Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book II. Either birth, manumission, or adoption, creates a citizen of a municipality. 1Properly speaking, indeed, those only are designated citizens of a municipal town who have the right of citizenship, and share the municipal duties with us. Now, however, we improperly call those citizens of a municipal town who are the residents of any town, as, for instance, those who live in Campania, or in Puteola. 2Therefore, anyone born of parents dwelling in Campania is styled a citizen of Campania. If, however, his father came from Campania, and his mother from Puteola, he is likewise considered a citizen of Campania, unless his mother enjoys some special privilege of birth; for then he will be a citizen of the town where his mother was born. Thus, for instance, it is conceded as a privilege to the people of Troy that when the mother was born at Troy, her son will become a citizen of that city. This same privilege is also granted to the people of Delphi. Celsus states that the inheritants of Pontus also enjoy this advantage, through the favor of the Great Pompey, that is to say, that anyone whose mother was born in Pontus will be a citizen of that country. Certain authorities, however, hold that this privilege was only granted to children born in lawful marriage, but Celsus does not adopt this opinion. For it would not have been provided that a child born out of wedlock should follow the condition of its mother (as it has the same origin that she has), but the rule could only apply to children born of parents whose birthplaces were in different cities.

2 The Same, Disputations, Book I. Whenever a son under paternal control is created a decurion, with the consent of his father, the latter is required, as surety for his son, to be responsible for the performance of all the duties pertaining to the office of decurion. The father is considered to have given his consent for his son to become a decurion if, having been present at his nomination, he did not oppose it. Hence, anything that his son does while in office, his father will be responsible for as his surety. 1We should understand the transaction of the business of an office to be the handling of the public funds, or decisions with reference to their expenditure. 2The incumbent will also be liable for any supervisors of work, or of anything else in which the State is interested. 3The father will be liable if the son is appointed his successor. 4He will also be liable if he has farmed out the public taxes. 5If the son has not taken care to appoint guardians, when requested to do so, or if he selects such as are not suitable, or if he does not require security, or accepts a guardian who is not solvent, there is no doubt that he himself will be responsible. The father, however, will still be liable, when sureties are accustomed to be bound under these circumstances. This, however, is not customary, as has been stated in a Rescript; because the sureties only promise that the estate shall be secure, but, so far as pecuniary matters are concerned, the estate is not interested in the appointment of wards. 6He who remains absent a longer time than is authorized by his furlough, or contrary to the terms of the same, can still hold office.

3 The Same, On Sabinus, Book XXV. It has been established that a son under paternal control can have a domicile.

4 The Same, On the Edict, Book XXXIX. He can not only establish his domicile where his father has his, but anywhere else.

5 Paulus, On the Edict, Book XLV. Labeo says that he who carries on business to the same extent in several places has no domicile in any of them. It is, however, stated that certain authorities hold that he can be a resident of, and have a domicile in several places. This is true.

6 Ulpianus, Opinions, Book II. The statement of one’s birthplace, which is not correct, does not alter the fact of a person’s origin; for a man’s actual birthplace is not lost by mistake, nor by his falsely, giving a different place from the true one. Nor can anyone, by rejecting the country where he was born, nor by misrepresentation on this point, change the truth. 1A son derived his origin from the town in which his father was born, but he does not follow the domicile of the latter. 2It was decided by men learned in the law that anyone can have his domicile in two different places, that is where he builds in two different places, and is not considered to reside in one more than in the other. 3Freedmen follow the place of birth or domicile of their patrons, which is also the case with their children.

7 The Same, On the Duties of Proconsul, Book V. When anyone is manumitted by several masters, he follows the birthplaces of all his patrons.

8 Marcianus, On Public Prosecutions, Book I. The Divine Brothers stated in a Rescript that decurions should not be forced to furnish grain to the people at a lower price than the supply of provisions demands; and this is also provided by other Imperial Constitutions.

9 Neratius, Parchments, Book III. He who has not a legitimate father derives his origin from his mother, which should be reckoned from the day on which he was born.

10 Marcianus, On Informers. No city has the same privilege as the Treasury with reference to the property of a debtor, unless it has been expressly conceded by the Emperor.

