Humanitext Reader

Justinian I · The Digest of Justinian §48.18.15.pr-48.18.15.2

Limits on Torturing Freemen and Minors and Deemed Masters

Passage 8374 of 9271 · Latin

Summary

This text describes restrictions on torture-examination of free persons and those under fourteen, and the rule treating a person who gave security in a lawsuit as a master.

[CALLISTRATUS libro quinto de cognitionibus. ] §48.18.15.prEx libero homine pro testimonio non uacillante quaestionem haberi non oportet.
[CALLISTRATUS, in the fifth book on Extraordinary Proceedings.] A torture-examination ought not to be held of a free person when his testimony is not wavering.
§48.18.15.1De minore quoque quattuordecim annis in caput alterius quaestionem habendam non esse diuus Pius Maecilio rescripsit, maxime cum nullis extrinsecus argumentis accusatio impleatur.
The Divine Pius replied by rescript to Maecilius that a torture-examination also should not be held of one under fourteen years of age in a capital charge against another, especially when the accusation is supported by no external evidence.
nec tamen consequens esse, ut etiam sine tormentis eisdem credatur: nam aetas, inquit, quae aduersus asperitatem quaestionis eos interim tueri uidetur, suspectiores quoque eosdem facit ad mentiendi facilitatem.
However, he wrote that it does not follow that they are to be believed even without torture: for the age, he says, which seems to protect them in the meantime against the severity of a torture-examination, also makes the same persons more suspected of a readiness to lie.
§48.18.15.2Eum, qui uindicanti seruum cauit, domini loco habendum et ideo in caput eius seruos torqueri non posse diuus Pius in haec uerba rescripsit: 'Causam tuam aliis probationibus instituere debes: nam de seruis quaestio haberi non debet, cum possessor hereditatis, qui petitori satisdedit, interim domini loco habeatur'.
The Divine Pius replied by rescript in these words that a person who has given security to one claiming a slave is to be regarded as in the position of master, and therefore slaves cannot be tortured in a capital charge against him: "You ought to establish your case by other proofs; for a torture-examination ought not to be held of slaves, since the possessor of an inheritance who has given security to the claimant is in the meantime regarded as in the position of master."

Notes

  1. 48.18.15.prpro testimonio non uacillante — An ablative absolute or a phrase expressing condition. It indicates the principle that a free person must not be subjected to torture as long as their testimony does not show self-contradiction or vacillation.
  2. 48.18.15.1minore quoque quattuordecim annis — "minore" is the ablative of the comparative adjective "minor", and "quattuordecim annis" is the ablative of comparison; together they refer to "one under fourteen years of age.’
  3. 48.18.15.1nec tamen consequens esse, ut — An impersonal construction "consequens esse" (that it follows as a consequence) in the indirect discourse introduced by "rescripsit", with the following "ut" clause ("ut... credatur") serving as its subject.
  4. 48.18.15.2Eum, qui uindicanti seruum cauit — "uindicanti" is the dative singular of the present participle, referring to the plaintiff who filed a lawsuit for the recovery of a slave (uindicatio). "cauit" means having provided security (cautio), referring to the defendant who holds the slave and gave security.
  5. 48.18.15.2cum possessor hereditatis, qui petitori satisdedit — A "cum" clause expressing reason. It explains why a defendant who gave security in a slave recovery suit is treated as a master, drawing an analogy to an estate possessor who has given security ("satisdedit") to the claimant ("petitori") in an inheritance claim.

Cite this passage

Justinian I, The Digest of Justinian §48.18.15.pr-48.18.15.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.18.15.pr-48.18.15.2

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