Because nature doth not suffer two infants at the same time to be delivered out of the Mothers Wombe so that it might be discovered which was borne in the time of her servitude and which afterward in the time of her freedome shee her selfe becomming free as soon as the third child was borne Vlpian saies the the same rule holds if she were delivered of two at the first birth and of two other at the second for both of the second birth cannot be borne free but the second only and if by reason of uncertainty there be any doubt it is a question of fact not of Lawe 3 Of a Male child borne before a Female D. 34. 5. 10. 11. FReedome was given to a bond woman when she should be delivered of a male child It happened that at the same time she was delivered both of a male and of a female It was questioned which of them was held to be free borne Vlpian answered That if it were certaine that the male child was first borne there was no further question to be made either of the Mothers freedome or of the daughters but if the daughter were first borne upon that birth neither the Mother nor any of the children became free but if it were doubtfull which was first borne and that doubt cannot be cleared by proofe he saies in such cases the most favourable judgement is to be given and upon presumption that the male child was first borne the mother shall be held free and the daughter as borne of a free woman 4 Of an Hermaphrodite D. 1. 5. 9. 10. IN many points of the Law saies Papinean the condition of a Woman is inferior to the condition of a Man Whereupon Vlpian saies It was questioned to whether sex an Hermophrodite was to be referred and he addes for his opinion That it ought to be referred to that sex which appears most prevalent 5. Of the computing of Age. D. 28. 1. 5. 40. 1. 1. A Man is allowed by Law to dispose of his goods in his last will when he hath compleated the age of fourteen years Whereupon it was question'd whether it were requisite that he should have past his fourteenth yeare or it were sufficient to have attained to the last period thereof as for example if one that was borne on the first day of January did make his will on the same day in the fourteenth yeare of his age whether the will were good in regard the whole day was not spent and therefore the yeare was not fully compleat Vlpian answered That the will was good yea farther that it had been good if it were made any time after midnight of the day preceding because the space of a day being the period of the yeare at that houre having attained to the last day he might be said to have compleated his fourteenth yeare He resolves the same in the case of making a bondman free which none could doe but he which had compleated the age of twenty years which are held compleat in the like manner For the Law is not that he shall be permitted who is past the age of twenty years but he shall be restrained who is within that age and he cannot be said to be within that age who hath attained to the last day of the twentieth yeare 6 Of a Father and a Sonne perishing together D. 34. 5. 8. §. 1. WHen a Father together with his sonne perished in the Warres and the Father dying the Mother of the sonne supposing him to have dyed after his Father claymed the estate as deriv'd from the sonne unto her and the male kindred of the Father as heirs to him supposing he survived interposed for the same The Emperour Hadrian resolved that the father dyed first and Tryphoninus agrees unto it if the sonne were past a child If Lucius Titius saies he together with his sonne above the age of fourteen years whom in his will he had made his heire dyed together It is understood the Sonne survived the Father and was his heire so that his inheritance is transferred to his successors But saies he if the sonne were under the age of fourteen years the Father is held to out-live the Sonne unlesse the contrary be proved SECT II. Of the speciall state or condition of persons The speciall state or condition of persons is that which hath relation to the Civill Law or Law of the Country either of private persons as of Freemen Cittizens married people Tutors Curators c. Or of publique place as Senators Magistrates Officers and the like 1 Of Freedome bequeathed in the second yeare after the Testators death D. 40. 4. 41. ONe in his last will ordained in this manner I will that Stichus my bondman shall be free in the second yeare after my death It was questioned what time of the second yeare was considerable in this case Pomponius answered that it was most probable that the Testator intended at the beginning of the yeare there is much difference betwixt these words In the second yeare and After the second yeare for we are wont to call it the second yeare when any part of the yeare is come or past so that he that is appointed to be free in the second yeare is appointed to be free in all the daies of the second yeare in which opinion agrees that of Labeo who saies If freedome be bequeathed in these words I will that Stichus be free within a yeare after my death he shall be free presently after his death for he saies if he shall will that his bondman shall be free if he give ten pounds to his heire within ten years if he pay it presently he shall be free without any further delay 2 Of freedome be queathed in consideration of service to be done D. 4. 