Books: The Institutes of Justinian

J >> J.B. Moyle, Translator >> The Institutes of Justinian

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18

This eBook was prepared by Howard Sauertieg.

THE INSTITUTES OF JUSTINIAN

Translated into English by J. B. Moyle, D.C.L.
of Lincoln's Inn, Barrister-at-Law,
Fellow and Late Tutor of New College, Oxford

Fifth Edition (1913)

* PROOEMIVM *

In the name of Our Lord, Jesus Christ.

The Emperor Caesar Flavius Justinian, conqueror of the
Alamanni, the Goths, the Franks, the Germans, the Antes,
the Alani, the Vandals, the Africans, pious, prosperous,
renowned, victorious, and triumphant, ever august,

To the youth desirous of studying the law:

The imperial majesty should be armed with laws as well as
glorified with arms, that there may be good government in times
both of war and of peace, and the ruler of Rome may not only be
victorious over his enemies, but may show himself as scrupulously
regardful of justice as triumphant over his conquered foes.

With deepest application and forethought, and by the blessing
of God, we have attained both of these objects. The barbarian
nations which we have subjugated know our valour, Africa and
other provinces without number being once more, after so long an
interval, reduced beneath the sway of Rome by victories granted
by Heaven, and themselves bearing witness to our dominion. All
peoples too are ruled by laws which we have either enacted or
arranged. Having removed every inconsistency from the sacred
constitutions, hitherto inharmonious and confused, we extended
our care to the immense volumes of the older jurisprudence; and,
like sailors crossing the mid-ocean, by the favour of Heaven have
now completed a work of which we once despaired. When this,
with God's blessing, had been done, we called together that dis-
tinguished man Tribonian, master and ex-quaestor of our sacred
palace, and the illustrious Theophilus and Dorotheus, professors
of law, of whose ability, legal knowledge, and trusty observance
of our orders we have received many and genuine proofs, and
especially commissioned them to compose by our authority and
advice a book of Institutes, whereby you may be enabled to
learn your first lessons in law no longer from ancient fables, but
to grasp them by the brilliant light of imperial learning, and that
your ears and minds may receive nothing useless or incorrect,
but only what holds good in actual fact. And thus whereas in
past time even the foremost of you were unable to read the
imperial constitutions until after four years, you, who have been
so honoured and fortunate as to receive both the beginning and
the end of your legal teaching from the mouth of the Emperor,
can now enter on the study of them without delay. After the
completion therefore of the fifty books of the Digest or Pandects,
in which all the earlier law has been collected by the aid of the
said distinguished Tribonian and other illustrious and most able
men, we directed the division of these same Institutes into four
books, comprising the first elements of the whole science of law.
In these the law previously obtaining has been briefly stated, as
well as that which after becoming disused has been again brought
to light by our imperial aid. Compiled from all the Institutes of
our ancient jurists, and in particular from the commentaries of our
Gaius on both the Institutes and the common cases, and from
many other legal works, these Institutes were submitted to us by
the three learned men aforesaid, and after reading and examining
them we have given them the fullest force of our constitutions.

Receive then these laws with your best powers and with the
eagerness of study, and show yourselves so learned as to be
encouraged to hope that when you have compassed the whole
field of law you may have ability to govern such portion of the
state as may be entrusted to you.

Given at Constantinople the 21st day of November,
in the third consulate of the Emperor Justinian,
Father of his Country,
ever august.

* BOOK I *

TITLES
I. Of Justice and Law
II. Of the law of nature, the law of nations,
and the civil law
III. Of the law of persons
IV. Of men free born
V. Of freedmen
VI. Of persons unable to manumit, and the
causes of their incapacity
VII. Of the repeal of the lex Fufia Caninia
VIII. Of persons independent or dependent
IX. Of paternal power
X. Of marriage
XI. Of adoptions
XII. Of the modes in which paternal power
is extinguished
XIII. Of guardianships
XIV. Who can be appointed guardians by will
XV. Of the statutory guardianship of agnates
XVI. Of loss of status
XVII. Of the statutory guardianship of patrons
XVIII. Of the statutory guardianship of parents
XIX. Of fiduciary guardianship
XX. Of Atilian guardians, and those appointed
under the lex Iulia et Titia
XXI. Of the authority of guardians
XXII. Of the modes in which guardianship
is terminated
XXIII. Of curators
XXIV. Of the security to be given by guardians
and curators
XXV. Of guardians' and curators' grounds
of exemption
XXVI. Of guardians or curators who are
suspected

TITLE I
OF JUSTICE AND LAW

Justice is the set and constant purpose which gives to every
man his due. 1 Jurisprudence is the knowledge of things divine
and human, the science of the just and the unjust.

