[PAPINIANUS libro primo de adulteriis. ] §48.3.2.prSi seruus capitali crimine postuletur, lege publicorum cauetur, ut sistendum uel a domino uel ab extero satisdato promittatur: quod si non defendatur, in uincula publica coici iubetur, ut ex uinculis causam dicat.
[PAPINIANUS, On Adulteries, Book 1] If a slave is accused of a capital crime, it is provided by the public law that his appearance must be promised either by his master or by an outsider who has given security; but if he is not defended, he is ordered to be cast into the public prison, so that he may plead his case from prison.
§48.3.2.1Solet itaque tractari, an postea domino permittendum sit oblata satisdatione seruum uinculis liberare.
Therefore, it is customary to discuss whether the master should afterwards be permitted to release the slave from prison by offering security.
dubitationem auget edictum Domitiani, quo cautum est abolitiones ex senatus consulto factas ad huiusmodi seruos non pertinere. nam et lex ipsa prohibet eum absolui, priusquam de eo iudicetur.
The doubt is increased by the edict of Domitian, in which it is provided that cancellations of accusations made under a senate decree do not apply to slaves of this kind; for the law itself also forbids him to be released before judgment is passed on him.
sed haec interpretatio perdura, pernimium seuera est in eo, cuius dominus absens fuit uel quod per inopiam illo momento temporis satisdationem implere non potuit: neque enim pro indefenso derelictus recte dici potest, qui dominum praesentem non habuit uel habuit paratum defendere, pauperem tamen.
But this interpretation is extremely harsh and excessively severe toward one whose master was absent, or who could not fulfill the security at that precise moment because of poverty; for he who did not have his master present, or had one who was ready to defend him but was poor, cannot rightly be said to have been abandoned undefended.
quod utique facilius admitti poterit, si non post longum temporis spatium hoc desideretur.
This, at any rate, can be more easily admitted if it is not requested after a long period of time.
§48.3.2.2Qui exhibendi postulati sunt propter aliam causam, alterius criminis, quod ante admissum est, rei non recipiuntur ex senatus consulto.
Those who are requested to be produced for another cause, namely another crime committed beforehand, are not received as defendants under the senate decree.
quod in priuatis quoque causis et hominibus sub fideiussore factis obseruatur, nisi ex hoc temporalis actio in periculum cadat.
This is also observed in private cases and in regard to persons placed under a surety, unless by this a temporary action falls into danger.