Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XXIX5,
De senatus consulto Silaniano et Claudiano: quorum testamenta ne aperiantur
Liber vicesimus nonus
V.

De senatus consulto Silaniano et Claudiano: quorum testamenta ne aperiantur

(Concerning the Silanian and Claudian Decrees of the Senate by the Provisions of Which Wills Cannot Be Opened.)

1Ulpianus libro quinquagesimo ad edictum. Cum aliter nulla domus tuta esse possit, nisi periculo capitis sui custodiam dominis tam ab domesticis quam ab extraneis praestare servi cogantur, ideo senatus consulta introducta sunt de publica quaestione a familia necatorum habenda. 1Domini appellatione continetur qui habet proprietatem, etsi usus fructus alienus sit. 2Qui servum bona fide possedit, domini appellatione non continebitur, nec qui usum fructum solum habuit. 3Servus pignori datus, quod attinet ad debitoris necem, per omnia perinde habetur atque si pignori datus non esset. 4Servi appellatione etiam hi continentur, qui sub condicione legati sunt: nam medio tempore heredis sunt, nec quod condicio existens efficit, ut desinant esse heredis, facit ne videantur interim eius. idemque erit dicendum in statulibero. 5Sed in eo, cui fideicommissa libertas pure debetur, exstat rescriptum divi Pii ad Iuventium Sabinum, quo ostenditur non esse festinandum ad tormenta eius, cui fideicommissa libertas debetur: et magis est, ne puniatur ob hoc quod sub eodem tecto fuit, nisi particeps sceleris fuerit. 6Domini appellatione etiam pro parte dominum contineri dicendum est. 7Domini appellatione et filius familias ceterique liberi, qui in potestate sunt, continentur: senatus consultum enim Silanianum non solum ad patres familias, verum ad liberos quoque pertinet. 8Quid deinde dicemus, si liberi non sint in potestate? Marcellus libro duodecimo digestorum dubitat: ego puto plenius accipiendum, ut etiam ad eos liberos pertineat, qui in potestate non sunt. 9In eo, qui est in adoptionem datus, non putamus locum habere senatus consultum, quamvis in adoptato locum habet. 10Sed nec in alumno occiso locus est senatus consulto. 11De matris servis filio filiave occisis quaestio non habebitur. 12Si pater ab hostibus captus sit, quaestionem de servis habendam et supplicium filio occiso eleganter Scaevola ait: quod etiam post mortem patris probat, si ante, quam suus ei heres existat, occisus fuerit. 13Idem Scaevola ait constantius defendendum herede instituto filio de his quaestionem habendam et supplicium, qui pure legati vel manumissi sunt, ante aditam hereditatem filio occiso: quamvis enim, si viveret, herede eo existente ipsius non essent futuri, attamen ubi decessit, qua extinctum legatum et libertas est, senatus consulto fore locum dicit. 14Si pater necatus sit, an de servis filii quaestio habeatur, si forte castrensi peculio servos habuit? et magis est quaestionem de servis filii habendam suppliciumque sumendum, licet non sit in potestate filius. 15Si vir aut uxor occisi esse proponantur, de servis eorum quaestio habetur, quamquam neque viri servi proprie uxoris dicantur neque uxoris proprie viri: sed quia commixta familia est et una domus est, ita vindicandum atque in propriis servis senatus censuit. 16Sed neque uxore occisa neque marito de servis soceri quaestionem habendam senatus censuit: Marcellus autem libro duodecimo digestorum etiam in soceri servis idem quod in mariti recte dixit. 17Occisorum appellatione eos contineri Labeo scribit, qui per vim aut caedem sunt interfecti, ut puta iugulatum strangulatum praecipitatum vel saxo vel fuste vel lapide percussum vel quo alio telo necatum. 18Quod si quis puta veneno vel etiam quo alio quod clam necare soleat interemptus sit, ad hoc senatus consultum vindicta mortis eius non pertinebit: hoc idcirco, quia totiens puniendi sunt servi, quia auxilium domino non tulerunt, quotiens potuerunt ei adversus vim opem ferre et non tulerunt: ceterum quid potuerunt facere adversus eos, qui veneno vel quo alio more insidiantur? 19Plane si venenum per vim infusum sit, senatus consultum locum habet. 20Ubicumque igitur vis adhibita est quae interemere solet, ibi dicendum est locum senatus consulto fore. 21Quid ergo, si dominus veneno non per vim necatus esse proponatur? impunitum erit factum? nullo modo: licet enim cessat senatus consultum Silanianum nec quaestio suppliciumque de his qui sub eodem tecto fuerunt habeatur, tamen si qui conscii vel factores sceleris fuerunt, hi demum supplicio adficiuntur: et adiri hereditas aperirique tabulae etiam ante quaestionem habitam possunt. 