De postulando
(Concerning the right of application to the court.)
1 Ulpianus libro sexto ad edictum. Hunc titulum praetor proposuit habendae rationis causa suaeque dignitatis tuendae et decoris sui causa, ne sine delectu passim apud se postuletur. 1Eapropter tres fecit ordines: nam quosdam in totum prohibuit postulare, quibusdam vel pro se permisit, quibusdam et pro certis dumtaxat personis et pro se permisit. 2Postulare autem est desiderium suum vel amici sui in iure apud eum, qui iurisdictioni praeest, exponere: vel alterius desiderio contradicere. 3Initium autem fecit praetor ab his, qui in totum prohibentur postulare. in quo edicto aut pueritiam aut casum excusavit. pueritiam: dum minorem annis decem et septem, qui eos non in totum complevit, prohibet postulare, quia moderatam hanc aetatem ratus est ad procedendum in publicum, qua aetate aut paulo maiore fertur Nerva filius et publice de iure responsitasse. propter casum surdum qui prorsus non audit prohibet apud se postulare: nec enim erat permittendum ei postulare, qui decretum praetoris exaudire non poterat, quod etiam ipsi erat periculosum futurum: nam non exaudito decreto praetoris, quasi non obtemperasset, poena ut contumax plecteretur. 4Ait praetor: ‘Si non habebunt advocatum, ego dabo.’ nec solum his personis hanc humanitatem praetor solet exhibere, verum et si quis alius sit, qui certis ex causis vel ambitione adversarii vel metu patronum non invenit. 5Secundo loco edictum proponitur in eos, qui pro aliis ne postulent: in quo edicto excepit praetor sexum et casum, item notavit personas in turpitudine notabiles. sexum: dum feminas prohibet pro aliis postulare. et ratio quidem prohibendi, ne contra pudicitiam sexui congruentem alienis causis se immisceant, ne virilibus officiis fungantur mulieres: origo vero introducta est a Carfania improbissima femina, quae inverecunde postulans et magistratum inquietans causam dedit edicto. casum: dum caecum utrisque luminibus orbatum praetor repellit: videlicet quod insignia magistratus videre et revereri non possit. refert etiam Labeo Publilium caecum Asprenatis Noni patrem aversa sella a Bruto destitutum, cum vellet postulare. quamvis autem caecus pro alio postulare non possit, tamen et senatorium ordinem retinet et iudicandi officio fungitur. numquid ergo et magistratus gerere possit? sed de hoc deliberabimus. exstat quidem exemplum eius, qui gessit: Appius denique Claudius caecus consiliis publicis intererat et in senatu severissimam dixit sententiam de Pyrrhi captivis. sed melius est, ut dicamus retinere quidem iam coeptum magistratum posse, adspirare autem ad novum penitus prohiberi: idque multis comprobatur exemplis. 6Removet autem a postulando pro aliis et eum, qui corpore suo muliebria passus est. si quis tamen vi praedonum vel hostium stupratus est, non debet notari, ut et Pomponius ait. et qui capitali crimine damnatus est, non debet pro alio postulare. item senatus consulto etiam apud iudices pedaneos postulare prohibetur calumniae publici iudicii damnatus. et qui operas suas, ut cum bestiis depugnaret, locaverit. bestias autem accipere debemus ex feritate magis, quam ex animalis genere: nam quid si leo sit, sed mansuetus, vel alia dentata mansueta? ergo qui locavit solus notatur, sive depugnaverit sive non: quod si depugnaverit, cum non locasset operas suas, non tenebitur: non enim qui cum bestiis depugnavit, tenebitur, sed qui operas suas in hoc locavit. denique eos, qui virtutis ostendendae causa hoc faciunt sine mercede, non teneri aiunt veteres, nisi in harena passi sunt se honorari: eos enim puto notam non evadere. sed si quis operas suas locaverit, ut feras venetur, vel ut depugnaret feram quae regioni nocet, extra harenam: non est notatus. his igitur personis, quae non virtutis causa cum bestiis pugnaverunt, pro se praetor permittit allegare, pro alio prohibet. sed est aequissimum, si tutelam vel curam huiusmodi personae administrent, postulare eis pro his, quorum curam gerunt, concedi. qui adversus ea fecisse monstretur, et pro aliis interdicta postulatione repellitur et pro aestimatione iudicis extra ordinem pecuniaria poena multabitur. 7Ut initio huius tituli diximus, tres ordines praetor fecit non postulantium: quorum hic tertius est, quibus non in totum denegat postulandi facultatem, sed ne pro omnibus postularent: quasi minus deliquerint quam hi qui superioribus captibus notantur. 8Ait praetor: ‘Qui lege, plebis scito, senatus consulto, edicto, decreto principum nisi pro certis personis postulare prohibentur: hi pro alio, quam pro quo licebit, in iure apud me ne postulent.’ hoc edicto continentur etiam alii omnes, qui edicto praetoris ut infames notantur, qui omnes nisi pro se et certis personis ne postulent. 9Deinde adicit praetor: ‘Qui ex his omnibus, qui supra scripti sunt, in integrum restitutus non erit’. ‘eum qui ex his, qui supra scripti sunt’ sic accipe: si fuerit inter eos, qui tertio edicto continentur et nisi pro certis personis postulare prohibentur: ceterum si ex superioribus, difficile in integrum restitutio impetrabitur. 