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Justinian I · The Digest of Justinian §49.1.12.pr

Unnecessity of Appeal Against Obviously Illegal Elections

Passage 8476 of 9271 · Latin

Summary

In the case of a duumvir created without legal proceedings but only by the acclaim of the populace and the improper consent of the proconsul, it is stated that an appeal was superfluous because the illegality was obvious.

[IDEM libro secundo opinionum. ] §49.1.12.prSi constet nullo actu ex lege habito duumuirum creatum, sed tantum uocibus popularium postulatum eisque tunc proconsulem, quod facere non debuit, consensisse: appellatio in re aperta superuacua fuit.
[THE SAME, from the second book of Opinions.] If it is clear that a duumvir was created without any legal proceeding being held, but only demanded by the voices of the populace, and that the proconsul of that time agreed with them—which he ought not to have done—an appeal in a clear matter was superfluous.

Notes

  1. §49.1.12.prconstet — The subjunctive present constet is the form of the impersonal verb constat (it is clear) in a conditional clause. Multiple Accusative with Infinitive (AcI) constructions depend on it as its subject. Specifically, duumuirum (accusative subject) with creatum [esse] and postulatum [esse] (passive perfect infinitives, with esse omitted) is coordinated with proconsulem (accusative subject) with consensisse (perfect active infinitive).
  2. §49.1.12.prnullo actu ex lege habito — An ablative absolute construction. actu is the ablative of the noun actus (proceeding, transaction), and habito is the ablative perfect passive participle of habere (to hold, conduct), expressing the attendant circumstance: "with no proceeding under the law having been held."
  3. §49.1.12.prquod facere non debuit — The relative pronoun quod (neuter singular accusative) refers to the action of the proconsul agreeing with the populace. By using debuit (indicative perfect of debere), it expresses an insertive legal judgment by the author: "which he ought not to have done."

Cite this passage

Justinian I, The Digest of Justinian §49.1.12.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:49.1.12.pr

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