22Si sibi manus quis intulit, senatus consulto quidem Silaniano locus non est, sed mors eius vindicatur, scilicet ut, si in conspectu servorum hoc fecit potueruntque eum in se saevientem prohibere, poena adficiantur, si vero non potuerunt, liberentur. 23Si quis non metu criminis inminentis, sed taedio vitae vel inpatientia doloris sibi manus intulit, eius testamentum aperiri et recitari mortis casus non impedit. 24Item illud sciendum est, nisi constet aliquem esse occisum, non haberi de familia quaestionem: liquere igitur debet scelere interemptum, ut senatus consulto locus sit. 25Quaestionem autem sic accipimus non tormenta tantum, sed omnem inquisitionem et defensionem mortis. 26Hoc autem senatus consultum eos quidem, qui sub eodem tecto fuerunt, omnimodo punit, eos vero, qui non sub eodem tecto, sed in eadem regione, non aliter, nisi conscii fuissent. 27‘Eodem’ autem ‘tecto’ qualiter accipiatur, videamus, utrum intra eosdem parietes an et ultra intra eandem diaetam vel cubiculum vel eandem domum vel eosdem hortos vel totam villam. et ait Sextus sic esse saepe iudicatum, ut quicumque eo loci fuerunt, unde vocem exaudire potuerunt, hi puniantur, quasi sub eodem tecto fuerunt, licet alii validioris vocis, alii exiguioris sunt nec omnes undique exaudiri possunt. 28Iuxta hoc tamen videtur et divus Hadrianus rescripsisse in haec verba: ‘Servi quotiens dominis suis auxilium ferre possunt, non debent saluti eorum suam anteponere: potuisse autem ancillam, quae in eodem conclavi cum domina sua fuerat, auxilium rei ferre, si non corpore suo, at certe voce plorantem, ut hi, qui in domo fuerant aut vicini audirent, hoc ipso manifestum est, quod dixit percussorem sibi mortem minatum, si proclamasset. ultimum itaque supplicium pati debet vel hoc, ne ceteri servi credant in periculo dominorum sibi quemque consulere debere.’ 29Hoc rescriptum multa continet: nam ei non parcit, qui eodem conclavi fuit: et ei, qui timuit mori, non ignoscit: et quod vel voce oporteat servos dominis auxilium ferre, ostendit. 30Si quis in villa agens occisus sit, plus quam iniquum est, si forte diffusa late praedia habeat, de omnibus qui in ea regione fuerint servis et quaestionem haberi et supplicium sumi: sufficit ergo eos, qui cum ipso qui occisus dicitur fuerunt et qui suspicione caedis aut conscientia attingi videbuntur, de his quaestionem haberi. 31Cum dominus in itinere esset occisus, de his, qui una cum eo fuerunt cum occideretur vel, cum una fuissent, profugerunt, supplicium sumendum est. quod si cum domino nemo fuit cum occideretur, cessant ista senatus consulta. 32Impubes servus vel ancilla nondum viripotens non in eadem causa erunt: aetas enim excusationem meretur. 33Impuberi autem utrum in supplicio tantum parcimus an vero etiam in quaestione? et magis est, ut de impubere nec quaestio habeatur: et alias solet hoc in usu observari, ut impuberes non torqueantur: terreri tantum solent et habena et ferula vel caedi. 34Excusantur autem servi, qui auxilium tulerunt sine dolo malo: nam si finxit se quis auxilium ferre vel dicis gratia tulit, nihil hoc commentum ei proderit. 35Tulisse autem auxilium non tantum is videtur qui servavit dominum, hoc est qui potuit ita opem ferre, ut salvus esset dominus, verum is quoque, qui quidquid potuit fecit, tametsi dominus interfectus est: veluti si quis clamavit, ut ad auxilium conveniretur, aut terruit adgressores atque si quis turbam convocavit aut si corpus suum obiecit vel alias corpore suo auxilium tulit. 36Non tamen semper qui clamore usus est, auxilium tulisse videtur: quid enim, si, cum posset manu depellere a domino periculum, ille clamorem inanem elegit? plectendus utique erit. 37Quid si vulnerati sint servi, cum protegerent dominum? dicendum est parci eis debere, nisi si aut ipsi sibi vulnera ista fecerunt data opera, ne punirentur, aut talia vulnera isti acceperunt, ut possent nihilo minus opem ferre, si voluissent. 38Si dominus mortifere vulneratus supervixerit nec de quoquam servorum suorum conquestus sit, etiamsi sub eodem tecto fuerunt, tamen parcendum illis erit.

