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Justinian I · The Digest of Justinian §48.17.1.pr-48.17.1.4

Prohibition on Condemning Absentees and Requisition Procedures

Passage 8354 of 9271 · Latin

Summary

The passage outlines the legal principle forbidding the condemnation of absentees without a hearing, the procedures for notifying registered absentees to appear in court through edicts and local magistrates, and how submitting security within a year or dying within that period protects their property from confiscation.

[MARCIANUS libro secundo publicorum. ] §48.17.1.prDiui Seueri et Antonini Magni rescriptum est, ne quis absens puniatur: et hoc iure utimur, ne absentes damnentur: neque enim inaudita causa quemquam damnari aequitatis ratio patitur.
[Marcianus, Publica, Book 2.] There is a rescript of the Divine Severus and Antoninus the Great that no one who is absent should be punished; and we apply this rule of law, that absentees are not to be condemned; for the principle of equity does not allow anyone to be condemned without his case being heard.
§48.17.1.1Si autem grauius quis puniatur, puta in opus metalli uel similem poenam siue capitalem: hoc casu non est irroganda in absentem poena, sed absens requirendus adnotatus est, ut copiam sui praestet.
But if anyone should be punished more severely, for instance, by labor in the mines, or a similar or capital punishment, in this case punishment must not be imposed upon the absentee, but the absentee is registered as one to be searched for, so that he may present himself.
§48.17.1.2Praesides autem prouinciarum circa requirendos adnotatos hoc debent facere, ut eos quos adnotauerint edictis adesse iubeant, ut possit innotescere eis quod adnotati sunt, sed et litteras ad magistratus, ubi consistunt, mittere, ut per eos possit innotescere requirendos eos esse adnotatos.
The governors of provinces, moreover, with respect to those registered as to be searched for, must do this: order those whom they have registered, by means of edicts, to appear, so that it may become known to them that they have been registered; and also send letters to the magistrates where they reside, so that through them it may become known that they have been registered as to be searched for.
§48.17.1.3Et ex hoc annus computatur ad se purgandos.
And from this time, a year is computed for them to clear themselves.
§48.17.1.4Sed et Papinianus libro sexto decimo responsorum scripsit requirendum adnotatum si prouinciae praesidem intra annum adierit et satis obtulerit, non esse locum mandatis, ut bona fisco uindicentur. nam et si intra annum mortuus sit, criminis causa expirat et perit et bona eius ad successores transmittuntur.
But Papinian also wrote in the sixteenth book of his Opinions that if a person registered as to be searched for goes to the governor of the province within a year and offers security, there is no place for the mandates directing that his property be claimed for the fiscus; for even if he should die within the year, the criminal action expires and perishes, and his property is transmitted to his successors.

Notes

  1. 48.17.1.prinaudita causa — An ablative absolute consisting of the noun `causa` and `inaudita`, the perfect passive participle of `inaudio`. It expresses the fundamental legal principle of due process in Roman law, meaning "without one's case being heard" or "without listening to one's defense."
  2. 48.17.1.1copiam sui praestet — The phrase uses `copiam` (availability, supply) with `sui` (the genitive of the reflexive pronoun `se`) as the object of the verb `praestet` (subjunctive present in a purpose clause). It is a legal idiom meaning "to make oneself available" or "to present oneself (before the court)."
  3. 48.17.1.2requirendos eos esse adnotatos — An accusative-with-infinitive clause acting as the subject of the impersonal verb `innotescere`. `eos` is the subject accusative, which is qualified by the gerundive `requirendos` (expressing obligation, "to be searched for") and the perfect passive participle `adnotatos` ("registered"). It literally means "that they had been registered as those who are to be searched for."
  4. 48.17.1.4requirendum adnotatum — Although this noun phrase ("a person registered as to be searched for") is the logical subject of the conditional clause `si... adierit`, it is placed before the conjunction `si`. This is an instance of prolepsis or hyperbaton for emphasis.

Cite this passage

Justinian I, The Digest of Justinian §48.17.1.pr-48.17.1.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.17.1.pr-48.17.1.4

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