The Institutes of Justinian

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TITI cI. o JUSTICE AN W. JUSTICE is the et an constant pur se hich gives tomery man his clue. Jurisprudenc is theanowledge of thing 1 divine and human, the scienceis the usi and the uviust Havin lai down these generat definitions and ou object heing the expositio of the la os the Roman eople, ethin that the mos advantageous plan wil herio CommenCewith an asy an simple path, and then to procee to delatis init a mos caresul an scrupulous exactnes os interpretation. themise, is e egi by burdening the student's memory, as et ea an unimined, it a multitude and varie is matters one of two ining wit happem: ithe weshali cause him hollyrio deseri the stud os la , o elsewe hal bring him a last, after great labour, an osten, too, distrusisu of his own powers the Commones CauSe, mong the oung, os ill-success), to a potnt hic he tot ave reache earlier, Without such labour an confident in himselfha he been led alon a smoother Path. The precepta os the la are these to live honestly tora injure omne an to give very an his clue. The stud 4o la consist of two branches, law public, and asprivate. The forme relates to the wellare os the Roman Stateri thelalter to the aclvantage of the individual citigen. Os privatela the we may say that it is os threesol origin, eingcollecte sto the precept o nature, Domitiose of the la os nations o stom thos os the civi law of Rome.

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Thecla is nature is that which she has tauot ali animais; lawnot peculia to the human race, but shared by ali livingcreatures, hether denigens of the air, the dry land o thesea. ence comes the union os male an semate, hic wecal marriam; ence the procreatio an rearingis children, sor his is a la in the knowledge of which, se even thei lowe animal takinglie ure. The civilla os Rome, and thelaw os ali nations are thus distinguished. The laws os me people governe is statutes an custom are parti peculiarto liseis, partly common to ali mankind. hos rules hicha state enacis se iis own member are peculia tocilaeis, anclare calle civi law: hos rules prescribe is natura reasonsor ali me are observe by alliseoples alike, an are called the la os nations Thus the law of the Roman eopleare parti peculia tocilaeis, parti common to ali nations; distinctio of which, shali tali notice a occasio ossem. Civi law takescit nam Domine state herein i binds sorinstance, in civi law of Athens, it Min quite correct tospea thus of the enaciments of Solon o Draco. So oo ecal the la observe by the Roman eopte the civi law of the Romans, o the law os the Quirites the law, that isto say, Whicli thenobserve, the Roman Min calle Quirites

aster Quirinus. Wheneve in speah however, o civi la , without an qualification, e mean ur Wn; κRCtly S, Whei the poet is spolienis, without addition or qualification, the Greelis understan the great Homer, and we understano Vergil. ut the la os nations is common to the wholehuma racea sor nations have setiled certain things for them-selves as occasio an in necessities os human iis requirecl. For instance, ars rose, and then solio e captivit anciflavery, hic are contra 'o the law of nature so by thelaw os nature ali men Dom the heginning were bor Dee Thela os nations again is the ource os almost ali contracis; sor instance, sale, hire, parinership, deposit, loan sor consumption an very many therS.

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Our la is partly written, partly unWritten a amon thera Greelis The writte cla consist is statutes, plebiscites, Senatusconsulis, enaCtments of the Emperors edicis of the magistrates, an answers of thos learne in the lain statuis is an enaciment of the Roman eople, hic it sedio mali on the motion os a senatoria magistrate, as sorinstanc a consul. plebiscite is an enaciment of the commonalty Such a Wasmade o the motion os ne os theirown magistrates, as a tribune The commonali differs Dom theseoplerus a species rom it genus Mor theseople 'includes the ,holoe aggregate is citietens, rumong them Patricians an senators, Whil in term commonalty em-

Aster the passini however of the statute calles the lex Hortensia plebiscite acquire so the rs time theriore of statutes senatusconsuli is a command an ordinanc os 5 in senate, o when the Roman people had been o increased that it was dissiculi to assemble it together so the pumoseo creatin statutes, it seeme right that the senat should beconsulte instea of the eople Again, hat in Emperor 6 determines has the orce of a statute, the eopletavin conferre onaim ali thei auctorit an powe by the lex regia, which was passe concernin his ossice an authori Consequently Whateve in Empero setiles is rescript o decides in his judicia capacity, or ordaincis edicis, is clearly a statute and these are hat are calle constitutions Someo these os course re personat, an no to e sollowed asprecedents since thicis no the Emperor' will sor a savourti towed on individua merit, or a penalty inflicte sor inclividuat wron Oing, o relies give Without a precedent, dono go beyones the particular person: though other rure generat, an bind ali beyon a doubt The edicis os the prae 7 tors too have no mali legat authority, and these e re sedio cal thejus honorarium, because thos Who occupy post os honour in the state, in the word the magistrates, have givenauthori to this branch of law The curule aediles also sed locissu an edici relatinito certain matters whic form parto the jus honorarium. Theruns er of thos learne in therata are the opinion and lews os person authorised to