1Ulpianus, 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.

2Callistratus libro quinto de cognitionibus. Divus Marcus Commodus Pisoni rescripsit in haec verba: ‘Cum constiterit apud te, Piso carissime, Iulium Donatum, posteaquam conterritus adventu latronum profugerat villam suam, vulneratum esse, mox testamento facto purgasse officium servorum suorum, nec pietas pro servis nec sollicitudo heredis optinere debet, ut ad poenam vocentur, quos absolvit dominus ipse’.

2Callistratus, Concerning Judicial Inquiries, Book V. The Divine Marcus Commodus stated in a Rescript to Piso the following: “Since it has been proved before you, my dear Piso, that Julius Donatus, after having been alarmed by the approach of robbers, took refuge in his country-house, and was wounded, and afterwards, having executed a will, manifested his affection for his slaves, neither his regard for them, nor the solicitude of the heir should allow punishment to be inflicted upon those whom the master himself has absolved”.

3Ulpianus libro quinquagesimo ad edictum. Si quis in gravi valetudine adfectus opem domino ferre non potuerit, subveniendum est ei. 1Si quis moriens dixisset a servo vim mortis allatam esse sibi, dicendum est non esse credendum domino, si moriens hoc dixit, nisi potuerit et probari. 2Si maritus uxorem noctu intra cubiculum secum cubantem necaverit vel uxor maritum, servi poena senatus consulti liberabuntur. sed si exaudissent et opem non tulissent, plectendi erunt, non tantum si proprii essent mulieris, sed etiam si mariti. 3Si tamen maritus in adulterio deprehensam occidat, quia ignoscitur ei, dicendum est non tantum mariti, sed etiam uxoris servos liberandos, si iustum dolorem exsequenti domino non restiterunt. 4Si cum omnes domini adgressuram paterentur, uni servus opem tulit, an sit excusandus, an vero quia omnibus non tulit plectendus? et magis est, ut, si quidem omnibus ferre potuit, quamvis quibusdam tulit, supplicio adficiendum: si vero simul omnibus non potuit, excusandum, quia quibusdam opem tulerit. nam illud durum est dicere, si, cum duobus auxilium ferre non possit, elegit alteri esse auxilio, electione crimen eum contraxisse. 5Quare et si servus mulieris marito dominae magis auxilio fuit quam dominae vel contra, dicendum est ignosci ei debere. 6Subvenitur eis, qui eo tempore quo dominus dominave occisa est clausi ita fuerunt sine dolo malo, ut erumpere succurrendi causa aut comprehendendi eos, qui caedem fecerint, non potuerint: nec interest, a quo clausi continebuntur: sic tamen, si non data opera voluerint se ita includi, ne opem ferre possint. clusos accipere debemus et si sunt vincti, si tamen ita vincti, ut omnino rumpere vincula et auxilio esse non potuerint. 7Ignoscitur etiam his qui aetate defecti sunt. 8Surdus quoque inter inbecillos numerandus est aut inter eos qui sub eodem tecto non sunt, quia ut illi per spatium, ita hic per morbum nihil audit. 9Caecus quoque veniam mereri debet. 10Mutum simili modo excipimus, sed ibi, ubi vocis tantum auxilium superfuit. 11Furiosos excipi nequaquam dubium est. 12Si quis quem eorum servum servamve ex ea familia, qui eius facinoris noxius erit, receperit vel celaverit sciens dolo malo, in ea causa est, ac si lege quae de sicariis lata est facinoris noxius fuerit. 13Si ex stipulatu servus debeatur et caedem domini arguerit et pro hoc praemio liber esse iussus sit, ex stipulato actio stipulatori non datur: nam et si supplicio adfectus fuisset, non daretur. quod si sub eodem tecto non fuit, ex stipulatu actio in aestimatione servi utilis erit creditori. 14Utrum autem is solus videatur indicasse vel arguisse, qui ad hoc prosilit ultro, an etiam is, qui, cum accusaretur ipse, detorsit in alium crimen? et magis est, ut ille hoc praemio dignus sit, qui ultro ad accusationem prosilit. 15Hi quoque, qui non potuerunt alias ad libertatem pervenire, ut puta si hac lege distractus erat quis, ne manumitteretur, poterunt propter hoc, quod in commune utile est, ad libertatem pervenire. 16De his quoque servis, qui testamento manumissi sunt, perinde atque servis supplicium sumendum est. 17De his, qui antequam testamentum occisi occisaeve aperiretur profugissent posteaque aperto testamento liberi scripti invenirentur, perinde ac si de servis quaestio habenda suppliciumque sumendum est: nam est aequissimum ultioni dominorum non obstare indulgentiam ipsorum, quam quisque pleniorem esset expertus, eo graviorem sceleri suo poenam merebitur. 18Quod ad causam testamenti pertinens relictum erit ab eo qui occisus esse dicetur, id ne quis sciens dolo malo aperiendum recitandum describendumque curet, edicto cavetur, priusquam de ea familia quaestio ex senatus consulto habita suppliciumque de noxiis sumptum fuerit. 19Aperire autem hic ille videtur qui naturaliter aperit, sive sint signatae sive non sint legatae, sed tantum naturaliter clausae. 20Aperire accipere debemus prohibitos nos vel palam publice vel secreto: omnis enim apertura prohibita est. 21Si quis ignorans occisum aperuerit, non debet hoc edicto teneri. 22Et si sciens, non tamen dolo aperuit, aeque non tenebitur, si forte per imperitiam vel per rusticitatem ignarus edicti praetoris vel senatus consulti aperuit. 23Si quis tabulas quidem non aperuit naturaliter, linum autem inciderit, excusatus erit, quia dolo caret, qui ipsas tabulas non aperuit. 24Si autem non totum testamentum, sed pars eius aperta sit, dicendum est in edictum incidisse eum qui aperuit: parvi enim refert, utrum totum an pars aperiatur. 25Si quis codicillos aperuerit, testamentum non aperuerit, in edictum incidit: nam et codicilli ad causam testamenti pertinent. 26Item sive iure valeat id quod apertum est sive non valeat, attamen edicto locus est. 27Eadem servantur et de his, quae ad causam substitutionis pertinent, si pupillus pupillave occisus occisave esse dicetur. 28Si alius aperuit, alius recitavit, alius descripserit, omnes in edictum incident, qui singula eorum fecerunt. 29Non tantum ex testamento, sed etiam ab intestato hereditas ad hoc edictum pertinet, ut ne quis adeat bonorumve possessionem petat, antequam quaestio de familia habeatur, ne heres propter compendium suum familiae facinus occultaret. 30Eleganter Scaevola ait, ut quis ad heredem suum utiles actiones transmittat, si forte ante aditionem decessit, exploratum esse debere idcirco eum non adire, quod senatus consulto edictoque terreatur. 31Si condicioni intra diem ex die mortis praestitutum parere iussi ignorantia non paruerunt, si idcirco ignoratum est, quia metu senatus consulti aperiri tabulae non potuerunt, succurritur eis ad implendam condicionem. 32Si et aliud impedimentum sit de non adeunda hereditate vel aperiendarum tabularum, sit et senatus consulti, nihil prodesse impedimentum senatus consulti, si et aliud fuit: veluti si praegnas uxor occisi fuit vel etiam putabatur et propterea adire hereditatem institutus non potuerit.

