Si is, qui testamento liber esse iussus erit, post mortem domini ante aditam hereditatem subripuisse aut corrupisse quid dicetur
(Where Anyone Who is Ordered to be Free by the Terms of a Will, After the Death of His Master and Before the Estate is Entered Upon, is Said to Have Stolen or Spoiled Something.)
1 Ulpianus libro trigensimo octavo ad edictum. Si dolo malo eius, qui liber esse iussus erit, post mortem domini ante aditam hereditatem in bonis, quae eius fuerunt, qui eum liberum esse iusserit, factum esse dicetur, quo minus ex his bonis ad heredem aliquid perveniret: in eum intra annum utilem dupli iudicium datur. 1Haec autem actio, ut Labeo scripsit, naturalem potius in se quam civilem habet aequitatem, si quidem civilis deficit actio: sed natura aequum est non esse impunitum eum, qui hac spe audacior factus est, quia neque ut servum se coerceri posse intellegit spe imminentis libertatis, neque ut liberum damnari, quia hereditati furtum fecit, hoc est dominae, dominus autem dominave non possunt habere furti actionem cum servo suo, quamvis postea ad libertatem pervenerit vel alienatus sit, nisi si postea quoque contrectaverit. e re itaque esse praetor putavit calliditatem et protervitatem horum, qui hereditates depopulantur, dupli actione coercere. 2Non alias tenebitur iste libertus, quam si dolo quid dissipasse proponatur. culpa autem neglegentiaque servi post libertatem excusata est, sed culpa dolo proxima dolum repraesentat. proinde si quid damni dedit sine dolo, cessabit ista actio, quamvis alias Aquilia tenetur ob hoc, quod damnum qualiterqualiter dederit. habet itaque certum finem ista actio, ut et dolo fecerit iste et post mortem domini et ante aditam hereditatem. ceterum si sine dolo, aut dolo quidem, verum vivo domino, non tenebitur hac actione: quin immo et si post mortem post aditam hereditatem, cessabit actio: nam ubi adita hereditas est, iam quasi liber conveniri potest. 3Quid tamen, si sub condicione accepit libertatem? ecce nondum liber est: sed ut servus potest coerceri: idcirco dicendum est cessare hanc actionem. 4Sed ubi libertas competit continuo, dicendum est posse et debere hanc actionem dari adversus eum, qui pervenit ad libertatem. 5Si servus pure legatus ante aditam hereditatem quid admiserit in hereditate, dicendum est, quia dominium in eo mutatur, huic actioni locum esse. 6Et generaliter dicimus, quo casu in servo dominium vel mutatur vel amittitur vel libertas competit post intervallum modicum aditae hereditatis, eo casu hanc actionem indulgendam. 7Sed si fideicommissaria libertas servo data sit, quidquid in hereditate maleficii admisit, numquid non prius cogatur heres manumittere, quam si satisfecerit? est autem saepissime et a divo Marco et ab imperatore nostro cum patre rescriptum non impediri fideicommissariam libertatem, quae pure data est. divus sane Marcus rescripsit arbitrum ex continenti dandum, apud quem ratio ponatur: sed hoc rescriptum ad rationem ponendam pertinet actus, quem servus administravit. arbitror igitur et hic posse hanc actionem competere. 8‘Ante aditam hereditatem’ sic accipere debemus ‘antequam vel ab uno adeatur hereditas’: nam ubi vel unus adit, competit libertas. 9Si pupillus heres institutus sit et a substituto eius libertas data medioque tempore quaedam admittantur: si quidem vivo pupillo quid fuerit factum, locum non esse huic actioni: sin vero post mortem, antequam quis pupillo succederet, actionem istam locum habere. 10Haec actio locum habet non tantum in rebus, quae in bonis fuerunt testatoris, sed et si heredis interfuit dolum malum admissum non esse, quo minus ad se perveniret. et ideo Scaevola plenius tractat et si eam rem subripuisset servus, quam defunctus pignori acceperat, hanc actionem honorariam locum habere: plenius enim causam bonorum hic accipimus pro utilitate. nam si in locum deficientis furti actionis propter servitutem hanc actionem substituit praetor, verisimile est in omnibus causis eum, in quibus furti agi potuit, substituisse. et in summa probatur hanc actionem et in rebus pigneratis et in rebus alienis bona fide possessis locum habere: idem et de re commodata testatori. 11Item si fructus post mortem testatoris perceptos hic servus, qui libertatem prospicit, contrectaverit, locus erit huic actioni: sed et si partus vel fetus post mortem adgnatos, tantundem erit dicendum. 12Praeterea si impubes post mortem patris quaesierit rei dominium eaque, antequam impuberis hereditas adeatur, subripiatur, locum habere istam actionem dicendum est. 13Sed et in omnibus, quae interfuit heredis non esse aversa, locum habet haec actio. 14Non tantum autem ad sola furta ista actio pertinet, sed etiam ad omnia damna, quaecumque hereditati servus dedit. 