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. XLVIII21,
De bonis eorum, qui ante sententiam vel mortem sibi consciverunt vel accusatorem corruperunt
Liber quadragesimus octavus
XXI.

De bonis eorum, qui ante sententiam vel mortem sibi consciverunt vel accusatorem corruperunt

(Concerning the Property of Those Who Have Either Killed Themselves or Corrupted Their Accusers Before Judgment Has Been Rendered.)

1Ulpianus libro octavo disputationum. In capitalibus criminibus a principibus decretum est non nocere ei qui adversarium corrupit, sed in his demum, quae poenam mortis continent: nam ignoscendum censuerunt ei, qui sanguinem suum qualiterqualiter redemptum voluit.

1Ulpianus, Disputations, Book VIII. It was decreed by the Emperors that where capital crimes were involved, he who corrupts his adversary is not liable to punishment, except in such cases as incur the penalty of death; for it was their opinion that they who desire to save the life of a blood relative by any means whatever should be excused.

2Macer libro secundo publicorum. ‘Imperatores Severus et Antoninus Iulio Iuliano. Eos, qui a latronibus nominati corruptis accusatoribus diem suum obierint, ut confessos de crimine non relinquere defensionem heredibus rationis est’. 1Si is, de cuius poena imperatori scriptum est (veluti quod decurio fuerit vel quod in insulam deportari debuerit), antequam rescriberetur decesserit: potest quaeri, num ante sententiam decessisse videatur. argumento est senatus consultum, quod factum est de his, qui Romam transmissi ante sententiam decessissent. cuius verba haec sunt: ‘Cum damnatus nemo videri possit in hunc annum, antequam de eo forte iudicium Romae redditum et pronuntiatum esset: neque cuiusquam mortui bona, antequam de eo Romae pronuntiatum sit, publicata sunt, eaque bona heredes possidere debent’.

2Macer, Public Prosecutions, Book II. The Emperors Severus and Antoninus to Julius Julianus: Those who are said by robbers to have corrupted their accuser, and are dead, are considered to have confessed their crime, and hence to have left no defence to their heirs. 1Where anyone, concerning whose punishment a communication has been sent to the Emperor, for instance, because he was a decurion, or should have been deported to an island, and he dies before the Emperor has sent his reply, it may be asked whether he should be considered to have died before judgment. This question may be said to have been settled by a Decree of the Senate, which was enacted with reference to persons who were transferred to Rome, and died before judgment was rendered. The terms of this decree are as follows: “As no one can be considered to have been condemned during this year, before judgment in his case has been rendered and made public at Rome; no property belonging to a deceased person shall be confiscated before judgment in his case has been made public at Rome; and his heirs can take possession of his estate.”