3Ulpianus, 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.

4Papinianus libro sexto responsorum. Qui postumos heredes instituerat, non natis postumis uxorem secundo loco scripsit heredem: cum a familia necatus diceretur, uxor diem suum obierat: heredes mulieris actiones ex constitutione sibi dari postulabant. eos ita demum audiendos esse respondi, si mulier, quam in utero nihil gestare constabat, propter senatus consultum hereditatem adire noluit: alioquin praegnate ea defuncta nullam iniuriae querellam intervenisse.

4Papinianus, Opinions, Book VI. A man appointed his posthumous children his heirs, and, in case none should be born, substituted his wife, and he was said to have been killed by his slaves, and his wife died; the woman’s heirs petitioned that the estate should be given to them by virtue of the substitution. I gave it as my opinion that they should only be heard if the wife was proved not to have been pregnant, and declined to enter upon the estate on account of the Decree of the Senate. If, however, she should die while pregnant, no complaint could be made that any injury had been done to them.

5Ulpianus libro quinquagesimo ad edictum. Necessarios heredes puto edicto comprehendi, si se misceant hereditati. 1Nec bonorum possessionem peti praetor permittit: et ego puto ad omnes bonorum possessiones hoc edictum pertinere. 2Non alias bona publicantur, quam si constabit esse occisum patrem familias et heredem ante quaestionem de familia habitam suppliciumque sumptum adisse hereditatem. 3Ubi quis incuria necatus est vel medici insidiis, adiri quidem hereditas potest, sed heredi defensio mortis incumbit.

