[ULPIANUS libro nono de officio proconsulis. ] §48.19.8.praut damnum cum infamia aut dignitatis aliquam depositionem aut alicuius actus prohibitionem.
[ULPIANUS, from the ninth book on the Office of the Proconsul.] or loss accompanied by infamy, or some loss of status, or the prohibition of some activity.
§48.19.8.1Uita adimitur, ut puta si damnatur aliquis, ut gladio in eum animaduertatur.
Life is taken away, as for instance if someone is sentenced to be punished with the sword.
sed animaduerti gladio oportet, non securi uel telo uel fusti uel laqueo uel quo alio modo.
But it is necessary to be punished with the sword, not with the axe, nor with a weapon, nor with a club, nor with a noose, nor in any other manner.
proinde nec liberam mortis facultatem concedendi ius praesides habent.
Consequently, governors do not even have the right to grant a free choice of death.
multo enim uel ueneno necandi.
Much less is there a right of killing with poison.
diui tamen tres rescripserunt permittentes liberam mortis facultatem.
However, three deified emperors issued a rescript permitting the free choice of death.
H §48.19.8.2ostes autem, item transfugae ea poena adficiuntur, ut uiui exurantur.
H On the other hand, enemies and deserters are subjected to the punishment of being burned alive.
§48.19.8.3Nec ea quidem poena damnari quem oportet, ut uerberibus necetur uel uirgis interematur, nec tormentis: quamuis plerique dum torquentur deficere solent.
Nor indeed ought anyone to be sentenced to such a punishment as to be killed by scourging, or put to death with rods, nor by torture; although most people are accustomed to expire while being tortured.
§48.19.8.4Est poena, quae adimat libertatem: huiusmodi ut puta, si quis in metallum uel in opus metalli damnetur.
There is a punishment which deprives one of freedom: of this kind, for instance, is if someone is sentenced to the mines or to labor in the mines.
metalla autem multa numero sunt et quaedam quidem prouinciae habent, quaedam non habent: sed quae non habent, in eas prouincias mittunt, quae metalla habent.
Now, mines are many in number, and indeed some provinces have them, while some do not; but those which do not have them send convicts to those provinces which have mines.
§48.19.8.5Praefecto plane urbi specialiter competere ius in metallum damnandi ex epistula diui Seueri ad Fabium Cilonem exprimitur.
It is clearly expressed in a letter of the deified Severus to Fabius Cilo that the right of sentencing to the mines specially belongs to the Prefect of the City.
§48.19.8.6Inter eos autem, qui in metallum et eos, qui in opus metalli damnantur, differentia in uinculis tantum est, quod qui in metallum damnantur, grauioribus uinculis premuntur, qui in opus metalli, leuioribus, quodque refugae ex opere metalli in metallum dantur, ex metallo grauius coercentur.
Now, between those who are sentenced to the mines and those who are sentenced to labor in the mines, the difference is only in the chains: for those who are sentenced to the mines are weighed down by heavier chains, while those sentenced to labor in the mines by lighter ones, and because runaways from labor in the mines are assigned to the mines, while those from the mines are coerced more severely.
§48.19.8.7Quisquis autem in opus publicum damnatus refugit, duplicato tempore damnari solet: sed duplicare eum id temporis oportet, quod ei cum superesset fugit, scilicet ne illud duplicetur, quo adprehensus in carcere fuit.
Moreover, whoever, having been sentenced to public labor, runs away, is accustomed to be sentenced to a doubled time; but it is necessary to double that time which remained for him when he fled, obviously so that the time during which he was in prison after being apprehended is not doubled.
et si in decem annos damnatus sit, aut perpetuari ei debet poena aut in opus metalli transmitti.
And if he was sentenced to ten years, his punishment ought either to be made perpetual or he should be transferred to labor in the mines.
plane si decennio damnatus fuit et initio statim fugit, uidendum est, utrum duplicari ei tempora debeant, an uero perpetuari uel transferri in opus metalli: et magis est, ut transferatur aut perpetuetur.
