[TRYPHONINUS libro quarto disputationum. ] §49.15.12.9Manumittendo autem utrum desinit tantum dominus esse et relictus ab eo seruus in ius prioris domini redit? an et liberum eum facit, ne praestatio libertatis dominii fiat translatio? certe apud hostes manumissus liberatur, et tamen si eum nanctus dominus ipsius uetus intra praesidia nostra fuisset, quamuis non secutum res nostras, sed dum eo consilio uenisset, ut ad illos reuerteretur, seruum retineret iure postliminii.
But in manumitting, does he only cease to be the owner, and does the slave released by him return to the right of the former owner? Or does he also make him free, lest the grant of freedom should become a transfer of ownership? Certainly, one manumitted with the enemy is set free, and yet, if his old former owner had secured him within our lines, even if the slave had not followed our interests but had come with the intention of returning to them, the owner would retain him as a slave by the right of postliminium.
quod in liberis aliter erat: non enim postliminio reuertebatur, nisi qui hoc animo ad suos uenisset, ut eorum res sequeretur illosque relinqueret, a quibus abisset: quia, ut Sabinus scribit, de sua qua ciuitate cuique constituendi facultas libera est, non de dominii iure.
This was otherwise in the case of free persons: for no one returned by postliminium unless he had come to his own people with this mind, to follow their interests and to leave those from whom he had departed: because, as Sabinus writes, the power of establishing one's citizenship in any state is free to everyone, but not concerning the right of ownership.
uerum hoc non multum onerat praesentem inspectationem, quia hostium iure manumissio obesse ciui nostro domino serui non potuit, at is de quo quaeritur lege nostra, quam constitutio fecit, ciuem Romanum dominum habuit, et an ab eo possit libertatem adsequi, tractamus.
But this does not burden the present inquiry much, because a manumission by the law of the enemy could not prejudice our citizen who was the owner of the slave, whereas the person concerning whom we inquire had a Roman citizen as owner under our law, which the constitution made, and we are discussing whether he can obtain freedom from him.
quid enim, si numquam ille pretium eius offerat? si nec conueniendi eius sit facultas? liber erit seruus, qui nullo merito suo poterit a domino libertatem consequi? quod est iniquum et contra institutum a maioribus libertatis fauorem.
For what if the former owner never offers his price? What if there is no opportunity of suing him? Shall the slave be free, who by no merit of his own could obtain freedom from his owner? Which is unjust and contrary to the favor of liberty established by our ancestors.
certe et ueteri iure si ab hoc, qui sciens alienum esse redemisset, alius bona fide emisset, usucapere ad libertatemque perducere potuit, et isto quoque modo prior dominus, qui ante captiuitatem fuerat, ius suum amittebat.
Certainly, even under the ancient law, if another had bought in good faith from this man who had ransomed the slave knowing he belonged to another, he could usucapt and bring him to freedom, and in this way also the former owner, who had been such before captivity, lost his right.
quare igitur iste non habet ius manumittendi?
Why, therefore, does this ransomer not have the right of manumission?
§49.15.12.10Si statuliber fuerit, antequam ab hostibus caperetur, redemptus pendente condicione suam causam retinebit.
If he was a statuliber before he was captured by the enemy, having been ransomed, he will retain his status while the condition is pending.
§49.15.12.11Quid ergo, si ita libertatem acceperat, si decem milia dederit? quaesitum est, unde dare debebit, quoniam etsi concessum est statulibero de peculio dare, hoc tamen, quod apud hunc qui redemit habet, numquid uice illius sit, quod apud hostes quaesisset? utique, si ex re illius aut ex operis suis quaesitum est: ex alia autem causa parto peculio potest dare, ita ut condicioni benigne eum paruisse credamus.
What then, if he had received freedom on condition that he should give ten thousand? It was asked from what source he ought to give it, since, although a statuliber is permitted to give from his peculium, yet does this which he has with the ransomer take the place of that which he had acquired with the enemy? Assuredly, if it was acquired from his property or from his own labors: but he can give from a peculium acquired from any other cause, so that we may believe him to have benignly complied with the condition.
§49.15.12.12Si pignori seruus datus fuerat ante captiuitatem, post dimissum redemptorem in ueterem obligationem reuertitur, et si creditor obtulerit ei qui redemit, quanto redemptus est, habet obligationem et in priorem debiti causam et in eam summam qua eum liberauit, quasi ea obligatione quadam constitutione inducta: ut cum posterior creditor priori satisfacit confirmandi sui pignoris causa: nisi quod in hoc conuersa res est et posterior, quia eum seruum, ut apud nos esset, efficit, ab eo, qui tempore prior fuit, ut infirmiore dimittendus est.
