VI. THE ENACTMENTS OF JUSTINIAN.
THE DIGEST OR PANDECTS.
THE THREE PREFACES OF THE DIGEST BY JUSTINIAN.
CONCERNING THE PLAN OF THE DIGEST ADDRESSED TO TRIBONIANUS.
THE EMPEROR CÆSAR, FLAVIUS, JUSTINIANUS, PIOUS,
FORTUNATE, RENOWNED, CONQUERER AND TRIUMPHER,
EVER AUGUSTUS, TO TRIBONIANUS HIS QUÆSTOR:
With the aid of God governing Our Empire which was delivered to Us by His Celestial Majesty, We carry on war successfully, We adorn peace and maintain the Constitution of the State, and have such confidence in the protection of Almighty God that We do not depend upon Our arms, or upon Our soldiers, or upon those who conduct Our Wars, or upon Our own genius, but We solely place Our reliance upon the providence of the Holy Trinity, from which are derived the elements of the entire world and their disposition throughout the globe.
(1) Therefore, since there is nothing to be found in all things so worthy of attention as the authority of the law, which properly regulates all affairs both divine and human, and expels all injustice; We have found the entire arrangement of the law which has come down to us from the foundation of the City of Rome and the times of Romulus, to be so confused that it is extended to an infinite length and is not within the grasp of human capacity; and hence We were first induced to begin by examining what had been enacted by former most venerated princes, to correct their constitutions, and make them more easily understood; to the end that being included in a single Code, and having had removed all that is superfluous in resemblance and all iniquitous discord, they may afford to all men the ready assistance of their true meaning.
(2) After having concluded this work and collected it all in a single volume under Our illustrious name, raising Ourself above small and comparatively insignificant matters, We have hastened to attempt the most complete and thorough amendment of the entire law, to collect and revise the whole body of Roman jurisprudence, and to assemble in one book the scattered treatises of so many authors; which no one else has herebefore ventured to hope for or to expect, and it has indeed been considered by Ourselves a most difficult undertaking, nay, one that was almost impossible; but with Our hands raised to heaven, and having invoked the Divine aid. We have kept this object in Our mind, confid-
ing in God who can grant the accomplishment of things which are almost desperate, and can Himself carry them into effect by virtue of the greatness of His power.
(3) We have also taken into consideration your marked integrity as disclosed by your labors, and have committed this work to you, after having already received the evidence of your talents in the preparation of Our Code; and We have ordered you in the prosecution of your task, to select as your assistants whomever you might approve of from among the most eloquent professors of law, as well as from the most learned men belonging to the bar of this great city. These, therefore, having been collected and introduced into Our palace, and accepted by Us upon your statements, We have permitted the entire work to be accomplished; it being provided, however, that it should be conducted under the supervision of your most vigilant mind.
(4) Therefore We order you to read and revise the books relating to the Roman law drawn up by the jurists of antiquity, upon whom the most venerated princes conferred authority to write and interpret the same; so that from these all the substance may be collected, and, as far as may be possible, there shall remain no laws either similar to or inconsistent with one another, but that there may be compiled from them a summary which will take the place of all. And while others have written books relating to the law, for the reason that their writings have not been adopted by any authorities, or made use of in practice, We do not deem their treatises worthy of Our consideration.
(5) Since this compilation is to be ascribed to the extraordinary liberality of Our Imperial will, it ought to constitute a most excellent work and, as it were, be revered as a peculiar and most holy temple of justice. You shall divide the entire law into fifty books, and into a certain number of titles following, as far as may be convenient for you, the arrangement of Our Code, as well as that of the Perpetual Edict, so that nothing may be omitted from the above mentioned collection; and that all the ancient law which has been in a confused condition for almost fourteen hundred years shall be embraced in the said fifty books, and this ancient law, purified by Us shall be, so to speak, surrounded by a wall, and shall have nothing beyond it. All legal authors shall possess equal authority, and no preference shall be given to any, because all of them are neither superior nor inferior to one another in every respect, but some are of greater or less weight as far as certain subjects are concerned.