10De qua autem restitutione praetor loquitur? utrum de ea quae a principe vel a senatu? Pomponius quaerit: et putat de ea restitutione sensum, quam princeps vel senatus indulsit. an autem et praetor restituere possit, quaeritur: et mihi videtur talia praetorum decreta non esse servanda, nisi sicubi ex officio iurisdictionis suae subvenerunt: ut in aetate observatur, si quis deceptus sit, ceterisque speciebus quas sub titulo de in integrum restitutione exsequemur. pro qua sententia est, quod si quis famoso iudicio condemnatus per in integrum restitutionem fuerit absolutus, Pomponius putat hunc infamia eximi. 11Deinde adicit praetor: ‘Pro alio ne postulent praeterquam pro parente, patrono patrona, liberis parentibusque patroni patronae’: de quibus personis sub titulo de in ius vocando plenius diximus. item adicit: ‘liberisve suis, fratre sorore, uxore, socero socru, genero nuru, vitrico noverca, privigno privigna, pupillo pupilla, furioso furiosa,’
1 Ulpianus, On the Edict, Book VI. The Prætor has proposed this Title for the purpose of preserving order, and maintaining his dignity; and to prevent applications from being made to him casually and indiscriminately. 1With this end in view, he established three classes of persons, namely: those whom he forbade to apply to him and all others whom he permitted only to apply in their own behalf; and still others, whom he permitted to apply both for certain persons and for themselves. 2To apply to the court is to state one’s own wish, or that of one’s friend before a magistrate who has jurisdiction, or to oppose the wish of another. 3The Prætor begins with those who are absolutely forbidden to make an application to him, and in this portion of the Edict he has reference to those whom he excused by reason of youth, or on account of some accident. He forbids the party to apply to him on the ground of youth, when he is under seventeen years of age, for the reason that he considered this age to be too young to appear in public; although it is stated that Nerva, the son, gave opinions publicly on questions of law at that age, or a little later. The Prætor forbids a party to appear before him on account of accident, for instance where he is deaf and cannot hear at all; for no one ought to be allowed to make an application to court who is unable to hear the decree of the Prætor, as this would be a source of danger to him, since if he did not hear the decree, he could be punished, as being contumacious, if he did not obey. 4The Prætor states: “If the parties have no advocate I will give them one”. Not only is the Prætor accustomed to show this favor to such persons, but also he will do so where anyone is not able to obtain an advocate for certain reasons; as for instance, because of the intrigues of his adversaries, or through fear. 5Under the second section of the Edict those are referred to who cannot appear for others, and in this portion of it the Prætor includes such as are incapacitated by their sex, or by an accident, and he also mentions persons who are branded with infamy. On the ground of sex, he forbids women to appear for others, and the reason for this prohibition is to prevent them from interfering in the cases of others, contrary to what is becoming the modesty of their sex, and in order that women may not perform duties which belong to men. The origin of this restriction was derived from the case of a certain Carfania, an extremely shameless woman, whose effrontery and annoyance of the magistrate gave rise to this Edict. On account of accident, where a Prætor rejects the application of a man who is entirely blind, because he cannot see the insignia of the magistracy and pay them proper respect. Labeo says that Publius, a blind man, the father of Asprenas Nonius, had his chair turned around, and was denied a hearing by Brutus, when he wished to make a statement before him. But although a blind man cannot appear in court for another, he can still retain his Senatorial dignity, and perform the duties of a judge. Can he then, also hold the office of a magistrate? We will consider this matter. There is an example of one who did hold such an office, for Appius Claudius, a blind man, was present at public councils, and gave a very severe opinion in the Senate with reference to prisoners taken from Pyrrhus. The better opinion is for us to say that he can hold the office of magistrate which he has already obtained, but should be forbidden to aspire to a new one; and this rule has been established by many examples. 6He also forbids a party to appear before him in behalf of others, who has suffered his body to be used like that of a woman. If, however, he has been violated by robbers or by enemies, he should not be branded with infamy, as Pomponius says. A party who has been convicted of a capital crime cannot appear in behalf of another. It is also forbidden, by a decree of the Senate, that a person who has been convicted in court of false accusation, shall appear before a judge of inferior jurisdiction. Moreover, a man who has hired himself to fight with wild beasts is forbidden to appear. We should understand the term “wild beasts” to rather apply to their fierceness, than to the kind of animals; but what if the animal should be a lion, but a tame one, or some other animal which was tame but still provided with teeth? For