11 Papinianus, Questions, Book II. The Emperor, Titus Antoninus, stated in a Rescript addressed to Lentulus Verus that the duties of magistrates were individual, but that their responsibility was common. This should be understood to mean that the responsibility only attaches to the entire body, if the property could not have been preserved by the one who transacted the business, nor by those who were his sureties, if he, at the time that he relinquished his office, was not solvent; but, on the other hand, if the person or the security was suitable or solvent when suit could have been brought, each one will be liable for whatever he administered. 1Where, however, he who appointed the magistrate on his own responsibility is solvent, should the action first be brought against him as a surety; or, indeed, will it be the same as if the business was improperly transacted by his colleague? It was decided that he should first be sued who appointed the magistrate, as in the case of a surety, since his colleague is proceeded against on account of his negligence, and to collect the penalty; but he who nominated the magistrate is sued because of his guarantee.

12 Tine Same, Opinions, Book I. It is not necessary to grant a prætorian action against the colleague of the appointed magistrate.

13 The Same, Questions, Book II. What, then, would be the rule, if one of the magistrates was absent for the entire year; or if, while present, he did not transact the public business through either obstinacy, ignorance, or ill health, and his colleague alone attended to it all, and it was not properly done? The following order shall be followed: first, he who conducted the public business, and those who were sureties for him, shall be sued for the entire amount, and after all these have been exhausted, he who appointed an insolvent person will be liable; and finally, the other magistrate, who did not attend to any public affairs, should be called to account. Nor can he who appointed the magistrate properly decline general liability, as he should have known that he whom he appointed took the office as an individual, and assumed common responsibility. For when two magistrates transact business, and money which is due can not be collected from one of them, he who nominated him can be sued for the entire amount when this is necessary.

14 The Same, Questions, Book XV. Municipal magistrates are understood to know what those to whom the highest interests of the State are entrusted are cognizant of.

15 The Same, Opinions, Book I. He who has been removed from the Order of Decurions for a certain time, and afterwards restored, cannot be admitted to new honors as a person who has been relegated for the time that he was deprived of his rank. It has been decided in both these instances that it must be ascertained whether the parties who have been convicted of an offence deserved a sentence of this kind; for if they received a more severe one than they should have done, or have been branded with infamy, they ought afterwards to be liberated, and the matter be considered as disposed of. When, however, they have been subjected to a less severe penalty than that legally prescribed, they will, nevertheless, be included among persons who are infamous; as a question of fact depends upon the decision of the judge, but the authority of the law does not. 1When anyone appoints a successor to himself, and the latter is solvent when his term of office expires, it is not necessary for an action to be granted. 2Where lands are transferred by means of a secret trust, for the purpose of defrauding public claims, they can be demanded by the Treasury; and the purchaser of the property fraudulently sold will be forced to pay as much again out of his own pocket. 3The right of birth is not altered by adoption, so far as the discharge of official duties and the acceptance of public employment are concerned, for a son can be compelled by his adoptive father to accept a new employment.

16 Hermogenianus, Epitomes of Law, Book I. Where, however, he has been emancipated by his adoptive father, he not only ceases to be his son, but also is no longer a citizen of the town of him whose son he becomes by adoption.