(6) But you must neither base your judgment as to what is best and most equitable upon the number of authors, as perhaps on some points the opinion of one who is inferior may be preferable to that of many and greater ones; and therefore you must not entirely reject what was formerly included in the notes to Æmilius Papinianus, taken from Ulpianus, Paulus, and Marcianus, although the said notes have hitherto had but little force, on account of the distinction of the most renowned Papinianus; but if you perceive that anything from them is required to supplement the labors of Papinianus, that man of eminent genius, or necessary for their interpretation, you must not
hesitate, after having selected it, to give it the force of law; so that all those most learned men whose opinions are included in this book may have the same authority as if their studies had been based upon the Imperial Constitutions promulgated by Our own Divine power; for We very properly consider all those things to be Ours which have obtained their sanction from Us; for he who corrects what has not been skilfully done is more praiseworthy than he who is the original author of the same.
(7) We desire you to be careful with regard to the following: if you find in the old books anything that is not suitably arranged, superfluous, or incomplete, you must remove all superfluities, supply what is lacking, and present the entire work in regular form, and with as excellent an appearance as possible. You must also observe the following, namely: if you find anything which the ancients have inserted in their old laws or constitutions that is incorrectly worded, you must correct this, and place it in its proper order, so that it may appear to be true, expressed in the best language, and written in this way in the first place; so that by comparing it with the original text, no one can venture to call in question as defective what you have selected and arranged. Since by an ancient law, which is styled the Lex Regia, all the rights and power of the Roman people were transferred to the Emperor, We do not derive Our authority from that of other different compilations, but wish that it shall all be entirely Ours, for how can antiquity abrogate our laws?
We wish that all these matters after they have been arranged in place shall be observed to such an extent that, although they may have been written by the ancients in a different way than appears in Our collection, no blame shall be imputed the text, but it shall be ascribed to our selection.
(8) Therefore, in no part of the aforesaid treatise, shall there be any place for antinomia, (this was derived by antiquity from a Greek word1,) but there must be such conformity and consistency therein that there will be no opportunity for contradiction.
(9) We desire, as has already been stated that all repetition shall also be banished from this compilation, and whatever has been provided by the most Sacred Constitutions which We have included in our Code We do not permit again to be considered as a part of the ancient law, since the sanction of the Imperial Constitutions is sufficient to confer authority upon them; unless perhaps this should take place either for the purpose of division, or supplement, or in order to secure greater exactness; and even this must be done very rarely, lest where this repetition occurs, something thorny may grow up in this meadow.
(10) However, by no means do We allow you to insert into your treatise laws that appearing in ancient works have now fallen into desuetude; since We only desire that legal procedure to prevail which has been most frequently employed, or which long custom has established in this benign City; in accordance with the work of Salvius
1 'Autiuomia, contradictory or irreconcileable laws; an evil from which modern legislation is by no means free, as every lawyer knows. ED.
Julianus which declares that all states should follow the custom of Rome, which is the head of the world, and not that Rome should follow the example of other states; and by Rome is to be understood not only the ancient city, but Our own royal metropolis also, which by the grace of God was founded under the best auguries.
(11) Therefore We order that everything shall be governed by these two works, one that of the Imperial Constitutions, the other, that of the law to be interpreted and compiled in a future Code; so that if anything else should be promulgated by Us in the form of an elementary treatise, the uninstructed mind of the student, being nourished by simple matters, may the more readily be conducted to a knowledge of the higher principles of jurisprudence.
(12) We desire Our compilation which, God willing, is to be drawn up by you, to bear the name of the Digest or Pandects, and no person learned in the law shall dare hereafter to add any commentaries thereto, and to confuse by his own prolixity the abridgement of the aforesaid work, as was done in former times, for almost all law was thrown into confusion by the opposite opinions of those interpreting it; but it is sufficient merely by indexes, and a skilful use of titles (which are called paratitla), to give such warning that no change may take place in the interpretation of the same.
(13) And in order that no doubt may arise hereafter on account of the writing, We order that the text of the said work shall not be written with abbreviated words, and that obscure and compendious expressions shall not be employed, which by themselves and through the defects which they have occasioned have brought about many contradictions, even where the number of the book or something else is meant; for We do not permit such things to be indicated by special abbreviations of numbers but they must be designated by regular letters.
(14) Let it be your earnest desire, therefore, to do all these things, God willing, by the aid of your own wisdom and that of those other most eloquent men, and bring the work to as excellent and rapid a conclusion as possible; so that it having been completed and digested into fifty books may remain a monument to the great and eternal memory of the undertaking, a proof of the wisdom of Almighty God, to the glory of Our Empire and of your service. Given on the eighteenth day of the Kalends of January, during the Consulship of those most illustrious men Lampadius and Orestes, 530.