3Marcianus libro singulari de delatoribus. Qui rei postulati vel qui in scelere deprehensi metu criminis imminentis mortem sibi consciverunt, heredem non habent. Papinianus tamen libro sexto decimo digestorum responsorum ita scripsit, ut qui rei criminis non postulati manus sibi intulerint, bona eorum fisco non vindicentur: non enim facti sceleritatem esse obnoxiam, sed conscientiae metum in reo velut confesso teneri placuit. ergo aut postulati esse debent aut in scelere deprehensi, ut, si se interfecerint, bona eorum confiscentur. 1Ut autem divus Pius rescripsit, ita demum bona eius, qui in reatu mortem sibi conscivit, fisco vindicanda sunt, si eius criminis reus fuit, ut, si damnaretur, morte aut deportatione adficiendus esset. 2Idem rescripsit eum, qui modici furti reus fuisset, licet vitam suspendio finierit, non videri in eadem causa esse, ut bona heredibus adimenda essent, sicuti neque ipsi adimerentur, si compertum in eo furtum fuisset. 3Ergo ita demum dicendum est bona eius, qui manus sibi intulit, fisco vindicari, si eo crimine nexus fuit, ut, si convinceretur, bonis careat. 4Si quis autem taedio vitae vel inpatientia doloris alicuius vel alio modo vitam finierit, successorem habere divus Antoninus rescripsit. 5Videri autem et patrem, qui sibi manus intulisset, quod diceretur filium suum occidisse, magis dolore filii amissi mortem sibi irrogasse et ideo bona eius non esse publicanda divus Hadrianus rescripsit. 6Sic autem hoc distinguitur, interesse qua ex causa quis sibi mortem conscivit: sicuti cum quaeritur, an is, qui sibi manus intulit et non perpetravit, debeat puniri, quasi de se sententiam tulit. nam omnimodo puniendus est, nisi taedio vitae vel inpatientia alicuius doloris coactus est hoc facere. et merito, si sine causa sibi manus intulit, puniendus est: qui enim sibi non pepercit, multo minus alii parcet. 7Si qui autem sub incerto causae eventu in vinculis vel sub fideiussoribus decesserint, horum bona non esse confiscanda mandatis cavetur. 8De illo videamus, si quis conscita morte nulla iusta causa praecedente in reatu decesserit, an, si parati fuerint heredes causam suscipere et innocentem defunctum ostendere, audiendi sint nec prius bona in fiscum cogenda sint, quam si de crimine fuerit probatum: an vero omnimodo publicanda sunt. sed divus Pius Modesto Taurino rescripsit, si parati sint heredes defensiones suscipere, non esse bona publicanda, nisi de crimine fuerit probatum.

3Marcianus, On Informers. Persons who have been accused, or have been caught while committing a crime, and, through fear of impending accusation, kill themselves, have no heirs. Papinianus, nevertheless, in the Sixteenth Book of Opinions, says that where persons who have not yet been accused of crime, lay violent hands on themselves, their property shall not be confiscated by the Treasury; for it is not the wickedness of the deed that renders it punishable, but it is held that the consciousness of guilt entertained by the defendant is considered to take the place of a confession. Hence, the property of those who ought to be accused, or have been caught committing a crime, or who have killed themselves, should be confiscated. 1Moreover, as the Divine Pius stated in a Rescript, the property of anyone who kills himself after he has been accused should be confiscated by the Treasury only where he was accused of a crime for which, if he were convicted, he could be punished with death or deportation. 2He also stated in a Rescript that anyone who is charged with a theft of little importance, although he may have put an end to his life while the accusation was pending, should not be considered to be in a position that would justify his heirs being deprived of his estate; as he himself would not have been deprived of it if he had been found guilty of theft. 3Therefore, in conclusion, it should be said that the property of him who has laid violent hands on himself should be forfeited to the Treasury, if he was implicated in the crime to such an extent that he would have lost his property if he had been convicted. 4If, however, anyone, through weariness of life, or incapacity to suffer pain, or, for any other reason, should put an end to his life, the Divine Antoninus stated in a Rescript that he could have a successor. 5Moreover, where a father laid violent hands on himself because he was said to have killed his son, he was considered to have done so rather on account of grief for the loss of his child, and hence, as the Divine Hadrian stated in a Rescript, his property should not be confiscated. 6A distinction should be made in these cases, for it makes a difference for what reason a person commits suicide, just as when the question is asked whether he who did so and did not succeed should be punished as having imposed sentence upon himself; for, by all means, he should be punished, unless he was compelled to take this step through weariness of life, or because he was incapable of enduring pain of some description. This is reasonable, for he should be punished if he laid violent hands on himself without any cause, as he who did not spare himself would still less spare another. 7It is, however, provided by the Imperial Mandates that the property of those who die either while in confinement or at liberty under bond shall not be confiscated, as long as the result of their cases is uncertain. 8But, where anyone has committed suicide without having a just cause for doing so, and dies after an accusation has been filed, and his heirs are ready to defend his case and show that he was innocent, let us see whether they should be heard, and whether his property should be confiscated to the Treasury before the crime has been proved, or if it should be confiscated under all circumstances. The Divine Pius stated in a Rescript addressed to Modestus Taurinus that when the heirs are prepared to undertake the defence, the property should not be confiscated unless the commission of the crime is proved.