If the slave had been given in pledge before captivity, after the ransomer is dismissed, he returns to the old obligation, and if the creditor has offered to the ransomer the amount for which he was ransomed, he has an obligation both for the prior cause of the debt and for that sum by which he liberated him, as if that obligation were introduced by a certain constitution: just as when a subsequent creditor satisfies a prior one for the sake of confirming his pledge: except that in this case the matter is reversed, and the subsequent creditor, because he brought it about that the slave should be among us, is to be dismissed by him who was prior in time, as being weaker.
§49.15.12.13Si plurium seruus fuerat et omnium nomine ei qui redemit restitutum pretium erit, in communionem redibit: si unius tantum uel quorundam nec omnium, ad eum eosue qui soluerunt pertinebit, ita ut in portione sua pristinum ius optineant et in parte ceterorum ei qui redemit succedant.
If he was the slave of several persons, and the price is restored to the ransomer in the name of all, he will return into common ownership: if in the name of one only or of some and not all, he will belong to him or those who paid, so that they obtain their pristine right in their own portion and succeed to the ransomer in the share of the others.
§49.15.12.14Si fideicommissa libertas debita captiuo fuerit, redemptus nondum eam petere poterit, nisi redemptori satisfecerit.
If freedom by trust-request was due to the captive, having been ransomed, he cannot yet petition for it unless he has satisfied the ransomer.
§49.15.12.15Si deportatum ab insula hostes ceperunt, redemptus quibus casibus redit, in eam causam ueniet, in qua futurus esset, si captus non fuisset: deportabitur igitur.
If the enemy captured one deported to an island, upon being ransomed, in those cases in which he returns, he will come into that condition in which he would have been if he had not been captured: therefore, he will be deported.
§49.15.12.16Sed si in captiuo seruo talis praecesserat causa, quae eius uel ad tempus uel in perpetuum libertatem impediret, nec redemptione ab hostibus mutabitur: ueluti si in legem Fauiam commisisse eum constiterat, uel ita uenierat ne manumitteretur: habebit autem interim sine poena sua qui redemit.
But if in the case of a captive slave such a cause had preceded as would impede his freedom either for a time or in perpetuity, it will not be changed by ransom from the enemy: as, for instance, if it was established that he had committed an offense against the Lex Fabia, or if he had been sold on condition that he should not be manumitted: but the ransomer shall meanwhile hold him without penalty to himself.
§49.15.12.17Ergo de metallo captus redemptus in poenam suam reuertetur, nec tamen ut transfuga metalli puniendus erit, sed redemptor a fisco pretium recipiet.
Therefore, one captured from the mines, having been ransomed, shall return to his punishment, yet he is not to be punished as a runaway from the mines, but the ransomer shall receive the price from the fiscus.
quod etiam constitutum est ab imperatore nostro et diuo Seuero.
Which was also decreed by our Emperor and the Divine Severus.
§49.15.12.18Si natum ex Pamphila legatum tibi fuerit tuque matrem redemeris et ea apud te pepererit, non uideri te partum ex causa lucratiua habere, sed officio arbitrioque iudicis aestimandum constituto pretio partus, perinde atque si, quanto mater est empta, simul et partus uenisset.
If "the offspring born of Pamphila" was bequeathed to you, and you ransomed the mother, and she gave birth in your possession, you are not deemed to have the offspring from a lucrative cause, but it is to be valued by the office and judgment of the judge, the price of the offspring being established just as if, for the amount the mother was bought, the offspring had been sold at the same time.
quod si iam natum apud hostes, quod eo tempore quo capiebatur utero gerebat, cum matre redimatur ab eodem uno pretio: oblato tanto, quantum ex pretio, quod pro utroque unum datum est, aestimationem contingere partus: et uidetur is postliminio reuersus.
But if one already born with the enemy, whom she was carrying in her womb at the time she was captured, is ransomed with the mother by the same person for a single price: upon so much being offered as the valuation of the offspring amounts to from the price which was given as one for both: he is deemed to have returned by postliminium.
multo magis, si diuersi emptores utriusque extiterint uel unius.
Much more so if different buyers appeared for each or for one.
sed si suo quemque pretio redemerit, id offerri pro singulis oportebit redemptori, quod hosti pro quoque datum est, ut separatim quoque postliminio reuerti possint.
But if he ransomed each at his own price, that must be offered to the ransomer for each individual which was given to the enemy for each, so that they may also return by postliminium separately.