THE EMPEROR CÆSAR, FLAVIUS, JUSTINIANUS, ALEMANNICUS, GOTHICUS, FRANCISCUS, GERMANICUS, ANTICUS, ALANICUS, VANDALICUS, AFRICANUS, PIOUS, HAPPY, RENOWNED, CONQUEROR AND TRIUMPHER, EVER AUGUSTUS, TO THEOPHILUS, DOROTHEUS, THEODORUS, ISIDORUS, ANATOLIUS, THALELEUS, AND GRATINUS, ILLUSTRIOUS MEN AND PROFESSORS OF LAW, AND TO SALAMINIUS MOST ELOQUENT MAN, AND PROFESSOR OF LAW, GREETING.
Who knows more fully than you do that the entire law of Our State is now amended and compiled in four books of Institutes or elements, and in fifty books of the Digest or Pandects as well as in twelve Imperial Constitutions? All those things which it was necessary to order either at the beginning, or to settle after the completion of the work, with free admission of the fact, have already been explained to you by Our speeches expressed in both the Greek and Roman languages, which We desire to become eternal. But since it is necessary for you and all others who have been appointed professors of legal science also to know this, namely: what We think is necessary to be communicated to students, and at what time this should be done, so that they may by this means become perfect and most learned; We therefore are of the opinion that the present Imperial address should be especially directed to you, so that you in your wisdom, as well as other professors who may desire to exercise the same profession at any time, having observed Our rules may be able to travel the glorious road of legal knowledge. Therefore there is no doubt that elementary treatises have a right to claim for themselves the first place in all studies, for the reason that they afford in small compass the first principles of every science. Of the fifty books of the Digest, We are of the opinion that thirty-six would be sufficient for your explanation of the law, as well as for the instruction of youth; and it seems to Us to be suitable now to explain their arrangement, and to indicate the paths by which you must proceed; to recall to your memory what you formerly taught, and also to point out not only the usefulness of Our new compilation but also state the time which should be consumed in its study, in order that none of this science may remain unknown.
(1) Formerly indeed, as you are well aware, among the vast multitude of laws which are included in two thousand volumes, and more than three million lines, students received from the instruction of their masters the contents of only six books, which were greatly confused and included very few useful laws; the others had already fallen into disuse and were difficult of comprehension to all. In these six books were comprised the Institutes of Our Gaius and four special treatises; the first concerning the ancient dotal action, the second, on guardianship, the third and the fourth relating to wills and legacies, which students did not study as a whole, but omitted many portions of the same as being superfluous.
This work was not taught to students during the first year in accordance with the order of the Perpetual Edict (but indiscriminately
and as it were collected in a medley, the useful mixed with the worthless and the latter composing the larger portion.
During the second year, an absurd arrangement was adopted, and the first part of the laws was taught, certain titles having been omitted, for it was contrary to all rules to read anything after the elements but what occupied the first place among the laws and which deserved this name. After this part had been read without any continuity, special subjects being chosen which were for the most part useless, other titles were taught to the students which were derived from that part of the laws styled "Concerning Actions", and in this no regular method was pursued, rarely were profitable subjects selected, and almost the entire remainder of the volume was considered of no value; and from that part which is designated "Things" seven books were rejected as being unfitted for students and considered neither suitable nor peculiarly adapted to instruction.
During the third year, they studied what had been omitted from each volume, that is to say from those on Things and on Actions-at-law, using each volume alternately; and this opened the way for them to the most sublime Papinianus and his Opinions. From the aforesaid collection of Opinions which are contained in nineteen books, they were taught only eight, nor were the entire contents of these given them, but very few subjects from many were selected, and of these the shortest out of a great number, so that they laid them down without being thoroughly informed. Then after these treatises alone had been expounded by the professors, the students were accustomed to study the Opinions of Paulus by themselves not as a whole, but in an imperfect and somewhat disconnected manner, in accordance with a vicious custom. In this way the study of ancient jurisprudence was brought to a close in the fourth year, and if anyone desired to enumerate the studies which had been pursued, he found on making the calculation that out of the immense number of laws hardly sixty thousand lines of very little value had been gone over and that all the remainder were unconsidered and unknown; except where some small portion of them were required to be examined whenever the practice of the courts compelled this to be done; for you yourselves, masters of the law, deemed it proper to read something from them in order that the information of your scholars might be, to some extent, increased by your efforts. Such were the monuments of ancient instruction which is also confirmed by your own testimony.