2 Having laid down these general definitions, and our object
being the exposition of the law of the Roman people, we think
that the most advantageous plan will be to commence with an
easy and simple path, and then to proceed to details with a most
careful and scrupulous exactness of interpretation. Otherwise, if
we begin by burdening the student's memory, as yet weak and
untrained, with a multitude and variety of matters, one of two
things will happen: either we shall cause him wholly to desert the
study of law, or else we shall bring him at last, after great labour,
and often, too, distrustful of his own powers (the commonest
cause, among the young, of ill-success), to a point which he
might have reached earlier, without such labour and confident
in himself, had he been led along a smoother path.

3 The precepts of the law are these: to live honestly, to injure
no one, and to give every man his due. 4 The study of law
consists of two branches, law public, and law private. The
former relates to the welfare of the Roman State; the latter to
the advantage of the individual citizen. Of private law then we
may say that it is of threefold origin, being collected from the
precepts of nature, from those of the law of nations, or from
those of the civil law of Rome.

TITLE II
OF THE LAW OF NATURE, THE LAW OF NATIONS,
AND THE CIVIL LAW

1 The law of nature is that which she has taught all animals; a
law not peculiar to the human race, but shared by all living
creatures, whether denizens of the air, the dry land, or the sea.
Hence comes the union of male and female, which we call
marriage; hence the procreation and rearing of children, for
this is a law by the knowledge of which we see even the lower
animals are distinguished. The civil law of Rome, and the law
of all nations, differ from each other thus. The laws of every
people governed by statutes and customs are partly peculiar
to itself, partly common to all mankind. Those rules which a
state enacts for its own members are peculiar to itself, and
are called civil law: those rules prescribed by natural reason
for all men are observed by all peoples alike, and are called
the law of nations. Thus the laws of the Roman people are
partly peculiar to itself, partly common to all nations; a dis-
tinction of which we shall take notice as occasion offers.
2 Civil law takes its name from the state wherein it binds; for
instance, the civil law of Athens, it being quite correct to speak
thus of the enactments of Solon or Draco. So too we call the
law of the Roman people the civil law of the Romans, or the
law of the Quirites; the law, that is to say, which they observe,
the Romans being called Quirites after Quirinus. Whenever
we speak, however, of civil law, without any qualification, we
mean our own; exactly as, when `the poet' is spoken of, without
addition or qualification, the Greeks understand the great Homer,
and we understand Vergil. But the law of nations is common
to the whole human race; for nations have settled certain things
for themselves as occasion and the necessities of human life re-
quired. For instance, wars arose, and then followed captivity
and slavery, which are contrary to the law of nature; for by the
law of nature all men from the beginning were born free. The
law of nations again is the source of almost all contracts; for
instance, sale, hire, partnership, deposit, loan for consumption,
and very many others.

