De bonis damnatorum
(Concerning the property of persons who have been convicted.)
1 Callistratus libro primo de iure fisci et populi. Damnatione bona publicantur, cum aut vita adimitur aut civitas, aut servilis condicio irrogatur. 1Etiam si qui ante concepti et post damnationem nati sunt, portiones ex bonis patrum damnatorum accipiunt. 2Liberis autem ita demum portio tribuitur, si iustis nuptiis nati sint. 3Liberis eius, cui pars dimidia dumtaxat bonorum ablata est, partes non dantur: idque et divi fratres rescripserunt.
1 Callistratus, On the Rights of the Treasury and the People, Book I. In consequence of conviction, property is confiscated either when life or citizenship is forfeited, or a servile condition is imposed. 1Even those who have been conceived before conviction and born afterwards are entitled to portions of the estates of their convicted parents. 2This portion, however, is not granted to children unless they are born in lawful marriage. 3No share is given to the children of one who has only been deprived of half his property. This was stated by the Divine Brothers in a Rescript.
2 Idem libro sexto de cognitionibus. Non ut quis in carcerem ductus est, spoliari eum oportet, sed post condemnationem: idque divus Hadrianus rescripsit.
2 The Same, On Judicial Inquiries, Book VI. It is not necessary to strip a person of his clothing when he is placed in prison, but only after he has been sentenced. This was stated by the Divine Hadrian in a Rescript.
3 Ulpianus libro trigensimo tertio ad edictum. Quinque legibus damnatae mulieri dos publicatur: maiestatis, vis publicae, parricidii, venefici, de sicariis:
3 Ulpianus, On the Edict, Book XXXIII. Under five laws, the dowry of a convicted woman is confiscated, namely, for high treason, public violence, parricide, poisoning, and assassination.
4 Papinianus libro secundo de adulteris. et omnes omnino maritus salvas actiones contra fiscum habet.
4 Papinianus, On Adultery, Book II. Every husband is always entitled to actions against the Treasury.
5 Ulpianus libro trigensimo tertio ad edictum. Sed si alia lege capitis punita sit, quae lex dotem non publicat, quia prius serva poenae efficitur, verum est dotem mariti lucro cedere, quasi mortua sit. 1Quod si deportata sit filia familias, Marcellus ait, quae sententia et vera est, non utique deportatione dissolvi matrimonium: nam cum libera mulier remaneat, nihil prohibet et virum mariti affectionem et mulierem uxoris animum retinere. si igitur eo animo mulier fuerit, ut discedere a marito velit, ait Marcellus tunc patrem de dote acturum. sed si mater familias sit et interim constante matrimonio fuerit deportata, dotem penes maritum remanere: postea vero dissoluto matrimonio posse eam agere, quasi humanitatis intuitu hodie nata actione.
5 Ulpianus, On the Edict, Book XXXIII. If, however, the woman is punished with death under some other law which does not confiscate her dowry, for the reason that she first becomes a penal slave, it is true that her dowry passes to her husband just as if she were dead. 1Marcellus says that if a daughter under paternal control is deported, her marriage is not dissolved by the mere fact of her deportation, and this opinion is correct; for, as the woman remains free, nothing prevents the husband from retaining his marital affection, or the woman from retaining her affection as a wife. Therefore, if the woman has the intention of leaving her husband, Marcellus says that the father can then institute proceedings to recover her dowry. If, however, she is the mother of a family, and is deported during the existence of the marriage, the dowry will remain in the hands of the husband; but if the marriage is subsequently dissolved, she can bring her action, just as if, through considerations of humanity, the right to do so had recently been acquired.
