[IDEM libro tertio de adulteriis. ] §48.5.28.prSi postulauerit accusator, ut quaestio habeatur de seruo adulterii accusato, siue uoluit ipse interesse siue noluit, iubent iudices eum seruum aestimari, et ubi aestimauerint, tantam pecuniam et alterum tantum eum, qui nomen eius serui detulerit, ei ad quem ea res pertinet dare iubebunt.
If the accuser requests that an examination under torture be held concerning a slave accused of adultery, whether he wished to be present himself or not, the judges shall order that slave to be valued, and when they have valued him, they shall order the person who denounced the name of that slave to pay to him to whom the matter pertains double that amount.
§48.5.28.1Sed dispiciamus, cui ista poena praestanda sit, quia lex eum nominauit 'ad quem ea res pertinebit'.
But let us consider to whom this penalty ought to be paid, since the law designated him 'to whom the matter will pertain'.
igitur bonae fidei emptorem, quamuis ab eo emerit qui dominus non est, recte dicemus eum esse, ad quem ea res pertinet.
Therefore, we shall rightly say that a bona fide purchaser, although he bought from one who is not the owner, is the person to whom the matter pertains.
§48.5.28.2Eum quoque, qui pignori accepit, magis admittimus in eadem causa esse, scilicet quia intererat eius quaestionem non haberi.
We also more readily admit that one who received him in pledge is in the same position, namely, because it was to his interest that the examination should not be held.
§48.5.28.3Sed et si usus fructus in seruo alienus sit, inter dominum et fructuarium diuidi debet aestimatio.
But also if a usufruct in the slave belongs to another, the valuation ought to be divided between the owner and the usufructuary.
§48.5.28.4Et si communis plurium seruus erit, utique inter eos quoque erit aestimatio diuidenda.
And if the slave is common to several persons, the valuation must certainly be divided among them as well.
§48.5.28.5Si liber homo, dum seruus existimatur, tortus sit, quia et ipse condicionem suam ignorat: magis admittit Caecilius actionem utilem ipsi dandam aduersus eum, qui per calumniam appetit, ne impunita sit calumnia eius ob hoc, quod liberum hominem quasi seruum deduxit in quaestionem.
If a free man, while believed to be a slave, is tortured because he himself is also ignorant of his condition, Caecilius more readily admits that an actio utilis should be granted to him against the person who assailed him through false accusation, so that his false accusation may not go unpunished on account of this, that he brought a free man into examination as if he were a slave.
H §48.5.28.6aberi quaestionem lex iubet de seruis ancillisque eius, de quo uel de qua quaereretur, parentisue utriusque eorum, si ea mancipia ad usum ei a parentibus data sint.
H The law orders an examination to be held concerning the male and female slaves of him or her concerning whom inquiry is made, or of either of their parents, if those slaves were given to him for his use by the parents.
diuus autem Hadrianus Cornelio Latiniano rescripsit et de exteris seruis quaestionem haberi.
But the deified Hadrian wrote back to Cornelius Latinianus that an examination may also be held concerning external slaves.
§48.5.28.7Quaestioni interesse iubentur reus reaue et patroni eorum et qui crimen detulerit, interrogandique facultas datur patronis.
The accused man or woman, their advocates, and the person who brought the charge are ordered to be present at the examination, and the power of questioning is granted to the advocates.
§48.5.28.8De eo quoque seruo, in quo usum fructum reus habuit, magis est, ut quaestio haberi possit: licet enim seruus eius non fuerit, in seruitute tamen fuisse uidetur: nec tam proprietatis causa ad quaestionem quam ministerii pertinet.
Concerning that slave also in whom the accused had a usufruct, it is more correct that an examination can be held; for although he was not his slave, he nevertheless appears to have been in servitude, and it pertains to the examination not so much on account of ownership as of service.
§48.5.28.9Ergo et si bona fide seruiat reo seruus alienus, admittet quis interrogari eum per quaestionem posse.
Therefore, even if a slave of another serves the accused in good faith, one will admit that he can be interrogated through examination.
§48.5.28.10Sed et si seruus sit, cui fideicommissa libertas debetur uel statuta speratur, torqueri eum posse magis est.
But even if he is a slave to whom freedom by trust-bequest is owed or for whom statutory freedom is expected, it is more correct that he can be tortured.
§48.5.28.11Iubet lex eos homines, de quibus quaestio ita habita est, publicos esse: proinde in communi partem publicamus: in proprio, cuius usus fructus alienus est, nudam proprietatem: in quo tantum usum fructum habuit reus, magis est, ut perceptio usus fructus ad publicum incipiat pertinere: alienum seruum utique non publicabimus.
The law orders those men, concerning whom an examination has been so held, to become public; therefore, in the case of a common slave, we make the share public; in the case of one's own slave whose usufruct belongs to another, the bare ownership; in the case of one in whom the accused had only a usufruct, it is more correct that the perception of the usufruct begins to belong to the public; a slave belonging to another we shall certainly not make public.
ratio autem publicandorum seruorum ea est, ut sine ullo metu uerum dicant et ne, dum timeant se in reorum potestatem regressuros, obdurent in quaestione.
Now, the reason for making the slaves public is that they may speak the truth without any fear, and lest, while they fear that they will return into the power of the accused, they should become obstinate in the examination.
§48.5.28.12Non tamen prius publicantur, quam quaestio de illis habita fuerit.
They are not, however, made public before the examination has been held concerning them.
§48.5.28.13Sed et si negauerint, nihilo minus publicantur: ratio enim adhuc eadem est, ne, dum hi sperant se in potestatem dominorum reuersuros si negauerint, spe meriti collocandi in mendacio perseuerent.
But even if they deny the charge, they are nonetheless made public; for the reason is still the same, lest, while they hope that they will return into the power of their masters if they deny it, they should persist in falsehood in the hope of placing a benefit.
§48.5.28.14Sed et serui accusatoris, si de his quaestio habita sit, publicantur: eius enim serui ne mentiantur, merito a dominio eius recedunt.
But also the slaves of the accuser, if an examination has been held concerning them, are made public; for lest his slaves should lie, they deservedly depart from his ownership.
extranei uero non habent cui gratificentur.
But strangers have no one to curry favor with.
§48.5.28.15Si reus uel rea absoluti fuerint, aestimari per iudices lex damnum uoluit, siue mortui fuerint, quantae pecuniae ante quaestionem fuerint, siue uiuent, quantae pecuniae in his damnum datum fuerit factumue esset.
If the accused man or woman is acquitted, the law wished the damage to be estimated by the judges: if they have died, at how much money they were worth before the examination; if they survive, at how much money damage was given or done to them.
§48.5.28.16Notandum est, quod capite quidem nono cauetur, si seruus adulterii accusetur et accusator quaestionem in eo haberi uelit, duplum pretium domino praestari lex iubet, at hic simplum.
It must be noted that, while in the ninth chapter it is provided that if a slave is accused of adultery and the accuser wishes an examination to be held concerning him, the law orders double the price to be paid to the owner, yet here it is only single.