Ulpianus, On the Edict, Book L. When a man makes a compromise with reference to something which is in doubt, and the issue of the trial is uncertain, the compromise is not brought to a termination; but he who makes an agreement surrenders by way of donation through liberality, something which is certain and undisputed.

Ulpianus, On the Edict, Book L. Where a question arises with reference to the deposit of a will, and there is some doubt with whom this should be done, we prefer that it should always be left with an old, rather than with a young person, with one of high rather than with one of inferior rank, with a man rather than with a woman, and with a freeborn person rather than with a freedman.

Ulpianus, On the Edict, Book L. Whatever is left by a testator under the condition of taking an oath is disapproved by the Prætor. For he takes care that no one who accepts any property under the condition of taking an oath, or by omitting to comply with the condition, shall lose the estate, or a legacy, or that he shall be compelled shamefully to take an oath on condition of receiving what was bequeathed to him. The Prætor, therefore, sees that anyone to whom property was left under the condition of taking an oath, can acquire it just as those do upon whom no condition of being sworn is imposed, and in this case he acts very properly, as there are some men who, through their contempt for religion, are always ready to take an oath, and there are others who are timid, even to superstition, on account of their fear of Divinity; hence the Prætor most wisely interposes his authority, in order that neither the latter nor the former may either acquire or lose what was left to them in this manner. For he who wishes, by the influence of religion, to restrain those to whom he left property under the condition of taking an oath, would not be able to accomplish his purpose unless they did so; for the parties complying with the condition would be admitted to the succession, or if they failed to comply with it, they would be excluded on account of non-fulfillment of the condition. 1This Edict also relates to legacies, and not merely to the appointment of heirs. 2With reference to trusts, it is also necessary for those who have jurisdiction over a trust to obey the Edict of the Prætor; for the reason that trusts are discharged in the same manner as legacies. 3In the case of donations mortis causa, it must be said that there is ground for the application of the Edict; if, for instance, anyone should provide that the party must surrender whatever he received, unless he swears that he will perform some act. Therefore, it will be necessary for the bond to be given up. 4Where anyone has been appointed under the condition of taking an oath, as well as under some other condition, it must be considered whether he can be released from the performance of the condition. The better opinion is, that he should be released from the condition of the oath, although he may be obliged to comply with the other condition. 5But where an heir has been appointed under the condition of taking an oath, or of the payment of ten thousand aurei, that is to say, that he is required either to pay the money or be sworn, it must be considered whether he should not be released from one condition because he can be secure by complying with the other. The better opinion is, that he should be released from the first condition, lest, by some means, he may be compelled to take the oath. 6Whenever an heir is ordered by the testator, “To give something, or to perform some act”, which is not dishonorable, he will not be entitled to an action unless he gives or does what he was ordered to swear to do. 7When an heir was appointed on the condition that he would swear to manumit Stichus, and Stichus died, or was manumitted during the lifetime of the testator, the condition will not be held to have been violated; although it is true that the heir would have been compelled to manumit the slave if he had lived. The same rule applies where an heir was appointed as follows: “Let Titius be my heir, in order that he may manumit Stichus”; or, “I bequeath a hundred aurei to Titius, in order that he may manumit Stichus”. For if Stichus should die, no one can say that the heir will be barred from receiving the legacy, for he is not considered to have failed to comply with the condition, when he was unable to do so, and the will of the testator must be executed if this can be done. 8It is not necessary to appear before the Prætor for the purpose of being released from this oath, for where a release is once given by the Prætor it is good for all time; and a release is not obligatory in each individual instance. Therefore, it is held that a release is granted from the day on which the legacy was payable, even though the appointed heir was ignorant of the fact. Hence, it is very properly held in the case of the heir of a legatee, that if the legatee should die after the day appointed for the payment of the legacy, his heir must make use of the action de legato, just as if the legacy had been left unconditionally to the party whom he succeeded as heir.