5Ulpianus, 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.

6Paulus libro quadragensimo sexto ad edictum. Etsi percussor certus sit, tamen habenda quaestio est, ut caedis mandator inveniatur: utique autem ipse maxime quaestioni dabitur, quamvis et ceteri puniantur. 1Quamvis alias in caput domini servi non torqueantur, recte tamen fiet quaestio, etiamsi heredem accusent, sive extraneus heres sive ex suis sit. 2Si unus ex dominis non compareat, quaerendum est de casu eius per servos, quos communes habuerunt: magis enim de salute aut ultione domini non comparentis quam in caput praesentis torquebuntur. 3Si appetitus sit nec occisus dominus, nihil senatus consulto cavetur: ipse enim in familiam suam potest animadvertere.

6Paulus, On the Edict, Book XLVI. Even if the murderer should be well known, torture must still be inflicted, in order that the instigator of the crime may be detected. Moreover, the murderer himself shall, by all means, be put to the question, and the other slaves also punished. 1Although slaves shall not be tortured except where their master is accused of a capital crime; still, torture can be properly inflicted even if the heir is accused, whether he be a foreign, or the proper heir. 2Where one of two masters does not appear, the slaves held in common shall be put to the question to ascertain what has happened to him; for they are tortured to ascertain something with reference to the fate of the master who does not appear, rather than to avenge his death, or to obtain information which may implicate the master who is present in a capital crime. 3Where a master has been attacked, but not killed, nothing is provided by the Decree of the Senate, for he himself can punish his own slave.

7Idem libro singulari ad senatus consultum Silanianum. Et in libertos extraordinarium auxilium habebit.

7The Same, On the Silanian Decree of the Senate. And in this instance, he will enjoy an extraordinary privilege with reference to his freedman.

8Idem libro quadragensimo sexto ad edictum. Senatus consulto Pisoniano cavetur, ut, si poenae obnoxius servus venisset, quandoque animadversum in eum esset, ut venditor pretium praestaret, ne emptori iniuriam fecisse videatur senatus. 1Si filius familias, qui in castrensi peculio testatus est, occisus sit, omnimodo id defendendum est, ut, ex quibus casibus ad fiscum patris familias bona pertinent, his casibus et huius peculium, potius quam ad heredes, qui deliquerunt in adeundo et similibus ultive non sunt.

8The Same, On the Edict, Book XLIX. It is provided by the Pisonian Decree of the Senate that: “Where a slave is liable to some penalty and is about to be punished, the vendor shall refund the price paid for him to the purchaser;” which was enacted by the Senate to avoid any injury being done to the purchaser. 1Where a son under paternal control, who has made a testamentary disposition of his castrense peculium, is killed, it should undoubtedly be maintained that under these circumstances the estate of the deceased will belong to the Treasury, if his heirs have entered upon his estate, and did not avenge his death; just as in a similar instance, the estate of the head of a household will also be forfeited.

9Gaius libro septimo decimo ad edictum provinciale. Cum fisco caduca bona defuncti addicantur propter inultam mortem, in eum legatorum actio datur: et libertates ratae sunt eorum scilicet, qui senatus consulto excipiuntur.

9Gaius, On the Provincial Edict, Book XVII. When the property of a deceased person is confiscated by the Treasury because his death was unavenged, an action is granted against it in favor of the legatees, and all grants of freedom to slaves shall be perfected; that is to say, of such as are excepted from the provisions of the Decree of the Senate.

10Paulus libro singulari ad senatus consultum Silanianum. Si exheredatus filius, antequam adiretur patris hereditas, occisus sit, ex eventu inspicietur, ut, si adita fuerit hereditas, quasi alieni fuisse videantur: si vero irritum testamentum factum sit, quia ipsius essent si viveret, omnia perinde aguntur ac si dominus esset. 1Sub divo Traiano constitutum est de his libertis, quos vivus manumiserat, quaestionem haberi.

10Paulus, On the Silanian Decree of the Senate. Where a disinherited son is killed before the estate of his father has been entered upon, consideration must be paid to what takes place, so that, if the estate is accepted, the slaves will not be held to belong to another; but if the will should become void, measures must be taken just as if the son had been their master, because they would have belonged to him if he had lived. 1It was established by a Constitution of the Divine Trajanus that freedmen whom the deceased had manumitted could be put to the question.

11Tryphoninus libro secundo disputationum. Idemque erit et de his, qui ius anulorum petierant.

11Tryphoninus, Disputations, Book II. The same rule will apply to those who have obtained the right to wear rings.

