Dig. 48,22 De interdictis et relegatis...

Liber quadragesimus octavus

XXII.

De interdictis et relegatis et deportatis

(Concerning Persons Who Are Interdicted, Relegated, and Deported.)

1Pomponius libro quarto ad Sabinum. Caput ex rescripto divi Traiani ad Didium Secundum: ‘Scio relegatorum bona avaritia superiorum temporum fisco vindicata. sed aliud clementiae meae convenit, qui inter cetera, quibus innocentiam rationum mearum temporum, hoc quoque remisi exemplum’.

1Pomponius, On Sabinus, Book IV. The beginning of the Rescript of the Divine Trajan to Didius Secundus is as follows: “I am aware that the property of persons who have been relegated has been confiscated to the Treasury by the avarice of former ages, but a different course is agreeable to my clemency, as I wish to give this additional example to show that I have favored innocence during my reign.”

2Marcianus libro tertio decimo institutionum. Manumittere deportatum non posse divus Pius rescripsit.

2Marcianus, Institutes, Book XIII. The Divine Pius stated in a Rescript that anyone who has been deported cannot be manumitted.

3Alfenus libro primo epitomarum. Eum, qui civitatem amitteret, nihil aliud iuris adimere liberis, nisi quod ab ipso perventurum esset ad eos, si intestatus in civitate moreretur: hoc est hereditatem eius et libertos et si quid aliud in hoc genere repperiri potest. quae vero non a patre, sed a genere, a civitate, a rerum natura tribuerentur, ea manere eis incolumia. itaque et fratres fratribus fore legitimos heredes et adgnatorum tutelas et hereditates habituros: non enim haec patrem, sed maiores eius eis dedisse.

3Alfenus, Epitomes, Book I. He who has lost his citizenship does not deprive his children of any rights, except those which would pass to them from him if he should die intestate while in the enjoyment of his citizenship; that is to say, his estate, his freedmen, and anything else of this kind that can be found. Whatever, indeed, is not derived from their father but from their family, from their town, and from the nature of things, will remain theirs entirely. Therefore, brothers who are legitimate will become heirs to one another, and will be entitled to the guardianship and estates of agnates, for not their father, but their ancestors, gave them these rights.

4Marcianus libro secundo institutionum. Relegati in insulam in potestate sua liberos retinent, quia et alia omnia iura sua retinent: tantum enim insula eis egredi non licet. et bona quoque sua omnia retinent praeter ea, si qua eis adempta sunt: nam eorum, qui in perpetuum exilium dati sunt vel relegati, potest quis sententia partem bonorum adimere.

4Marcianus, Institutes, Book II. Persons who have been relegated to an island retain their children under their control, for the reason that they retain all their other rights, as they are only forbidden to leave the island; and they also retain all their property, except that which has already been taken from them, for those who are either sent into perpetual exile or relegated can, by the sentence, be deprived of a portion of their property.

5Idem libro primo regularum. Exilium triplex est: aut certorum locorum interdictio, aut lata fuga, ut omnium locorum interdicatur praeter certum locum, aut insulae vinculum, id est relegatio in insulam.

5The Same, Rules, Book I. Exile is of a threefold nature; interdiction of certain places, or of secret flight; or all places are forbidden except one which is designated; or confinement to one island is prescribed, that is to say, relegation to a single island.

6Ulpianus libro nono de officio proconsulis. Inter poenas est etiam insulae deportatio, quae poena adimit civitatem Romanam. 1Deportandi autem in insulam ius praesidibus provinciae non est datum, licet praefecto urbi detur: hoc enim epistula divi Severi ad Fabium Cilonem praefectum urbi expressum est. praesides itaque provinciae quotiens aliquem in insulam deportandum putent, hoc ipsum adnotare debeant, nomen vero eius scribendum principi, ut in insulam deportetur: sic deinde principi scribere missa plena opinione, ut princeps aestimet, an sequenda sit eius sententia deportarique in insulam debeat. modo¹¹Die Großausgabe liest medio statt modo. autem tempore, dum scribitur, iubere eum debet in carcere esse. 2Decuriones civitatium propter capitalia crimina deportandos vel relegandos divi fratres rescripserunt. denique Priscum in homicidio et incendio nominatim ante quaestionem confessum in insulam deportari iusserunt.