3 Our law is partly written, partly unwritten, as among the
Greeks. The written law consists of statutes, plebiscites,
senatusconsults, enactments of the Emperors, edicts of the
magistrates, and answers of those learned in the law. 4 A
statute is an enactment of the Roman people, which it used to
make on the motion of a senatorial magistrate, as for instance
a consul. A plebiscite is an enactment of the commonalty,
such as was made on the motion of one of their own magistrates,
as a tribune. The commonalty differs from the people as a
species from its genus; for `the people' includes the whole
aggregate of citizens, among them patricians and senators,
while the term `commonalty' embraces only such citizens as
are not patricians or senators. After the passing, however,
of the statute called the lex Hortensia, plebiscites acquired
for the first time the force of statutes. 5 A senatusconsult
is a command and ordinance of the senate, for when the
Roman people had been so increased that it was difficult to
assemble it together for the purpose of enacting statutes, it
seemed right that the senate should be consulted instead of
the people. 6 Again, what the Emperor determines has the
force of a statute, the people having conferred on him all their
authority and power by the ‘lex regia,’ which was passed
concerning his office and authority. Consequently, whatever
the Emperor settles by rescript, or decides in his judicial
capacity, or ordains by edicts, is clearly a statute: and these
are what are called constitutions. Some of these of course
are personal, and not to be followed as precedents, since this
is not the Emperor's will; for a favour bestowed on individual
merit, or a penalty inflicted for individual wrongdoing, or relief
given without a precedent, do not go beyond the particular
person: though others are general, and bind all beyond a doubt.
7 The edicts of the praetors too have no small legal authority,
and these we are used to call the ‘ius honorarium,’ because
those who occupy posts of honour in the state, in other words
the magistrates, have given authority to this branch of law. The
curule aediles also used to issue an edict relating to certain
matters, which forms part of the ius honorarium. 8 The
answers of those learned in the law are the opinions and views
of persons authorized to determine and expound the law; for it
was of old provided that certain persons should publicly inter-
pret the laws, who were called jurisconsults, and whom the
Emperor privileged to give formal answers. If they were
unanimous the judge was forbidden by imperial constitution to
depart from their opinion, so great was its authority. 9 The
unwritten law is that which usage has approved: for ancient
customs, when approved by consent of those who follow them,
are like statute. 10 And this division of the civil law into two
kinds seems not inappropriate, for it appears to have origin-
ated in the institutions of two states, namely Athens and
Lacedaemon; it having been usual in the latter to commit
to memory what was observed as law, while the Athenians
observed only what they had made permanent in written
statutes.

11 But the laws of nature, which are observed by all nations
alike, are established, as it were, by divine providence, and
remain ever fixed and immutable: but the municipal laws of
each individual state are subject to frequent change, either by
the tacit consent of the people, or by the subsequent enactment
of another statute.

12 The whole of the law which we observe relates either to
persons, or to things, or to actions. And first let us speak of
persons: for it is useless to know the law without knowing the
persons for whose sake it was established.

TITLE III
OF THE LAW OF PERSONS

In the law of persons, then, the first division is into free men and
slaves. 1 Freedom, from which men are called free, is a man's
natural power of doing what he pleases, so far as he is not
prevented by force or law: 2 slavery is an institution of the law
of nations, against nature subjecting one man to the dominion
of another. 3 The name `slave' is derived from the practice of
generals to order the preservation and sale of captives, instead
of killing them; hence they are also called mancipia, because
they are taken from the enemy by the strong hand. 4 Slaves are
either born so, their mothers being slaves themselves; or they
become so, and this either by the law of nations, that is to say
by capture in war, or by the civil law, as when a free man, over
twenty years of age, collusively allows himself to be sold in order
that he may share the purchase money. 5 The condition of all
slaves is one and the same: in the conditions of free men there
are many distinctions; to begin with, they are either free born,
or made free.

TITLE IV
OF MEN FREE BORN

A freeborn man is one free from his birth, being the offspring
of parents united in wedlock, whether both be free born or
both made free, or one made free and the other free born. He
is also free born if his mother be free even though his father be
a slave, and so also is he whose paternity is uncertain, being
the offspring of promiscuous intercourse, but whose mother is
free. It is enough if the mother be free at the moment of birth,
though a slave at that of conception: and conversely if she be
free at the time of conception, and then becomes a slave before
the birth of the child, the latter is held to be free born, on the
ground that an unborn child ought not to be prejudiced by the
mother's misfortune. Hence arose the question of whether the
child of a woman is born free, or a slave, who, while pregnant,
is manumitted, and then becomes a slave again before delivery.
Marcellus thinks he is born free, for it is enough if the mother of
an unborn infant is free at any moment between conception and
delivery: and this view is right. 1 The status of a man born free
is not prejudiced by his being placed in the position of a slave
and then being manumitted: for it has been decided that manu-
mission cannot stand in the way of rights acquired by birth.

