[TRYPHONINUS libro quarto disputationum. ] §49.15.12.prIn bello postliminium est, in pace autem his, qui bello capti erant, de quibus nihil in pactis erat comprehensum.
[TRYPHONINUS, from the Fourth Book of Disputations.] In war there is postliminium, but in peace also for those who had been captured in war, concerning whom nothing was included in the treaties.
quod ideo placuisse Seruius scribit, quia spem reuertendi ciuibus in uirtute bellica magis quam in pace Romani esse uoluerunt.
Servius writes that this was approved for the reason that the Romans wished their citizens to have hope of returning in military valor rather than in peace.
uerum in pace qui peruenerunt ad alteros, si bellum subito exarsisset, eorum serui efficiuntur, apud quos iam hostes suo facto deprehenduntur.
But those who have gone to the other party in peace, if war should suddenly break out, become the slaves of those among whom they are now found as enemies by their own act.
quibus ius postliminii est tam in bello quam in pace, nisi foedere cautum fuerat, ne esset his ius postliminii.
These have the right of postliminium both in war and in peace, unless it had been provided in the treaty that they should not have the right of postliminium.
§49.15.12.1Si quis capiatur ab hostibus, hi, quos in potestate habuit, in incerto sunt, utrum sui iuris facti an adhuc pro filiis familiarum computentur: nam defuncto illo apud hostes, ex quo captus est, patres familiarum, reuerso numquam non in potestate eius fuisse credentur.
If anyone is captured by the enemy, those whom he had in his power are in uncertainty whether they have become sui iuris or are still computed as filii familiarum: for if he dies with the enemy, they are patres familiarum from the moment he was captured, but if he returns, they will be believed never to have been out of his power.
ideo et de his, quae medio tempore adquirunt stipulatione traditione legato (nam hereditate non possunt), tractatum est, ubi non est reuersus, si forte alii uel in totum (his exheredatis testamento) uel in partem instituti sunt heredes, utrum in hereditate captiui, quae lege Cornelia inducitur, an propria ipsorum sint.
Therefore, there was also discussion concerning those things which they acquire in the meantime by stipulation, delivery, or legacy (for they cannot by inheritance), where he did not return, if by chance others were instituted heirs either in whole (these having been disinherited in the will) or in part, whether these belong to the inheritance of the captive, which is introduced by the Lex Cornelia, or are their own property.
quod uerius est: diuersumque in his, quae per seruos adquiruntur, merito: quia hi bonorum fuerunt et esse perseuerant, hi sui iuris exinde sibique ideo adquisisse intelleguntur.
Which is more true: and it is different in those things which are acquired through slaves, and deservedly so: because the latter were of the property [of the captive] and continue to be so, whereas the former are sui iuris from that moment and are therefore understood to have acquired for themselves.
§49.15.12.2Facti autem causae infectae nulla constitutione fieri possunt.
But causes of fact once done cannot be made undone by any constitution.
ideo eorum, quae usucapiebat per semet ipsum possidens qui postea captus est, interrumpitur usucapio, quia certum est eum possidere desisse.
Therefore, the usucaption of those things which he who was afterwards captured was usucapting by possessing through himself is interrupted, because it is certain that he ceased to possess.
eorum uero, quae per subiectas iuri suo personas possidebat usuque capiebat, uel si qua postea peculiari nomine comprehenduntur, Iulianus scribit credi suo tempore impleri usucapionem remanentibus isdem personis in possessione.
But of those things which he possessed and was usucapting through persons subject to his power, or if any are afterwards included under the name of peculium, Julian writes that it is believed that the usucaption is completed in its proper time, the same persons remaining in possession.
Marcellus nihil interesse, ipse possedisset an subiecta ei persona.
Marcellus says that it makes no difference whether he himself had possessed or a person subject to him.
sed Iuliani sententiam sequendum est.
But Julian's opinion is to be followed.
§49.15.12.3Medio tempore filius, quem habuit in potestate captiuus, uxorem ducere potest, quamuis consentire nuptiis pater eius non posset: nam utique nec dissentire.