(2) We, however, finding such a need of laws, and considering this condition to be most wretched, do now open the treasures of jurisprudence to all those desirous of obtaining them; and these when dispensed by your wisdom, as it were, will render your scholars most eloquent legal orators.
During the first year, they will study Our Institutes which We have taken from almost all the ancient elementary works, and which have been brought from all turbid sources into one limpid, pure, reservoir, by the agency of Tribonianus, that most eminent man, and magistrate, former Quæstor of our Sacred Palace, and former Consul, as
well as by both of you, that is to say, Theophilus and Dorotheus, most eloquent professors. For the remainder of the year according to an excellent method We direct that the first part of the laws, which is designated by the Greek term prwta shall be taught to students, and that nothing shall precede this, because what holds the first rank can have nothing before it; and We decree that this shall be the beginning and end of instruction during the first year. Nor do We consent that those who take this course shall be designated by the foolish and ridiculous name of "Twopounders"; but shall be called "New Justinians", and We desire that this rule shall be followed for all future time, so that those who still uninformed aspire to the knowledge of the law, and are willing to accept the ordinances of the former year may be worthy of bearing Our name; since the first volume which has been promulgated by Our authority will be immediately delivered into their hands. The name which they formerly bore was one which was worthy of the ancient confusion which enveloped all jurisprudence; now, however, as the laws are to be clearly and intelligibly presented to their minds, it was necessary for their appellation to be changed, and for them to be distinguished by another.
(3) In the second year, for which a name has already been given them by an Edict approved of by Us, We decree that they shall be taught either from the seven books relating to Actions or from the eight relating to Things, as the alteration of the time may permit; and this arrangement We direct shall be preserved unaltered; but in the study of the said books on Actions and Things they must thoroughly apply themselves, taking them in their regular order and without omitting anything, because all is adorned with new elegance, and nothing whatever that is worthless or that has fallen into disuse is to be found therein. We wish to be added to the study of one or the other of these treatises, that is the one on Actions or the one on Things, during the second year, four special books which We have selected out of the entire compilation of fourteen; one of which is derived from the contents of the work in three books which We have compiled on dowries; one from the two on guardianships and curatorships; one from the work in two parts concerning wills; and also one compiled in like manner from the seven which treat of legacies and trusts and topics of a similar character. Therefore We order that these four books which have been placed in the first rank of the special compilations aforesaid, shall alone be used by you in giving instruction to students; the other ten being reserved for a proper opportunity, because it is not possible, nor does the second year afford sufficient time for the said fourteen books to be explained to them by the voice of the master.
(4) During the third year the course of instruction must pursue the following order, so that whether they be taught alternately from the books relating to Actions or from those relating to Things the triple method of special works on jurisprudence shall be followed: first must be taken up the formula of hypothecation, to which We have assigned a suitable place, namely that in which We treat of mortgages; for as it resembles actions arising from pledges, which have
been discussed in the books treating of Things, it should not avoid their neighborhood, since both subjects have reference to almost the same matters.
After this special treatise, another like it shall be explained to them, which We have compiled with reference to the Edict of the Ædiles, and concerning actions for the recovery of property, and on evictions, as well as those relative to stipulations for double the amount; as when provisions are made by the laws with respect to purchases and sales they occupy a prominent place, in the books on Things; but as all the definitions which We mentioned were inserted in the last part of the former edict, We were compelled to transfer them to the first position, lest they might be too far separated from Sales, to which they are, as it were, auxiliary. We have designated these three books to be read with that of the most talented Papinianus whose works students were accustomed to study during the third year, not as a whole but a little being taken here and there from the entire contents. The most elegant Papinianus affords excellent subjects for your instruction, not only from the Opinions which are contained in nineteen books, but also from his thirty-seven books of Questions and his two books of Definitions, and besides the book on Adultery, and indeed, almost all his disquisitions in the entire arrangement of Our Digest, in which he appears eminent in his own particular sphere.
