who are in agreement, may pronounce judgment, because, even if he were to dissent, the opinion of the majority would prevail.

Notes

  1. §42.1.36.prceteros ... sententiam proferre — An accusative-and-infinitive construction (indirect speech) dependent on the main verb `scribit`, where `ceteros` is the subject accusative and `proferre` is the infinitive. It forms the main clause of the indirect speech, positioned after multiple conditional clauses and an ablative absolute.
  2. §42.1.36.prde liberali causa cognoscenti — The dative singular present participle of `cognoscere` (to hear/examine a case), modifying the preceding dative pronoun `uni` ('to one [of the judges]'). `de liberali causa` refers to a lawsuit concerning personal freedom (status of being a free person or a slave).
  3. §42.1.36.preo quiescente — An ablative absolute construction consisting of the pronoun `eo` and the present participle `quiescente` (from `quiescere`, to remain inactive). It expresses the circumstance where the judge in question refrains from participating in the judgment.
  4. §42.1.36.pretsi dissentiret — The imperfect subjunctive third-person singular led by the conjunction `etsi` (even if). Together with `optineret` in the subsequent clause, it forms a hypothetical concessive clause ('even if he were to dissent').

Cite this passage

Justinian I, The Digest of Justinian §42.1.36.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:42.1.36.pr

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.