De lege Fabia de plagiariis
(Concerning the Favian law with reference to kidnappers.)
1 Ulpianus libro primo regularum. Si liberum hominem emptor sciens emerit, capitale crimen adversus eum ex lege Fabia de plagio nascitur, quo venditor quoque fit obnoxius, si sciens liberum esse vendiderit.
1 Ulpianus, Rules, Book I. Anyone who knowingly purchases a freeman incurs liability for a capital offence under the Favian Law against kidnapping; and the vendor also can be prosecuted under it if he sold the man being aware that he was free.
2 Idem libro nono de officio proconsulis. Sciendum est legem Fabiam ad eos non pertinere, qui, cum absentes servos haberent, eos vendiderunt: aliud est enim abesse, aliud in fuga esse. 1Item non pertinere ad eum, qui mandavit servum fugitivum persequendum et distrahendum: nec enim fugam vendidit. 2Amplius dicendum est et si quis Titio mandaverit servum fugitivum adprehendendum, ut, si adprehendisset, eum emptum haberet, cessare senatus consultum. 3Hoc autem senatus consulto domini quoque continentur, qui fugam servorum suorum vendiderunt.
2 The Same, On the Duties of Proconsul, Book IX. It must be remembered that the Favian Law does not relate to those who, having in their hands absent slaves, sell them; for it is one thing to be absent, and another to be in flight. 1Again, it does not apply to a person who has ordered his fugitive slave to be pursued and sold; for he did not sell a fugitive slave. 2It can further be said that if anyone orders Titius to arrest a fugitive slave, and, if he should do so, to hold him as purchased, the Decree of the Senate does not apply. 3Masters who have sold their slaves when in flight are also liable under this Decree of the Senate.
3 Marcianus libro primo iudiciorum publicorum. Legis Fabiae crimine suppressi mancipii bona fide possessor non tenetur, id est qui ignorabat servum alienum, et qui voluntate domini putabat id eum agere. et ita de bona fide possessore ipsa lex scripta est: nam adicitur ‘si sciens dolo malo hoc fecerit’: et saepissime a principibus Severo et Antonino constitutum est, ne bonae fidei possessores hac lege teneantur. 1Illud non est omittendum, quod exemplo legis Aquiliae, si is, propter quem quis in Fabiam commisit, decesserit, adhuc accusatio et poena legis Fabiae superest, ut et divus Severus et Antoninus rescripserunt.
3 Marcianus, Public Prosecutions, Book I. A bona fide possessor is not liable to the penalty imposed by the Favian Law for having wrongfully withheld a slave; that is to say, if he did not know that the slave belonged to another, or if he thought that he acted with the consent of his master. And the law itself is framed in this way with reference to a bona fide possessor, for there is added, “If he did this knowingly and fraudulently.” It has very frequently been decided by the Emperors Severus and Antoninus that bona fide possessors are not liable under this law. 1It should not be forgotten that, as under the Aquilian Law, if the person on whose account the Favian Law was violated should die, the accusation and the penalty prescribed by the Favian Law will continue to exist, as the Divine Severus and Antoninus stated in a Rescript.
4 Gaius libro vicensimo secundo ad edictum provinciale. Lege Fabia tenetur, qui sciens liberum hominem donaverit vel in dotem dederit, item qui ex earum qua causa sciens liberum esse acceperit, in eadem causa haberi debeat, qua venditor et emptor habetur. idem et si pro eo res permutata fuerit.
4 Gaius, On the Provincial Edict, Book XXII. He is liable under the Favian Law who either donates, or gives by way of dowry, a man whom he knows to be free; likewise, anyone who, knowing a man to be free, accepts him under such circumstances, should be included in the same class to which a vendor and a purchaser belong. The same rule will apply where property is given in exchange for such a man.
5 Modestinus libro septimo decimo responsorum. Respondit eum, qui fugitivum alienum suscepisse et celasse doceatur, ex eo, quod proprietatis quaestionem referret, crimen, si probetur, evitare minime posse.
5 Modestinus, Opinions, Book XVII. Gave it as his opinion that he who is alleged to have received a fugitive slave belonging to another, and to have concealed him, even if he asserts that he is his property, can, by no means, escape the penalty, if he is proved to be guilty.
6 Callistratus libro sexto de cognitionibus. Non statim plagiarium esse, qui furti crimine ob servos alienos interceptos tenetur, divus Hadrianus in haec verba rescripsit: ‘Servos alienos qui sollicitaverit aut interceperit, crimine plagii, quod illi intenditur, teneatur nec ne, facit quaestionem: et ideo non me consuli de ea re oportet, sed quod verissimum in re praesenti cognoscitur, sequi iudicem oportet. plane autem scire debet posse aliquem furti crimine ob servos alienos interceptos teneri nec idcirco tamen statim plagiarium esse existimari’. 1Idem princeps de eadem re in haec verba rescripsit: ‘Apud quem unus aut alter fuerit fugitivus inventus, qui operas suas locaverint ut pascerentur, et utique si idem antea apud alios opus fecerint, hunc suppressorem non iure quis dixerit’. 2Lege Fabia cavetur, ut liber, qui hominem ingenuum vel libertinum invitum celaverit invinctum habuerit emerit sciens dolo malo quive in earum qua re socius erit, quique servo alieno servaeve persuaserit, ut a domino dominave fugiat, vel eum eamve invito vel insciente domino dominave celaverit, invinctum habuerit emerit sciens dolo malo quive in ea re socius erit, eius poena teneatur.
6 Callistratus, On Judicial Inquiries, Book VI. He does not forthwith become a kidnapper who is guilty of theft, on the ground of withholding slaves belonging to another, for the Divine Hadrian stated in a Rescript: “He who has solicited or appropriated the slaves of another gives rise to the question whether he is, or is not liable for the crime of kidnapping, of which he is accused; and therefore it is not necessary to consult me on this point. The judge, however, in a case of this kind must decide what he knows to be perfectly true, for it is evident that he must be aware that a person can be guilty of the crime of theft with reference to slaves taken from others, and not necessarily for that reason, be considered guilty of kidnapping.” 1The same Emperor stated in a Rescript with reference to the same matter: “Where one or more fugitive slaves is found in the possession of anyone who has hired their services in consideration of their maintenance, and the said slaves had previously performed labor for others, no one can properly say that the above-mentioned person has appropriated them.” 2It is provided by the Favian Law that: “A freeman who conceals one who is freeborn or a freedman, against his will; or has kept him in fetters, and has knowingly and fraudulently purchased him; or has been associated with anyone in a transaction of this kind; or has persuaded the male or female slave of another to run away from his or her master or mistress; or has concealed such a slave without the knowledge or consent of his or her master or mistress; or has kept him or her chained; or knowingly and fraudulently has purchased the slave, or has been implicated in any of these crimes, shall suffer the penalty of the law.”
7 Hermogenianus libro quinto iuris epitomarum. Poena pecuniaria statuta lege Fabia in usu esse desiit: nam in hoc crimine detecti pro delicti modo coercentur et plerumque in metallum damnantur.
7 Hermogenianus, Epitomes of Law, Book VI. The pecuniary penalty prescribed by the Favian Law has now ceased to be imposed; for those who are convicted of this crime are punished in proportion to its gravity, and are usually sentenced to the mines.