And lest students of the third year, who are styled "Papinianists", may appear to lose their name as well as their elegance, he himself has again been introduced to the third year by means of a most excellent contrivance; for We have filled the book on the hypothecary formula from the elements of the same excellent Papinianus, so that they may derive their name from him and be styled Papinianists, and may remember him and rejoice and observe the festival day which they were accustomed to celebrate when they first studied his principles of law; and that by means of this the memory of that most distinguished Præfectorian Papinianus may survive forever; and with this the study of the third year shall be concluded.
(5) Then, for the reason that it is customary for students of the fourth year to be designated by the ordinary Greek name lutaV, they may retain this name if they desire to do so; and instead of the Opinions of the most learned Paulus, of whose twenty-three books they formerly were accustomed to study scarcely eighteen, reading them in a confused manner as already stated; they must now endeavor to frequently peruse ten special books which remain out of the fourteen which We have already enumerated, and from these they will obtain a much greater and more ample fund of information than they were accustomed to derive from the Opinions of Paulus.
Thus the entire order of separate books compiled by Us and divided into seventeen will be impressed upon their minds, which We have included in two parts of the Digest, that is to say, the Fourth and Fifth, in accordance with its division into Seven Parts;1 and what We stated
1 Las Siete Partidas. The great legal compilation of King Alfonso X of Castile, derives its name as well as much of its contents from the division and rules of Justinian's Digest. ED.
in the first words of Our address will be found to be true; so that young men may become perfect by the study of the said thirty-six books, and prepared for any legal work, and not be unworthy of our age. The other two parts of our Digest, that is to say the Sixth and Seventh which are composed of fourteen books, must be laid aside for the time, so that they can subsequently read them and make use of them in court. If they carefully absorb these, and during the fifth year in which they are called prolutai, they endeavor not only to read but to perfectly understand the Code of Imperial Constitutions, they will lack nothing of the knowledge of jurisprudence, but they will be familiar with it all from beginning to end; and although this happens in almost no other scientific system, the number of whose branches is infinite however useless they may be, this course of study alone will have an admirable termination, which is effected by Us at the present time.
(6) Therefore, when all these secrets of the law are disclosed, nothing will be concealed from the students, but after having read all the books which have been compiled by Us through the agency of that distinguished man Tribonianus, and others, they will become eminent orators and ministers of justice and as fitted for deciding causes as for trying them, and will be prominent and fortunate in every place and in every age.
(7) We wish that these three treatises which have been composed by Us shall be taught students not only in royal cities, but also in the most beautiful city of Berytus1 which may well be designated the nurse of the law, as has already been ordained by former princes but in no other places, to which this privilege was not granted by Our ancestors; and for the reason that We have learned that certain ignorant men have gone about in the magnificent city of Alexandria, as well as in a Cæsarea, and have imparted spurious instruction to students, We intend to deter these from this undertaking by means of the above-mentioned warning, so that if they venture hereafter to perpetrate such acts outside the royal cities and the metropolis of Berytus, they shall be punished by a fine of ten pounds of gold, and shall be banished from that city in which they do not teach the laws, but violate them.
(8) There is another matter which We referred to in Our address in the beginning, when ordering this work to be composed, which after its completion We also inserted in another of Our Sacred Constitutions, and which We now promulgate as being useful; that is, that none of those who compile these books shall dare to insert abbreviations in them;2 or, by the employment of notes introduced any ambiguity in the
1 Beirut, the ancient Berytus, while no longer famous for the study of jurisprudence, was a literary centre under the Arabs; and is now the seat of a great Protestant university, with many hundreds of students from all the countries of the East. ED.
2 An idea of the obscurity and perplexity arising from the abbreviation of ancient laws, may be obtained from the following quotation taken from the Twelve Tables. "NEI. EAT. ANTESTATOR. EICITOR. EM. CAPITOD." "If, after having been summoned, he does not appear, or refuses to come into court; he who summoned him shall produce witnesses to that effect, and then the recalcitrant adversary shall be arrested and brought into court as a captive." (Leges XII Tabulorum, I, II.) ED.
interpretation and composition of the laws; and all copyists who may commit this offence hereafter are hereby notified that they, in addition to being liable to a criminal penalty shall be compelled to pay double the value of the book to the owner, if he was ignorant of its character when they delivered it to him; since he who purchases such a book cannot consider it of any value, for no judge will permit a citation to be made from it, but will direct that it shall be considered as unwritten.
