The Institutes of Justinian Part 1

The Inst.i.tutes of Justinian.

by Caesar Flavius Justinian.

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 G.o.d, 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 const.i.tutions, 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 G.o.d's blessing, had been done, we called together that distinguished man Tribonian, master and exquaestor of our sacred palace, and the ill.u.s.trious 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 Inst.i.tutes, 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 const.i.tutions 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 ill.u.s.trious and most able men, we directed the division of these same Inst.i.tutes 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 Inst.i.tutes of our ancient jurists, and in particular from the commentaries of our Gaius on both the Inst.i.tutes and the common cases, and from many other legal works, these Inst.i.tutes 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 const.i.tutions.

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 compa.s.sed 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.

t.i.tLES 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 t.i.tia 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

t.i.tLE 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 mult.i.tude 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.

t.i.tLE 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 distinction 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 required. 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 pa.s.sing, 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 a.s.semble 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 pa.s.sed 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 const.i.tutions. 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 interpret 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 const.i.tution 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 originated in the inst.i.tutions 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 munic.i.p.al 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.

t.i.tLE 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 inst.i.tution 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.

t.i.tLE 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 manumission cannot stand in the way of rights acquired by birth.