



Produced 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 distinguished man Tribonian, master
and exquaestor 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