Ulpianus, On the Edict, Book L. The instrument containing the provisions of the will does not belong to one person, that is to say, to the heir, but it is the property of all those to whom anything has been bequeathed; and, indeed, it is rather a public document. 1That is properly said to be a will which is legally perfect; however, we also improperly call certain papers wills which are forged, illegal, void, or broken, and we are also accustomed to designate as wills such as are defective. 2It is held that whatever has been done with reference to a will is subject to the same rules as the will itself, no matter upon what material it has been written; provided that it contains the last wishes of the deceased, and the will itself, as well as the substitution, is embraced in the Edict. 3Where anyone desires to produce several wills, authority to produce them all should be granted. 4If any doubt should exist whether the person whose will someone desires to have examined or copied is living or dead, it must be held that the Prætor shall decide this after proper investigation, so that if it is proved that the testator is living, he shall not permit the will to be examined; 4aotherwise, he can allow the applicant to examine the writing, the seals, and anything else belonging to the instrument which he may desire to inspect. 5The examination of a will also includes the perusal of the same. 6The Prætor does not permit the date of the will or the name of the Consul under whose administration it was drawn up to be copied or examined, in order to avoid opportunity for fraud; for even the examination of these may furnish material for the perpetration of forgery. 7Can the Prætor order that power to examine or copy a will be accorded without delay, or shall he grant time for its production to the person having possession of the same if he wishes it? The better opinion is that he should grant a certain time, dependent upon the difficulty of communication, and the distance of the place. 8If anyone does not deny that he has possession of a will, but will not allow it to be examined and copied, he should, by all means, be compelled to do so. If, however, he denies that the will is in his possession, it must be said that recourse should be had to the interdict which provides for the production of wills.

Ulpianus, On the Edict, Book L. When the will is about to be opened, it is the duty of the Prætor to require the witnesses to appear and acknowledge their seals,

Ulpianus, On the Edict, Book L. If the majority of the witnesses are found, the will can be opened and read in their presence.

Ulpianus, On the Edict, Book L. The Prætor does not permit the opening of a pupillary will, even if there is no endorsement on it forbidding this to be done; still, if the testator left his will partially sealed, the Prætor can allow it to be opened, if proper cause be shown.

Ulpianus, On the Edict, Book L. The Prætor attempts to carry out the wishes of deceased persons, and opposes the cunning of those who, by refusing to take under the will, obtain possession of the estate, or a portion of the same, on the ground of intestacy; in order to defraud legatees to whom something may be due under the will of the decedent, if the estate should not be obtained ab intestato; and he promises to grant an action against them. 1It makes little difference whether the party in question acquires the estate himself, or through someone else; for in whatever way he may be able to do so, if he does not acquire it under the will, he is in a position to be affected by the Edict of the Prætor. 2An heir is held to have omitted to take advantage of the benefits granted him by will, who, when he can order someone to enter upon the estate, declines to do so. 3But what if his slave, when ordered to enter upon the estate, after receiving the order should not obey it? The slave, however, can be compelled to do this, and therefore his master comes within the scope of the Edict. 4If, however, the master has not been informed by his slave of his appointment as heir, and he himself afterwards obtains possession of the estate on the ground of intestacy; he will not be liable under the Edict, unless he pretends ignorance of the facts. 5Ad Dig. 29,4,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 602, Note 6.Where the proposed case is, that the same party was, at the same time, appointed heir and substituted, and neglected to take advantage of his appointment; the question arises whether he comes within the scope of the Edict. I do not think that he does, as the testator who appointed him as substitute for himself granted him the privilege of rejection. 6Where anyone rejects an estate, he forfeits any rights to which he may be entitled under the will. 7Where children subject to the authority of their father immediately become heirs by his will, there is no reason why they cannot reject his estate. If, however, they subsequently interfere with it, they are considered to be heirs by virtue of the will, unless they refrain from taking under it, and claim possession of the property on the ground of intestacy; for, in this instance, they come within the terms of the Edict. 8Where an heir is appointed under a condition, and being able to comply with it, does not do so, when the condition is such that it depends upon the consent of the said heir, and he afterwards obtains possession of the estate on the ground of intestacy, he should be held liable under the Edict; for the reason that a conditional appointment of this kind should be considered as an absolute one. 9Ad Dig. 29,4,1,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 614, Note 4.When parties who have refused to take under the will obtain an estate on the ground of intestacy, we do not inquire whether they have acquired possession of the same as heirs-at-law or not, for by whatever title they may acquire possession of the estate, or a portion of it, they can be sued under the Edict, provided they do not acquire it on some other ground; for instance, where anyone rejects an estate and acquires it by means of a trust, and is placed in possession for the purpose of discharging the trust; or if you should state that be obtained possession in order to preserve a claim; as, in this instance, he cannot be compelled to answer in a suit brought by the legatees. Therefore, the Edict of the Prætor will apply whenever any one holds possession as an heir-at-law, or acquires the estate on the ground of intestacy, or holds it as a depredator, pretending that he has some title to possession on the ground of intestacy; for no matter in what way he may be pecuniarily benefited by obtaining the estate, he must pay the legacies. 10Security, however, must be furnished by the legatees, that in case the heir should be deprived of the estate by a better title the legacies shall be repaid to him; and even if the party may not have the estate in his possession, but has acted in bad faith to avoid being in possession, the result is that he will be held liable, just as if he had entered upon the estate. 11A person is considered to have acted in bad faith to avoid being in possession, who fraudulently transfers possession to someone else, in order that the legatees and others who have received anything under the will may be deprived of whatever was bequeathed to them. 12The question was asked whether anyone should not be held to have acted in bad faith who, in order to avoid being in possession, fraudulently relinquished it after having held it for some time; or whether he is also liable who did this maliciously to avoid obtaining possession in the first place. Labeo says that it seems to him that he who avoided obtaining possession in the first place is not less guilty than he who fraudulently relinquishes it, after having obtained it. This is one prevalent opinion. 13Where anyone fraudulently rejects an estate in order that it may descend to the heir-at-law, he will be liable to an action brought by the legatees.

