Letter 10028: The vintage from the Campanian estate has been sent to you as I promised; I hope it travels well and arrives in the...

I anticipate what just emperors could find fault with: in cases in which the restoration of possession [reformatio momenti, the legal remedy restoring a party recently dispossessed] is sought, appeals ought not to be admitted. But I have deliberately now admitted the obstacle of an appeal, so that both the outrageousness of the seizure and the manner of the trial might come into the examination of Your Clemency, O most gracious lords and emperors [ddd. imppp., the three reigning Augusti]. For Scirtius, a man of perfectible rank [vir perfectissimus], having repeatedly come before me complaining that a portion of the Caesarian estate [massa Caesariana, an imperial domain] had been wrested from him, and having obtained the restoration of the standing which he had lost, the heirs of Theseus, who were resisting, were set up against him; while in fact Artemisius, the agent of Olybrius, a most distinguished and illustrious man [vir clarissimus atque inlustris], stood in the way of the officer who was to carry out the execution, as he himself professed. And when I had ordered the inhabitants of the place to be present for the examination of the state of possession, those who were being brought forward were carried off, to the injury of the laws, while Rufinus, an official, was seeing to the orders given. The official records pointed out the authors of this uncivil deed. Meanwhile I postponed the punishment by the courts and again entrusted the business to the office, that it might summon those concerned. Then, the agents of the most distinguished house being inactive and the others withdrawn, heirs of Theseus are substituted to make objection, only one being produced, who asserted that he was a freedman of the deceased. He, on being questioned as to where the dwellers on the estates had gone, answered that some had hidden themselves, but that the slaves of Scirtius had been transferred to the suburban villa, which belongs to the most distinguished and illustrious Olybrius. The rest of what was said by the freedman of Theseus I pass over, although that prescription does not avail in his case, since he received the benefit of liberty from the father of the minors. These matters being so set forth, the town-councillors of Praeneste, whose possession lies in the Caesarian region, are produced, apparitors having been sent. Then at last the procurator of Olybrius, a man of consular and respectable rank [vir clarissimus et spectabilis], emerges, summoned under the compulsion of the evidence; the defender of the minors is also present. A contest is set before Scirtius against two parties, although the patronage of the most distinguished house and that of the successors of Theseus seemed under a certain appearance to be at variance. The matter proceeds to the question of possession; which, having been agitated by the various conflicts of the parties, passed by law to the questioning of the witnesses. I order the councillors to be brought up one by one, as is the custom; I demand from each one answers as to his name and rank; then I require the lawful possessors of the places; thereafter I inquire who had paid the yearly dues or the levies imposed. When all the testimonies were proceeding in favor of Scirtius, and it was established that he had held that possession together with Theseus, I examine when and by whom he was ejected. They agree that he remained about the second or third month, until the men of the most distinguished and illustrious house expelled him. Having heard the testimonies of the leading men, I again admit the disputants with their defenders; the questions and answers are made known to the parties. There Tarpeius, a man of consular rank, procurator of the illustrious Olybrius, asserted that six twelfths [sex unciae, half] of the estates had been acquired by him through the death of Theseus. On the other side Scirtius did not deny the six twelfths which the minors, with his consent also, were retaining, nor did he say that it concerned him whether the agents of the most distinguished house or the heirs of Theseus enjoyed that portion. Then, their pleadings being joined, they began to press Scirtius, on the ground that, according to the mandate of the woman Fariana of respectable memory [clarissimae memoriae femina], he had restored six twelfths to Theseus by letter, but had conferred six others upon his children by spontaneous generosity. To this the same Scirtius said that what had been transferred to Theseus or the little ones by familiar letters or by gifts had been done at Theseus's own request, so that the credit of the documents might strengthen the benefit. And in truth, since the later records testify that the six twelfths of the estate were conferred upon them in undivided form [pro indiviso], we understood that the donor's portion had been excepted. For why should he give in undivided form, if nothing had remained over which he himself retained? But when I said that these matters pertained to the question of ownership [proprietas], a constitution was recited by the defenders which grants to judges the power, but does not impose the necessity, that whenever they judge concerning the possession of a succession, they may at once, if the occasion should bring it about, also take cognizance of the right of ownership. By this proceeding they confessed that they preferred to pass to another suit. Moreover, Scirtius alone did not seem to be the one to be pressed in the question of ownership, since they too were in a certain way at variance among themselves over this portion. Wherefore I judged concerning the possession in favor of Scirtius according to his documents and the testimonies of the leading men, his adversaries being confirmed in the retention of the six twelfths and in their right; but I reserved the principal cause [the question of ownership], with the allegations of the parties preserved, for a future examination, and presently I issued a copy of the sentence, since the procurator of the respectable man had immediately requested its publication. Then Scirtius produced the enactments by which he might show that in the restoration of possession there is no place for appeals. On the following day the procurator of the most distinguished and illustrious man and the defender of the minors, who were thought to be at variance in the trial, declared their concord by joining their appeals. This is the whole sum of the struggle; now the fortune of the suit awaits the oracle of Your Divinity. I have appended the records and the supplementary documents of both parties; furnished with these, Your Perpetuity will deign, by the example of a single case, to provide for the security of all.