[IDEM libro secundo de re militari. ] §49.16.5.prNon omnes desertores similiter puniendi sunt, sed habetur et ordinis stipendiorum ratio, gradus militiae uel loci, muneris deserti et anteactae uitae: sed et numerus, si solus uel cum altero uel cum pluribus deseruit, aliudue quid crimen desertioni adiunxerit: item temporis, quo in desertione fuerit: et eorum, quae postea gesta fuerint.
[IDEM libro secundo de re militari.] Not all deserters are to be punished similarly, but regard is also had to their rank and years of service, their grade in the military or their post, the duties they abandoned, and their past life; but also to their number, whether one deserted alone or with another or with several, or whether he added any other crime to his desertion; likewise to the length of time he was in desertion, and to those things which were done afterwards.
sed et si fuerit ultro reuersus, non cum necessitudine, non erit eiusdem sortis.
But even if he returned voluntarily, and not under compulsion, he will not be in the same situation.
§49.16.5.1Qui in pace deseruit, eques gradu pellendus est, pedes militiam mutat.
He who deserts in peacetime, if a cavalryman, is to be expelled from his rank; if an infantryman, he changes his branch of service.
in bello idem admissum capite puniendum est.
If the same offense is committed in wartime, it must be punished with death.
§49.16.5.2Qui desertioni aliud crimen adiungit, grauius puniendus est: et si furtum factum sit, ueluti alia desertio habebitur: ut si plagium factum uel adgressura abigeatus uel quid simile accesserit.
He who adds another crime to his desertion must be punished more severely; and if a theft has been committed, it will be treated as if it were another desertion; as, for instance, if kidnapping or an raid of cattle-stealing or anything similar has been added.
§49.16.5.3Desertor si in urbe inueniatur, capite puniri solet: alibi adprehensus ex prima desertione restitui potest, iterum deserendo capite puniendus est.
If a deserter is found in the city, he is usually punished with death; if apprehended elsewhere, he can be restored upon his first desertion; but for deserting a second time, he must be punished with death.
§49.16.5.4Qui in desertione fuit, si se optulerit, ex indulgentia imperatoris nostri in insulam deportatus est.
He who was in desertion, if he surrenders himself, has been deported to an island by the indulgence of our Emperor.
§49.16.5.5Qui captus, cum poterat redire, non rediit, pro transfuga habetur.
He who, having been captured, did not return when he could, is held to be a turncoat.
item eum, qui in praesidio captus est, in eadem condicione esse certum est: si tamen ex improuiso, dum iter facit aut epistulam fert, capiatur quis, ueniam meretur.
Likewise, it is certain that he who was captured in a garrison is in the same condition; if, however, anyone is captured unexpectedly while on a journey or carrying a letter, he deserves pardon.
§49.16.5.6A barbaris remissos milites ita restitui oportere Hadrianus rescripsit, si probabunt se captos euasisse, non transfugisse.
Hadrian replied by rescript that soldiers sent back by barbarians ought to be restored in this way: if they prove that they, having been captured, escaped, and did not defect.
sed hoc licet liquido constare non possit, argumentis tamen cognoscendum est.
But even if this cannot be clearly established, it must nevertheless be investigated by circumstantial evidence.
et si bonus miles antea aestimatus fuit, prope est, ut adfirmationi eius credatur: si remansor aut neglegens suorum aut segnis aut extra contubernium agens, non credetur ei.
And if he was previously estimated to be a good soldier, it is close to his statement being believed; if he was a late-returner, or neglectful of his duties, or sluggish, or living outside the quarters, he will not be believed.
§49.16.5.7Si post multum temporis redit qui ab hostibus captus est et captum eum, non transfugisse constiterit: ut ueteranus erit restituendus et praemia et emeritum capit.
If a person captured by the enemy returns after a long time, and it is established that he was captured and did not defect, he must be restored as a veteran, and he receives his rewards and retirement pay.
§49.16.5.8Qui transfugit et postea multos latrones adprehendit et transfugas demonstrauit, posse ei parci diuus Hadrianus rescripsit: ei tamen pollicenti ea nihil permitti oportere.
If a person who defected afterwards apprehends many bandits and points out other defectors, the deified Hadrian wrote in a rescript that he can be pardoned; however, nothing ought to be granted to him when he merely promises these things.