Ulpianus, On the Edict, Book L. In case the heir should not receive any money, but refuses to take under the will, because he desires to confer a favor either on the substitute, or the heir-at-law, will there be ground for the application of the Edict? It would be intolerable for him to be able to prevent the execution of the will of the deceased; and therefore if it is clearly established that this was done for the purpose of injuring the legatees—even though no money was received but the act was prompted by excessive partiality—it must be said that there will be ground for an equitable action against the party who is in possession of the estate. 1It is very properly held that whenever anyone wishes to confer a favor upon another who will become the heir by his rejection of the estate, and he would not have rejected it unless he had intended to confer the favor, and especially if he did so for the purpose of preventing the execution of the will, it must, in this instance, be said that an action will lie against the possessor of the estate, with this distinction, however, that where money having been accepted, the heir rejected the estate, we can, under these circumstances, say that suit should be brought against him; but where he acted through partiality and for the purpose of defrauding those to whom something was bequeathed, the possessor of the estate should be sued in a prætorian action. 2Although the Prætor seems to refer to appointed heirs, still, this provision also extends to others; for instance, where there is a legatee who has been charged with a trust, and he causes the estate to be rejected through his fraudulent act, suit should be brought against him. 3Where anyone sells his right to an estate, he is held to remain in possession of the same, and not to have acted fraudulently in order to avoid being in possession.

Ulpianus, On the Edict, Book L. For the reason that a party who is in possession of an estate on the ground of intestacy can be sued if he relinquishes his rights under the will, the question arose whether he can be compelled to make payment if he seems to have relinquished them in compliance with the wishes of the testator. For example, a man appointed a brother his heir, and then executed a codicil requesting his brother, if the estate should come to him by law, to discharge a trust in favor of certain individuals; and therefore it should be considered, he having renounced his rights under the will and obtained possession of the estate on the ground of intestacy, whether he will be liable to the legatees. Julianus states, in the Thirty-first Book of the Digest, that he can be compelled in the first place to pay the legacies, and afterwards, they having been settled, should anything be remaining from the three-fourths of the estate, he can be required to discharge the trust. If, however, the legacies exhaust three-fourths of the estate, then nothing shall be paid under the trust, for the heir-at-law must have the fourth undiminished. Hence the order was established by Julianus that the legacies should first be discharged, and the trusts paid out of the remainder, with the understanding that the fourth should remain intact. I think that the opinion of Julianus should be adopted, so that if the estate was rejected under the will, in order that it might be obtained ab intestato, the party ought by all means to be compelled to pay the legacies, for the reason that the testator who left him the trust to be discharged in case the succession was intestate did not authorize him to reject the estate under such circumstances. 1If, however, it is evident that the testator expressly authorized him to do this, he will not become liable under the Edict, because he availed himself of the privilege which the testator granted him. But if the testator did not under the will specifically grant him the privilege of rejecting the estate, the order prescribed by Julianus should be followed. 2But what shall we say where legacies are left by will, and trusts in case of intestacy, to the same person, and, in addition to this, trusts are left to other parties? Shall we follow the same order established by Julianus, or shall we subject all the trustees to contribution as if they were equal? The better opinion is to ascertain whether it makes much difference if the heir becomes liable under the Edict, or not; for if he does become liable, those are to be preferred to whom something was left by the will; but if he does not, as it was the wish of the testator to grant him the privilege of succeeding ab intestato, or because he was admitted for some other reason, which, in accordance with what we have above stated, is not in violation of the Edict, it must be said that all the trusts ought to contribute as if they had all been placed on the same footing. 3The Prætor does not promise to grant the action indiscriminately, but only where proper cause is shown; for if he should ascertain that the testator was the author of this arrangement, and himself had permitted the heir to succeed ab intestato, or if he should find that there was any other good reason for the rejection of the estate, he will not grant the legatees an action against him. 4Also if the Prætor should ascertain that the property belongs to another, he will not grant an action, provided no suspicion of collusion influences the decision of the Prætor. 5Where, however, the person who can be deprived of the estate has in his possession any portion of the same, and relinquishes possession of it without being guilty of fraud, the better opinion is that he ceases to be liable to be sued. 6What time then shall we consider, when investigating as to whether he is in possession or not? The time when issue was joined should be considered. 7It is evident that where anyone is in possession of the property of an unclaimed estate, and that the term of four years has elapsed, suit can undoubtedly be brought against him, under this Section of the Edict, both for the reason that he refused to take under the will and because he is in possession on the ground of intestacy, and, indeed, as he is rendered safe by prescription on account of the expiration of four years. 8Where a patron is appointed heir to the share of an estate to which he is entitled, and a co-heir is appointed with him, and he rejects the appointment for his share, because what is due to him has been already exhausted, and the co-heir also rejects his portion; and then the patron obtains possession of the entire estate ab intestato, by operation of law; Celsus says in the Sixteenth Book of the Digest that the same action should be granted against him which could have been brought against his co-heir Titius, and that it will be sufficient for the patron to have for himself the entire share to which he was legally entitled. This, however, is correct only where the co-heir is in collusion with the patron, for otherwise, the latter cannot be compelled to pay the legacies, as it is not forbidden for anyone to refuse an estate, if he does so without being guilty of fraud. 9The better opinion is, that this Edict also applies to the prætorian possession of an estate contrary to the provisions of the will, so that, where a party, by taking possession of the estate in opposition to the will, must pay the legacies to the children, and the parents, and if he should fail to obtain possession of the estate, and should acquire possession of it on the ground of intestacy, he can be compelled to pay whatever he would have paid if he had obtained possession of the estate in opposition to the will. 10Where freedom has been given to a slave on the condition of his paying ten aurei, and his rights under the will are relinquished by the heir, the slave will not be liberated unless the condition is complied with.