12Paulus libro singulari ad senatus consultum Silanianum. Si servus a testatore occiso legatus sit et praetor pro praemio statuerit liberum eum esse, dicendum est non impediri libertatem.

12Paulus, On the Silanian Decree of the Senate. Where a slave has been bequeathed by a testator who was murdered, and the Prætor decides that he was entitled to his freedom by way of reward, it must be said that his freedom cannot be prevented.

13Venuleius Saturninus libro secundo de publicis iudiciis. In cognitione aperti adversus senatus consultum testamenti eius, qui a familia sua occisus dicatur, quinquennii tempus constitutum est senatus consulto Tauro et lepido consulibus: quod tamen ad extraneos pertinet. namque eos, qui parricidii poena teneri possunt, semper accusare permittitur eodem senatus consulto.

13Venuleius Saturninus, On Public Prosecutions, Book II. During the Consulate of Taurus and Lepidus, the term of five years was established by a Decree of the Senate for the institution of criminal proceedings, where the will of a man who was said to have been killed by his slaves had been opened contrary to the Decree of the Senate, which provision, however, only applies to strangers; for, by the same Decree of the Senate, those who are liable to punishment for parricide can always be accused without reference to lapse of time.

14Maecianus libro undecimo de publicis iudiciis. Excipiuntur senatus consulto Silaniano impuberes servi. Trebius autem Germanus legatus etiam de impubere sumi iussit supplicium et tamen non sine ratione: nam is puer nec multum a puberi aetate aberat et ad pedes domini cubuerat cum occideretur nec postea caedem eius prodiderat. ut enim opem ferre eum non potuisse constabat, ita silentium praestitisse etiam postea certum erat, et his dumtaxat impuberibus senatus consulto parci credebat, qui tantum sub eodem tecto fuissent: qui vero ministri vel participes caedis fuissent et eius aetatis, quamquam nondum puberis, ut rei intellectum capere possent, his non magis in caede domini quam in ulla alia causa parci oportere.

14Marcianus, On Public Prosecutions, Book XI. Slaves who have not reached the age of puberty are excepted from the operation of the Silanian Decree of the Senate. The Deputy, Trebius Germanus, however, ordered punishment to be inflicted upon a slave under the age of puberty; and this was not without reason, because the boy was very little under that age, and was sleeping at the feet of his master at the time when he was killed, and did not afterwards disclose that he had been murdered. As it was proved that he was unable to have assisted him, it was also certain that he afterwards kept silent; and it was held that boys under the age of puberty could only be excused from liability under the Decree of the Senate, where they had merely been under the same roof with their master, but where such slaves had been the principals or accomplices in the crime, and were of such an age as to understand what they were doing (even though they may not have reached the age of puberty), they should not be excused from responsibility for the murder of their master any more than for anything else.

15Marcianus libro singulari de delatoribus. Si sequens gradus ultus fuerit necem testatoris, an priore hereditas ad illum transferatur? et ait Papinianus non esse hoc: nam poena illius huius praemium esse non debet. 1Cum ex parte heredi instituto legatum quoque erat et in ulciscenda morte cessaverat, divi Severus et Antoninus rescripserunt tam hereditatis portionem quam legatum ei auferendum. 2Heredibus autem, qui in ulciscenda morte defuncti cessaverant, tam testamento quam ab intestato auferuntur bona: forte et si quasi patronus venit, quamvis hi suo iure admittantur.

15Marcianus, On Informers. Where substitutes avenge the death of the testator, shall the estate be transferred to them? Papinianus says that it should not, for the penalty of the first degree ought not to be the reward of the second. 1Where a legacy was bequeathed to an heir appointed to a portion of the estate, and he failed to avenge the death of the deceased, the Divine Severus and Antoninus stated in a Rescript that he should be deprived of the share of the estate which had been bequeathed to him. 2Estates bequeathed by will, as well as those derived from intestate succession, must be taken away from heirs who have been derelict in avenging the death of the deceased (even if they appear as patrons), although they may be entitled to the succession as direct heirs.

16Marcellus libro duodecimo digestorum. Domino a familia occiso servus communis necem eius detexit: favore libertatis liber quidem fieri debet, pretii autem partem sibi contingentem socium consequi oportet.

16Marcellus, Digest, Book XII. Where a master was killed by one of his slaves, and a slave who was owned in common by the deceased and another party detected the criminal, he should be liberated on account of the favor due to freedom, but the partner should be paid his share of the value of the slave.

17Modestinus libro octavo regularum. Prius de se familia torquenda est et, si confiteatur, tunc interrogetur, quo mandante flagitium admissum sit.