(9) The following We publish as an extremely necessary regulation based upon a most solemn warning, namely, that no one of those who are pursuing the study of the law shall dare, either in this most magnificent city, nor in the beautiful city of Berytus, to perpetrate any jokes which are unworthy and most vile, nay even befitting only the condition of slaves, that have an injurious effect; or any other illegal acts either against their professors or their associates, and especially against those who come to the study of the law while inexperienced; for who indeed can designate as jokes such deeds as give birth to crimes? We do not suffer these things to be done under any circumstances; but We subject this matter to a rigid rule in Our times and transmit it to all future ages, since it is proper that Our minds should first be educated and afterwards our tongues.
(10) The exalted Prefect of this most flourishing city shall have charge of the enforcement and punishment for violation of these rules so far as both youths and copyists are concerned. In the city of Berytus the most illustrious President of the Phoenician shore, together with the most blessed Bishop and the professors of law of that city shall discharge this duty.
(11) Begin then, under the direction of God to teach the science of law to students and open to them the way which We have discovered, that they may become excellent ministers of justice and of the State, and that the greatest possible honor may accrue to you for all time; because in your age an exchange of laws has been devised, such as was made by Glaucus and Diomedes with one another, as is set forth in Homer, the father of every virtue, when they exchanged things which were dissimilar: crusea calkeiwn. ekotomboioa enneaboiwn; that is to say "Gold for copper, cattle worth a hundred for others worth nine."
We decree that all these rules shall be observed in every age by all professors, students of law, and copyists, and by the judges themselves.
Given on the seventeenth day of the Kalends of January at Constantinople, our Lord Justinian, ever Augustus, being Consul for the third time, 533.
CONCERNING THE CONFIRMATION OF THE DIGEST.
To THE SENATE AND ALL PEOPLES. IN THE NAME OF OUR LORD GOD JESUS CHRIST.
THE EMPEROR CAESAR, FLAVIUS, JUSTINIANUS, ALEMANNICUS, GOTHICUS, FRANCICUS, GERMANICUS, ANTICUS, ALANICUS, VANDALICUS, AFRICANUS, Pious, FORTUNATE, RENOWNED, VICTOR AND TRIUMPHER, EVER AUGUSTUS, TO THE SENATE AND ALL PEOPLES.
So great is the forethought of Divine Humanity in Our favor, that it always deigns to sustain Us with its eternal liberality. After having terminated the Parthian wars by a lasting peace, and after having overthrown the nation of the Vandals, and for a second time united Carthage, nay indeed all Lybia with the Roman Empire; We by Our care have caused the ancient laws, already oppressed with age, to be invested with new beauty and suitably compiled; which no one before Our reign ever hoped for, or even thought to be hardly possible for human effort to accomplish. For it was truly wonderful that Roman jurisprudence, which from the foundation of the City up to the time of Our accession, a period embracing almost fourteen hundred years, had been rendered unstable by intestine conflict, a condition which had also extended to the Imperial Constitutions, should nevertheless be reduced into one consistent system, in such a way that nothing contradictory, identical, or even similar should be encountered, and that no two laws enacted for the same purpose should ever appear therein; for a work of this kind would indeed seem to be within the province of Divine Wisdom, but in no wise attainable by human frailty.
Therefore We, according to Our custom, have had recourse to the assistance of Immortality, and having invoked the Supreme Deity, have wished God to become the author and head of the whole work, and We have given its supervision to that eminent man Tribonianus, Master of the Offices, former Quæstor of our Sacred Palace, and former Consul, and We have confided to him the entire management of this undertaking, so that he himself, along with other most illustrious and learned men, might accomplish Our desire. And Our Majesty also relying upon the heavenly Divinity and constantly examining and scrutinizing the matter compiled by these men, have corrected whatever has been found to be ambiguous or doubtful and reduced it into proper order.