this reason a man who has hired himself to fight, is branded with infamy by that very fact, whether he fight or not; because if he should fight, when he did not hire himself to do so, he would not be liable but only one who has hired himself for that purpose. Therefore, the ancient authorities hold that those are not liable who, for the sake of showing their courage, do this without compensation; unless they suffer themselves to be honored in the arena; for I think that, in this instance, they cannot avoid being branded with infamy. Where, however, anyone hires himself to hunt wild beasts, or to fight with one that is committing damage in the neighborhood, outside the arena, he is not to be branded with infamy; hence the Prætor permits persons to appear in court before him in their own behalf, who have not fought with wild beasts in order to show their courage, but forbids them to do so for others. Nevertheless, it is perfectly proper to permit such persons, where they are exercising the office of guardian, or any other of the game kind, to appear in behalf of those whose affairs they are transacting. Where anyone violates this provision of the Edict, he is not permitted to appear for others, but may also be punished by a pecuniary fine, whose amount is to be arbitrarily fixed by the judge. 7As we stated in the beginning of this Title, the Prætor divides parties who cannot appear into three classes, and the third of these is one by which he does not refuse them altogether the right of appearing, but says that they must not appear for everybody, and they are, so to speak, less guilty than those mentioned under former heads. 8The Prætor says: “Those who are forbidden to appear by law, plebiscite, a decree of the Senate, an edict, or an Imperial Ordinance, unless in behalf of certain persons, cannot appear before me in court for anyone else than persons authorized by law”. All others who are branded with infamy by the Edict of the Prætor are included in this Edict, and cannot appear except in their own behalf, and in that of certain specified persons. 9The Prætor then adds: “Where any one of those who are mentioned above has not been restored to his original condition”. One who is included in “those mentioned above”, is understood to mean one of those who come under the third clause of the Edict, who are forbidden to appear in behalf of certain persons; for if they were included under the other clauses, complete restitution would be obtained with difficulty. 10Pomponius asks what restitution the Prætor has reference to, whether it is that granted by the Emperor, or that granted by the Senate? And he is of the opinion that either is referred to; but the inquiry arises as to whether the Prætor can grant restitution, and it seems to me that such decrees of the Prætor should not be observed unless they form part of the duties of his jurisdiction; as in the case of youth, where anyone has been deceived, and in the other instances which We snail examine under the Title, “Concerning Complete Restitution”. The proof of this opinion is that where anyone is convicted of an offence involving infamy, and the sentence is annulled by complete restitution, Pomponius thinks that he is freed from the infamy. 11The Prætor also says: “They cannot appear for anyone except a parent, their patron, their patroness, their children, or the parents of their patron or patroness”; with reference to which persons we have spoken more fully under the Title: “Concerning Summons”. He also adds “Or in behalf of their children, their brother, sister, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepson, stepdaughter, male or female ward, or a person of either sex who is insane”.
2 Gaius libro primo ad edictum provinciale. ‘fatuo fatua’: cum istis quoque personis curator detur.
2 Gaius, On the Provincial Edict, Book I. Or for an idiot of either sex (for curators are also appointed for persons of this description).
3 Ulpianus libro sexto ad edictum. ‘Cui eorum a parente, aut de maioris partis tutorum sententia, aut ab eo cuius de ea re iurisdictio fuit ea tutela curatiove data erit.’ 1Adfinitates non eas accipere debemus, quae quondam fuerunt, sed praesentes. 2Item Pomponius nurus et generi appellatione et soceri et socrus et ulteriores, quibus pro praepositio solet accedere, contineri ait. 3In curatoribus debuisse eum adicere: muti ceterorumque, quibus dare solent, id est surdo prodigo et adulescenti:
3 Ulpianus, On the Edict, Book VI. “Where guardianship, or curatorship, has been given over any such persons by a parent, or by a majority of the guardians, or by a magistrate who had jurisdiction in the matter.” 1When affinity is mentioned, we must not understand that which formerly existed, but that which exists at the present time. 2Pomponius says that the words, daughter-in-law, son-in-law, father-in-law, and mother-in-law are intended to include degrees which are more remote than those which the preposition pro generally designates. 3And that, with reference to curators, he ought to have added persons who are dumb, and others for whom it is customary to appoint curators, that is to say, persons who are deaf, spendthrifts, and minors.