Ulpianus, On the Edict, Book L. Where a person becomes an heir under the condition of paying ten aurei, or under any other condition which consists of either giving or doing something, and the heir, having relinquished his rights under the will, obtains possession of the estate on the ground of intestacy, it should be considered whether or not relief should be granted to him for whose benefit the condition was imposed. The better opinion is that he is not entitled to relief, for he is not a legatee.

Ulpianus, On the Edict, Book L. Where he who has relinquished his rights under the will is not alone, but together with another party has possession of the estate, Julianus very properly says, and his opinion is approved by Marcellus, that an equitable action should also be granted against him in favor of the legatees, for he ought not to object because the act of the appointed heir prejudices him, since he also profited by it. This, however, is correct where the person who relinquishes his rights under the will did not receive any money for doing so, for he will then be liable for the entire amount. 1Where legacies have been left to be discharged by appointed heirs in favor of substitutes, and the said appointed heirs as well as the substitutes have obtained possession of the estate on the ground of intestacy, after their rights under the will have been relinquished by them, the Divine Pius stated in a Rescript that the appointed heirs can honorably refuse to pay the legacies bequeathed to the substitutes; for they may very properly refuse to pay any legacy or trust to a substitute who claims it, if he was free to enter upon the estate, and to obtain all the property belonging to it without demanding the discharge of the trust. 2Where there are two heirs, one of whom was appointed and the other substituted, and both of them having relinquished their rights under the will obtain possession of the estate ab intestato; the question arises whether both of them can be compelled to pay the legacies, and whether each one of them is obliged to pay those legacies, with which he was charged, or whether both of them should pay the legacies together. I think an action should be granted in favor of the legatees against each one of them, for the payment of all the legacies; but let us consider whether each one is obliged to pay the legacies with which he himself was charged, or also those with which the other heir was charged. Let us also suppose that the appointed heir alone was in possession of the estate: will he be liable to an action for the payment of the legacies with which he was charged, or will he be also responsible for those with which the substitute was charged? It must be held that he will only be liable for the legacies with which the substitute was charged in case the estate should come into the hands of the heirs appointed under the will, on account of the bad faith of the substitute, where no money was paid; for if the substitute received any money, he himself should be sued. Moreover, if the substitute alone is in possession of the estate, and the appointed heir should reject it in consideration of having received a sum of money, we say that he will be liable to his legatees, and the substitute to his own; but where no money has been paid, we will grant an action against the substitute. If, however, both parties are in possession, the better opinion is that each one will be liable to his respective legatees.