6Ulpianus, On the Duties of Proconsul, Book IX. Among the penalties is also included deportation to an island, which deprives the person of Roman citizenship. 1The right of deportation to an island is not granted to the Governors of provinces, although it is granted to the Prefect of the City, for this is stated in an Epistle of the Divine Severus to Fabius Cilo, Urban Prefect. Therefore, whenever the Governor of a province thinks that anyone ought to be deported to an island, he should notify the person himself, and also send his name to the Emperor, in order that he may be deported; and then write to the Emperor stating his opinion fully, so that the latter may determine whether his sentence should be executed, and the culprit be deported to an island; and, in the meantime, until the answer is given, he must order him to remain in prison. 2The decurions of cities (as was stated by the Divine Brothers in a Rescript), should be either deported or relegated on account of capital crimes. And, in fact, they ordered Priscus, who, before being tortured, confessed that he had committed homicide and arson, to be deported to an island.

7Idem libro decimo de officio proconsulis. Relegatorum duo genera: sunt quidam, qui in insulam relegantur, sunt, qui simpliciter, ut provinciis eis interdicatur, non etiam insula adsignetur. 1In insulam relegare praesides provinciae possunt, sic tamen, ut, si quidem insulam sub se habeant (id est ad eius provinciae formam pertinentem, quam administrant), et eam specialiter insulam adsignare possint inque eam relegare, sin vero non habeant, pronuntient quidem in insulam se relegare, scribant autem imperatori, ut ipse insulam adsignet. ceterum non possunt damnare in eam insulam, quam in ea provincia cui praesunt non habeant. interim quoad imperator insulam adsignet, militi tradendus est relegatus. 2Haec est differentia inter deportatos et relegatos, quod in insulam relegari et ad tempus et in perpetuum quis potest. 3Sive ad tempus sive in perpetuum quis fuerit relegatus, et civitatem Romanam retinet et testamenti factionem non amittit. 4Ad tempus relegatis neque tota bona neque partem adimi debere rescriptis quibusdam manifestatur, reprehensaeque sunt sententiae eorum, qui ad tempus relegatis ademerunt partem bonorum vel bona, sic tamen, ut non infirmarentur sententiae quae ita sunt prolatae. 5Est quoddam genus quasi in insulam relegationis in provincia Aegypto in oasin relegare. 6Sicut autem relegare in insulam quisquam, quae non est sub se, non potest, ita ne in provinciam quidem relegandi ius habet, quae non est sub se: forte praeses Syriae in Macedoniam non relegabit. 7Sed extra provinciam suam potest relegare. 8Item in parte certa provinciae moraturum relegare potest, ut forte non excedat civitatem aliquam vel regionem aliquam non egrediatur. 9Sed et in eas partes provinciae, quae sunt desertiores, scio praesides solitos relegare. 10Interdicere autem quis ea provincia potest quam regit, alia non potest: et ita divi fratres rescripserunt. unde eveniebat, ut, qui relegatus esset ab ea provincia, in qua domicilium¹¹Die Großausgabe liest domilium statt domicilium. habuit, morari apud originem suam posset. sed imperator noster cum divo patre suo huic rei providerunt. Maecio enim Probo praesidi provinciae Hispaniae rescripserunt etiam ea provincia interdici, unde quis oriundus est, ab eo qui regit eam provinciam, ubi quis domicilium habet. sed et eos, qui, cum incolae non essent, in ea provincia quid admiserint, aequum est ad rescripti auctoritatem pertinere. 11Dubitatum est, an interdicere quis alicui possit provincia, in qua oriundus est, cum ipse ei provinciae praesit, quam incolit, dum sua non interdicit, ut solent Italia interdicere, qui patria non interdicunt: vel an per consequentias videatur etiam provinciae interdixisse, cui praeest. quod magis erit probandum. 12Per contrarium autem is, qui originis provinciae praeest, non est nanctus ius interdicendi ea provincia, quam incolit is qui relegatur. 13Si quis eam sententiam admiserit, ut is, qui in alia provincia commisit, possit relegari ab eo qui ei provinciae praeest: eveniet, ut relegatus iste tribus provinciis praeter Italiam debeat abstinere, et in qua deliquit et quam incolit et originis. et si ex diversis provinciis oriri videatur propter condicionem vel suam vel parentis patronorum: vel pluribus provinciis consequenter interdictum ei dicemus. 14Quibusdam tamen praesidibus, ut multis provinciis interdicere possint, indultum est: ut praesidibus Syriarum, sed et Daciarum. 15Constitutum eum, cui patria interdictum est, etiam urbe abstinere debere: contra autem si cui urbe fuerit interdictum, patria sua interdictum non videtur. et ita multis constitutionibus cavetur. 16Si cui plane non patria sua, sed aliqua civitate interdictum sit, videndum est, an etiam patria sua itemque urbe interdictum dicamus: quod magis est. 17His, qui relegantur, dies excedendi a praesidibus dari et potest et solet: etenim moris est ita pronuntiari ‘illum provincia illa insulisque eis relego excedereque debebit intra illum diem’. 18Relegatum plane libellum dare principi posse divi fratres rescripserunt. 19Solet praeterea interdici sententia quibusdam, ne intra patriae territorium vel muros morentur: ne excedant patriam vel in vicis quibusdam morentur. 20Solet decurionibus ordine interdici vel ad tempus vel in perpetuum. 21Item potest alicui poena iniungi, ne honores adipiscatur: nec ea res facit, ut decurio esse desinat, cum fieri possit, ut quis decurio quidem sit, ad honores autem non admittatur. nam et senator quis esse potest et tamen honores non repetere. 22Potest alicui et unus honor interdici, sic tamen, ut, si cui honore uno interdictum sit, non tantum eum honorem petere non possit, verum ne eos quoque, qui eo honore maiores sunt: est enim perquam ridiculum eum, qui minoribus poenae causa prohibitus sit, ad maiores adspirare. maioribus tamen prohibitus minores petere non prohibetur. sed muneribus si quis poenae causa fuerit prohibitus, nihil valebit sententia: neque enim immunitatem poena tribuere debet. ergo et si honoribus quis in poenam fuerit prohibitus, poterit dici, si honores isti habuerunt mixtam muneris gravem impensam, infamiam illi ad hoc non profuturam:

