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Justinian I · The Digest of Justinian §48.18.17.pr-48.18.17.3

Exceptions Permitting Slave Torture Against Masters

Passage 8376 of 9271 · Latin

Summary

This chunk discusses the criteria for whether slave torture-examinations can be applied against the interests of their masters in cases of adultery, inheritance disputes, joint ownership, and slaves condemned to the mines.

[PAPINIANUS libro sexto decimo responsorum. ] §48.18.17.prExtrario quoque accusante seruos in adulterii quaestione contra dominum interrogari placuit.
[PAPINIANUS, in the sixteenth book of Responses] Even when an outsider brings the accusation, it has been resolved that in an inquiry into adultery, slaves can be interrogated against their master.
quod diuus Marcus ac postea maximus princeps iudicantes secuti sunt.
The Divine Marcus and, subsequently, the Greatest Emperor followed this in their judgments.
§48.18.17.1Sed et in quaestione stupri serui aduersus dominum non torquentur.
But also in an inquiry into illicit sexual intercourse, slaves are not tortured against their master.
§48.18.17.2De quaestione suppositi partus, uel si petat hereditatem, quem ceteri filii non esse fratrem suum contendunt, quaestio de seruis hereditariis habebitur, quia non contra dominos ceteros filios, sed pro successione domini defuncti quaeritur.
Concerning an inquiry into a supposititious birth, or if someone claims an inheritance and the other children contend that he is not their brother, an inquiry shall be held concerning the slaves of the inheritance, because the inquiry is made not against the other children who are the masters, but on behalf of the succession of the deceased master.
quod congruit ei, quod diuus Hadrianus rescripsit: cum enim in socium caedis socius postularetur, de communi seruo habendam quaestionem rescripsit, quod pro domino fore uideretur.
This is consistent with what the Divine Hadrian replied by rescript: for when a partner was accused of complicity in murder, he replied by rescript that an inquiry should be held concerning their common slave, because this seemed to be on behalf of the master.
§48.18.17.3De seruo in metallum damnato quaestionem contra eum, qui dominus fuit, non esse habendam respondi: nec ad rem pertinere, si ministrum se facinoris fuisse confiteatur.
I replied that concerning a slave condemned to the mines, an inquiry should not be held against the person who was his master; nor does it matter if he confesses that he was an assistant in the crime.

Notes

  1. §48.18.17.prextrario quoque accusante — An ablative absolute meaning "even when an outsider brings the accusation." Under Roman law, slaves were generally barred from being tortured to give evidence against their masters, but in cases of adultery (adulterium), an exception was made even when the accusation was brought by an outsider (extrarius).
  2. §48.18.17.2non contra dominos ceteros filios — Meaning "not against the other children who are the masters." Here, dominos is in apposition to ceteros filios. In an inheritance dispute, the other children would be the "masters" of the inheritance slaves (if the plaintiff's claim is rejected). The legal reasoning is that the inquiry is held not to incriminate them (contra), but to establish the rightful succession (pro successione), and thus it does not violate the rule prohibiting slaves from being tortured against their masters.
  3. §48.18.17.2fore — The shortened form of the future infinitive futurum esse. It functions as the predicate in the accusative with infinitive construction governed by the subjunctive imperfect uideretur in the clause quod pro domino fore uideretur ("because this seemed to be on behalf of the master").
  4. §48.18.17.3nec ad rem pertinere — An accusative with infinitive construction governed by the main verb respondi ("I replied"). Coordinated with the preceding quaestionem ... non esse habendam by nec ("and... not"), it means "and that it does not affect the matter."

Cite this passage

Justinian I, The Digest of Justinian §48.18.17.pr-48.18.17.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.18.17.pr-48.18.17.3

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