Ulpianus, On the Edict, Book L. The question also arose in this case with respect to grants of freedom, whether it was proper that they should be conferred by both of the heirs, when the one appointed as well as the substitute were charged with their execution. The better opinion is that both those which were direct and those which were granted in trust become operative. 1It is established that the heir of anyone who relinquished his rights under a will in order to obtain possession of the estate on the ground of intestacy is liable in an action brought by the legatees to recover the entire amount; for the proceeding rather has reference to the recovery of the property than the penalty, and therefore the action is a perpetual one. This, however, will not be the case if the heir is sued on account of the bad faith of the deceased, for then an action can be brought against him for the property which came into his hands.

Ulpianus, On the Edict, Book XXX. As no household can be safe unless slaves are compelled, under peril of their lives, to protect their masters, not only from persons belonging to his family, but also from strangers, certain decrees of the Senate were enacted with reference to putting to public torture all the slaves belonging to a household in case of the violent death of their master. 1A person is included in the appellation of master who possesses the ownership of the slaves, even though the usufruct of the same may belong to another. 2Where anyone is in possession of a slave in good faith, but who is, in fact, free, he is not included in the appellation of master; nor is he, either, who has only the usufruct of a slave. 3A slave given by way of pledge is, so far as the death of the debtor is concerned, in every respect considered as if he had not been pledged. 4Those also are included in the appellation of slaves, who are bequeathed under a certain condition; for in the meantime they belong to the heir, and as, when the condition is fulfilled they cease to belong to him, it follows that meanwhile they should not be held to constitute part of his property. The same rule must be said to apply to the case of a slave who is to be free under a certain condition. 5A Rescript of the Divine Pius to Jubentius Sabinus is extant which has reference to a slave whose unconditional freedom was due under the terms of a trust; from which it is evident that too much haste should not be employed in the torture of a slave who is entitled to his freedom under a trust, and the better opinion is that he should not be punished, for the reason that he lives under the same roof with the testator, unless he participated in the crime. 6It must be said that he who has only a share in the ownership of a slave is also included in the appellation of master. 7Sons under paternal control, and other children who are in the power of their father, are also included in the appellation of master; for the Silanian Decree of the Senate not only refers to the heads of families, but also to the children. 8But what shall we say if the children are not subject to the authority of their father? Marcellus, in the Twelfth Book of the Digest, expresses uncertainty on this point. I think that the most liberal construction should be given to the Decree of the Senate, so that it may also include children who are not under paternal control. 9We do not think that the Decree of the Senate is applicable to the case of a son who has been given in adoption, even though it may apply to an adoptive father. 10The Decree of the Senate does not apply where a youth who is being reared is killed. 11Torture shall not be inflicted upon the slaves of a mother, where a son or a daughter have been killed. 12Scævola very properly says that where a father has been captured by the enemy, and his son is killed, the slaves of the father should be put to the torture and punished. He approves of this also being done, even after the death of the father, if the son was killed before he became the proper heir. 13Scævola also says that it may uniformly be maintained, where a son has been appointed heir and is killed before entering upon the estate, that the slaves can be put to the torture and punished, even if they have been unconditionally bequeathed or manumitted. For although even if he had lived and had become the heir, the slaves would not belong to him, therefore when he died, as both the legacies and the grants of freedom will be extinguished, he holds there is ground for the application of the Decree of the Senate. 14If the father is killed, should torture be inflicted upon the slaves of the son, if they form part of the castrense peculium? The better opinion is that the slaves of the son should be put to the torture, and subjected to punishment, even though the son is not under the control of his father. 15In the case of murder of a man and his wife, torture should be inflicted upon their slaves, although, properly speaking, the slaves of the husband do not belong to the wife, nor her slaves to him, but, for the reason that the two sets of slaves are commingled, and there is but one household, the Senate decreed that punishment should be inflicted, just as if the slaves belonged equally to both of them. 16But where the wife or the husband was killed, the Senate did not decree that the slaves of the father-in-law should be put to the torture. Marcellus, however, very properly says, in the Twelfth Book of the Digest, that what has been determined with reference to the slaves of the husband also applies to those of a father-in-law. 17Labeo states that those are understood to be included in the term “killed” who have been put to death by violence, or murdered; for instance, by having their throats cut, by being strangled, or thrown down from some height, or struck with a stone or a club, or deprived of life by the use of any other kind of weapon. 18Where a man is killed, for instance, by poison, or by some other agency which it is customary to employ secretly, this Decree of the Senate will not apply to the avenging of his death; for the reason that slaves are punished whenever they do not assist their master against anyone who is guilty of violence towards him, when they are able to do so. But what could they effect against those who insidiously make use of poison or any other method of this kind? 19It is evident that the Decree of the Senate will be applicable where poison is forcibly administered. 