Imperatoris Iustiniani Institutionum, Libri Quattuor, with Introductions, Commentary Excursus, and Translation by J. B. Moyle, B. C. L., M. A. Vol. II. Translation. Oxford (Clarendon Press), 1883.

RANKE asserts (Weltgeschichte, IX, part

2, p. 26) that the Roman Law was the greatest product of the Roman Empire. It is, then, fitting that these studies should close with extracts from the handbook on Roman Law, composed in the time of Justinian, showing the law in its latest form and known as the Institutes of Justinian.

What the Roman Law did for civilization cannot be learned from a simple study of the Law. We must understand that before the Roman lawyers had stripped the laws of their local characteristics there did not exist a body of laws applicable to all civilized peoples. The recognition of the fact that there are common principles underlying all law was a tremendous step in the direction of human unity.

The influence of Roman Law upon later legal development it would be hard to overestimate. Throughout the universities of the continent to day the students of law employ the Latin Institutes, together with the Codes and Digest, as in the time of Justinian.

Before the time of Justinian (527 A. D.) there had been three noteworthy attempts at codification: Codex Gregorianus, "a collection mainly of rescripts issued from the time, probably, of Hadrian up to A. D. 284, and principally rescripts of Septimius Severus and the emperors who succeeded him" (date about 300 A. D.); Codex Hermogenianus, "which may be regarded as an appendix to the foregoing" (date probably between 365 and 398 A. D.); Codex Theodosianus (promulgated February, 435 A.

D. by Theodosius II.), consisting "of sixteen books, arranged separately in titles and rubrics, and the constitutions in each title were placed in chronological order."

The final codification took place in the time of Justinian.

The first work was to make a single code out of all the codes previously issued, together with the imperial constitutions that had appeared since 439 A. D. The task was undertaken by a commission of ten persons and in April, 529 A. D., the work was published with the name Codex Justinianeus. The older codices were deprived of validity.

The second work prepared was the Pandectae, or Digest, so called because it consisted of a digest of the works of thirty-eight of the most distinguished jurists in Roman history. About one-twentieth part of the material examined went into the new work, that consisted of fifty books or chapters.

These large works were not suited to elementary instruction in law; a text book was necessary. A committee of three men was appointed to produce this work. The result of their labors was the Institutes from which our extracts are taken.

gin by burdening the student's memory, as yet weak and untrained, with a multitude and variety of matters, one of two things will happen: we shall either cause him wholly to desert the study of law, or else we shall bring him at last, after great labor, 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 labor and confident in himself, had he been led along a smoother path.

The precepts of the law are these: to live honestly, to injure no one, and to give every man his due. 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.

QUESTIONS.

1. For whom were the Institutes evidently written? 2. What criticism would you make upon the definition of jurisprudence? 3. Who were the "Roman people" to whom the text refers? 4. What terms do we use to-day as equivalent to "law public and law private"?

TITLE II.

OF THE LAW OF NATURE, THE LAW OF NATIONS, AND THE CIVIL LAW.

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 marr.age; hence the procreation and rearing of children, for this is a law in the knowledge of which we see even the lower animals taking pleasure. The civil law of Rome, and the law of all nations, are thus distinguished. 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. 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 observed by 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.

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. A statute is an enactment of the Roman people, which it was wont to make on the motion of a senatorial magistrate, as for instance a consul. A plebiscite is an enactment of 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. 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 creating statutes, it seemed right that the senate should be consulted instead of the people. 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. The edicts of the praetors too have no small legal authority, and these we are used to call the jus 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 jus honorarium. The answers of those learned in the law are the opinions and views of persons authorised 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. The unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute. 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 expressed in written statutes.

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. 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.

QUESTIONS.

1. Was the "Law of Nature" a law in the same sense that the "Civil Law" was? 2. Did the "Law of Nations" exist as a distinct body of law? 3. What relation between this Roman conception of the "Law of Nations" and the permanent value of the Institutes? 4. Does the term "Civil Law" mean the same thing to us as to the writer of the Institutes? 5. What sentence anticipating the Declaration of Independence do you find here? 6. Of what period in the history of Rome would the "plebiscites" be characteristic? The "Senatusconsults"? The "Enactments of the Emperors"? 7. Show that the Roman Law was the product of time. 8. What was peculiar about the position of the judge in the Roman system? 9. Have we both written and unwritten law?

TITLE III.

OF THE LAW OF PERSONS.

In the law of persons, then, the first division is into free men and slaves. 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: slavery is an institution of the law of nations, against nature subjecting one man to the dominion of another. 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. 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. 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.

QUESTIONS.

1. Would our definition of "freedom" differ from the

Roman's? 2. How was slavery a good thing when first introduced? 3. Point out all the ways in which our laws differ from the laws included in Title III. 4. What do we do with our prisoners? 5. Why did not the Romans take the same attitude toward slavery that we take to-day?

TITLE IV.

OF MEN FREE BORN.