4. 44. MAevia bing ready to dye made her bond-man Saccus and her bondwoman Eutychia and Hyrene free in these words I will that Saccus Eutichia and Hirene my bondservants be all fee upon this condition that they monthly by turnes light tapers in my monument and performe the rites belonging to my corps When Saccus Eutichia and Hirene had failed in their due attendance as was appointed It was question'd whether they might enjoy their freedome Modestinus answered that it could not stand with Maevius meaning nor was it implyed in her words that their being free should depend upon their attendance that being a duty to bee done by free persons and that it was rather a consideration why she made them free then a condition whereby their freedome should be suspended howsoever it was proper for the Judge or Magistrate to compell them to performe that duty which the testatrix had enjoyned 3 Of persons Free-borne D. 1. 5. 5. THose persons are held ingenious or of free condition who are borne of a free woman and it is held sufficient that she was free when she was delivered although she were a bond woman when she first conceived with child and likewise if she
were free when she conceived and afterwards were become a bond woman when she was delivered it was held that the child borne of her was free because the calamity of the Mother ought not to prejudice the child in her wombe It was further questioned If a bond woman conceived or proved with child and afterwards was made free and then before she was delivered became and continued a bondwoman so that the child was both conceived and borne in bondage whether this child was borne free and it was resolved for the good of the child that it ought to be held free-borne it being sufficient for the child in the wombe to have had the mother free in the middle or mean time betwixt the conception and the birth Because as Paulus saies If there be any question concerning benefits belonging to the child in the wombe it is respected as already borne 4 Of a Citty or Corporation D. 3. 4. 7. VLpian saies If any thing be due or owing to a City or corporation it is not due or owing to the particular persons thereof nor if the City or corporation be indebted are the particular persons bound to make satisfaction for the same but he saies The Successors of the City or Corporation ought to make good what others formerly contracted and it makes no difference whether all remain or part or whether the first persons be wholly changed insomuch that if the corporation be reduced to one person he may sue or be sued in the name of the whole 5 Of one returned out of Captivity D. 49. 15. 5. 12. §. 9. HEE that is taken prisoner by enemies becomes their bondman but if he returne again into his country hee is forthwith restored to his former condition saith Pomponius unlesse he chuse rather to returne to the enemy And so it was resolved in the case of Attiiius Regulus who being taken prisoner by the Carthaginians was by them sent back to Rome that he could not recover his former condition because he had obliged himselfe by oath to returne to Carthage And therefore when a dispensation was proposed touching Menander a forreyner who had received freedome amongst the Romans That notwithstanding he being imployed as an Interpreter was sent back into his own country he should continue a Citizen of Rome It was held unnecessary For if he had a purpose to remain in his own country he would cease to be a Citizen of Rome and if he had a mind to returne thither againe he would continue a Citizen although no dispensation to that purpose was granted It is otherwaies saith Tryphoninus in the case of a bond servant for if he be taken prisoner and made free by the enemies if his Master shall recover him and bring him within the Roman territories he shall remaine his bondman although he have a desire to returne back unto the enemies Because as Sabinus writes Every man hath a free power to make himselfe a Citizen where he listeth but cannot dispose of another mans right 6 Of one delivered up to the Enemies D. 50. 8. 17. IF any one laied violent hands upon an Ambassadour of the Enemies he ought saith Q. Mucius to be delivered up unto them whom if the enemies refused to receive It was questioned whether he continued a Citizen of Rome and some were of opinion That he did continue so others held otherwise Because whom the people of Rome delivered up into the power of the Enemy they seemed to deprive of the priviledge of a Cittizen as much as if they had banished him out of their dominions of which opinion was Publius Mucius and this question was especially moved in the case of Hostilius Mancinus concerning whom by a speciall Law it was ordained That he should be held a Citizen of Rome although he had been delivered unto and refused by the enemies in consequence whereof he afterwards bore the Office of Praetor 7 Of marriage accomplisht D. 3. 