15Scaevola ait possessionis furtum fieri: denique si nullus sit possessor, furtum negat fieri: idcirco autem hereditati furtum non fieri, quia possessionem hereditas non habet, quae facti est et animi. sed nec heredis est possessio, antequam possideat, quia hereditas in eum id tantum transfundit, quod est hereditatis, non autem fuit possessio hereditatis. 16Illud verum est, si potest alias heres ad suum pervenire, non esse honorariam hanc actionem tribuendam, cum in id quod intersit condemnatio fiat. 17Praeter hanc actionem esse et vindicationem rei constat, cum haec actio ad similitudinem furti competat. 18Item heredi ceterisque successoribus competere istam actionem dicendum est. 19Si plures servi libertatem acceperunt et dolo malo quid admiserint, singuli convenientur in solidum, hoc est in duplum. et cum ex delicto conveniantur, exemplo furti nullus eorum liberatur, etsi unus conventus praestiterit.
1 Ulpianus, On the Edict, Book XXXVIII. If, through the fraud of a slave who was ordered to be free after the death of his master, and before the estate was entered upon, an act is said to have been committed with reference to the property of the person who directed him to be free, in order to prevent some of said property from coming into the hands of the heir, a suit for double damages will be granted against him within the available year. 1This action, however (as Labeo says), is founded rather on natural, than on civil equity. For, as a civil action is not applicable, it is but just, according to Natural Law, that the offender, emboldened by the hope of impunity, should not go unpunished; since, having the expectation of speedily obtaining his freedom, he believes that he cannot be chastised as a slave, nor be condemned as a freeman because he steals from the estate, that is to say from his owner; the master or the mistress cannot bring an action for theft against the slave, even though he should afterwards become free, or be alienated, unless he has also subsequently handled the property with the intention of stealing it. Therefore the Prætor thought that the cunning and impudence of those who despoil estates should be punished by an action for double damages. 2A freedman of this kind will not be liable unless he is alleged to have fraudulently wasted something. The fault and negligence of a slave after his freedom has been obtained is excused; but gross negligence very closely resembles fraud. Hence, if he committed some damage without fraud, this action will not lie; although otherwise, he would be liable under the Aquilian Law for having caused damage of any description whatsoever. Therefore this action has certain restrictions, so that the slave must be guilty of fraud not only after the death of his master, but before the estate has been entered upon. But if he does not commit fraud, or does so during the lifetime of his master, he will not be liable to this action. Nay more, the action will not lie even after the death of his master and the acceptance of the estate, for when the estate has once been entered upon, he can be sued as a freeman. 3What, however, should be done, if he received his freedom under a condition? In this instance, he will not yet be free, but can be punished as a slave; and therefore it must be said that this action will not lie. 4Where, however, his freedom is already obtained, it must be said that this action can and should immediately be granted against him who has become free. 5When a slave who is absolutely bequeathed commits some illegal act against the estate before it has been entered upon, it must be said that there will be ground for this action, for the reason that the ownership of the slave is changed. 6And, generally speaking, we say that, in a case where the ownership of the slave is either changed or lost, or he acquires his freedom within a short time after the estate has been entered upon, in this instance, this action should be granted. 7Where freedom is bestowed upon a slave under the terms of a trust, and he has committed some offence against the estate, can not the heir be prevented from manumitting him before he gives satisfaction? And, indeed, it has been frequently stated in Rescripts by the Divine Marcus, and by our Emperor together with his Father, that, under these circumstances, freedom granted unconditionally by a trust will not be prevented. The Divine Marcus, however, stated in a Rescript that an arbiter must be immediately appointed before whom the account should be rendered. This Rescript has reference to the account to be rendered for acts which the slave performed in the course of his administration. I think, then, that in this instance the action will lie. 8Before the estate is entered upon, we should understand to mean before it is accepted by one person alone, for as soon as one person does so, freedom is acquired. 