De homine libero exhibendo
(Concerning the interdict which has reference to the production of a person who is free.)
1 Ulpianus libro septuagensimo primo ad edictum. Ait praetor: ‘Quem liberum dolo malo retines, exhibeas’. 1Hoc interdictum proponitur tuendae libertatis causa, videlicet ne homines liberi retineantur a quoquam:
1 Ulpianus, On the Edict, Book LXXI. The Prætor says: “You shall produce any person who is free, the possession of whom you fraudulently hold.” 1This interdict has been framed for the purpose of maintaining freedom; that is to say, to prevent any persons who are free from being restrained of their liberty by anyone.
2 Venuleius libro quarto interdictorum. (nihil enim multum a specie servientium differunt, quibus facultas non datur recedendi):
2 Venuleius, Interdicts, Book IV. For there is not much difference between slaves and persons who have not the power to depart at their pleasure.
3 Ulpianus libro septuagensimo primo ad edictum. quod et lex Fabia prospexit. neque hoc interdictum aufert legis Fabiae exsecutionem: nam et hoc interdicto agi poterit et nihilo minus accusatio legis Fabiae institui: et versa vice qui egit Fabia, poterit nihilo minus etiam hoc interdictum habere, praesertim cum alius interdictum, alius Fabiae actionem habere possit. 1Haec verba ‘quem liberum’ ad omnem liberum pertinent, sive pubes sit sive impubes, sive masculus sive femina, sive unus sive plures, sive sui iuris sit sive alieni: hoc enim tantum spectamus, an liber sit. 2Is tamen, qui in potestate habet, hoc interdicto non tenebitur, quia dolo malo non videtur habere qui suo iure utitur. 3Si quis eum, quem ab hostibus redemit, retineat, in ea causa est, ut interdicto non teneatur: non enim dolo malo facit. plane si offertur pretium, interdictum locum habet. sed et si eum remisit pretio non accepto, dicendum est interdicto locum fore, si, posteaquam semel remisit, velit retinere. 4Si eum quis retineat filium, quem non habet in potestate, plerumque sine dolo malo facere videbitur: pietas enim genuina efficit sine dolo malo retineri, nisi si evidens dolus malus intercedat. proinde et si libertum suum vel alumnum vel noxae deditum adhuc impuberem, idem erit dicendum. et generaliter qui iustam causam habet hominis liberi apud se retinendi, non videtur dolo malo facere. 5Si quis volentem retineat, non videtur dolo malo retinere. sed quid si volentem quidem retineat, non tamen sine calliditate circumventum vel seductum vel sollicitatum, neque bona vel probabili ratione hoc facit? recte dicetur dolo malo retinere. 6Is, qui nescit apud se esse hominem liberum, dolo malo caret; sed ubi certioratus retinet, dolo malo non caret. 7Plane si dubitat, utrum liber an servus sit, vel facit status controversiam, recedendum erit ab hoc interdicto et agenda causa libertatis. etenim recte placuit tunc demum hoc interdictum locum habere, quotiens quis pro certo liber est: ceterum si quaeratur de statu, non oportet praeiudicium fieri alienae cognitioni. 8Ait praetor ‘exhibeas’. exhibere est in publicum producere et videndi tangendique hominis facultatem praebere: proprie autem exhibere est extra secretum habere. 9Hoc interdictum omnibus competit: nemo enim prohibendus est libertati favere. 10Plane ex causa suspectae personae removendae sunt, si forte talis persona sit, quam verisimile est colludere vel calumniari. 11Sed et si mulier vel pupillus hoc interdictum desiderent pro cognato vel parente vel adfine suo solliciti, dandum esse eis interdictum dicendum est: nam et publico iudicio reos facere possunt, dum suas suorumque iniurias exsequuntur. 12Si tamen plures sunt, qui experiri volent, eligendus est a praetore, ad quem maxime res pertinet vel is qui idoneior est: et est optimum ex coniunctione, ex fide, ex dignitate actorem hoc interdicto eligendum. 13Si tamen, posteaquam hoc interdicto actum est, alius hoc interdicto agere desideret, palam erit postea alii non facile dandum, nisi si de perfidia prioris potuerit aliquid dici. itaque causa cognita amplius quam semel interdictum hoc erit movendum. nam nec in publicis iudiciis permittitur amplius agi quam semel actum est quam si praevaricationis fuerit damnatus prior accusator. si tamen reus condemnatus malit litis aestimationem sufferre quam hominem exhibere, non est iniquum saepius in eum interdicto experiri vel eidem sine exceptione vel alii. 14Hoc interdictum et in absentem esse rogandum Labeo scribit, sed si non defendatur, in bona eius eundum ait. 15Hoc interdictum perpetuum est.