1. 15. A Marriage was held compleat when the Woman who had given her consent was led or brought home to the Husbands house thereupon Vlpian being consulted answered That if a legacy were given to a woman upon condition when she was married to one of such a family said it became due as soon as she was brought within his dores although it so happened that she never entred into his chamber because it is consent not carnall company that makes a marriage so Cinna reports that when one had brought home his wife and that evening going abroad to supper fell into the river Tyber and was drowned it being thereupon questioned whether she ought to observe the usuall time of mourning as for her husband it was resolved that she ought 8 Of a Tutor appointed by a name uncertaine D. 26. 2. 30. ONe in his will apointed Titius to be Tutor to his sonne there were at the same time two to wit the Father and the sonne whose names were Titius and it did not appeare which of them was intended by the Testator It was questioned who in point of right ought to be esteemed as Tutor Paulus answered that he ought to be esteemed designed whom the Testator intended but if that did not appeare the right was not wanting but the proofe and therefore neither of them was to be held as Tutor 9 Of a Tutor appointed in case another was not living D. 26. 2. 33. ONe appointed Tutors in this manner I desire that Litius Titius should be Tutor to my son if he be not living then I appoint Gaius Plautius to be his Tutor Lucius Titius out lived the Testator and took upon him the Tutorship and then died Trebatius being consulted whether the Tutorship belong'd to Gaius Plautius held it did not Labeo was of the contrary opinion Proclus concurred with Labeo but I saies Javolenus approve the judgment of Trebatius because the words had relation to the time of the Testators death 10 Of a Tutor altered by error D. 26. 2. 34. ONe who had appointed tutors in his will after wards in a codiciall declared that he named others because he understood the former were dead or might have cause to excuse themselves It was questioned whether they who were named in the will being living at the time of his death and pretending no excuse did not continue Tutors Scaevola answered that as the case was proposed he saw nothing but that they ought to continue 11 Of Senators Sonnes D. 1. 9. 5. 7. MAny priviledges belonging to the sonnes of Senators It was questioned how the sonne of a Senator ought to be accompted whether he whose Father is a Senator or he only who is borne his father being a Senator Vlpian said it made no difference whether he were borne whilest the Father enjoyed the dignity of a Senator or before his Father attained thereto Labeo addes That he who is borne after the death of his Father who was a Senator ought to be reputed a Senators sonne yea although the Father be degraded
crime of which he had formerly been acquitted But Vlpian saies It is considerable whether it be intended of the same accuser or of another and he is of opinion That in regard a judgement past betwixt some makes no prejudice to others If one who appears as a fresh accuser prosecutes a cause wherein he hath an interest and can prove that he had no notice of the former proceedings out of some weighty reason he may be admitted 4 Of the same accuser of another crime D. 48. 2. 7. § 3. HE who failed to make good an accusation touching one crime offered to charge the same person with another Vlpian was of opinion that he ought not easily to be admitted yet he confesseth That the Emperour Antoninus Pius wrote to Julius Candidus that although the Father had failed in maintaining an accusation his Sonne ought to be allowed to charge the same person with some other crime 5 Of an Offendor offering Baile D. 48. 3. 3. ANtoninus Pius the Emperour being consulted by the Citizens of Antioch what they might doe with an offendor who offered baile wrote unto them That he who would put in sureties for his appearance ought not to be kept in prison unlesse it be manifest that he hath committed such an offence that he ought neither to be trusted upon his giving of sureties nor on commitment to any guard but ought to be used as if he had deserved to undergoe the punishment of imprisonment before he came to suffer that which was to be inflicted for his offence 6 Of Proceeding against an Offendor absent D. 48. 19. 