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6 BOOK determine an expound the law sor it was of old provided

that certain persons hould publici interpret the laws, whowere calle jurisconsulis, and whom the Emperor privilegedio give sorma answem. Is the were unanimous the judgewas sorbidde by imperia constitution to depari rom heirs opinion, so great was it authority. The nwritte la is that whicli sage has approved sor ancient CustomS, When approve consent of those ho sollo them, are like 10 statute. An this division os the civi la into tino inos Seem no inappropriate, sor it appeam to have originate in the institutions os two states, namely Athens and Lacedaemon; it having been usual in the lalter to commit o memor what was observe as law, while the Athenians observe only what the had expresse in Writte statuteS. 11 ut the law of nature, hic are observe is ali nationsalike are Stablished a it ere, by divine providenCe, and remat me fixe an immutabie: ut the municipa law of eac individua state are subjecto frequent change either by the tacit consent of the eople, o by the subsequentenacimentis another statute.

.In theria os persons, then, therars division is into ree me an flaves. Freedom, hom hic me are calle Dee, is a man' natura poweris doin What hesteases soriar as hecis no prevente by orcei law: lavernis an institutionos the law os nations against nature subjecting one an to the dominion o another. The name flave is derive Domthe practice os generat to orde the preservatio an sale fcaptives, instea os hilling them ence thenare also calleo mancipia, ecause the are alien rom the enem by the Strongiand. laves are either bom so thei mothersieing Slave themselves o the hecomemo, and this line by the

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NTLES I V. 7law of nations that is to a b capture in ar, o by the civi law, as hen a re man, ove twenty years of age, Collusively allows himself tot sol in orde that he may hareth purchas money. The condition os ali flaves sine and 5 the fame in the condition o Dee me there are many distinctions 'o egi With the are either re bom, o made

Dee m man is ne re sto his birth, heing the omsPringis parent unite in edlock, whether bothie Deebornor both made me, or ne made re and the ther ree--m. e is also reehom is his mollier be isee, even though his ather e a flave, an s also is he hos paternit is uncertain, heing the ompringis promiscuous intercourse, butinos mollier is ree. It is nough is the motherierire atthe momenti birili, though a lave at that os conception an converset i sheterire at the time o conception andinem comes a flave besore the ire os the child the lalteris et to e sineborn, o the ground that an unbor childought no to e rejudice by the mother' missortune. Hence aros the question hether the chil os a oman istio Dee or a lave, ho, hile regnant, is manumitted, and then ecomes a lave again besore delive . arcellus thinks hecis bom Dee so it is nough is in mother of anunbom insant is fremat an moment be een Conception and cletivery and this te is right. The status os a manior Isree is noturejudice by his bein place in the positio os

flave and them in manumittessi sor it has Me decided that manumission cannot stan in the wayis right acquired

mitte seo legat lavery. anumission is the ivin os freedom sor hil a man is in laver hecis subjecto the

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De is manumission Ail his originate in the la os

nations Morinnatura law ali me were bor Dee-Slavery, and by consequence manumission, being unknown But aster-ward flavery came in by the la os nations and was sollowed by the oon os manumission so that though e re aliknown by the common nam os man, three classes of mencam into existence it the la os nations, amet mensree born, laves, and thirdi freedmen holad ease tole1 flaves. anumissio mantake place in various way eitheri in hol church, accordin to the sacre constitutions orti delauit in a fictilious vindication, or besore friends, o byletter, o by testamen or an other Xpression o a man'stast,ill an indee there are many ther modes in hichiseedom may be acquired, introduce by the constitutions os 2 earlier emperor a wel ac iuri n. It is usual sor flavesto e manumitte by thei master a any time even henthe magistrate is meret passing by as sor instance while the praetor o Proconsul oraovernor os a province is goin to thebath o the theatre.

scribed, bein placed by the te Aelia Sentiain the ooting ofenemies surrendere a discretion This last an lowest classhowove has long ce e to exist, and the ille os Latin also ha become rare an so in ur goodness, whicli destres torais an improve in every matter, e have amende this in two Constitutions an reintroduce the earlier usag sor in

the earlies insancros Rome there was butine simple type os liber , namel that possessed by the manumitter, the onlydistinctio possibi bein that the lalter,as Dee bom, hileth manumitte flave hecame a Deedman. e have abolisheclthe classis dediticii or nemies surrendere at discretion, our constitution, published among thos ou decisions hywhich, at the suggestion os the eminent Tribonian our quaestor, e have et a res the disputes os the olde law. Byanother constitution, Whichahines brightly among the imperial