20Therefore, whenever such force is employed as usually causes death, it must be held that there is ground for the application of the Decree of the Senate. 21But what if the master was killed by poison, and not by violence, will the deed go unpunished? By no means. For although the Silanian Decree of the Senate may not apply, nor torture and punishment be inflicted upon those who are under the same roof, still, any who knew of the crime or were participants in it must be subjected to punishment, and the estate can be entered upon, and the will opened, even before torture is inflicted. 22Where a person lays violent hands upon himself, there is indeed no ground for the application of the Decree of the Senate; still, his death should be avenged. For example, if he committed the act in the presence of his slaves, and they could have prevented it, they should be punished, but if they were unable to prevent it, they will be free from liability. 23Where anyone lays violent hands upon himself, not through remorse for some crime which he has committed, but through being weary of life, or unable to suffer pain, the manner of his death does not prevent his will from being opened and read. 24It should also be noted that, unless it is established that a man has been killed, his slaves ought not to be tortured. Hence, it must positively be ascertained that the party owed his death to crime, for the Decree of the Senate to be applicable. 25We, however, understand the term torture to mean not merely being put to the question, but every inquiry and defence that may be made in the investigation of the death of the master. 26Again, this Decree of the Senate punishes, without exception, all those slaves, “Who live under the same roof”; but such as are not under the same roof, but in the same neighborhood, shall not be punished, unless they have knowledge of the crime. 27Let us consider what must be understood by the term “under the same roof”; whether it means within the same walls, or outside, within the same enclosure, within the same apartment, or the same house, or the same garden, or the entire residence. Sextus says that it has often been decided that wherever slaves were if they could have heard the voice of their master, they shall be punished just as if they has been under the same roof; although some persons have louder voices than others, and all cannot be heard from the same place. 28With reference to this, it appears that the Divine Hadrian also stated the following in a Rescript: “Whenever slaves can afford assistance to their master, they should not prefer their own safety to his. Moreover, a female slave who is in the same room with her mistress can give her assistance, if not with her body, certainly by crying out, so that those who are in the house or the neighbors can hear her; and this is evident even if she should allege that the murderer threatened her with death if she cried out. She ought, therefore, to undergo capital punishment, to prevent other slaves from thinking that they should consult their own safety when their master is in danger.” 29This Rescript contains many provisions, for it does not spare anyone who is in the same room, and does not excuse a slave who fears death, and requires slaves to summon aid to their masters by crying out. 30Where a master is killed while on one of his estates in the country, it would be extremely unjust if all the slaves who are in that neighborhood should be subjected to torture and punishment, if the said estate is very large. It will then be sufficient for those to be put to the torture who were with him when he was said to have been killed, and who appeared to be liable to suspicion of having committed the murder, or of having knowledge of it. 31Where a master was murdered while on a journey, the slaves who were with him at the time he lost his life, or those who had been with him and took to flight, should be subjected to punishment. If, however, no one was with him at the time he was killed, these Decrees of the Senate do not apply. 32A male or a female slave who has not yet reached the age of puberty is not included in this category, for their age is deserving of excuse. 33Shall we grant a slave, who has not yet attained puberty, indulgence merely with reference to punishment, or does this also relate to torture? The better opinion is that torture should not be inflicted upon a slave under the age of puberty; and, besides, it is the custom ordinarily observed that minors shall not be put to the torture, but only be frightened, or be whipped with a rod, or a leather thong. 34Slaves are excused who have obtained aid without fraudulent intent; for if one should pretend to be of assistance, or should bring it merely for the sake of appearance, this will be of no advantage to him. 35A slave is considered to have rendered assistance to his master not only when he has preserved him from harm, that is to say, when he could have exerted his power to the extent of saving him, but also when, although he did all that he could, he was unable to prevent his master from being killed; for example, where he cried out for the purpose of obtaining aid, or frightened the persons who were attacking his master, or if he assembled a crowd of people, or interposed his body between them and his master, or afforded him protection in any other way by means of his body. 36A slave who cries out is not, however, always considered to have aided his master; for what, if when he could have averted the danger from him, he chose to cry out in vain? He should undoubtedly be punished. 37But what if the slaves should be wounded while they are protecting their master? It must be said that they should be excused unless they inflicted wounds upon themselves purposely in order to avoid being punished; or if they did not receive wounds sufficiently serious to prevent them from still assisting their master, if they had desired to do so. 38Where the master, being mortally wounded, survives for a certain time, without complaining of any of his slaves, even if they should be under the same roof with him, they must be spared.