TITLE V
OF FREEDMEN

Those are freedmen, or made free, who have been manumit-
ted from legal slavery. Manumission is the giving of freedom;
for while a man is in slavery he is subject to the power once
known as ‘manus’; and from that power he is set free by manu-
mission. All this originated in the law of nations; for by natural
law all men were born free -- slavery, and by consequence
manumission, being unknown. But afterwards slavery came
in by the law of nations; and was followed by the boon of
manumission; so that though we are all known by the common
name of `man,' three classes of men came into existence with
the law of nations, namely men free born, slaves, and thirdly
freedmen who had ceased to be slaves. 1 Manumission may
take place in various ways; either in the holy church, according
to the sacred constitutions, or by default in a fictitious vindica-
tion, or before friends, or by letter, or by testament or any
other expression of a man's last will: and indeed there are many
other modes in which freedom may be acquired, introduced
by the constitutions of earlier emperors as well as by our own.
2 It is usual for slaves to be manumitted by their masters at any
time, even when the magistrate is merely passing by, as for
instance while the praetor or proconsul or governor of a
province is going to the baths or the theatre.

3 Of freedmen there were formerly three grades; for those
who were manumitted sometimes obtained a higher freedom
fully recognised by the laws, and became Roman citizens;
sometimes a lower form, becoming by the lex Iunia Norbana
Latins; and sometimes finally a liberty still more circumscribed,
being placed by the lex Aelia Sentia on the footing of enemies
surrendered at discretion. This last and lowest class, however,
has long ceased to exist, and the title of Latin also had become
rare: and so in our goodness, which desires to raise and im-
prove in every matter, we have amended this in two consti-
tutions, and reintroduced the earlier usage; for in the earliest
infancy of Rome there was but one simple type of liberty,
namely that possessed by the manumitter, the only distinction
possible being that the latter was free born, while the manu-
mitted slave became a freedman. We have abolished the class
of ‘dediticii,’ or enemies surrendered at discretion, by our
constitution, published among those our decisions, by which,
at the suggestion of the eminent Tribonian, our quaestor, we
have set at rest the disputes of the older law. By another con-
stitution, which shines brightly among the imperial enactments,
and suggested by the same quaestor, we have altered the
position of the ‘Latini Iuniani,’ and dispensed with all the rules
relating to their condition; and have endowed with the citizen-
ship of Rome all freedmen alike, without regard to the age of
the person manuumitted, and nature of the master's ownership,
or the mode of manumission, in accordance with the earlier
usage; with the addition of many new modes in which freedom
coupled with the Roman citizenship, the only kind of freedom
now known may be bestowed on slaves.

TITLE VI
OF PERSONS UNABLE TO MANUMIT, AND THE
CAUSES OF THEIR INCAPACITY

In some cases, however, manumission is not permitted; for an
owner who would defraud his creditors by an intended manu-
mission attempts in vain to manumit, the act being made of no
effect by the lex Aelia Sentia. 1 A master, however, who is
insolvent may institute one of his slaves heir in his will, confer-
ring freedom on him at the same time, so that he may become
free and his sole and necessary heir, provided no one else takes
as heir under the will, either because no one else was instituted
at all, or because the person instituted for some reason or other
does not take the inheritance. And this was a judicious provision
of the lex Aelia Sentia, for it was most desirable that persons
in embarrassed circumstances, who could get no other heir,
should have a slave as necessary heir to satisfy their creditors'
claims, or that at least (if he did not do this) the creditors might
sell the estate in the slave's name, so as to save the memory of
the deceased from disrepute. 2 The law is the same if a slave
be instituted heir without liberty being expressly given him, this
being enacted by our constitution in all cases, and not merely
where the master is insolvent; so that in accordance with the
modern spirit of humanity, institution will be equivalent to a gift
of liberty; for it is unlikely, in spite of the omission of the grant
of freedom, that one should have wished the person whom one
has chosen as one's heir to remain a slave, so that one should
have no heir at all. 3 If a person is insolvent at the time of a
manumission, or becomes so by the manumission itself, this is
manumission in fraud of creditors. It is, however, now settled
law, that the gift of liberty is not avoided unless the intention of
the manumitter was fraudulent, even though his property is in
fact insufficient to meet his creditors' claims; for men often hope
and believe that they are better off than they really are. Con-
sequently, we understand a gift of liberty to be avoided only
when the creditors are defrauded both by the intention of the
manumitter, and in fact: that is to say, by his property being
insufficient to meet their claims.