7The Same, On the Duties of Proconsul, Book II. There are two kinds of relegated persons; first, those who are merely relegated to an island; and second, others who are forbidden to enter the provinces, but to whom no island is assigned. 1The Governors of provinces can relegate persons to an island, iprovided they have under their control one that belongs to the province over which they have jurisdfction; and they can specifically designate this island, and relegate the culprit to it. But if they have not such an island under their control, they can sentence the guilty party to be relegated to an island, and then write to the Emperor in order that he can assign one to them. They cannot, however, sentence anyone to an island which does not form part of the province over which they have jurisdiction. In the meantime, until the Emperor assigns an island, the person who is relegated is placed in charge of the military. 2The following difference exists between persons who are deported, and those who are relegated, that is to say, anyone can be relegated to an island for a certain term, or for life. 3When anyone is relegated for a certain term or for life, he retains the right of Roman citizenship, and does not lose the power to make a will. 4It is established by certain rescripts, that neither all, nor even a portion of their property, can be taken from persons who have been relegated for a certain term; and judgment depriving persons relegated of a part or of all of their property have been censured, but not to the extent of invalidating such judgments. 5A certain kind of relegation, like that to an island, exists in the Province of Egypt, that is to say, relegation to an oasis. 6However, as no one can relegate a person to an island not under his control, so, he has no right to relegate him to a province which is not in his jurisdiction; as, for example, the Governor of Syria cannot relegate anyone to Macedonia. 7He can, however, relegate him outside of his province. 8Likewise, he can relegate anyone to remain in a certain specified part of his province; for instance, he may forbid him to leave a certain city, or a certain district. 9I am aware that Governors are accustomed to relegate persons to the most desert parts of their provinces. 10Anyone can forbid a person to live in the province which he governs, but he cannot do so in another. This was stated by the Divine Brothers in a Rescript. The result of this was, that anyone who was relegated from the province in which he had his domicile could go and live in that in which he was born. Our Emperor and his Divine Brothers, however, provided for this contingency; for they stated in a Rescript addressed to Probus, the Governor of the Province of Spain, that: “Anyone can be forbidden to remain in the province in which he had been born by the official who governs the province where the person had his domicile.” Still, it is just that those who are not residents of the province in which they committed the offence should be judged in accordance with the terms of this Rescript. 11It has been doubted whether anyone can prohibit another from remaining in the province in which he was born, when he himself governs the province in which the person lives, and he does not forbid him to remain in his own province; as Governors are accustomed to make Italy the object of the interdiction, and do not forbid the culprits to enter their own country; or whether it consequently appears that even the province in which they govern has been interdicted. This latter opinion should be adopted. 12On the other hand, he who governs the province where the party in question was born has no right to forbid him to dwell in the province which he now inhabits. 13Where anyone confesses a judgment, so that he who has committed an offence in one province can be relegated by the Governor of that province, the result will be that the person relegated must avoid the three provinces, except Italy; that is, the one in which he committed the offence; the one in which he lives; and the one in which he was born. If, either on account of his condition or that of his parents or patrons, he is considered to have had his origin in different provinces, we should say that he has, in consequence, been forbidden several provinces. 14Nevertheless, certain Governors have been permitted to interdict several provinces, as for instance, the Governors of Syria and of Dacia. 15It has been decided that anyone who has been forbidden to reside in his native province should also remain away from Rome; and, on the other hand, if anyone has been forbidden to reside at Rome he will not be considered to have been forbidden to live in his own country. This has been provided by several constitutions. 16If it is clear that not one’s native country, but some particular city has been forbidden him, let us see if we cannot say that his native province, as well as the City of Rome, have also been forbidden him, which is the better opinion. 17A day should be fixed by the Governor for the departure of persons who have been relegated, and this is usually done; for it is customary to render the decision as follows: “I relegate So-and-So from this province, and from these islands, and he must depart before such-and-such a day.” 18The Divine Brothers stated in a Rescript that a person who had been relegated is certainly entitled to present a petition to the Emperor. 19Moreover, the sentence usually prohibits persons from residing in the territory of their native province or city, or within the walls of the latter, or from leaving it, or from stopping in certain suburbs of the same. 20It is customary to forbid decurions to enjoy the privileges of their order, either temporarily or permanently. 21Likewise, the penalty can be imposed upon anyone not to accept any honor, and this does not have the effect of causing him to cease to act as decurion; as, indeed, anyone may be a decurion, and still not be permitted to accept any honors, for anyone can be a Senator, and still not be able to demand any. 22Anyone can also be forbidden to receive a single honor, in such a way, however, that he who is forbidden to do so can not only obtain this particular honor, but also those which are greater; for it would be extremely ridiculous for a person who was prohibited by way of penalty from receiving inferior honors to be able to aspire to greater ones. Nevertheless, one who has been prohibited from receiving certain honors is not prevented from seeking those which are inferior; but if anyone is forbidden to accept an office by way of penalty, the sentence will be void, for a penalty cannot bestow immunity. Therefore, if someone is deprived of honors, by way of penalty, it can be said that where the said honors include an office involving great expense, the infamy of the convicted person will not benefit him on this account.