Ulpianus, On the Edict, Book L. Where a slave who was suffering from serious illness could not render his master assistance, he must be granted relief. 1If anyone while dying says that he was killed by his slave, it must be held that the master should not be believed, if he made this statement at the point of death, unless it can otherwise be proved. 2If a husband should kill his wife, or a wife should kill her husband at night, while they were together in their bedroom, the slaves will not be liable to punishment under the Decree of the Senate; but if they heard cries, and did not render assistance, they shall be punished, not only if they belong to the wife, but also if they belong to the husband. 3Where, however, a husband kills his wife caught in the act of adultery; for the reason that he himself is excused, it must be held that his slaves, as well as those of his wife, are free from liability, if they did not resist their master while seeking just reparation for a grievance. 4Where several masters, owning a slave in common, are attacked, and the slave only assists one of them, shall he be excused, or, indeed, shall he be punished for not assisting all of them? The better opinion is, that he should be subjected to punishment, if he could have assisted all of them, but only assisted one. If, however, he could not assist all at the same time, he must be excused, because he only afforded aid to one, for it would be harsh to claim that where a slave could not protect two of his masters, that he was guilty of crime for having chosen to protect but one of them. 5Wherefore, if a slave belonging to the wife should assist her husband rather than his mistress, or vice versa, it must be said that he ought to be excused. 6Those slaves must be excused who, at the time their master or mistress was killed, were shut up without bad faith on their part, so that they could not break out for the purpose of rendering assistance, or of seizing those who committed the murder. Nor does it make any difference by whom they were shut up, provided this was not done on purpose to prevent them from bringing aid. We understood the term “shut up” also to mean where they are bound, provided they have been bound in such a way that they cannot release themselves, and render assistance. 7Those also are excused who are incapacitated on account of age. 8A deaf slave also should be included among those who are infirm, or who do not live under the same roof; because as the latter cannot hear anything on account of the distance, so the former can hear nothing on account of his affliction. 9A blind slave also deserves to be excused. 10We must likewise except a dumb slave, but only where he could render aid by means of his voice. 11There is no doubt whatever that slaves who are insane should be excepted. 12Where anyone knowingly receives, or conceals through fraud a male or a female slave who belonged to the deceased, and who is liable to punishment on account of not having assisted him when the crime was committed, he is in the same position as if he had been guilty of the crime as prescribed by the law enacted with reference to assassins. 13Where a slave is due by reason of a stipulation, and discloses who committed the murder of his master, and on this account is directed to be free by way of reward, an action based on the stipulation shall not be granted to the stipulator, for it would not be granted if the slave had been subjected to punishment. Where, however, the slave did not live under the same roof with his master, an equitable action based on the stipulation will be granted to the creditor to recover the estimated value of the slave. 14But does this only apply to a slave who seems to have indicated or proved who committed the crime, if he did this voluntarily; or shall he also be included who, when he was accused, threw the responsibility of the crime upon another? The better opinion is, that he is entitled to the reward who voluntarily came forward with the accusation. 15Those slaves also, who otherwise would be unable to obtain their freedom, for instance, where they have been sold on condition that they will never be manumitted, can become free by an act of this kind, because it is conducive to the public welfare. 16Punishment must also be inflicted upon slaves who have been manumitted by will, just as upon other slaves. 17Torture and punishment must also be inflicted upon any slaves who, before the will of their murdered master or mistress has been opened, take to flight, and who afterwards, when the will is opened are found to have been left their freedom, just as upon other slaves. For it is perfectly just that the kindness of their masters should not stand in the way of their being avenged, and the more the slave has enjoyed their favor, the more serious punishment he deserves for his crime. 18It is provided by the Edict that where anything has been bequeathed by will by the person who is said to have been killed, no one who is aware of this shall open, read, or copy the will, before the slaves have been tortured and punishment is inflicted upon the guilty, in compliance with the Decree of the Senate; otherwise he will be guilty of bad faith. 19He is considered to have opened a will who opens it in the ordinary way, whether it is sealed, or not fastened with a cord, but merely closed. 20We must understand the term “to open”, to mean that we are forbidden to open the will in the presence of anyone, or publicly, or secretly; for every kind of opening is prohibited. 21Where anyone who did not know of the murder opens a will he should not be held liable under this Edict. 22And if he should be aware of the death of the testator, but does not open the will in bad faith, he will also not be liable, or if he does this through inexperience, or through rusticity is not aware of the existence of the Edict of the Prætor, or the Decree of the Senate. 23Where anyone does not open a will in the ordinary way, but cuts the cord with which it is tied, he will be excused, because he is not guilty of bad faith who does not open the will itself. 24Where, not the entire will, but only a portion of the same, is opened, it must be said that the person who opens it comes within the terms of the Edict, for it makes but little difference whether the entire will, or only a part of it, is opened. 25Where anyone opens a codicil, but does not open the will, he becomes liable under the Edict, because the codicil forms a part of the will. 26There is ground for the enforcement of the Edict whether the will that is opened is valid, or not. 27The same rule applies to those matters which relate to the substitution, where a male or a female minor is alleged to have been killed. 28When one person opens a will, and another reads it publicly, and a third copies it, all of those who did these things separately will be liable under the Edict. 29This Edict has reference not only to testamentary estates but also to intestate successions, in order to prevent anyone from entering upon the estate, or demanding prætorian possession of property belonging to the same, before torture has been inflicted upon the slaves, lest an heir might conceal the crime of his slaves for his own advantage. 30Scævola very properly says that anyone will transmit to his heir the right to bring prætorian actions if he should happen to die before entering upon the estate, and it should be ascertained that he did not do so because he feared to become liable under the Decree of the Senate and the Edict. 31If I should order a condition to be complied with between a certain day and the time of my death, and the heirs do not comply with it through ignorance, and, for the reason that such ignorance existed, the will could not be opened without incurring the penalty of the Decree of the Senate; relief should be granted to the heirs to enable them to fulfill the condition. 32Where any other impediment than fear of violating the Decree of the Senate exists to prevent entrance upon the estate or opening of the will, that arising from the Decree of the Senate, if there is any other, will be of no advantage to the heir; as, for instance, if the wife of the murdered man was pregnant, or was even supposed to be in that condition, and for this reason the appointed heir could not enter upon the estate.

