Tryphoninus, Disputations, Book IV. He who is entitled to freedom under the terms of a trust cannot be tortured as a slave, unless he is accused by others who already have been subjected to torture.

Tryphoninus, Disputations, Book IV. The right of postliminium exists in war, as well as in peace, with reference to such as have been taken captive during hostilities, and concerning whom no agreement was made. Servius says that this decision was made because the Romans wished that their citizens should have more hope of returning with military prestige than during peace. But, if war should suddenly break out, will those who during peace have come under the control of others, become the slaves of those who are now our enemies, and through their own act have been seized by them? They will be entitled to the right of postliminium both in war and peace, unless it was provided by a treaty that they should not enjoy that right. 1When anyone is taken prisoner by the enemy, those under his control remain uncertain whether they are their own masters, or whether they should still be considered sons under paternal authority; for if the father should die while in the hands of the enemy, they become independent from the very moment when he was captured; and if he returns, they are considered never to have been free from his control. Therefore, with reference to any property that they may acquire in the meantime, whether by stipulation, delivery, or legacy, (for they cannot become lawful heirs), it should be considered—for example, when he does not return, and, some of them have been appointed heirs to the entire estate, or to a portion of the same, or where certain ones have been disinherited—whether this property, according to the terms of the Cornelian Law, should be held to belong to the estate of the captive, or whether it should be considered to be their own. The latter opinion is the better one. The rule is otherwise with reference to anything acquired by the slaves of the captive; and this is reasonable, because the slaves formed and continue to be a portion of his estate, and those who become their own masters are in consequence understood to have acquired the property for themselves. 2It can be established by no constitution that what has been done has not been done. Therefore, the usucaption of property which was obtained by the party who possessed it himself, and who afterwards recovered it, is interrupted, because it is certain that he has ceased to possess it. Hence Julianus says it should be held with reference to property of which he obtained possession through persons subject to his authority, and acquired by usucaption, or which was afterwards included under the term peculium, that the usucaption was completed in the time prescribed by law, if the same persons always remained in possession. Marcellus says that it makes no difference whether the party himself had possession, or obtained it through someone under his authority, but the opinion of Julianus should be adopted. 3The son whom the captive had under his control can in the meantime marry, although his father cannot consent to the marriage, nor can he withhold his consent. Therefore, his grandson will be under his control from the moment that he returns from captivity, and will be his proper heir, to a certain extent, in spite of him, as he did not consent to the marriage. There is nothing surprising about this, because the circumstances and necessities of the occasion, as well as the public welfare, required a marriage. 4The wife of the captive is not in the married state, although she may extremely desire it, and remain in the house of her husband. 5Any codicil which the prisoner may have written during his captivity cannot, by the strict construction of the law, be confirmed by a will which was made by the prisoner while at home, and a trust cannot be claimed under it, because it was not executed by a person having testamentary capacity. But, for the reason that the true principle of these matters, that is to say, the confirmation of them as dependent upon the will, originated while the captive was in his own country, and as he afterwards returned, and recovered his rights by the law of postliminium, it is agreeable to the dictates of humanity that such a codicil should take effect, as if no captivity had in the meantime intervened. 6After the captive returns under the right of postliminium, all legal questions, so far as he is concerned, are to be considered just as if he had never been in the hands of the enemy. 7When anyone ransoms a slave from the enemy, he becomes his property at the moment of his ransom, although he knows that he belonged to someone else; but by tendering him the price which he paid, he will be held to have returned with the right of postliminium to be received as a slave. 8Ad Dig. 49,15,12,8Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 14.Where anyone purchases a captive, being ignorant that he is such, and believing that he belongs to the vendor, will he appear to have, as it were, acquired him by usucaption, so that his first master will not have the power to tender the second the price, after the prescribed time has elapsed? is a point which we should consider. It was stated in opposition to this that the constitution which was enacted with reference to ransomed captives renders such a captive the slave of the person who ransomed him, and what is mine already, I cannot be understood to acquire by usucaption. On the other hand, as the constitution has not rendered the condition of him who paid the ransom any worse, but, on the contrary, has made it better, it is unjust as well as contrary to the intention of the constitution that the more ancient right of the bona fide purchaser should be extinguished; and therefore, after the prescribed time has elapsed, during which, if the constitution should not render the captive the property of him who ransomed him, he might acquire him by usucaption, it may properly be said that, by the terms of this constitution, his first master has no further right over the slave. 