17Modestinus, Rules, Book VIII. The slaves should first be put to the torture, and if they confess should then be interrogated, in order that it may be ascertained at whose instigation they committed the crime.

18Idem libro nono regularum. Et inofficioso testamento queri idem et mortem vindicare defuncti non prohibetur, idque Paulus respondit.

18The Same, Rules, Book IX. It is not forbidden to complain of an inofficious testament, and to avenge the death of the defunct at the same time. Paulus rendered this opinion.

19Idem libro octavo pandectarum. Cum dominus occiditur, auxilium ei familia ferre debet et armis et manu et clamoribus et obiectu corporis: quod si, cum posset, non tulerit, merito de ea supplicium sumitur.

19The Same, Pandects, Book VIII. When a master is attacked, his slaves should attempt to assist him with arms, and with their hands, with cries, and with the interposition of their bodies. If anyone should not offer assistance when he is able to do so, he shall deservedly be subjected to punishment for this reason.

20Papinianus libro secundo responsorum. Heres, qui veneni causam persequitur, res hereditarias urguentes ordinare salvis probationum indiciis non prohibetur.

20Papinianus, Opinions, Book II. An heir, who is instituting a prosecution for poisoning, is not forbidden to transact urgent business relating to the estate, if he preserves all evidence and proofs of the crime.

21Idem libro sexto responsorum. Propter veneni quaestionem tempus petendae possessionis non profertur, cum eo quoque suspenso crimine recte petatur. aliud senatui placuit, cum a familia dominus necatus dicitur, servorum videlicet causa, quorum libertatem quaestionis habendae gratia neglegi necesse est. 1Neptis, quae possessionem aviae petierat, mortem eius interfectam sciens non defenderat. fideicommissum, quod avia ex alio testamento nepti debuit, in restituendis fisco bonis non esse deducendum placuit: dolus enim heredis punitus est. si autem neglegentia mulier emolumentum bonorum amiserit, fideicommissum esse retinendum integrato iure debiti rationis est. 2Praesidis iniquitate reis illatae caedis absolutis heredibus, qui non defunctorie debitum officium impleverant, quamvis non provocassent, hereditatem auferri non oportere visum est.

21The Same, Opinions, Book VI. The time for demanding the possession of the property of an estate shall not be delayed on account of any question arising out of the poisoning; and the claim may properly be made while the proof of the crime is still in abeyance. The Senate determined otherwise where a master was said to have been killed by his slaves, because as it was necessary that the freedom of said slaves should not be granted them at once, in order that they might be put to the torture. A granddaughter, who had demanded possession of the estate of her grandmother, being aware that she had been killed, did not avenge her death. It was held that a trust which the grandmother owed to her granddaughter, by virtue of the will of another, should not be deducted from the estate of the grandmother, when it was confiscated by the Treasury, for the bad faith of the heir must be punished. 1If, however, the woman had lost the benefit of the bequest through mere negligence, it is just that the trust should be deducted, the right of the obligation remaining unimpaired. 2Where persons guilty of murder have been discharged through the injustice of the Governor, it is held that the heirs should not be deprived of the estate if they have properly discharged their duty, even though they may not have appealed from the decision.

22Paulus libro sexto decimo responsorum. Gaius Seius cum languesceret, questus est se veneno occidi a servo suo et sic exspiravit: cui heres exstitit Lucia Titia soror et mortem eius exsequi neglexit et ipsa post annum decimum decessit: exstitit qui bona nuntiaret Gaii Seii: quaero, an morte Titiae extinctum sit crimen. Paulus respondit causam, de qua quaeritur, cum sit pecuniaria, morte ingratae heredis extinctam non videri.

22Paulus, Opinions, Book XVI. Gaius Seius, while in a feeble condition, complained that he had been poisoned by his slaves, and then died. His sister, Lucia Titia, became his heir, and after his death neglected to prosecute his murderer. She herself died ten years afterwards, and someone gave notice that the estate of Gaius Titius was liable to forfeiture. I ask whether the criminal prosecution was extinguished by the death of Titia. Paulus answered that, in the case stated, it did not appear to be extinguished by the death of the ungrateful heir, as a pecuniary penalty was involved.

23Maecianus libro tertio decimo fideicommissorum. Si antequam patefieret testatorem occisum, tabulae testamenti apertae essent, deinde innotuisset id admissum esse, causa cognita puto compellendum institutum adire hereditatem, quam suspectam diceret, et ex Trebelliano senatus consulto restituere.