6 Idem libro decimo de officio proconsulis. Divus Hadrianus Aquilio Braduae ita rescripsit: ‘Panniculariae causa quemadmodum intellegi debeat, ex ipso nomine apparet. non enim bona damnatorum pannicularia significari quis probe dixerit, nec, si zonam circa se habuerit, protinus aliquis sibi vindicare debebit: sed vestem qua is fuerit indutus, aut nummulos in ventralem, quos victus sui causa in promptu habuerit, aut leves anulos, id est quae rem non excedit aureorum quinque. alioquin si quis damnatus digito habuerit aut sardonychica aut aliam gemmam magni pretii vel si quod chirographum magnae pecuniae in sinu habuerit, nullo iure illud in pannicularia ratione retinebitur’. pannicularia sunt ea, quae in custodiam receptus secum attulit: spolia, quibus indutus est, cum quis ad supplicium ducitur, ut et ipsa appellatio ostendit. ita neque speculatores ultro sibi vindicent neque optiones ea desiderent, quibus spoliatur, quo momento quis punitus est, hanc rationem non compendio suo debent praesides vertere, sed nec pati optiones sive commentarienses ea pecunia abuti, sed debent ad ea servari, quae iure praesidum solent erogari, ut puta chartiaticum quibusdam officialibus inde subscribere, vel si qui fortiter fecerint milites, inde eis donare: barbaros etiam inde munerari venientes ad se vel legationis vel alterius rei causa. plerumque etiam inde conrasas pecunias praesides ad fiscum transmiserunt: quod perquam nimiae diligentiae est, cum sufficiat, si quis non in usus proprios verterit, sed ad utilitatem officii patiatur deservire.
6 The Same, On the Duties of Proconsul, Book X. The Divine Hadrian stated in a Rescript to Aquilius Bradua: “It is evident that, by the name itself, one ought to understand what is meant by clothing. For no one can reasonably say that under this term is included the property of persons who have been condemned, for if anyone is wearing a girdle, no one should claim it on this ground; but any clothing which he wears, or any small sums of money which he may have in his possession for the purpose of living, or any light rings, that is to say, any which are not worth more than five aurei, can be demanded. “Otherwise, if the convicted person should have on his finger a sardonyx, or any other precious stone of great value, or have in his possession any note calling for a large sum of money, this can, by no right, be retained as part of his clothing.” Clothing of which a man can be stripped are those things which he brought with him when he was placed in prison, and with which he is attired when he is conducted to punishment, as the name itself indicates. Hence, neither the executioners nor their assistants can claim these things as spoils at the moment when the culprit is executed. Governors should not appropriate these articles for their own benefit, or suffer assistants or jailors to profit by this money, but they ought to preserve it for expenditures which Governors have the right to make; as, for instance, for paper for the use of certain officials; or as donations for soldiers who have distinguished themselves by their courage; or to be presented to barbarians belonging to an embassy; or for some other purpose. Frequently, moreover, Governors have paid into the Treasury sums of money which they had collected, which is a manifestation of too great diligence, as it will be sufficient if they do not appropriate it to their own use, but permit it to be employed for the benefit of their office.