9However, by manumitting the slave, will he merely cease to be his master, and will the slave abandoned by him return to the control of his former master; or does he render him free in such a way that the gift of liberty merely operates to bring about a change of ownership? It is certain that anyone who is manumitted while in the hands of the enemy becomes free; and still, if his former master finds him within our defences, although he may not have embraced our cause, and has returned with a design of going back to the enemy, the master can retain the slave by the right of postliminium; which rule is not the same with reference to persons who are free. For the latter do not return by the right of postliminium, unless they have gone back to their own people with the intention of espousing their cause, and have left those from whom they came; because, as Sabinus says, each one has free power to determine his citizenship, but not his right of ownership. This, however, does not render the point very difficult of solution, because the manumission made while the slave was in the hands of the enemy presents no impediment to our fellow citizen, the master of the slave; but the party in question, under our law established by a constitution, has had for his master a Roman citizen, and we are considering whether he can obtain his freedom from him. For what if the slave did not tender the price of his freedom to his master, and the latter should not have the power to sue him? Will the slave be free who, through no merit of his own, could have obtained freedom from his master? This is unjust, and contrary to the favor granted by our ancestors to liberty. It is certain that, by the ancient law, any man having knowingly purchased a slave belonging to another from one who had ransomed him, could acquire him by usucaption, and could liberate him; and in this way the former master to whom the slave had belonged before his captivity, lost all his title to him. Therefore, why should he not have the right to manumit him? 10If a slave to be free under a certain condition should be captured by the enemy, and be ransomed while the condition is pending, he will remain in his former state. 11But what would be the rule if he had received his freedom on condition of paying ten thousand sesterces? The question was asked, out of what should he pay it? For if the slave was permitted to pay it out of his peculium, could it not also be said that what he possesses in the hands of the person who ransomed him takes the place of what he might have obtained while in the hands of the enemy? This is certainly the case, where the peculium was derived from the property of him who ransomed him, or from his own services; but if it came from any other source, he can pay the sum out of it, as we indulgently hold that he has, in this way, complied with the condition. 12Where a slave was given by way of pledge, before his captivity, after the person who ransomed him has been paid, he again becomes subject to his former obligation; and if the creditor should tender the price of his ransom to him who paid it, he will then have a double obligation, one arising from the debt itself, and the other from the payment of the sum for which the slave was released; just as if this obligation was established by a certain constitution resembling that by which a subsequent creditor satisfies a former one, for the purpose of strengthening his own pledge, unless, in this instance, the case is reversed, and the last creditor, who now is the first because he has caused the slave to return to us should be satisfied by him who is prior in time, but has a weaker claim. 13When a slave belongs to several persons, and the amount of his ransom was paid to the man who ransomed him, in the name of all of them, he will revert to their common ownership. Where, however, the amount of his ransom was paid in the name of only one, or of some of his owners, he will belong to him, or to them, who made the payment; so that they will regain their former rights, according to the portion paid by each, and will succeed him who purchased the slave to the extent of the share of the others. 14When a captive is entitled to freedtfm under the terms of a trust, he cannot claim it, after having been ransomed, unless he reimburses the person who ransomed him. 15Where enemies capture a person, who has been deported, in the island to which he has been sent, and he is ransomed, if he should then return to his country, he will be restored to the condition in which he would have been if he had not been taken captive, therefore he shall be deported. 16Where, however, in the case of a captured slave some reason existed which prevented the acquisition of his freedom either temporarily or perpetually, his condition will not be changed by his ransom from the enemy; for instance, if it should be proved that he had violated the Favian Law, or that he had been sold under the condition that he should not be manumitted. The person who ransomed him can, in the meantime, hold him without incurring any penalty. 17Hence, anyone who was captured while laboring in the mines, and has been ransomed, will be returned to his punishment; but he should not be punished as a fugitive from the mines, but he who ransomed him shall receive the amount of the ransom from the Treasury; as was decided by our Emperor and the Divine Severus. 18Where a child born of Pamphila is bequeathed to you, and you ransom its mother, and she brings forth a child while in your possession, you will not be considered to have acquired the child by a lucrative title, but an estimate shall be made according to the judgment of the court, who will fix the value of the child, just as if it had been sold at the same time as its mother, and purchased for the same price. If the child was born in the hands of the enemy (the mother being pregnant at the time when she was captured) and it is ransomed with its mother for one and the same price, and an offer is made equal to the sum paid for both, this will be the estimate of the value of the child, and it will be held to have returned under the right of postliminium. There is much more reason for this when there are different purchasers of both, or of one of them. Where, however, anyone has ransomed each for a separate price, the different amounts must be tendered to the person who ransomed them by payment to the enemy, so that they can return separately under the right of postliminium.