[ULPIANUS libro octauo de officio proconsulis. ] §48.18.1.prIn criminibus eruendis quaestio adhiberi solet. sed quando uel quatenus id faciendum sit, uideamus.
[ULPIANUS libro octauo de officio proconsulis.] In eliciting crimes, torture is customarily employed; but let us see when or to what extent this should be done.
et non esse a tormentis incipiendum et diuus Augustus constituit neque adeo fidem quaestioni adhibendam, sed et epistula diui Hadriani ad Sennium Sabinum continetur.
And that one must not begin with tortures was decreed by the divine Augustus, nor is credit to be readily given to torture, as is also contained in a letter of the divine Hadrian to Sennius Sabinus.
§48.18.1.1Uerba rescripti ita se habent: 'Ad tormenta seruorum ita demum ueniri oportet, cum suspectus est reus et aliis argumentis ita probationi admouetur, ut sola confessio seruorum deesse uideatur'. §48.18.1.2Idem diuus Hadrianus Claudio Quartino rescripsit: quo rescripto illud expressit a suspectissimo incipiendum et a quo facillime posse uerum scire iudex crediderit.
The words of the rescript are as follows: 'Resort should be had to the torture of slaves only when the accused is suspected and is brought so near to proof by other arguments that only the confession of the slaves appears to be missing.' The same divine Hadrian replied by rescript to Claudius Quartinus; in which rescript he expressed that one must begin with the most suspected person, and with the one from whom the judge believed the truth could most easily be known.
§48.18.1.3Ad quaestionem non esse prouocandos eos, quos accusator de domo sua produxit, nec facile credendum subiectam eam, quam ambo parentes dicuntur caram filiam habuisse rescripto diuorum fratrum ad Lucium Tiberianum emisso declaratur.
That those whom the accuser has produced from his own house are not to be brought to torture, and that it is not easily to be believed that she has been substituted whom both parents are said to have held as a dear daughter, is declared by a rescript issued by the divine brothers to Lucius Tiberianus.
§48.18.1.4Idem Cornelio Proculo rescripserunt non utique in serui unius quaestione fidem rei constituendam, sed argumentis causam examinandam.
They also replied by rescript to Cornelius Proculus that proof of the matter is by no means to be established by the torture of a single slave, but the case must be examined by arguments.
§48.18.1.5Diuus Antoninus, et diuus Hadrianus Sennio Sabino, rescripserunt, cum serui pariter cum domino aurum et argentum exportasse dicerentur, non esse de domino interrogandos: ne quidem, si ultro aliquid dixerint, obesse hoc domino.
The divine Antoninus, and the divine Hadrian to Sennius Sabinus, replied by rescript that when slaves were said to have exported gold and silver together with their master, they must not be interrogated concerning their master; nor indeed, if they should say anything voluntarily, should this prejudice the master.
§48.18.1.6Diui fratres Leliano Longino rescripserunt de seruo heredum non esse habendam quaestionem in res hereditarias, quamuis suspectum fuisset, quod imaginaria uenditione dominium in eo quaesisse heres uideretur.
The divine brothers replied by rescript to Lelianus Longinus that a torture of the heirs' slave is not to be held regarding hereditary matters, although it had been suspected that the heir seemed to have acquired ownership in him by a sham sale.
§48.18.1.7Seruum municipum posse in caput ciuium torqueri saepissime rescriptum est, quia non sit illorum seruus, sed rei publicae.
It has very often been replied by rescript that a slave of a municipality can be tortured against the life or status of citizens, because he is not the slave of those individuals, but of the commonwealth.
idemque in ceteris seruis corporum dicendum est: nec enim plurium seruus uidetur, sed corporis.
And the same must be said of the other slaves of corporate bodies; for he is not seen as the slave of several persons, but of the corporate body.
§48.18.1.8Si seruus bona fide mihi seruiat, etiamsi dominium in eo non habui, potest dici torqueri eum in caput meum non debere.
If a slave should serve me in good faith, even if I did not have ownership in him, it can be said that he ought not to be tortured against my life or status.
idem est et in libero homine, qui bona fide seruit.
