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Of the excuses of him who does not come at a summons.

[003] If one lawfully summoned does not appear he must be punished, unless he has lawful
[004] grounds of excuse by which he may justify his absence, of which there are many.
[005] We then must see whether he is absent for a necessary and profitable reason or
[006] simply because he does not wish to appear.1 If for a necessary and profitable reason,
[007] as rei publicae causa;2 that he has set out in the army with the lord king in defence
[008] of the patria, by command of the lord king, he is excused, since he is bound to serve
[009] in this way, provided he has not contrived3 [the call], and is not in the service of
[010] another, since he is not bound to that unless he wishes, for the lord king does not
[011] aid such persons except as a matter of grace.4 When one so excuses himself of the
[012] service of the lord king, we must see whether the service was begun before the summons
[013] or after it. If the summons anticipates the service, so that he can appoint an
[014] attorney, has the opportunity to do so and does not, he is not to be aided by such
[015] excuse, because he could send an attorney, [if it were true that one could pass judgment
[016] on the lord king's deed.]5 If the summons does not precede the service, we
[017] must then see whether he may or may not appear conveniently and without danger,
[018] whether he is in military service or occupying an office. If he may come conveniently
[019] he is not excused;6 if he cannot, we must then see whether he can send or not, because
[020] of force majeure. If he can neither come nor send, nor appoint an attorney
[021] because the lord king is not present, he is excused by the service, [But in all these
[022] cases the lord king's will must be looked to rather than strict law.]7 for the service
[023] of the lord king ought to be to the damage of no one,8 [and as it ought not to be to
[024] the damage of the tenant, so ought it not to prejudice the demandant.]9 An office,
[025] as that of sheriff or constable, excuses no one, unless in connexion with it some
[026] necessary reason for absence arises unexpectedly: ‘necessary,’ as the eyre of the
[027] justices, an invasion by the enemy or the like, where his presence is required. Such
[028] reasons are sufficient for excusing one of the service of the lord king, provided that
[029] on every day given by the essoiner of the service of the lord king the essoinee has
[030] his warrant, the lord king's


1. Infra 157

2. D. 4.6.41,42,43,44, etc.

3. ‘affectaverit,’ all MSS; infra 76, 79, 157

4. Infra 76, 79

5. Supra ii, 109, infra 79, 158-9

6. Infra 155; cf. infra 76

7. Infra 78, 79, 158

8. Infra 76

9. D. 50.17.140: ‘Absentia eius qui rei publicae causa abest neque ei neque alii damnosa esse debet’; infra 155

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