Ulpianus, On the Edict, Book L. I think that necessary heirs are included in the Edict, if they interfere in the business of the estate. 1The Prætor does not permit the possession of the estate to be demanded under these circumstances; and I think that the Edict applies to all prætorian possession. 2Property belonging to an estate shall not be confiscated, unless it is established that the head of the household was killed, and that the heir entered upon the estate before the slaves were put to the question, and punished. 3Where anyone dies through neglect, or through the treachery of a physician, his estate can be entered upon; but the duty of avenging his death devolves upon the heir.

Ulpianus, On the Edict, Book L. Where anyone is compelled to enter upon an estate which he has reason to suspect of being insolvent, he will not be liable under the Edict.

Ulpianus, On the Edict, Book L. Where anyone leaves a slave his freedom under the condition of his taking an oath, there will be no ground for the application of the Prætorian Edict for the purpose of remitting the oath; and this is reasonable, for if anyone should remit the condition upon which the freedom of the slave depends, he will prevent the freedom itself from taking effect, as the slave cannot obtain it except by complying with the condition. 1Hence, if anyone should bequeath a slave a legacy with his freedom, the latter will not be entitled to the legacy, unless he complies with the condition of taking the oath. 2If, however, he should receive his freedom absolutely, and the legacy was granted under the condition of his taking the oath, Julianus, in the Thirty-first Book of the Digest, thinks that the condition of taking the oath should be remitted. 3Moreover, I hold that the same rule will apply where the condition was imposed upon the grant of freedom, and the testator, during his lifetime, manumitted the slave; for, in this instance, the condition on which the legacy depended is remitted.

Ulpianus, On the Edict, Book L. In the following stipulation the words, “Nothing will be done by you,” do not mean that you will not do anything to prevent some act from being performed, but that you will use your utmost efforts to accomplish it. 1Again, in a stipulation having reference to the purchase of an estate, and which is in the following terms, “All the money which comes into your hands; or which you have prevented from coming into your hands; or which you may, in the future, prevent from doing so,” there is no doubt that he who has prevented anything from coming into his hands will be liable.

The Same, On the Edict, Book LVI. It was established by a Constitution of Our Emperor and the Divine Severus that a slave belonging to several owners cannot be subjected to torture against any of them.

Ulpianus, On the Edict, Book L. “To inform” is to denounce, to impeach, to accuse, and to convict.