9Where a ward is appointed an heir, and freedom is granted as soon as he has a substitute, and, in the meantime, some damage is committed, if this takes place during the lifetime of the minor, there will be no ground for this action. If, however, it should be committed after his death, and before anyone succeeds him, there will be ground for it. 10This action will not only lie with reference to property belonging to the estate of the testator, but also where it is to the interest of the heir that fraud should not be committed to prevent the property from coming into his hands. Therefore Scævola treats the question more fully, for if the slave has stolen property which the deceased received by way of pledge, this prætorian action can be brought; because we understand the case of the property in a broader sense as meaning utility. For if the Prætor, on account of the condition of servitude existing, substituted this action instead of the one for theft, it is probable that he should have substituted it in every case in which an action for theft could be brought. And, in a word, this action is understood to lie with reference to property pledged, as well as to such as is held by bona, fide possessors. The same rule applies to articles lent to the testator. 11Likewise, if this slave, who has the prospect of his freedom, should steal crops which have been gathered after the death of the testator, there will be ground for this action. When the children of slaves, or the increase of cattle born after the death of the testator are involved, the same opinion must be given. 12Moreover, if a child under the age of puberty, after the death of his father, obtains the ownership of property, and the estate of the minor is stolen before it has been entered upon, it must be said that there will be ground for this action. 13This action can also be brought with reference to any property which it was to the interest of the heir not to have appropriated. 14This action not only applies to thefts, but also to all cases involving damage which the slave has committed against the estate. 15Scævola says that theft of possession can take place, for if there is no possessor, theft cannot be committed; therefore theft cannot be committed against an estate, because the latter has no possession, which is, indeed, a matter of fact and intention. The heir does not have possession before he actually obtains control of the property, because the estate only transmits to him that of which it is constituted, and possession forms no part of it. 16It is true that if the heir can, in any other way, obtain that to which he is entitled, the Prætorian Action should not be granted, since the decision is based upon what the person has an interest in acquiring. 17Besides this action, it is established that a suit for recovery will also lie, as this proceeding resembles one for theft. 18It must be said that this action will also lie in favor of the heir and other successors. 19Where several slaves have received their freedom, and have maliciously caused some injury, each of them can be sued for the entire amount, that is to say, for double damages; and as they are prosecuted on account of the crime as in the case of theft, none of them will be released, even though one should make payment after he has been sued.
2 Gaius libro tertio decimo ad edictum provinciale. Si paulo ante, quam statuta libertas optigerit, amoverit aliquid servus aut corruperit, ignorantia domini non introducit hanc actionem: ideoque licet maxime ignoraverit heres a statulibero aut quilibet alius dominus a servo suo amotum aliquid corruptumve esse, non impetrat post libertatem eius ullam actionem, quamvis in pluribus aliis causis iusta ignorantia excusationem mereatur.
2 Gaius, On the Provincial Edict, Book XIII. If, a short time before the freedom granted takes place, the slave should secretly remove some article, or spoil it, the ignorance of the owner does not authorize this action; and therefore, although the heir may have no information whatever that the slave is to be free under a condition, or any other master may not be aware that property has been appropriated or spoiled by his slave, he cannot avail himself of any action after the slave has once obtained his freedom, although in many other cases just ignorance may be alleged as an excuse.
3 Ulpianus libro tertio decimo ad edictum. Labeo putavit sub condicione manumissum [ed. maior res] <ed. minor rem> amoventem, si cito condicio extitit, hac actione conveniendum.
3 Ulpianus, On the Edict, Book XIII. Labeo thought that where a slave, who was manumitted under a condition, secretly removed some article, and the condition was soon fulfilled, he would be liable to this action.