8Marcianus libro secundo publicorum. sed honore quidem illum arceri puto, ceterum impendia debere praestare.

8Marcianus, Public Prosecutions, Book II. But I think that when he is deprived of the honor, he should be compelled to pay the expenses.

9Ulpianus libro decimo de officio proconsulis. Potest praeses quendam damnare, ne domo sua procedat:

9Ulpianus, On the Duties of Proconsul, Book X. A Governor can sentence anyone not to leave his own house.

10Marcianus libro secundo publicorum iudiciorum. nec tamen, ne necessarias impensas faciat.

10Marcianus, Book. But not avoid incurring necessary expenses.

11Ulpianus libro decimo de officio proconsulis. Interdum pecuniaria poena irrogatur iis qui relegatos suscipiunt: interdum etiam ipsi relegantur, si quidem illi ob magnum crimen relegati sunt.

11Ulpianus, Book. Sometimes persons who have been relegated are sentenced to pay a fine.

12Marcianus libro ...... Qui patria relegatus non excedit, ad tempus provincia relegatur.

12Marcianus, Book. A man who has been relegated from his town, and does not depart, shall be relegated from his province for a certain time.

13Paulus libro ...... Ei qui a relegato manumissus est Romae morari non licet, cum ne patrono quidem eius liceat.

13Paulus, Book. Anyone who has been manumitted by a person who has been relegated cannot go to Rome, because his patron is not permitted to do so.

14Ulpianus libro ...... Relegatus est is cui interdicitur provincia aut urbe continentibusve in perpetuum vel ad tempus. 1Et multum interest inter relegationem et deportationem: nam deportatio et civitatem et bona adimit, relegatio utrumque conservat, nisi bona publicentur. 2Relegare possunt princeps et senatus et praefecti et praesides provinciarum, nec tamen consules. 3Qui amissa civitate bona habet, a creditore utilibus actionibus convenitur.