17 Papinianus, Opinions, Book I. A freedman is not excused from civil employment on account of services due to his patron, for it makes no difference whether he renders his services or performs his duties to his patron, or not. 1The freedmen of Senators, however, who transact the business of their patrons, are excused from guardianship by a Decree of the Senate. 2A father consented for his son to be appointed decurion. The government should sue the son personally rather than that the father should have an action brought against him as security for his son; for it does not make any difference whether the son had a castrense peculium before he served in the army or afterwards. 3The prescription of time required in order again to seek office, or to obtain other public employment, applies to some municipalities, but not to others. 4Public employments cannot be administered by the same person at the same time in two different cities. Therefore, where two offices are tendered at the same time, the place of one’s birth should be preferred. 5The sole ground of possession is not sufficient to impose civil duties upon the possessor, unless this privilege was especially granted to the city. 6Persons who have returned to their country under the right of postliminium are obliged to accept public employment, even though they reside in another town. 7The collection of taxes is not included among base employments, and it is therefore committed to decurions. 8He who has been manumitted under the terms of a trust, in the matter of civil employments, follows the origin of the person who manumitted him, and not that of him who left him his freedom. 9It was decided by the Divine Pius that a child born in an adopted family followed the origin of his natural grandfather in the discharge of civil employments; just as where a son was given in adoption, unless there was some suspicion of fraud attaching to the proceeding. 10The mistake of him who, thinking that he is a citizen of a town, or the inhabitant of a colony, agrees to accept civil employment, does not exclude him from making a legal defence. 11The removal of the domicile of a father to another town does not compel his son to accept public employment in that town, when the cause for the change of the father’s domicile is temporary. 12Where accusations of a capital crime are brought against persons nominated for office, they cannot be admitted to any new employments before their cases have been disposed of, but, in the meantime, they will retain their former rank. 13The mere possession of a house in another town does not create a domicile. 14The responsibility entailed by the nomination of a successor does not bind the surety of the person who makes it. 15Sureties who have become responsible for public property, and who nominate magistrates at their own risk, are not liable to any penal actions which may be brought against those for whom they have become bound; for it is enough that they should have promised to make good any damage sustained by the government.

18 Paulus, Questions, Book I. The Divine Severus stated in a Rescript that the intervals of time prescribed with reference to continuance in office, are granted to such as are unwilling, but not to those who desire to remain, for no one should remain constantly in office.

19 Scævola, Questions, Book I. What is done by the majority of an assembly is considered to be the same as if it had been done by all.

20 Paulus, Questions, Book XXIV. A domicile is transferred when this is actually done, and not when a mere statement to that effect is made, as is required in the case of those who deny that they, as inhabitants, can be summoned to discharge public duties.

21 The Same, Opinions, Book I. Lucius Titius, while under the control of his father, was appointed by the magistrates, along with certain others, a curator for the purchase of grain, against the consent of his father. Lucius Titius did not agree to accept the office, and did not receive any money on this acount, nor did he, in any way, take part with the other officials in making the purchase; and, after the death of his father, he was called to account for a balance due from his colleagues. The question arose, could he be held liable on this account? Paulus answered that, although he refused to accept the office to which he had been appointed by the magistrates, he could be sued on account of the damage sustained by the State, even if at the time when he was appointed he was subject to the authority of another. 1Paulus gave it as his opinion that those against whom an action is brought, not by reason of a contract but on account of some public employment which they have discharged for others, are usually liable for loss of any of the principal, but are not liable for interest. 2He also held that the heirs of a father cannot legally be sued on account of an office which his son accepted after the death of his father. This opinion has reference to one who was appointed decurion by his father, and after the death of the latter continued to perform the duties of the office. 3He also gave it as his opinion that one who had adopted a decurion was considered to have assumed all the responsibilities of the decurionate, as in the case of a father whose son was appointed decurion with his consent. 4He also gave it as his opinion that a dowry was included in the property of the husband during the marriage. If, however, he should be called to undertake municipal duties, in proportion to his means, the dowry should not be considered part of his property. 5He also gave it as his opinion that if the accuser of a capital offence was not to blame because the charge was not prosecuted within the time prescribed by law, the defendant should not, in the meantime, solicit any public employment. 6“The Emperors Severus and Antoninus, to Septimius Zeno. While you have consented for your son, who is still under legal age, to become a decurion, and although you have afterwards pledged your faith for him, still, in the meantime, you cannot be compelled to assume any responsibility, as you do not appear to have given your consent to an appointment which can legally be made.” 7He also gave it as his opinion that if a State did not enjoy any special privilege with reference to receiving additions to its territory, it could not withdraw from a lease or a sale of public lands which already had been perfected; for the time regulating such additions is prescribed by the Treasury.