7 Paulus libro singulari de portionibus, quae liberis damnatorum conceduntur. Cum ratio naturalis quasi lex quaedam tacita liberis parentium hereditatem addiceret, velut ad debitam successionem eos vocando (propter quod et in iure civili suorum heredum nomen eis indictum est ac ne iudicio quidem parentis nisi meritis de causis summoveri ab ea successione possunt): aequissimum existimatum est eo quoque casu, quo propter poenam parentis aufert bona damnatio, rationem haberi liberorum, ne alieno admisso graviorem poenam luerent, quos nulla contingeret culpa, interdum in summam egestatem devoluti. quod cum aliqua moderatione definiri placuit, ut qui ad universitatem venturi erant iure successionis, ex ea portiones concessas haberent. 1Si in libertinum animadversum erit, patrono eius id, quod in bonis illius habiturus esset, si is in quem animadversum est sua morte decessisset, eripiendum non erit: reliqua pars bonorum, quae ad manumissorem non pertinebit, fisco erit vindicanda. 2Ex bonis damnatorum portiones adoptivis liberis, si non fraudis causa facta est adoptio, non minus quam naturalibus concedi aequum est. fraudis autem causa adoptio facta videtur, etiamsi non in reatu, sed desperatione rerum per conscientiam, metu imminentis accusationis quis adoptet in hoc, ut ex bonis, quae se amissurum cogitat, portio detrahatur. 3Si plures filios damnatus habeat, feruntur exempla, per quae pluribus liberis omnia bona damnati concessa sunt. sed et divus Hadrianus in hac sententia rescripsit: ‘Favorabilem apud me causam liberorum albini filiorum numerus facit, cum ampliari imperium hominum adiectione potius quam pecuniarum copia malim: ideoque illis paterna sua concedi volo, quae manifestabunt tot possessores, etiamsi acceperint universa’. 4Praeterea ex his, quae per flagitium damnatus adquisiit, portiones liberorum non augentur: veluti si cognatum suum interemi curaverit et eius hereditatem adiit vel bonorum possessionem accepit: nam ita divus Pius rescripsit. cui consequenter illud idem princeps constituit, cum filia familias veneno necasse convinceretur eum, a quo heres instituta erat: quamvis iussu patris, cuius in potestate erat, hereditatem eam adiisset, tamen fisco eam vindicandam esse. 5Quae post condemnationem adquisiit is cuius bona publicata sunt, si relegatus est, ad heredes scriptos ab eo vel ab intestato venientes pertinent: nam in insulam relegatus testamenti factionem habet ut reliqua quoque iura. quod si deportatus est, quoniam, quia civitatem amittit, heredem habere non potest, etiam postea adquisita fiscus capit.
7 Paulus, On the Shares Granted to the Children of Persons Who Have Been Convicted. As natural reason, which is a certain kind of tacit law, grants to children the estates of their fathers, calling them to the succession in the same way as to a debt, oh this account the name of direct heirs has been conferred upon them by the Civil Law; so that, as they cannot be removed from the succession by the will of their parents, unless for a good reason, it has been thought to be perfectly just that, in cases in which the conviction of a parent deprives him of his property as a penalty, the children should be taken into consideration, for fear they may suffer a more severe penalty for offences committed by others, whose guilt did not involve them, by subjecting them to the greatest poverty. It was decided that, under such circumstances, a certain degree of moderation should be displayed; so that those who would have been entitled to the entire estate by the right of inheritance might have some portion of the same conceded to them. 1When a freedman is punished, any of his property which his patron would have been entitled to if his freedman had died a natural death should not be taken from him; but the remaining part of the estate which had no reference to his manumission shall be forfeited to the Treasury. 2It is just that certain portions of the property of persons who have been condemned should be given to adopted, as well as to natural children, if the adoption was not fraudulently made. An adoption is considered to be made for the purpose of fraud where anyone adopts a child, although he has not yet been accused, but, aware of the desperate condition of his affairs, is influenced by the fear of an impending accusation, in order that a part of the property which he thinks he is about to lose may be saved. 3Where the condemned person has several children, examples have been adduced in which all of his estate has been granted to several children. The Divine Hadrian stated in a Rescript: “The number of the children of Albinus causes me to look favorably upon their case, as I prefer that my empire should be increased by the addition of men, rather than by that of money; therefore I wish the property of their father to be given to them, which so many possessors will render evident, especially if they should obtain all of his estate.” 4Again, any property which the convicted person has acquired by crime does not increase the share of the children; for instance, if he has caused a relative of his to be killed, and enters upon his estate, or obtains prætorian possession of the same; for this was established by the Divine Pius in a Rescript. Consequently, where a son under paternal control had been convicted of killing, by means of poison, a person by whom he had been appointed heir; the above-mentioned Emperor rendered the decision that, although he had entered upon the estate by the order of his father, under whose control he was at the time, it should be forfeited to the Treasury. 5If the person whose property has been confiscated has been relegated, anything acquired by him after conviction shall belong to his testamentary heirs or to his heirs at law; for anyone who has been relegated to an island enjoys the right to make a will, as well as all other rights. If, however, he has been deported, he cannot have an heir, because he has lost his citizenship; and any property subsequently acquired will be forfeited to the Treasury.