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altere the positionis the Latini ueniani, an dispense withali the rules relatin to thei condition an have enclowed with in citigenslii os Rome ali reedmen althe without re-gar to the age of the person manumitted the natur os themaster' ownership o the mode os manumission, in accordance

clectare void by the ex Aelia Sentia A master however whocis insolvent may institute one of his flaves hei in his,ill,

conserring Deedomin him at the fame time so that he may come sine an his sole an necessar heir, provide no oneelse takes as ei unde the will either ecause no ne else was instituted at ali oriecause the person institute sor somereason orither cloes notriake the inheritance. An this asa judicious provision of the te Aelia Sentia, sor it was mosto irable that persons in embarrassed CircumstanCes, who Couldget o the heir, should have a lave a necessar hei tosatis* thei creditors claims, o that at least is heii notiothis the creditor might et the estate in the lave' name,so acto save the memor of the deceased rom disrepute. The la is the fame is a lave e institute heir it ut liberi hein expressing en him, this ein enacte by our constitution in ali cases, an no meret where the master is insolvent so that in accordance illi the modern spirit os humani , institution willi equivalent to a gistis liber soricis unlikely, in spite of the omissionis the grantis Deedom,

tiei at all. I a person is insolvent at the time os manu 3

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1 BOOK mission or ecomes o by the manumission iself this is manumission in fraud os creditore. It is howeve now settieclla , that in gis of liberinis no auoide unles the intentionos the manumitte was fraudulent, even though his proper is in lac insumcient to meet his creditors claims sor menosten ope an belleve that the are belle o than theyreatly are. Consequently we underetan a gis os liberentobe avoide only when the creditor are defraude both by the intentionis the manumitter, an in iaci that is to an is his properi hein insumcient to meet their claims. The fame te Aelia Sentia mahelit unlawsul sor a master unde t enly years of age to manumit, excepi in the mode offictilious vindication, precede by proos o some legitimate motive besore the councit. It is a legitimate motive os manumission is the lave to e manumitte be, sor instance, thelatheri mollier os the manumitter, o his son or clauoter, o his natura mother o sister, his eaCher o governor his nurSeir soster-brother, o a flave whomine,ishes to make his agent, or a semate lave homine intends' mar provideo he marr he within siκ monilis, an provide that the flave intende a an agent is no les than seventeen ear os age 6 at the time os manumission. When a motive so manumission, hether true o salse, has once been proved thecounci cannot withdra ita sanction.

7 hus the lex Aelia Sentia havingsrescribe a Certain modeos manumission sor owners unde twen , it sollowed that though a person Murteen ear os age could mali a ill ancltherein institute an hei and leave legacies, et he could notconser liberino a flave unti he had complete his twentiethyean ut it seemed an intolerable hamship that a man who haclthe power of disposing Deelnos alliis properistis,ill should not berullowe to give his freedom to a single flave: heresore we allo him o dea in his last,ill as e pleases wit his flaves a With the rest of his property, and even to give them

sor hic very reason the power of manumission was dented by the olde law o owners unde twenty years os age we hareas it ere selecte a middie course, an permitte Persons unde twenty years of age to manumit thei flaves by will but

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Μore en by the te Fufia Caninia a limit was place onthe number os flaves h could e manumitte by theirmaster' testament: ut his aQwe have thought fit to

m in his eathbed the right os liberating the wholei his

flaves, hic he could have exerciso a any moment during his lifetime, unies there ere ome ther obstacle to the actos manumisSion.

Ο PERSON INDEPENDENT OR DEPENDENT.Another division os the la relatin to person classifies them Misither independenti dependent Thos again hoare dependent are in thelowe either of parent onos masters. Let u firs the conside those ho are dependent, or bylearning who these are e hallis the fame time learn hoare independent. Andram let u look at those ho are in

lay the law of ali nations sor at nations present the spectacleos masters invested withioweris lis an death ove flaves an to hateve is acquire throuo a flave his owner sentilled. ut in the present anno ne under ur Waycis 2 permitte to indulge in excessive harshnessetowards his flaves, without someaeason recognised bylaw sor, is a constitution os the Emperor Pius Antoninus, a malis maderas liable to punishment oratilin his own laverus sor illing the lave os another person an extrem severit o the partis masteriis checked by another constitution hereby the Same Emperor,

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in amwerri enquiries Dom president os provinces concerning flaves horiali resum at churchesi statues of the Emperor, commanded thatin proos of intolerable crueitra mastedishoulclbe compelle to et his laves on sat terms, o acto receivethei value. An both os these are reasonable enacimenis,sor the public interest requires that o ne should mali an evilis of his own property. The term of the rescriptis Antoninus to Aelius Marcianus are a solio :- Theso ersos mastem ver thei flaves ought to continue undiminishω,

is the master' own interest that relie justi fought against Cruelty insumcient sustenance, o intolerable rong, houlci noti dented. I, oin o then to look into the complaints of the laves of Julius Sabinus, ho have fled sor protectionto the statue os the Emperor, and Dyo fine them reatoclwith undue harshnes orither ignominious wrong, orde themtote sold, so that the manno again sal unde the wwer of thei master and the alter,il find that fine attemptato evade his m enaciment, I hali visit his offence With

Severe punishment