A free born man is one free from his birth, being the offspring of parents united in wedlock, whether both be freeborn or both made free, or one made free and the other freeborn. He is also freeborn if his mother be free, even though his father be a slave.

QUESTIONS.

1. Name all the different combinations by which a child might be freeborn. 2. Did the Roman Law favor the acquisition of freedom?

TITLE V.

OF FREEDMEN.

Those are fedmen, 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. 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. 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 theater.

Of freedmen there were formerly three grades; for those who were manumitted sometimes obtained a higher freedom fully recognized by the laws, and became Roman citizens; sometimes a lower form, becoming by the lex Junia 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 freeborn, while the manumitted slave became a freedman. We have abolished the class of dediticci, 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 Juniani, 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 manumitted, the 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.

QUESTIONS.

1. What was the difference between a "freeman" and a "freedman"? 2. Was "manumission" a common thing in the Empire? 3. Did the laws favor it? 4. In what way was the position of the freedman better under the Empire than under the Republic? 5. What would be the effect of imperial legislation "equality before the law"?

TITLE VI.

OF PERSONS UNABLE ΤΟ

upon

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 declared void by the lex Aelia Sentia. . 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 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. The law is the same if the 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. If a person is insolvent at the time of 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 creditor's 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.

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. 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 mother or sister, his teacher or governor, his nurse or foster-brother, 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. When a motive for manumission, whether true or false, has once been proved, the council cannot withdraw its sanction.

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 judgment be deemed sound enough to enable them to use discretion in giving freedom to their own slaves?

QUESTIONS.

1. The Roman Law has been called "written reason." Prove from the above extract that it is justly so called. 2. Was the spirit of the Roman Law favorable or unfavorable to slavery? 3. How could the "father of the manumitter" be a slave? 4. Did economic reasons ever stand in the way of manumission? 5. Why was

manumission a more natural thing in the Empire than in this country before the war?

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 receive testamentary manumission: 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.

QUESTIONS.

1. How is the liberality of the Empire shown? 2. How the reasonableness of the Roman Law? 3. How the tendency toward equality?

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.

Now slaves are in the power of masters, a power recognized 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. But in the present day no one under our sway is permitted to indulge in excessive harshness towards his slaves, without some reason recognized by law; for, by a constitution of the Emperor Pius Antoninus, a man is made as liable to punishment for killing his own slave as for killing the slave of another person; and extreme severity on the part of masters is checked by another constitution whereby the same Emperor, in answer to enquiries from presidents of provinces concerning slaves who take refuge at churches or statues of the Emperor, commanded that on proof of intolerable cruelty a master should be compelled to sell his slaves on fair terms, so as to receive their value. And both of these are reasonable enactments, for the public interest requires that no one should make an evil use of his own property. The terms of the rescript of Antoninus to Aelius Marcianus are as follows: The powers of masters over their slaves ought to continue undiminished, nor ought any man to be deprived of his lawful rights; but it is the master's own interest that relief justly sought against cruelty, insufficient sustenance, or intolerable wrong, should not be denied. I enjoin you then to look into the complaints of the slaves of Julius Sabinus, who have

fled for protection to the statue of the Emperor, and if you find them treated with undue harshness or other ignominious wrong, order them to be sold, so that they may not again fall under the power of their master; and the latter will find if he attempts to evade this my enactment, I shall visit his offence with severe punishment.'

QUESTIONS.

1. How did the position of a man's slaves differ from that of his cattle? 2. What checks were exercised by the state upon the exercise of the master's authority? 3. On what ground was this done? 4. Why did the slaves "flee to the statue of the Emperor"?

TITLE IX.

OF PATERNAL POWER.

Our children whom we have begotten in lawful wedlock are in our power. Wedlock or matrimony is the union of male and female, involving the habitual intercourse of daily life. The power which we have over our children is peculiar to Roman citizens and is found in no other nation. The offspring then of you and your wife is in your power, and so too is that of your son and his wife, that is to say, your grandson and granddaughter, and so on. But the offspring of your daughter is not in your power, but in that of its own father.

QUESTIONS.

1. What was there peculiar about the Roman paternal power? 2. Why was not the offspring of a man's daughter in his power? 3. Was his married daughter in his power? 4. How does our family organization differ from that of the Roman? 5. Which is superior, and why?

BOOK II. TITLE I.

OF THE DIFFERENT KINDS OF THINGS. In the preceding book we have expounded the law of Persons: now let us proceed to the law of Things. Of these some admit of private ownership, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one. But most things belong to individuals, being acquired by various titles, as will appear from what follows.

QUESTIONS.

1. How many divisions of things do the Institutes make? 2. Do those divisions exist in modern society?

THINGS COMMON TO ALL.

Thus, the following things are by natural law common to all-the air, running water, the sea, and consequently the sea-shore. No one therefore is forbidden access to the sea-shore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations. On the other hand, all rivers and harbours are public, so that all persons have a right to fish