



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
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 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 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 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 originated 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 manumission cannot stand in the way of rights acquired by
birth.




TITLE V. OF FREEDMEN

Those are freedmen, or made free, who have been manumitted 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 manumission. 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
vindication, 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 improve in every
matter, we have amended this in two constitutions, 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 manumitted 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 constitution, 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 citizenship
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 manumission 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, conferring 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.
Consequently, 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 manumission 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 fosterson or fosterdaughter or fosterbrother, 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 confer 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 dependent 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