4 The same lex Aelia Sentia makes it unlawful for a master
under twenty years of age to manumit, except in the mode of
fictitious vindication, preceded by proof of some legitimate
motive before the council. 5 It is a legitimate motive of manu-
mission if the slave to be manumitted be, for instance, the
father or mother of the manumitter, or his son or daughter, or
his natural brother or sister, or governor or nurse or teacher,
or foster-son or foster-daughter or foster-brother, or a slave
whom he wishes to make his agent, or a female slave whom
he intends to marry; provided he marry her within six months,
and provided that the slave intended as an agent is not less
than seventeen years of age at the time of manumission. 6
When a motive for manumission, whether true or false, has
once been proved, the council cannot withdraw its sanction.

7 Thus the lex Aelia Sentia having prescribed a certain mode
of manumission for owners under twenty, it followed that
though a person fourteen years of age could make a will, and
therein institute an heir and leave legacies, yet he could not con-
fer liberty on a slave until he had completed his twentieth year.
But it seemed an intolerable hardship that a man who had the
power of disposing freely of all his property by will should not
be allowed to give his freedom to a single slave: wherefore we
allow him to deal in his last will as he pleases with his slaves as
with the rest of his property, and even to give them their liberty
if he will. But liberty being a boon beyond price, for which
very reason the power of manumission was denied by the older
law to owners under twenty years of age, we have as it were
selected a middle course, and permitted persons under twenty
years of age to manumit their slaves by will, but not until they
have completed their seventeenth and entered on their eighteenth
year. For when ancient custom allowed persons of this age to
plead on behalf of others, why should not their judgement be
deemed sound enough to enable them to use discretion in giving
freedom to their own slaves?

TITLE VII
OF THE REPEAL OF THE LEX FUFIA CANINIA

Moreover, by the lex Fufia Caninia a limit was placed on the
number of slaves who could be manumitted by their master's
testament: but this law we have thought fit to repeal, as an
obstacle to freedom and to some extent invidious, for it was
certainly inhuman to take away from a man on his deathbed the
right of liberating the whole of his slaves, which he could have
exercised at any moment during his lifetime, unless there were
some other obstacle to the act of manumission.

TITLE VIII
OF PERSONS INDEPENDENT OR DEPENDENT

Another division of the law relating to persons classifies them as
either independent or dependent. Those again who are depend-
ent are in the power either of parents or of masters. Let us first
then consider those who are dependent, for by learning who
these are we shall at the same time learn who are independent.
And first let us look at those who are in the power of masters.

1 Now slaves are in the power of masters, a power recognised
by the law of all nations, for all nations present the spectacle of
masters invested with power of life and death over slaves; and
to whatever is acquired through a slave his owner is entitled.
2 But in the present day no one under our sway is permitted to
indulge in excessive harshness towards his slaves, without some
reason recognised by law; for, by a constitution of the Emperor
Antoninus Pius, a man is made as liable to punishment for killing
his own slave as for killing the slave of another person; and
extreme severity on the part of masters is checked by another
constitution whereby the same Emperor, in answer to inquiries
from presidents of provinces concerning slaves who take refuge
at churches or statues of the Emperor, commanded that on
proof of intolerable cruelty a master should be compelled to
sell his slaves on fair terms, so as to receive their value. And
both of these are reasonable enactments, for the public interest
requires that no one should make an evil use of his own property.
The terms of the rescript of Antoninus to Aelius Marcianus are
as follow: -- `The powers of masters over their slaves ought to
continue undiminished, nor ought any man to be deprived of
his lawful rights; but it is the master's own interest that relief
justly sought against cruelty, insufficient sustenance, or intoler-
able wrong, should not be denied. I enjoin you then to look
into the complaints of the slaves of Iulius Sabinus, who have
fled for protection to the statue of the Emperor, and if you find
them treated with undue harshness or other ignominious wrong,
order them to be sold, so that they may not again fall under the
power of their master; and the latter will find that if he attempts
to evade this my enactment, I shall visit his offence with severe
punishment.'

TITLE IX
OF PATERNAL POWER

Our children whom we have begotten in lawful wedlock are in
our power. 1 Wedlock or matrimony is the union of male and
female, involving the habitual intercourse of daily life. 2 The
power which we have over our children is peculiar to Roman
citizens, and is found in no other nation. 3 The offspring then
of you and your wife is in your power, and so too is that of
your son and his wife, that is to say, your grandson and grand-
daughter, and so on. But the offspring of your daughter is not
in your power, but in that of its own father.

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18