Clearly, if he was sentenced to ten years and fled immediately at the beginning, it must be considered whether his times ought to be doubled, or indeed made perpetual or transferred to labor in the mines; and the better view is that he should be transferred or his punishment made perpetual.
generaliter enim dicitur, quotiens decennium excessura est duplicatio, non esse tempore poenam artandam.
For it is said generally that whenever the doubling would exceed ten years, the punishment is not to be restricted by time.
§48.19.8.8In ministerium metallicorum feminae in perpetuum uel ad tempus damnari solent.
Women are accustomed to be sentenced to the service of miners either in perpetuity or for a time.
simili modo et in salinas.
In a similar manner also to the salt works.
et si quidem in perpetuum fuerint damnatae, quasi seruae poenae constituuntur: si uero ad tempus damnantur, retinent ciuitatem.
And if indeed they are sentenced in perpetuity, they are established as slaves of the punishment; but if they are sentenced for a time, they retain their citizenship.
§48.19.8.9Solent praesides in carcere continendos damnare aut ut in uinculis contineantur: sed id eos facere non oportet.
Governors are accustomed to sentence people to be confined in prison, or to be confined in chains; but they ought not to do this.
nam huiusmodi poenae interdictae sunt: carcer enim ad continendos homines, non ad puniendos haberi debet.
For punishments of this kind are prohibited: indeed, a prison ought to be regarded as for the purpose of keeping men, not of punishing them.
§48.19.8.10In calcariam quoque uel sulphurariam damnari solent: sed hae poenae metalli magis sunt.
They are also accustomed to be sentenced to the limestone quarry or the sulfur mine; but these punishments are rather of the nature of the mines.
§48.19.8.11Quicumque in ludum uenatorium fuerint damnati, uidendum est, an serui poenae efficiantur: solent enim iuniores hac poena adfici.
Whoever has been sentenced to the training school for wild-beast fighters, it must be considered whether they are made slaves of the punishment; for younger men are accustomed to be subjected to this punishment.
utrum ergo serui poenae isti efficiantur an retineant libertatem, uidendum est.
Therefore, whether these are made slaves of the punishment or retain their freedom must be considered.
et magis est, ut hi quoque serui efficiantur: hoc enim distant a ceteris, quod instituuntur uenatores aut pyrricharii aut aliam quam uoluptatem gesticulandi uel aliter se mouendi gratia.
And the better view is that these too are made slaves; for they differ from the others in this respect, that they are trained as wild-beast fighters, or pyrrhic dancers, or as something else for the sake of gesturing or otherwise moving to provide pleasure.
§48.19.8.12Seruos in metallum uel in opus metalli, item in ludum uenatorium dari solere nulla dubitatio est: et si fuerint dati, serui poenae efficiuntur nec ad eum pertinebunt, cuius fuerint antequam damnarentur.
There is no doubt that slaves are accustomed to be assigned to the mines, or to labor in the mines, likewise to the training school for wild-beast fighters; and if they are assigned, they are made slaves of the punishment and will not belong to him whose property they were before they were sentenced.
denique cum quidam seruus in metallum damnatus beneficio principis esset poena liberatus, imperator Antoninus rectissime rescripsit, quia semel domini esse desierat seruus poenae factus, non esse eum in potestatem domini postea reddendum.
Finally, when a certain slave, having been sentenced to the mines, had been freed from punishment by the favor of the emperor, the Emperor Antoninus most correctly replied that, since he had once ceased to belong to his master upon becoming a slave of the punishment, he ought not to be restored to the power of his master afterward.
§48.19.8.13Sed siue in perpetua uincula fuerit damnatus seruus siue in temporalia, eius remanet, cuius fuit, antequam damnaretur.
But whether a slave is sentenced to perpetual chains or to temporary ones, he remains the property of him whose he was before he was sentenced.