3 Ulpianus, On the Edict, Book LXXI. The Lex Fabia also had reference to this, and the interdict does not prevent recourse to the Fabian Law, for a person can institute proceedings under the interdict, and an accusation can still be brought under the Lex Fabia; and vice versa, anyone who institutes proceedings under this law can, nevertheless, avail himself of the benefit of the interdict, especially as one party can employ the interdict, and the other make use of the action authorized by the Fabian Law. 1These words, “any person who is free,” have reference to every one who is free whether he has reached the age of puberty or not; whether the individual is male or female; whether there is one, or there are several; and whether the party in question is his own master, or under the control of another; for we only consider whether he is free. 2He, however, who has another under his control, will not be liable under this interdict, as he is not considered to hold anyone fraudulently who avails himself of a right to which he is legally entitled. 3If anyone restrains of his liberty a person whom he has ransomed from the enemy, he will not be liable under the interdict, because he does not do so fraudulently. It is clear that if he tenders the amount of the ransom the interdict will apply. But, if he releases him without having received the money, it must be said that there will be ground for the interdict, if once having given him his liberty, he afterwards desires to hold him. 4If anyone retains his son, who is not under his control, he is usually considered to do so without being guilty of fraud; for genuine affection causes his retention to be made, without the presumption of fraud, unless the existence of bad faith is evident. Hence, the same rule will apply if a patron subjects to his authority his freedmen, his foster-child, or a slave still under the age of puberty, who has been surrendered by way of reparation for damage which he has caused. And, generally speaking, anyone who has a good reason for retaining control of a freeman is not considered to act in bad faith. 5If anyone continues to hold a free person with his own consent, he is not considered to do so in bad faith; but what if he holds him with his consent, but, after having deceived, seduced, or solicited him, without having good and sufficient reasons for doing so? He is very properly held to retain him fraudulently. 6A man who does not know that a freeman is one of his family is not guilty of bad faith; but when he is aware of it, and still holds him, he is not free from fraud. 7It is clear that if he who holds possession of the freeman is in doubt as to whether he is free or a slave, or institutes proceedings to ascertain his condition, this interdict must not be employed, but proceedings to establish freedom should be instituted, for it has very properly been held that there will only be ground for this interdict where there is no doubt that the man is free. If, however, a question is raised as to his condition, the right to bring another action ought not to be prejudiced. 8The Prætor says, “You shall produce the person.” To produce hin is to bring him to public notice, and afford an opportunity of seeing and touching him. The term “to produce” literally means not to keep him in secrecy. 9This interdict will lie in favor of every individual, for no one is forbidden to favor freedom. 10It is clear that all those who are liable to suspicion should be excluded from the use of this interdict, if the character of the person is such that he is presumably acting in collusion, or for the purpose of annoyance. 11If, however, a woman or a minor desires to make use of this interdict for the benefit of a blood-relative, a parent, or a connection, it must be said that the interdict should be granted; for they can prosecute others in criminal cases when they do so for injuries committed against themselves. 12But where there are several persons who wish to avail themselves of this interdict, the one who has the greatest interest in the matter, or who is best fitted for the purpose, should be selected by the Prætor; and this choice should depend upon the relationship, the trustworthiness, or the rank of the individual selected. 13If, however, when proceedings have been instituted under this interdict, another person desires to proceed under it, it is evident that permission to make use of it cannot afterwards readily be granted to another, unless something can be proved with reference to the perfidy of the original prosecutor. Therefore, where proper cause is shown, this interdict can be employed more than once. For one person cannot be prosecuted more than once in criminal cases, unless the first accuser is convicted of prevarication. But the defendant, having been convicted, prefers to pay the damages assessed in court rather than produce the man, it will not be unjust to grant the same interdict against him repeatedly, or grant it to the same party who cannot be barred by an exception, or to someone else. 14Labeo says that this interdict may be granted against a person who is absent, and if no defence is made by him, his property can be taken in execution. 15This interdict is perpetual.
4 Venuleius libro quarto interdictorum. Si quis liberum hominem ignorantem suum statum retineat, tamen si dolo malo retinet, cogitur exhibere. 1Trebatius quoque ait non teneri eum, qui liberum hominem pro servo bona fide emerit et retineat. 2Nullo tempore dolo malo retineri homo liber debet, adeo ut quidam putaverint nec modicum tempus ad eum exhibendum dandum, quoniam praeteriti facti poena praestanda est. 3Creditori non competit interdictum, ut debitor exhiberetur: nec enim debitorem latitantem exhibere quisquam cogitur, sed in bona eius ex edicto praetoris itur.
4 Venuleius, Interdicts, Book IV. If anyone restrains of his liberty a freeman who is not aware of his own condition, he will still be required to reproduce him, if he fraudulently retains him under his control. 1Trebatius, also, says that anyone who in good faith purchases a freeman as a slave, and retains him under his control, is not liable. 2A man who is free should, at no time, be fraudulently restrained of his liberty, and this is so far true that some authorities hold that not even the least delay should be allowed the person required to produce him, as he is liable to the penalty for an act which has been committed. 3This interdict does not lie in favor of a creditor, for the purpose of producing his debtor in court; for no one is obliged to produce a debtor who conceals himself, but under the Edict of the Prætor his property may be taken in execution.