(1) Everything therefore has been completed by the aid of Our Lord God Jesus Christ, who has rendered the task possible for Us as well as for Our ministers, and We have already collected the principal constitutions and digested them into twelve books, in the Code which is distinguished by Our name. Afterwards, applying Ourselves to the preparation of a very extensive work, We permitted the aforesaid illustrious man to collect and compile with certain changes the contents of
many most valuable treatises of antiquity, which at that time were almost utterly confused and disconnected. But while making Our inquiries, We were reminded by the aforesaid eminent man that there were almost two thousand books written by the ancient jurists, and more than three million lines produced by them, all of which it would be necessary to read and thoroughly examine, and from which must be chosen whatever would be best. This has been accomplished by the grace of God and the favor of the Supreme Trinity, in conformity to Our orders, which in the beginning We issued to the above mentioned eminent man; and everything especially useful has been collected into fifty books, all ambiguities have been removed, and nothing which is contradictory retained.
We have given to these books the name of the Digest or Pandects, as they contain all discussions and decisions relative to the law, and these gathered from all sources, have been placed in this compendium, the entire work including about a hundred and fifty thousand lines; and We have divided it into seven parts, not by chance or without reason, but with a view to the nature and disposition of numbers, and making a division of the parts in conformity with the same.
(2) Thus the First Part of the entire compilation, which is called by the Greek term prwta, is divided into four Books.
(3) The Second Part contains seven Books which are styled "On Actions-at-law".
(4) We have inserted in the Third Part everything embraced by the Title on Things, and to this subject eight Books are allotted.
(5) The Fourth Part, which may be considered, as it were, the centre of the entire work, includes eight Books, in which is contained everything relating to hypothecation, so that they do not differ greatly from actions for the redemption of pledges, which are discussed in the Books relating to Things. Another Book is inserted in the same volume which contains the Edict of the Ædile, and the action for recovery, as well as the stipulation for double the price paid, which is prescribed in cases of eviction; for the reason that all these matters are connected with the topic of Purchase and Sale, and the aforesaid actions were, so to speak, originally on the same footing with them. In the plan of the ancient Edict these matters were treated in different places widely separate from one another, but by Our care they have been brought together, since it is proper that those things which relate to closely similar topics should be placed in juxtaposition.
Following the first two, We have planned another Book relating to usury, loans on bottomry, documents, witnesses, evidence, and presumptions, and these three separate Books are inserted near the part relating to Things. After these we have placed certain matters mentioned in the laws relating to betrothals, marriages, and dowries, including them in three volumes. We have also written two Books concerning guardianships and curatorships.
The aforesaid arrangement of eight Books We have inserted in the middle of the entire work, and it contains the most useful and excellent rules collected from all sources.
(6) The Fifth Book of the Digest now appears before Us, and in it anyone can find whatever was stated in ancient times with reference to the wills and codicils of private persons, as well as soldiers, and this is entitled "Concerning Testaments". Five books relating to legacies and trusts have also been added, and since there is nothing so closely connected with other matters as a description of the Lex Falcidia with legacies, and one of the Trebellian Decree of the Senate with trusts, two Books are devoted to these subjects respectively, and the entire Fifth Part is completed in nine books. We have decided that the Trebellian Decree of the Senate should alone be introduced; and rejecting the ambiguities of the Pegasian Decree of the Senate, which seemed whimsical and odious to the ancients themselves; and also the superfluous and over-nice distinctions existing between the two above-mentioned Decrees We have included in the Trebellian Decree all the law which has reference to them. In these, however, nothing has been mentioned by Us with relation to the escheat of estates, so as not to preserve in our time which the favor of heaven and the vigor of peace have rendered secure, and in which We have subjected all nations by Our victories a legal topic under unfortunate circumstances and in evil days, (for Rome increased with calamities and was strengthened by civil war), so that a sad remembrance might be permitted to cast a shade upon a joyful age.
(7) The Sixth Part of the Digest comes next in order, in which is inserted everything relating to the possession of property, whether with reference to freemen or freedmen, so that the entire law on degrees of relationship and affinity, as well as that of legal inheritance and intestate succession is given, together with the Tertullian and Orphitian Decrees of the Senate, by which the succession of children to their mother, and vice versa, are set forth; and having arranged in a compact and most lucid order the different kinds of possession of property We have arranged them in two Books.
