Ne de statu defunctorum post quinquennium quaeratur
(No question as to the condition of deceased persons shall be raised after five years have elapsed after their death.)
1 Marcianus libro singulari de delatoribus. De statu defunctorum post quinquennium quaerere non licet neque privatim neque fisci nomine. 1Sed nec eius status retractandus est, qui intra quinquennium decessit, si per huius quaestionem praeiudicium futurum est ante quinquennium mortuo. 2Immo nec de vivi statu quaerendum est, si quaestio huius praeiudicium facit ei, qui ante quinquennium decessit: et ita divus Hadrianus constituit. 3Sed interdum et intra quinquennium non licet de statu defuncti dicere: nam oratione divi Marci cavetur, ut, si quis ingenuus pronuntiatus fuerit, liceat ingenuitatis sententiam retractare, sed vivo eo qui ingenuus pronuntiatus est, non etiam post mortem, in tantum, ut etiam, si coepta quaestio fuit retractationis, morte eius extinguatur, ut eadem oratione cavetur. 4Si quidem in deteriorem condicionem quis statum retractaret, secundum ea quae dixi praescribendum est. quid ergo si in meliorem? veluti pro servo libertus dicitur: quare non admittatur? quid enim si servus quis dicatur quasi ex ancilla natus, quae ante quinquennium mortua est? quare non liceat probare liberam fuisse? hoc enim et pro mortua est. et Marcellus libro quinto de officio consulis scripsit posse: ego quoque in auditorio publico idem secutus sum.
1 Marcianus, On Informers. It is not lawful for either private individuals or the Treasury to raise any question with reference to the civil condition of deceased persons after five years from the time of their death. 1Nor can the condition of him who died within five years be reconsidered, if, by doing so, the status of one who has died more than five years previously will be prejudiced. 2Nor can any question be raised with reference to the condition of a man who is living, if, by doing so, the condition of one who died more than five years previously will be prejudiced. This point was decided by the Divine Hadrian. 3Sometimes, however, it is not permitted to raise a question with reference to the status of the deceased within five years from the time of his death. For it is provided by a Rescript of the Divine Marcus that if anyone has been judicially declared to be freeborn, it may be permitted to review the decision rendered during the lifetime of the person who has been pronounced freeborn, but not after his death. To such an extent is this true that even if the review of the case has been begun, it will be extinguished by death; as is set forth in the same Rescript. 4If anyone reviews a decision of this kind in order to reduce the person to an inferior condition, this should be opposed, according to what I have already stated. But what if the intention was to improve his condition, as, for instance, to have him declared a freedman instead of a slave; why should this not be permitted? What course must be pursued, if he is said to be a slave, the issue of a female slave, who has been dead for more than five years? Why should he not be alleged to prove that she was free; for this itself is in favor of the deceased? Marcellus in the Fifth Book of the Duties of Proconsul stated that this should be done. I also adopted the same opinion in the audience room.
2 Papinianus libro quarto decimo responsorum. Non esse libertatis quaestionem filiis inferendam propter matris vel patris memoriam post quinquennium a morte non retractatam convenit. 1Nec in ea re, quae publicam tutelam meruit, pupillis agentibus restitutionis auxilium tribuendum est, quod quinque annorum tempus, cum tutores non haberent, excesserit. 2Praescriptio quinque annorum, quae statum defunctorum tuetur, specie litis ante mortem illatae non fit irrita, si veterem causam desistente qui movit longo silentio finitam probetur.
2 Papinianus, Opinions, Book XIV. It is settled that, in the reconsideration of a case, no question should be raised with reference to the freedom of children which may involve the reputation of their mothers or fathers, after the latter had been dead for more than five years. 1In a matter of this kind, which is worthy of public supervision, relief should be granted to minors instituting proceedings for restitution, where they had no guardians to act for them during the five years which have elapsed. 2This prescriptive term of five years which protects the status of deceased persons is not affected by the filing of any action before death; if it can be proved that the right to bring the said action has been extinguished by the long silence of him who originally brought it and then desisted.
3 Hermogenianus libro sexto iuris epitomarum. Ante quinquennium defuncto status honestior, quam mortis tempore fuisse existimabatur, vindicari non prohibetur. idcirco et si quis in servitute moriatur, post quinquennium liber decessisse probari potest.
3 Hermogenianus, Epitomes of Law, Book VI. The condition of a person who died more than five years previously is considered to be more honorable than at the time of his death, and no one will be prevented from claiming this for him. Therefore, even if he died in slavery, he can be proved to have been free at his decease, even after the lapse of five years.
4 Callistratus libro primo de iure fisci. Primus omnium divus Nerva edicto vetuit post quinquennium mortis cuiusque de statu quaeri, sed et divus Claudius Claudiano rescripsit, si per quaestionem nummariam praeiudicium statui videbitur fieri, cessare quaestionem.
4 Callistratus, On the Rights of the Treasury. The Divine Nerva was the first of all who, by an Edict, forbade that any question should be raised regarding the condition of anyone after five years from the date of his death. The Divine Claudius also stated in a Rescript addressed to Claudian that if, by the pecuniary question which had been raised, any prejudice appeared to be caused to the status of the deceased, the inquiry must cease.