[ULPIANUS libro septuagensimo septimo ad edictum. ] §47.10.15.38Adicitur 'aduersus bonos mores', ut non omnis omnino qui uerberauit, sed qui aduersus bonos mores uerberauit, teneatur: ceterum si quis corrigendi animo aut si quis emendandi, non tenetur.
The words "against good morals" are added, so that not everyone who beats, without exception, is held liable, but he who beats against good morals; on the other hand, if anyone does so with the intention of correcting or with the intention of reforming, he is not held liable.
§47.10.15.39Unde quaerit Labeo, si magistratus municipalis seruum meum loris ruperit, an possim cum eo experiri, quasi aduersus bonos mores uerberauerit.
Hence Labeo asks: if a municipal magistrate has severely lashed my slave with leather thongs, can I bring an action against him as if he beat him against good morals?
et ait iudicem debere inquirere, quid facientem seruum meum uerberauerit: nam si honorem ornamentaque petulanter adtemptantem ceciderit, absoluendum eum.
And he says that the judge ought to inquire into what my slave was doing when the magistrate beat him; for if he struck him when the slave was insolently attempting to violate his honor and emblems of office, the magistrate must be acquitted.
§47.10.15.40'Uerberasse' dicitur abusiue et qui pugnis ceciderit.
To have "beaten" is said, in a broader sense of the word, also of one who has struck with fists.
§47.10.15.41'Quaestionem' intellegere debemus tormenta et corporis dolorem ad eruendam ueritatem.
By "examination under torture" we must understand torture and physical pain inflicted to extract the truth.
nuda ergo interrogatio uel leuis territio non pertinet ad hoc edictum.
Therefore, bare interrogation or slight intimidation does not pertain to this edict.
quaestionis uerbo etiam ea, quam malam mansionem dicunt, continebitur.
Under the term of torture, even that which they call "bad lodging" will be included.
cum igitur per uim et tormenta habita quaestio est, tunc quaestio intellegitur.
Therefore, when an examination is conducted through force and torture, only then is it understood as examination under torture.
§47.10.15.42Sed et si iussu domini quis quaestionem habeat, modum tamen excesserit, teneri eum debere Labeo ait.
But even if someone conducts an examination under torture by order of the master, yet exceeds the limit, Labeo says that he ought to be held liable.
§47.10.15.43Praetor ait: 'Si quid aliud factum esse dicetur, causa cognita iudicium dabo'. proinde si quidem uerberatus sit seruus uel tormentis de eo quaestio habita est, sine causae cognitione iudicium in eum competit, si uero aliam iniuriam passus sit, non aliter competit quam causa cognita.
The praetor says: "If any other thing is said to have been done, I will grant a trial after investigating the case." Accordingly, if indeed a slave has been beaten or an examination has been conducted on him by torture, an action is available against him without investigation of the case; but if he has suffered another injury, it is not available otherwise than after investigating the case.
§47.10.15.44Itaque praetor non ex omni causa iniuriarum iudicium serui nomine promittit: nam si leuiter percussus sit uel maledictum ei leuiter, non dabit actionem: at si infamatus sit uel facto aliquo uel carmine scripto. puto causae cognitionem praetoris porrigendam et ad serui qualitatem: etenim multum interest, qualis seruus sit, bonae frugi, ordinarius, dispensator, an uero uulgaris uel mediastinus an qualisqualis.
Therefore, the praetor does not promise a trial in the slave's name on every ground of injury; for if he has been lightly struck or lightly cursed, he will not grant an action; but if he has been defamed either by some act or by a written song, I think the praetor's investigation of the case should also extend to the quality of the slave; for it makes a great difference what kind of slave he is, whether honest, high-ranking, a steward, or indeed a common or lowest-grade chore slave, or of whatever sort.
et quid si compeditus uel male notus uel notae extremae? habebit igitur praetor rationem tam iniuriae, quae admissa dicitur, quam personae serui, in quem admissa dicitur, et sic aut permittet aut denegabit actionem.
And what if he is shackled, of ill repute, or of the lowest repute? The praetor will therefore take into account both the injury which is said to have been committed and the person of the slave against whom it is said to have been committed, and thus he will either permit or deny the action.
§47.10.15.45Interdum iniuria seruo facta ad dominum redundat, interdum non: nam si pro libero se gerentem aut cum eum alterius potius quam meum existimat quis, non caesurus eum, si meum scisset, non posse eum, quasi mihi iniuriam fecerit, sic conueniri Mela scribit.
Sometimes an injury done to a slave rebounds upon the master, and sometimes not; for if someone, thinking a slave who behaves as a free man, or thinking him to belong to another rather than to me, has beaten him, whereas he would not have beaten him if he had known he was mine, Mela writes that he cannot be sued in this way as if he had done an injury to me.
§47.10.15.46Si quis seruo uerberato iniuriarum egerit, deinde postea damni iniuriae agat, Labeo scribit eandem rem non esse, quia altera actio ad damnum pertineret culpa datum, altera ad contumeliam.
If anyone has brought an action for injury for a beaten slave, and then afterwards brings an action for unlawful damage, Labeo writes that it is not the same matter, because one action pertains to damage caused by fault, and the other to insult.
§47.10.15.47Si usum fructum in seruo habeam, tu proprietatem isque uerberatus sit uel quaestio de eo habita, iniuriarum actio magis proprietario quam mihi competit.
If I have a usufruct in a slave and you have the ownership, and he has been beaten or an examination under torture has been conducted on him, the action for injury is available to the owner rather than to me.
idemque probatur et si seruum meum, quem bona fide possidebam, cecideris: domino enim magis competit iniuriarum actio.
And the same is approved if you have beaten my slave whom I was possessing in good faith; for the action for injury is available rather to the true master.
§47.10.15.48Item, si liberum hominem, qui mihi bona fide seruiebat, quis ceciderit, distinguendum est, ut, si in contumeliam pulsatus sit, competat mihi iniuriarum actio.
Likewise, if anyone has beaten a free man who was serving me in good faith, a distinction must be made, so that if he was struck as an insult to me, the action for injury is available to me.
idem ergo et si in seruo alieno bona fide mihi seruiente, ut totiens admittamus iniuriarum actionem, quotiens in meam contumeliam iniuria ei facta sit.
The same therefore applies to another's slave serving me in good faith, so that we admit the action for injury only as often as the injury was done to him as an insult to me.
nam ipsius quidem serui nomine domino dabimus iniuriarum actionem.
For in the name of the slave himself, we will grant the action for injury to the master.
si autem me tangat et pulset, iniuriarum mihi quoque est.
But if it touches and strikes me, there is an action for injury for me as well.
ergo et in fructuario idem distingui potest.
Therefore, the same distinction can be made in the case of a usufructuary.
§47.10.15.49Si seruum complurium cecidero, competere iniuriarum actionem omnibus plus quam manifestum est:
If I beat a slave belonging to several masters, it is more than obvious that the action for injury is available to all of them.