5. TRajan the Emperour being consulted by Julius Fronto the Proconsvl Resolved him that a person absent ought not to be condemned in a Criminall cause and signified to Aufidius Severus That no man was to be condemned upon suspition because it was better a guilty person should be absolved then that an innocent person should be condemned But if men accused were obstinate and refused to obey the summons and decrees of the Magistrate they might saies Vlpian be condemned although they never appeared in judgement in Criminall causes as it is usuall in causes private and Civill which he saies may be maintained without imputation of contradiction And putting the question how He answers If the penalty of a crime be only pecuniary or such as tends to the deminution of Credit if being often summond he obstinately absent himselfe he may be proceeded against so farre as to a banishment for a time but if the crime requires a heavier censure as the depriving him of life or liberty such penalties ought not to be inflicted upon absent persons 6 Of Crimes committed by the same Person in severall Provinces WHen one who had cōmitted Sacriledge in one Province was appehended for a lesser crime in another P. Proculus the judge consulted the Emperour Antoninus Pius what was to be done who gave directions that he should first try him for the crime for which he was apprehended and then send him to the place where the sacriledge was committed SECT II. Of Publique Offences as Homicide Parricide Treason c. 1 Of the intent in Man-slaughter D. 48. 8. 1. § 3. ADrian the Emperour to a petition concerning one who was slaine where the intention was doubtfull returned this answer He that hath killed a man if he did it not with a purpose of killing him may be acquitted and he who wounded a man with a mind to kill him although he killed him not ought to be condemned as a man-slayer and that it is to be determined from the circumstances of the fact for if he drew a sword and struck a man therewith it ought not to be doubted but that it was done with a purpose of killing him but if he struck him with a key or with a pike-staffe albeit with an Iron poynt it shall not be thought that it was done with a mind to kill him and his punishment ought to be mitigated who in a fray or suddain quarrell kills a man rather by chance then of set purpose 2 Of killing persons found in Adultery D. 48. 5. 20. 22. 24. 38. IT was lawfull saith Pupinian for the Father to kill an Adulterer with his daughter found in the fact in his own house and it was lawfull for the Husband to kill a person of base condition found in Adultery with his Wife and as he observes there was more power given to the Father then to the Husband to kill the Woman and the Adulterer without distinction Because the tendernesse of a Father will make him more circumspect in his resolution but the heat and rashnesse of a Husband needed to be limited Yet Marcus Antoninus and Commodus his sonne being Emperours and consulted upon occasion of the Husbands killing his Wife returned answer If the Husband transported with indignation and griefe killed his Wife found in Adultery he ought not to be punisht with death giving for reason that the Emperour Antoninus Pius signified his mind to that purpose to Apollonius the punishment of death said he may be remitted to him who doth acknowledge that he kiled his Wife found in Adultery because it is a most difficult thing to overcome a passion justly conceived yet because in taking his own revenge he did more then may be justified he ought not to goe unpunisht and therefore it may suffice if he be a person of mean condition to condemne him to the Mines if he be one of better quality to confine him to some Island 3 Of Accessaries to Man-slaughter D. 29. 5. 3. § 4. IF the Master of a Family were killed in his own house if any of his Bondmen were faulty in not defending him he was to suffer death It happened that one was Bondman to two partners in the same house both being assaulted he rescued the one but not the other It was questioned whether he ought to suffer for that he did not rescue both Vlpian said If it were in his power to have helped both and he had neglected one he might justly suffer but if when he could not relieve both he chose rather to help one it were hard to say that he offended in hasting to help one rather then the other 4 Of a Minor not helping his Master D. 29. 5. 3. 14. THe Law not extending to Bondmen under the age of fifteen yet Trebius Germanus being Pro-consul put to death a Bondman within that age and not without reason saies Marcianus for the young man did not want much of the age of fifteen and lay at his Masters feet when he was slaine and did not afterwards reveale the slaughter and as it appeared that he could not help his Master in that case so it was certain that he made no discovery afterwards and such as are Minors yet if they be of sufficient understanding to discerne such a villany they are no more to be spared in case of their Masters death then of any other mischievous act 5 Of Parricide committed by