4 Paulus libro quinto ad edictum. item quibus propter infirmitatem curatorem praetor dare solet,
4 Paulus, On the Edict, Book V. Those also, for whom, on account of ill health, the Prætor is accustomed to appoint curators:
5 Ulpianus libro nono ad edictum. et qui negotiis suis aliquo perpetuo morbo superesse non possunt.
5 Ulpianus, On the Edict, Book IX. And those, as well, who, by reason of some chronic disease, are unable to transact their own business.
6 Idem libro sexto ad edictum. Puto autem omnes, qui non sponte, sed necessario officio funguntur, posse sine offensa edicti postulare, etiamsi hi sint, qui non nisi pro se postulare possunt. 1Si quis advocationem praestare fuerit prohibitus, si quidem apud se, ut solent facere, tempore magistratus sui, puto eum postea apud successorem eius adesse posse.
6 The Same, On the Edict, Book VI. I am of the opinion that those can appear in court without violation of the Edict, who, not voluntarily but through necessity, are discharging the duties of an office, even if they are such as cannot appear in their own behalf. 1Where anyone is forbidden to act as an advocate, if this has reference to the time during which the magistrate exercises jurisdiction, I think that he can afterwards appear before his successor.
7 Gaius libro tertio ad edictum provinciale. Quos prohibet praetor apud se postulare, omnimodo prohibet, etiam si adversarius eos patiatur postulare.
7 Gaius, On the Provincial Edict, Book VII. Where the Prætor forbids any person to appear before him, the prohibition is absolute, even if his adversary consents for this to be done.
8 Papinianus libro secundo quaestionum. Imperator Titus Antoninus rescripsit eum, cui advocationibus in quinquennio interdictum esset, post quinquennium pro omnibus postulare non prohiberi. divus quoque Hadrianus rescripserat de exilio reversum postulare posse. nec adhibetur distinctio, quo crimine silentium vel exilium sit irrogatum, ne scilicet poena tempore determinata contra sententiae fidem ulterius porrigatur.
8 Papinianus, Questions, Book II. The Emperor Titus Antoninus stated in a Rescript: “That he who had been forbidden to practice the profession of an advocate for the term of five years, was not forbidden to appear in court in behalf of anyone after the five years had elapsed”. The Divine Hadrian also stated in a Rescript, “That a man could appear in court after he returned from exile”; nor was any distinction made as to the crime for which the sentence for silence or exile was imposed; otherwise, after the time of the punishment had elapsed, it might be still further prolonged contrary to the terms of the sentence.
9 Idem libro primo responsorum. Ex ea causa prohibitus pro alio postulare, quae infamiam non irrogat ideoque ius pro omnibus postulandi non aufert, in ea tantum provincia pro aliis non recte postulat, in qua praeses fuit qui sententiam dixit, in alia vero non prohibetur, licet eiusdem nominis sit.
9 The Same, Opinions, Book I. A who is forbidden to appear in behalf of another for a reason which does not imply infamy, and therefore is not deprived of the right of appearing for every one, is only legally excluded from appearing for others in the province over which the Governor who imposed the sentence has jurisdiction; and he is not forbidden to do so in any other, even though it may have the same name.
10 Paulus libro singulari regularum. Hi qui fisci causas agunt suam vel filiorum et parentium suorum vel pupillorum quorum tutelas gerunt causam et adversus fiscum agere non prohibentur. decuriones quoque contra patriam suam causas agere prohibentur, praeter superiores personas.
10 Paulus, Rules. Those who act in behalf of the Treasury are not prohibited from acting for their children, their parents, or their wards, of whose guardianship they have charge, even though the case may be in opposition to the Treasury. Decurions are also forbidden to conduct causes against their own municipal towns, except for such persons as have been previously mentioned.
11 Tryphoninus libro quinto disputationum. A principe nostro rescriptum est non prohiberi tutorem adesse pupillo in negotio, in quo advocatus contra patrem eius fuisset. sed et illud permissum ab eo est agere tutorem pupilli causam adversus fiscum, in qua adversus patrem pupilli antea advocatus fisci fuisset. 1Qui autem inter infames sunt, sequenti titulo explanabitur.
11 Tryphoninus, Disputations, Book V. It was stated by our Emperor in a Rescript: “That a guardian is not forbidden to appear for a ward in a matter in which he had been employed as an advocate against his father”. And he is also allowed by this to act against the Treasury; even where he had appeared for the Treasury previously in some proceedings against the father of his ward. 1Who those are that are considered infamous will be explained in the following Title.