22 The Same, Sentences, Book I. The children of freedmen and freedwomen follow either the domicile or the origin of their paternal ancestors, and of their patrons who manumitted them. 1A widow retains the domicile of her deceased husband, as in the case of a woman rendered illustrious by her husband, but it will be changed if she should contract a second marriage. 2Freedmen become citizens of the place where they have voluntarily fixed their domicile; but, by doing so, they do not prejudice the birthright of their patron, and are required to discharge public employments in both places. 3He who was relegated to a certain locality, in the meantime, necessarily has his domicile in the place to which he was relegated. 4A Senator deprived of his rank is not restored to his original country, unless he obtains this as a special favor. 5Senators, with their sons and daughters born while their father held the office, as well as their grandsons, great-grandsons, and great-granddaughters by their sons, are deprived of the benefit of their birthright, although they still retain the municipal dignity. 6Senators who have obtained free leave of absence, that is, the power of residing where they please, retain their domicile in the City of Rome. 7Those who lend money at interest should discharge all liabilities attaching to their patrimony, even though they may not have possession.

23 Hermogenianus, Epitomes of Law, Book I. Anyone who has attained to the Senatorial dignity ceases to be a citizen, so far as holding other public employment is concerned; but he is understood to retain his birthright with reference to municipal honors. Hence slaves who have been manumitted by him become citizens of the town in which he was born. 1A soldier has his domicile in the place where he serves if he has no property in his own country.

24 Scævola, Digest, Book II. It is set forth in the Imperial Constitutions that money which is paid to the detriment of anyone, does not bear interest. This was stated by the Emperors Antoninus and Verus in a Rescript as follows: “It is no more than equitable that interest should not be required on a balance due at the end of the term of an office, which the incumbent did not himself administer, nor should it be exacted from his surety, and “still less ought it to be collected from magistrates who have received security.” The result of which is that this rule should not be departed from in the future.

25 Ulpianus, On the Edict of the Prætor, Book I. When two municipal magistrates discharge the duties of a single office, they are regarded as only a single individual, and this privilege is generally granted them by municipal law; but even if it is not, it is customary for this rule to be observed, provided there is no enactment to the contrary.

26 Paulus, On the Edict, Book I. A municipal magistrate cannot perform acts which rather belong to the Imperial jurisdiction than to his own. 1Municipal magistrates are not permitted to grant complete restitution, or to order the possession of property to be taken for the purpose of preserving it, or for the maintenance of a dowry intact, or to insure the safety of legacies.

27 Ulpianus, On the Edict, Book II. Anyone who is manumitted becomes a citizen of the town to which the person who manumitted him belongs; still, he does not follow his domicile, but his country; and if his patron is a citizen of two different towns, by his manumission he will become the citizen of the same towns. 1Where anyone always conducts his business, not in a colony, but in a town, and sells, purchases, and makes contracts there, or uses the markets, or the baths, or attends exhibitions, and celebrates festivals there, and, in short, enjoys all the advantages of the town, and none of those of the colony, he is understood to have his domicile in the said town rather than where he sojourns for the purpose of cultivating land. 2Celsus, in the First Book of the Digest, discusses the point that, if anyone should furnish two houses alike, which are situated in two different places, and does not live in one any less than in the other, he must be considered to have his domicile where he himself thinks that it is. I doubt whether by changing his mind from one place to another anyone can be considerd to have his domicile in two places. Still, this may be true, although it is a difficult thing to decide, just as it is difficult to decide that anyone can be without a domicile. I think, however (and this can be maintained as correct), that if a man having left his domicile, takes a sea voyage, or travels by land, seeking some place to sojourn for a time, he will be without any domicile. 3He who has been relegated can have his domicile, as Marcellus says, in the place to which he has been restricted.

28 Paulus, On the Edict, Book I. A matter of the greatest importance can be brought before municipal magistrates by consent of the parties interested.

29 Gaius, On the Provincial Edict, Book I. A man must obey the magistrates of the town in which he lives, as well as those of the one of which he is a citizen; for not only is he subject to the municipal jurisdiction of both places, but he should also discharge the duties. of any public office in either of them.

30 Ulpianus, On the Edict, Book LXI. Anyone born in a village which is a dependency of a city is understood to have his residence there, just as if it was in the city itself.

31 Marcellus, Digest, Book I. There is nothing to prevent anyone from having his domicile wherever he wishes, for the reason that he is not forbidden to do so.

32 Modestinus, Differences, Book IV. A woman who has been betrothed does not change her domicile before her marriage has been contracted.