23Marcianus, Concerning Trusts, Book XIII. If a will should be opened before it was known that the testator had been killed, and then the crime should be ascertained to have been committed, I think that, where proper cause is shown, the appointed heir should be compelled to enter upon the estate which he declared was insolvent, and make restitution in accordance with the Trebellian Decree of the Senate.

24Ulpianus libro quinquagesimo ad edictum. Si quis quasi suspectam hereditatem coactus adit, non tenetur edicto.

24Ulpianus, 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.

25Gaius libro septimo decimo ad edictum provinciale. Lege Cornelia cavetur de praemio accusatoris, qui requisivit et renuntiavit eos servos, qui ex ea familia ante quaestionem fugerint, ut in singulos servos quos convicerit quinque aureos ex bonis occisi aut, si inde redigi ea quantitas non possit, ex publico accipiat. quod praemium non in omnes servos, qui sub eodem tecto locove fuerint, sed in eos solos, qui caedem admisissent, accusatori tribuitur. 1Praeterea cavetur, ut de his, qui ante quaestionem habitam fugerint, si aperto testamento liberi scripti inveniantur, lege de sicariis iudicium fiat ita, ut ex vinculis causam dicant et convicti perinde ac servi puniantur et ei qui convicerit deni aurei praemii nomine darentur ex bonis damnati. 2Ex hoc edicto actio proficiscitur contra eum, qui adversus edictum praetoris tabulas testamenti aperuisse dicetur vel si quid aliud fecisse dicetur: nam ut ex supra dictis apparet, plura sunt, propter quae poena edicti constituta est. palam est autem popularem actionem esse, cuius poena in centum aureos ex bonis damnati extenditur: et inde partem dimidiam ei, cuius opera convictus erit, praemii nomine se daturum praetor pollicetur, partem in publicum redacturum.

25Gaius, On the Provincial Edict, Book XVII. It is provided by the Cornelian Law with reference to the reward to which an accuser is entitled who seeks out and gives information of the whereabouts of slaves who have fled before torture was applied, that he shall receive five aurei out of the estate of the deceased for each slave that he convicts, or if this sum can not be obtained from that source, it shall be paid out of the Public Treasury. This reward shall not be given for the apprehension and conviction of every slave who was under the same roof and in the same place with the deceased, but only for those who are found guilty of the murder. 1It is also provided with reference to those slaves who fled before torture was applied, that if, after the will has been opened, it should be found that they were granted their freedom thereby, judgment shall be rendered in accordance with the law relating to assassins: so that they cannot defend themselves after having been imprisoned, and that if they are convicted, they shall be punished just like slaves, and ten aurei shall be taken out of the estate, by way of reward, and given to the party who convicted them. 2Proceedings are instituted under this Edict against a person who, contrary to the provisions of the Edict of the Prætor, is said to have opened the will, or to have committed some other act, in violation of them; for (as in evident from what has been previously stated) there are many things on account of which the penalty prescribed by the Edict can be imposed. It is clear that this action is a popular one, and its penalty is a hundred aurei to be taken from the property of the person who is convicted; and the Prætor promises that half of said sum shall be given by way of reward to him by whose efforts the criminal was found guilty, and the other half shall be turned into the Public Treasury.

26Scaevola libro trigesimo quarto digestorum. Fideicommissum, quod ex testamento fratris patruelis Gaius Seius Titio debebat, ab heredibus Seii Titius accepit: quaesitum est, cum necem Gaii Seii heredes eius non vindicaverint, an Titius nihilo minus eos heredes ut indignos accusare possit ob id, quod necem eius non vindicaverint, nec obsit ei, quod ab isdem fideicommissum ex testamento fratris patruelis consecutus sit. respondit nihil proponi, cur obstaret.

26Scævola, Digest, Book XXXIV. Gaius Seius owed Titius property under a trust established by the will of his cousin, and Titius received it from the heirs of Seius. The question arose, as the heirs of Gaius Seius did not avenge his death, whether Titius could, nevertheless, accuse these heirs as being unworthy to obtain the estate, because they had not avenged his death; and whether the fact that he had received from them the trust to which he was entitled under the will of his cousin, the deceased, would not stand in his way. The answer was that, in accordance with the facts stated, there was no reason that it should be considered an obstacle.

27Callistratus libro primo de iure fisci. Si de pluribus heredibus quibusdam invitis aut ignorantibus apertum erit testamentum, non amittunt portiones suas qui culpa carent.

27Callistratus, On the Rights of the Treasury, Book I. Where there are several heirs, and the will is opened against the consent of some of them, or without their knowledge, those who are free from blame will not lose their shares of the estate.