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Justinian I · The Digest of Justinian §48.4.7.pr-48.4.7.4

Exceptional Standing to Accuse Treason and Caution in Judgment

Passage 8170 of 9271 · Latin

Summary

This text stipulates that in cases of treason, persons normally lacking the right to bring charges—such as infamous persons, soldiers, slaves, and freedmen—are admitted to accuse. It cautions judges not to use reverence for the emperor as an excuse for severity, but to base judgments on truth, examining the accused's intent, sanity, and actions, and sparing mere slips of the tongue.

[MODESTINUS libro duodecimo pandectarum. ] §48.4.7.prFamosi, qui ius accusandi non habent, sine ulla dubitatione admittuntur ad hanc accusationem.
[MODESTINUS, Book 12 of the Pandects] Persons of ill repute, who do not have the right to bring an accusation, are admitted to this accusation without any hesitation.
§48.4.7.1Sed et milites, qui causas alias defendere non possunt: nam qui pro pace excubant, magis magisque ad hanc accusationem admittendi sunt.
But soldiers also, who cannot plead other cases: for those who keep watch for the peace ought all the more to be admitted to this accusation.
§48.4.7.2Serui quoque deferentes audiuntur et quidem dominos suos: et liberti patronos.
Slaves also who turn informants are heard, and indeed even against their own masters; and freedmen against their patrons.
H §48.4.7.3oc tamen crimen iudicibus non in occasione ob principalis maiestatis uenerationem habendum est, sed in ueritate: nam et personam spectandam esse, an potuerit facere, et an ante quid fecerit et an cogitauerit et an sanae mentis fuerit.
Th is crime, however, must not be treated by judges as an opportunity for severity out of reverence for the emperor's majesty, but in accordance with the truth; for the person of the accused must be examined, whether he was capable of doing it, and whether he had done anything of the sort beforehand, and whether he had planned it, and whether he was of sound mind.
nec lubricum linguae ad poenam facile trahendum est: quamquam enim temerarii digni poena sint, tamen ut insanis illis parcendum est, si non tale sit delictum, quod uel ex scriptura legis descendit uel ad exemplum legis uindicandum est.
Nor should a slip of the tongue be easily dragged into punishment; for although rash persons may be worthy of punishment, they are nevertheless to be spared like madmen, unless the offense is of such a nature that it either arises from the literal text of the law or must be punished on the model of the law.
§48.4.7.4Crimen maiestatis facto uel uiolatis statuis uel imaginibus maxime exacerbatur in milites.
The crime of treason, committed by an act or by violating statues or images, is aggravated most severely in the case of soldiers.

Notes

  1. §48.4.7.1magis magisque ad hanc accusationem admittendi sunt — The double adverb magis magisque ("more and more" or "all the more") is combined with the gerundive admittendi sunt to express necessity or obligation. The subject is the relative clause qui pro pace excubant ("those who keep watch for the peace", i.e., the soldiers).
  2. §48.4.7.2et liberti patronos — This clause relies on the ellipsis of the verb audiuntur and the participle deferentes from the first part of the sentence. Thus, it is understood as: "and freedmen [who turn informants] [are heard] [against] their patrons," where patronos is the accusative object of the implied participle.
  3. §48.4.7.3non in occasione ... sed in ueritate — This contrasts how judges should handle the crime of treason: not taking "reverence for the emperor's majesty" as a mere pretext or opportunity (occasio) for excessive severity, but rather judging in accordance with the actual truth and facts (in ueritate).
  4. §48.4.7.3spectandam esse — This is an accusative with infinitive (ACI) construction in indirect speech, depending on an implied verb of thinking or saying (underlying the obligation of the judges: "judges must consider..."). The subject is personam (the person/character of the accused), and it is followed by a series of indirect questions introduced by an ("whether...").
  5. §48.4.7.3si non tale sit delictum, quod uel ex scriptura legis descendit uel ad exemplum legis uindicandum est — A conditional clause (si-clause) with the subjunctive present sit, where the relative pronoun quod introduces a clause characterizing the antecedent delictum. The verbs within the relative clause, descendit (present indicative) and uindicandum est (indicative gerundive), indicate objective legal facts: either directly stemming from the written text of the law, or needing to be punished following the law's precedent.

Cite this passage

Justinian I, The Digest of Justinian §48.4.7.pr-48.4.7.4. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:48.4.7.pr-48.4.7.4

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