The same is true also of a free man who serves in good faith.
§48.18.1.9Sed nec libertum torqueri in patroni caput constitutum est.
Moreover, it has also been established that a freedman is not to be tortured against the life or status of his patron.
§48.18.1.10Nec fratrem quidem in fratris imperator noster cum diuo patre suo rescripsit, addita ratione, quod in eum, in quem quis inuitus testimonium dicere non cogitur, in eum nec torqueri debet.
Our Emperor, together with his divine father, replied by rescript that not even a brother indeed is to be tortured against his brother's life or status, adding the reason that he against whom one is not compelled to give evidence against his will, against him he ought not to be tortured either.
§48.18.1.11Seruum mariti in caput uxoris posse torqueri diuus Traianus Sernio Quarto rescripsit.
The divine Trajan replied by rescript to Sernius Quartus that a husband's slave can be tortured against the wife's life or status.
§48.18.1.12Idem Mummio Lolliano rescripsit damnati seruos, quia desierunt esse ipsius, posse in eum torqueri.
The same emperor replied by rescript to Mummius Lollianus that the slaves of a condemned person, because they have ceased to be his own, can be tortured against him.
§48.18.1.13Si seruus ad hoc erit manumissus, ne torqueatur, dummodo in caput domini non torqueatur, posse eum torqueri diuus Pius rescripsit.
The divine Pius replied by rescript that if a slave is manumitted for this purpose, namely, that he may not be tortured, he can be tortured, provided that he is not tortured against the life or status of his master.
§48.18.1.14Sed et eum, qui cognitionis susceptae tempore alienus fuit, licet postea rei sit effectus, torqueri in caput posse diui fratres rescripserunt.
But the divine brothers also replied by rescript that he who was another's slave at the time the inquiry was undertaken, although he afterwards became the property of the accused, can be tortured against his life or status.
§48.18.1.15Si quis dicatur nullo iure emptus, non prius torqueri poterit, quam si constiterit uenditionem non ualuisse: et ita imperator noster cum diuo patre suo rescripsit.
If anyone is said to have been bought by no right, he cannot be tortured before it is established that the sale was not valid; and our Emperor, together with his divine father, so replied by rescript.
§48.18.1.16Item Seuerus Spicio Antigono ita rescripsit: 'Cum quaestio de seruis contra dominos neque haberi debeat neque, si facta sit, dicturi sententiam consilium instruat: multo minus indicia seruorum contra dominos admittenda sunt'. §48.18.1.17Diuus Seuerus rescripsit confessiones reorum pro exploratis facinoribus haberi non oportere, si nulla probatio religionem cognoscentis instruat.
Likewise, Severus replied by rescript to Spicius Antigonus as follows: 'Since torture of slaves ought neither to be held against their masters, nor, if it has been held, should it instruct the council which is to pronounce sentence: much less are the disclosures of slaves against their masters to be admitted.' The divine Severus replied by rescript that the confessions of the accused ought not to be held as established crimes, if no proof instructs the conscience of the one conducting the inquiry.
§48.18.1.18Cum quidam deponere pretium serui paratus esset, ut seruus torqueretur contra dominum, imperator noster cum diuo patre suo id non admiserunt.
When a certain person was prepared to deposit the price of a slave, so that the slave might be tortured against his master, our Emperor, together with his divine father, did not admit this.
§48.18.1.19Si serui quasi sceleris participes in se torqueantur deque domino aliquid fuerint confessi apud iudicem: prout causa exegerit, ita pronuntiare eum debere diuus Traianus rescripsit.
If slaves, as if accomplices in a crime, are tortured against themselves and have confessed anything concerning their master before the judge, the divine Trajan replied by rescript that he ought to pronounce sentence as the case demanded.
quo rescripto ostenditur grauari dominos confessione seruorum. sed ab hoc rescripto recessum constitutiones posteriores ostendunt.
By which rescript it is shown that masters are prejudiced by the confession of slaves; but subsequent constitutions show a departure from this rescript.