The Institutes of Justinian - Anonymous

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TITLE XVI. OF THE PENALTIES FOR RECKLESS LITIGATION

       TITLE XVII. OF THE DUTIES OF A JUDGE

       TITLE XVIII. OF PUBLIC PROSECUTIONS

       Table of Contents

      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

       Table of Contents

      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.

       Table of Contents

      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

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