14Ulpianus, Book. A person who is relegated is one who is forbidden temporarily or perpetually to remain in a province, or at Rome, or in the region surrounding it. 1A great difference exists between deportation and relegation, for deportation deprives a person of his rights as a citizen, as well as of his property. Relegation does not deprive him of either, unless his property is, for some special reason, confiscated. 2Anyone can be relegated by the Emperor, the Senate, the prefects, and the Governors of provinces, but not by the Consul. 3Anyone who has lost his rights of citizenship, but retains his property, is liable to prætorian actions.

15Marcianus libro ...... Deportatus civitatem amittit, libertatem retinet et iure civili caret, gentium vero utitur. itaque emit vendit, locat conducit, permutat, fenus exercet aliaque similia. unde etiam recte obligat, quae post condemnationem quaesivit: quibus in rebus creditores quoque, qui bona fide contraxerunt cum eo, praeferuntur fisco deportatis defunctis succedenti. nam bona, quae condemnationis tempore inveniuntur, deportatus alienare non potest. 1Qui inconsulto principe a praeside deportatur, et heres institui et legata capere potest.

15Marcianus, Book. A person who is deported loses his rights as a citizen, but not his freedom; and, indeed, he cannot enjoy any special right derived from citizenship, but he can enjoy a right of nations; for he can purchase and sell, hire and lease, exchange property, lend money at interest, and do everything of this kind; and he can also give and pledge any property which he may subsequently acquire, unless he encumbers it in order to defraud the Treasury, which will succeed to him after his death; for he cannot alienate any property which has been confiscated. 1Anyone who has been deported by a Governor, without the sanction of the Emperor, can become an heir and receive legacies left to him by will.

16Idem libro ...... Cum Ulpianus Damascenus ab imperatore petisset, ut matri deportatae ad victum necessaria relinquere sibi permitteretur, item mater per libertum suum petisset, ut quaedam filio deportato relinquere liceret, imperator Antoninus ita iis rescripsit. ‘Neque hereditas nec legatum nec fideicommissum contra consuetudinem legemque publicam huiusmodi personis relinqui potest neque earum condicionem mutari convenit: quoniam autem pie rogastis, permitto vobis ultima voluntate relinquere iis, quae ad victum aliosque usus necessarios sufficiant, ut si quid ad eos ex his causis pertinebit, capere iis liceat’.

16The Same, Book. Ulpianus Damascenus petitioned the Emperor to allow him to leave to his mother what was necessary for her support, and his mother, through her freedman, to permit him to leave something to her deported son; whereupon the Emperor Antoninus addressed to them a Rescript as follows: “Neither an estate, nor a legacy, nor a trust can be left to persons of this kind, in violation of custom and public law, nor should the condition of such persons be changed. But as you have made the request on account of affection, I will permit you to leave by your last will sufficient for their support and their other necessities, and they can take whatever is bequeathed to them on this account.”

17Pomponius libro ...... Relegatus statuis et imaginibus honorari non prohibetur. 1Relegatus statum suum integrum retinet et bona quae habet et potestatem in liberos, sive ad tempus sive in perpetuum relegatus est. 2Deportatio autem non fit ad tempus.

17Pomponius, Book. Anyone who has been relegated is not excluded from being honored by means of statues and paintings. 1A person who has been relegated retains his condition, as well as the ownership of his own property, and his paternal authority, unimpaired; whether he has been relegated for a specified time, or for life. 2Deportation, however, is not for time.

18Callistratus libro ...... Relegatus morari non potest Romae, etsi id sententia comprehensum non est, quia communis patria est: neque in ea civitate, in qua moratur princeps vel per quam transit, iis enim solis permissum est principem intueri, qui Romam ingredi possunt, quia princeps pater patriae est. 1Cum adversus homines liberos eiusmodi sententia fertur, per quam bona eorum publicantur, qualis est deportationis in insulam, ea ipsa sententia priorem condicionem amittunt et statim poenis sibi irrogatis per eam traduntur, nisi quid cum maiestate coniunctum requirit, ut poena exacerbetur.

18Callistratus. Anyone who has been relegated cannot remain at Rome, although this may not have been included in the sentence, because it is the country of all persons. Nor can he remain in the city in which the Emperor lives, nor in one through which he passes, because those only are permitted to look upon the Emperor who can enter Rome, as the Emperor is the father of his country. 1When sentence is passed upon men who are free, by which their property is confiscated, such, for instance, as deportation to an island, as soon as it has been imposed, they change their former condition, and are delivered up to their punishment; unless something of the nature of high treason is involved, which requires the penalty to be increased.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

De interdictis et relegatis et deportatis

(Concerning Persons Who Are Interdicted, Relegated, and Deported.)