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Justinian I · The Digest of Justinian §48.3.12.pr-48.3.12.1

Custodian Liability and Penalties for Escaped Prisoners

Passage 8161 of 9271 · Latin

Summary

Discusses the standards of legal liability when a prisoner escapes from the custody of soldiers or civilians, detailing the differences in punishment depending on the degree of negligence or intent.

[CALLISTRATUS libro quinto de cognitionibus. ] §48.3.12.prMilites si amiserint custodias, ipsi in periculum deducuntur.
[CALLISTRATUS, On Extra-ordinary Proceedings, book 5] If soldiers lose their prisoners, they themselves are brought into danger.
nam diuus Hadrianus Statilio Secundo legato rescripsit, quotiens custodia militibus euaserit, exquiri oportere, utrum nimia neglegentia militum euaserit an casu, et utrum unus ex pluribus an una plures, et ita demum adficiendos supplicio milites, quibus custodiae euaserint, si culpa eorum nimia deprehendatur: alioquin pro modo culpae in eos statuendum.
For the divine Hadrian wrote back to the legate Statilius Secundus that, whenever a prisoner escapes from soldiers, an inquiry must be made as to whether the escape occurred through excessive negligence on the part of the soldiers or by accident, and whether one prisoner out of several, or several at the same time, escaped, and that the soldiers from whom the prisoners escaped should only then be punished if their fault is found to be excessive; otherwise, they should be punished according to the degree of their fault.
Saluio quoque legato Aquitaniae idem princeps rescripsit.
The same emperor also wrote back to Salvius, the legate of Aquitania.
scripsit in eum, qui custodiam dimisit aut ita sciens habuit, ut possit custodia euadere, animaduertendum: si tamen per uinum aut desidiam custodis id euenerit, castigandum eum et in deteriorem militiam dari: si uero fortuito amiserit, nihil in eum statuendum.
He wrote that punishment must be inflicted upon anyone who released a prisoner or knowingly held him in such a way that he could escape; if, however, this happened through the wine-drinking or laziness of the guard, he should be chastised and demoted to an inferior branch of military service; but if he lost him by chance, no punishment should be decreed against him.
§48.3.12.1Si paganos euaserit custodia, idem puto exquirendum, quod circa militum personas explorandum rettuli.
If a prisoner escapes from civilians, I think the same inquiry should be made as that which I have stated ought to be investigated regarding the persons of soldiers.

Notes

  1. 48.3.12.prunus ex pluribus an una plures — Complements the ellipsis behind unus and plures. It is commonly interpreted as unus [reus] ex pluribus [reis] (one prisoner out of several) and una [adverb: at the same time] plures [rei] (several prisoners at the same time), focusing on the scale of the escape (individual vs. mass escape). Alternatively, one could interpret the subject as the guards (one guard out of several versus several guards together), but the former interpretation regarding the number of escaped prisoners is preferred because the scale of the escape directly affects the assessment of responsibility.
  2. 48.3.12.pranimaduertendum — A gerundive construction with passive periphrastic meaning (animaduertendum [esse]), which takes the prepositional phrase in eum (against him). In Roman legal Latin, animaduertere in aliquem is a standard idiom meaning to inflict punishment (especially capital or severe punishment) upon someone. Here it is used impersonally as the predicate of an accusative-and-infinitive (ACI) clause introduced by scripsit.
  3. 48.3.12.1Si paganos euaserit custodia — The subject of euaserit (has escaped) is the singular noun custodia (the prisoner, or custody), while paganos (civilians) is the accusative plural object. The verb euadere (to escape) can take a direct accusative object. Thus, the phrase means if a prisoner escapes from civilians. It is easy to misread custodia as an ablative (if civilians escape from custody) and paganos as the subject, but paganos is accusative plural (nominative plural is pagani) and therefore cannot be the subject.

Cite this passage

Justinian I, The Digest of Justinian §48.3.12.pr-48.3.12.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.3.12.pr-48.3.12.1

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