33 The Same, On Manumissions. Rome is our common country.

34 The Same, Rules, Book III. A citizen who has already been appointed to a public employment cannot abandon his residence until he has discharged the duties of his office.

35 The Same, Excuses, Book I. It must be remembered that when anyone continues to dwell upon a tract of land he is not considered to be the resident of a municipality; for he who does not enjoy the privileges of a town is not held to be a citizen of it.

36 The Same, Opinions, Book II. While Titius was at Rome for the purpose of pursuing his studies, a letter was despatched to him by the magistrates of his native village, in order that he might deliver to the Emperor an ordinance of the said village which was transmitted along with the letter. But the person who had undertaken to deliver the letter, through collusion, delivered it to Lucius Titius, who himself was residing at Rome, for the same reason as Titius. After having erased the name of Titius, to whom the ordinance was directed, he inserted his own name, and then delivered it to the Emperor, according to the order of the municipality. I ask whether the messenger could demand his travelling expenses, and what offence he should be considered to have committed in not delivering the letter to the person to whom he had undertaken to give it, as well as what he was guilty of, who, having erased the name of another, and written in his own, delivered the ordinance to the Emperor, just as if he had been ordered to do so by his native town? Herennius Modestinus answered that Titius could not demand the travelling expenses, but that he could have recourse to the person who made the substitution in his own name. 1Titius accepted a pledge for public money which he himself had lent, and made an agreement with the debtor that, if the debt should not be paid, the pledge should be sold without any guarantee. The magistrates who succeeded to the place of Titius approved the claim as well as the pledge, as far as Mævius. Enough money was not realized by the sale of the pledge to pay the debt, on account of the guarantee made by the magistrate to the purchasers with reference to the amount of the land. The question arose, who was responsible to the municipality? Herrenius Modestinus answered that Titius was not liable on this account, as his successors had assumed responsibility for the debt, nor would the magistrates who made the sale, as they sold it as containing more than was shown by actual measurement of the land; and for the reason that they sold it for more, they should be ordered to make up the deficiency. Therefore, he who was the last to approve the claim should indemnify the municipality for the loss, if the claim should not be proved to have been transferred to a solvent successor.

37 Callistratus, On Judicial Inquiries, Book I. The Governors of provinces have jurisdiction over all the inhabitants which any towns claim as their own; but still, where anyone denies that he is a resident, he must bring suit before the Governor of the province in whose jurisdiction the town, by which he is called to discharge a public employment, is situated, and not before the Governor of the one where he himself alleges that he was born. This the Divine Hadrian stated in a Rescript with reference to a woman who married in another place than the one in which she was born. 1It has been decided that freedmen can hold public office where their patron is, or where they themselves have their domicile. 2It should be remembered that women who form an illegal connection with men can only discharge public duties where they themselves have been born, and not where their husbands are. This the Divine Brothers stated in a Rescript.

38 Papirius Justus, On The Constitutions, Book II. The Emperors Antoninus and Verus stated in a Rescript that a man should be released from his oath who swore that he would not again be present at the meetings of his order, in case he should afterwards be created a duumvir. 1They also stated in a Rescript that the tenants of land belonging to the Treasury must discharge municipal duties without any loss to the Treasury. The Governor, with the assistance of the Procurator of the Treasury, should see to this. 2The Emperors Antoninus and Verus stated in a Rescript that it was the duty of magistrates to collect legacies belonging to their towns, and if they failed to do so, that they, or their heirs, could be sued; and if they were not solvent, their sureties would become responsible for them. 3They also stated in a Rescript that a woman, while married, is a resident of the same town as her husband, and that she could not be compelled to perform any public duties in the place where she was born. 4They also stated in a Rescript that the property of a father who had deliberately emancipated his son in order to avoid being responsible for him as a magistrate would be liable, just as if he had become surety for him. 5They also stated in a Rescript, that when inquiry was made whether someone was a citizen of a certain town, evidence should first be obtained as to any property which he might have there; for the mere resemblance of a name is not sufficient to establish anyone’s birthplace. 6The Emperors Antoninus and Verus stated in a Rescript that those who perform the duties of magistrates under compulsion should give adequate security, just as one who voluntarily accepted the office.