[ARRIUS MENANDER libro primo de re militari. ] §49.16.4.prQui cum uno testiculo natus est quiue amisit, iure militabit secundum diui Traiani rescriptum: nam et duces Sulla et Cotta memorantur eo habitu fuisse naturae.
[ARRIUS MENANDER libro primo de re militari.] He who was born with one testicle or who has lost one shall lawfully serve as a soldier, according to a rescript of the deified Trajan; for even the generals Sulla and Cotta are remembered to have been of that physical condition.
§49.16.4.1Ad bestias datus si profugit et militiae se dedit, quandoque inuentus capite puniendus est: idemque obseruandum est in eo, qui legi se passus est.
If a person condemned to the beasts escapes and enters military service, whenever he is found, he must be punished with death; and the same must be observed in the case of one who has allowed himself to be enrolled.
§49.16.4.2In insulam deportatus si effugiens militiae se dedit lectusue dissimulauit, capite puniendus est.
If a person deported to an island escapes and enters military service, or, being enrolled, has concealed his status, he must be punished with death.
§49.16.4.3Temporarium exilium uoluntario militi insulae relegationem adsignat, dissimulatio perpetuum exilium.
A temporary exile assigns deportation to an island for a voluntary soldier; concealment [assigns] perpetual exile.
§49.16.4.4Ad tempus relegatus si expleto spatio fugae militem se dedit, causa damnationis quaerenda est, ut, si contineat infamiam perpetuam, idem obseruetur, si transactum de futuro sit et in ordinem redire potest et honores petere, militiae non prohibetur.
If a person relegated for a time, after the period of his banishment has expired, enters the military, the cause of his condemnation must be investigated, so that, if it entails perpetual infamy, the same [prohibition/punishment] shall be observed; but if the matter is settled for the future and he can return to his status and seek public offices, he is not barred from military service.
§49.16.4.5Reus capitalis criminis uoluntarius miles secundum diui Traiani rescriptum capite puniendus est, nec remittendus est eo, ubi reus postulatus est, sed, ut accedente causa militiae, audiendus:
A voluntary soldier who is accused of a capital crime must be punished with death according to a rescript of the deified Trajan; and he must not be sent back to the place where he was accused, but must be heard [where he is], with the circumstance of his military service added.
§49.16.4.6si dicta causa sit uel requirendus adnotatus, ignominia missus ad iudicem suum remittendus est nec recipiendus postea uolens militare, licet fuerit absolutus.
If his case has already been argued, or if he has been noted as a wanted person, he must be dishonorably discharged and sent back to his own judge, and must not be received afterwards even if he wishes to serve, even though he may have been acquitted.
§49.16.4.7Adulterii uel aliquo iudicio publico damnati inter milites non sunt recipiendi.
Those condemned for adultery or by any public trial must not be received among the soldiers.
§49.16.4.8Non omnis, qui litem habuit et ideo militauerit, exauctorari iubetur, sed qui eo animo militiae se dedit, ut sub optentu militiae pretiosiorem se aduersario faceret.
Not everyone who had a lawsuit and therefore served as a soldier is ordered to be discharged, but only he who entered the service with the intention of making himself more advantageous than his adversary under the pretext of military service.
nec tamen facile indulgendum, iudicationis qui negotium antehabuerunt: sed si in transactione reccidit, indulgendum est.
However, indulgence is not to be easily granted to those who have given priority to the business of a judicial decision; but if it resolves into a settlement, indulgence is to be granted.
exauctoratus eo nomine non utique infamis erit nec prohibendus lite finita militiae eiusdem ordinis se dare: alioquin et si relinquat litem uel transigat, retinendus est.
A person discharged on that account shall not by any means be infamous, nor is he to be barred, once the lawsuit is ended, from entering the service of the same rank; otherwise, even if he abandons the lawsuit or settles it, he is to be retained.
§49.16.4.9Qui post desertionem in aliam militiam nomen dederunt legiue passi sunt, imperator noster rescripsit et hos militariter puniendos.
Those who, after desertion, enrolled in another branch of service or allowed themselves to be drafted, our Emperor wrote in a rescript that these too must be punished according to military law.
§49.16.4.10Grauius autem delictum est detrectare munus militiae quam adpetere: nam et qui ad dilectum olim non respondebant, ut proditores libertatis in seruitutem redigebantur.
Moreover, it is a more serious offense to decline the duty of military service than to seek it; for in the past, those who did not respond to the draft were reduced to slavery as traitors to liberty.
sed mutato statu militiae recessum a capitis poena est, quia plerumque uoluntario milite numeri supplentur.
But with the change in the status of military service, capital punishment has been departed from, because for the most part the numbers are filled by voluntary soldiers.
§49.16.4.11Qui filium suum subtrahit militiae belli tempore, exilio et bonorum parte multandus est: si in pace, fustibus caedi iubetur et requisitus iuuenis uel a patre postea exhibitus in deteriorem militiam dandus est: qui enim se sollicitauit ab alio, ueniam non meretur.
He who withdraws his son from military service in time of war must be punished with exile and partial confiscation of his property; if in time of peace, he is ordered to be beaten with cudgels, and the young man, having been searched for or subsequently presented by his father, must be assigned to an inferior branch of service; for he who allowed himself to be enticed away by another does not deserve pardon.
§49.16.4.12Eum, qui filium debilitauit dilectu per bellum indicto, ut inhabilis militiae sit, praeceptum diui Traiani deportauit.
The deified Trajan's instruction deported him who, when a draft was ordered during war, mutilated his son so that he would be unfit for military service.
§49.16.4.13Edicta Germanici Caesaris militem desertorem faciebant, qui diu afuisset, ut is inter emansores haberetur.
The edicts of Germanicus Caesar made a deserter soldier, who had been absent for a long time, to be considered among brief deserters.
sed siue redeat quis et offerat se, siue deprehensus offeratur, poenam desertionis euitat: nec interest, cui se offerat uel a quo deprehendatur.
But whether anyone returns and presents himself, or is apprehended and presented, he avoids the penalty of desertion; nor does it matter to whom he presents himself or by whom he is apprehended.
§49.16.4.14Leuius itaque delictum emansionis habetur, ut erronis in seruis, desertionis grauius, ut in fugitiuis.
Thus, the offense of brief desertion is held to be lighter, like that of a wanderer among slaves; that of desertion is more serious, like that of runaways.
§49.16.4.15Examinantur autem causae semper emansionis et cur et ubi fuerit et quid egerit: et datur uenia ualetudini, affectioni parentium et adfinium, et si seruum fugientem persecutus est uel si qua huiusmodi causa sit.
Moreover, the causes of brief desertion are always examined, both why and where he was, and what he did; and pardon is granted for ill health, affection for parents and relatives, and if he pursued a runaway slave, or if there is any cause of this kind.
sed et ignoranti adhuc disciplinam tironi ignoscitur.
But even a recruit who does not yet know the discipline is forgiven.