8 Macer libro ... de publicis iudiciis. Liberis quoque patronorum integrum ius patronatus servatur in bonis paterni liberti publicatis. si eius liberti extat patroni filius, fisco locus non est in parte filii patroni. 1Si patroni filius excluditur propter liberos quos habet libertus, satius est dicere fisco locum non esse, quoniam patroni filium excludunt liberi liberti, ipse autem fiscum repellit. 2Patroni filius etiamsi bonorum possessionem non petat, haud dubie excludit fiscum in parte sibi debita ex bonis liberti paterni. 3Relegati bona per sententiam specialem publicari poterunt, nec tamen iura adversus libertos ei auferuntur nisi principis iussu. 4Si condemnatur pater, qui dotem pro filia dedit, fisco in eam dotem ius non est, etiamsi postea in matrimonio filia moriatur,
8 Marcianus, Book. The right of patrons is preserved unimpaired for their children, so far as the property of a freedman of their father, whose property has been confiscated, is concerned. If the son of the patron appears, the Treasury can claim nothing of the share to which he is entitled. 1Where, however, there is a son of the patron, and a son of the freedman as well, the former will be excluded; and there will still be more reason for us to hold that there will be no ground for forfeiture to the Treasury, as children of the freedman exclude those of the patron, and those of the patron exclude the Treasury. 2But even if the son of the patron does not desire to demand prætorian possession of the estate, it is established that the Treasury will be excluded from that portion of the property of the freedman of his father to which he is entitled. 3The property of a person who has been relegated is not confiscated, unless this is expressly done by the terms of the sentence; but the rights of freedmen cannot be taken away by a special sentence, because the Emperor alone can deprive a relegated person of them. 4When a father, who has given a dowry for his daughter, is convicted, nothing is forfeited to the Treasury, even if the daughter should die afterwards during marriage, in which case the profecticial dowry will revert to the father. Therefore it will remain in the hands of her husband.
9 Callistratus libro .... nisi probabitur patrem metu condemnationis liberis prospexisse.
9 Callistratus, Book. Unless it is proved that the father, through apprehension of conviction, and in order to defraud the Treasury, has consulted the interests of the children.
10 Macer libro ... de publicis iudiciis. Etiam si pater, cum pro filia dotem promisisset, condemnatur, vir eam ex bonis eius a fisco petit. 1Si post solutum matrimonium filiae pater condemnatur, si quidem postquam filia ei consensit de dote repetenda, fiscus a marito eam repetit: si antequam consentiret ei, condemnatus est, ipsa repetitionem habet.
10 Marcianus, Book. Even if the father has promised a dowry for his daughter, and has been convicted, an action to recover the dowry from the estate of the father will be granted to the husband against the Treasury. 1Where a father has been convicted, after the dissolution of the marriage of the daughter, and, indeed, after the daughter has given her consent for him to have the dowry, the Treasury can recover it from the husband; but, before she gives her consent, the daughter herself will have a right to recover her dowry.
11 Marcianus libro ... de publicis iudiciis. Si quis damnatus appellaverit et pendente appellatione decesserit, bona eius non publicantur: nam ita posterius quoque testamentum eius ratum est. idem est et si appellatio non recepta est. 1Qui reus est non maiestatis, bona administrare potest et pecuniam credere debitamque sibi recipere, si bona fide debitores ei solvunt: in fraudem autem quae alienavit, post condemnationem revocantur.
11 The Same, Book. When anyone who has been convicted appeals, and dies while the appeal is pending, his property is not confiscated; for even a second will, if he should make one, will be valid. The same must be said even if the appeal is rejected. 1A defendant, except when accused of high treason, can administer his own property, pay his debts, and receive what is due to him, if it is paid in good faith; but every alienation which he has made for the purpose of defrauding the Treasury after his conviction can be set aside.