In the meantime, a son whom the captive had in his power can marry a wife, although his father could not consent to the marriage: for indeed he could not dissent either.
susceptus ergo nepos in reuersi captiui potestate ut aui erit suusque heres ei quodammodo inuito, cum nuptiis non consenserit.
Therefore, a grandson born will be in the power of the returned captive as of a grandfather, and will be his suus heres, in a manner against his will, since he did not consent to the marriage.
non mirum, quia illius temporis condicio necessitasque faciebat et publica nuptiarum utilitas exigebat.
This is not surprising, because the condition and necessity of that time brought it about and the public utility of marriage demanded it.
§49.15.12.4Sed captiui uxor, tametsi maxime uelit et in domo eius sit, non tamen in matrimonio est.
But the wife of a captive, even if she most wishes and is in his house, is nevertheless not in marriage.
§49.15.12.5Codicilli, si quos in tempore captiuitatis scripserit, non creduntur iure suptili confirmati testamento, quod in ciuitate fecerat.
Codicils, if he wrote any in the time of captivity, are not believed by strict law to be confirmed by the will which he had made in the state.
sed nec fideicommissum ex his peti potest, quia non sunt ab eo facti, qui testamenti factionem habuit.
But neither can a trust be claimed from them, because they were not made by him who had the capacity to make a will.
sed quia merum principium eorum in ciuitate constituto captiuo factum est, id est in testamento confirmatio codicillorum, et is postea reuersus est et postliminio ius suum recepit, humanitatis rationi congruum est eos codicillos ita suum effectum habere, quasi in medio nulla captiuitas intercessisset.
But because their mere origin was made while the captive was established in the state, that is, the confirmation of the codicils in the will, and he afterwards returned and recovered his right by postliminium, it is agreeable to the reason of humanity that those codicils should have their effect just as if no captivity had intervened in the meantime.
§49.15.12.6Cetera quae in iure sunt, posteaquam postliminio redit pro eo habentur, ac si numquam iste hostium potitus fuisset.
Other things which consist in law, after he returns by postliminium, are held in his regard just as if he had never been captured by the enemy.
§49.15.12.7Si quis seruum captum ab hostibus redemerit, protinus est redimentis, quamuis scientis alienum fuisse: sed oblato ei pretio quod dedit postliminio redisse aut receptus esse seruus credetur.
If anyone ransoms a slave captured by the enemy, he is immediately the property of the ransomer, even if he knew that the slave belonged to another: but upon the price which he gave being offered to him, the slave will be believed to have returned by postliminium or to have been recovered.
§49.15.12.8Et si ignorans captiuum, existimans uendentis esse redemit, an quasi usucepisse uideatur, scilicet ne post legitimum tempus offerendi pretii priori domino facultas sit, uideamus.
And if, being ignorant that he was a captive, thinking he belonged to the seller, he ransomed him, let us see whether he should be deemed to have usucapted him, namely so that after the lawful time for offering the price, the former master may not have the opportunity.
nam occurrit, quod constitutio, quae de redemptis lata est, eum redimentis seruum facit, et quod meum iam usucapere me intellegi non potest.
For it occurs to us that the constitution which was issued concerning ransomed persons makes him the slave of the ransomer, and that I cannot be understood to usucapt what is already mine.
rursum cum constitutio non deteriorem causam redimentium, sed si quo meliorem effecerit, peremi ius bonae fidei emptoris uetustissimum et iniquum et contra mentem constitutionis est: ideoque transacto tempore, quanto, nisi constitutio eum proprium fecisset, usucapi potuisset, nihil ex constitutione domino superesse recte dicetur.
On the other hand, since the constitution did not make the condition of ransomers worse, but if anything better, to destroy the very ancient right of a bona fide purchaser is both unjust and contrary to the intention of the constitution: and therefore, after the time has elapsed in which he could have been usucapted if the constitution had not made him his own property, it will be rightly said that nothing remains to the master from the constitution.