After this We placed in a single Book what the ancients have written on notices with reference to new structures, to warnings against threatened injury, to the demolition of buildings and treacherous designs against them; to the care of rain-water; to farmers of the revenue, and to donationes inter vivos, as well as mortis causa, which We have found provided for by the laws. Another Book treats of manumissions and actions relating to freedom, and also many and various articles concerning the acquisition of ownership and possession, and the titles which confer the latter have been inserted in a single volume; and another Book has been allotted to those who have confessed judgment, or against whom a decision has been rendered, as well as on the detention of property and the sale of the same, to prevent anything being done to defraud creditors. After this all interdicts are treated together, and then exceptions and prescriptions. Still another Book contains obligations and actions, so that the aforesaid Sixth Part of the entire volume of the Digest is embraced in eight Books.
(8) The Seventh and last Part of the Digest is composed of six Books; and all that the law mentions with respect to stipulations, ver-
bal obligations, sureties and mandators, as well as concerning renewals, payments, receipts, and prætorian stipulations, which it was hardly possible to enumerate in the ancient treaties is included in two volumes.
And after this two terrible books are added concerning private and extraordinary offences, as well as public crimes, in which are set forth all the severity and harshness of their punishments. With these are also mingled provisions relating to audacious men who attempt to conceal themselves and are contumacious; and also penalties inflicted upon those who are guilty, or which are remitted, as well as what relates to the disposition of their property. One book also is devoted to appeals against decisions which have been rendered in both civil and criminal cases.
All other matters found in the works of the ancients and which relate to municipal affairs or concern Decurions, public employments and public works, markets, promises, divers judicial inquiries, assessments, or the signification of terms, enumerated in regular order are contained in the Fiftieth Book, which concludes the entire work.
(9) All these things have been perfected by that eminent man and most learned magistrate, the former Quæstor and the former Consul Tribonianus, equally adorned with the arts of eloquence and legal knowledge, and prominent as well for his practical acquaintance with affairs; and one who esteems nothing greater or dearer to him than the execution of Our orders.
To the completion of this work other distinguished and most zealous men have contributed, that is to say the eminent Constantinus, Count of the Sacred Largesses, and Master of the Office of Memorials and of the Imperial Judicial Inquiries, who has always commended himself by his good reputation and renown; Theophilus, an illustrious man and a magistrate learned in the law, who in a praiseworthy manner administers justice in this most noble city; Dorotheus, an illustrious and most eloquent man who has exercised the function of Quæstor, whom We, having been attracted by his distinguished abilities and reputation have summoned to Our presence, while he was expounding the laws to students in the magnificent city of Berytus; as well as Anatolius, an illustrious man and magistrate who also was summoned to this work while interpreting the laws to the people by Berytus, a man descended from an ancient race of lawyers for both his father Leontius and his grandfather Eudoxius obtained much honor by their knowledge of jurisprudence; and succeeded Patricius of distinguished memory who himself was raised to the dignity of Quæstor, and was a professor of law; and Leontius of Consular Rank, who filled the office of Prefect with distinction; and also Cratinus, an illustrious man and Count of the Sacred Largesses, who was acknowledged to be a most eminent professor of law of this delightful city.
All of these have been selected for the aforesaid undertaking together with Stephanus, Mena, Prosdocius, Eutolmius, Timotheus, Leonides, Leontius, Plato. Jacobus, Constantinus, Johannes, most learned men, who practice the profession of law in the Supreme Tri-
bunal of the Prefecture, to which are subject all the Prætorian jurisdictions of the East. These men, whose merit is acknowledged by the testimony of all, have been selected by Us for the performance of this immense task under Our direction, and have been assembled for this purpose, under the direction of that eminent man Tribonianus, and by the aid of God the work has been completed in the aforesaid fifty books.
(10) We entertain so much reverence for antiquity that We cannot suffer the names of these learned jurists to be consigned to oblivion, and We have therefore inserted in Our Digest the name of the author of each law; and this has been done by Us solely that if anything in their rules should seem to be either superfluous, imperfect, or inapplicable, the proper addition or curtailment might be made, and the passage be subjected to the strictest construction; and where there are several points which are similar or contradictory, whatever appears to be most correct should be set down instead of the other passages, and all confirmed by the same authority; and that whatever is written there should appear to be Ours, and to have been composed with Our consent, no one being permitted to compare what was sanctioned by antiquity with what Our authority has established; for the reason that many most important changes have been made on account of general convenience, so that even where an Imperial Constitution was promulgated in the ancient books, We have not spared even it, but have thought that it should be corrected and improved; the older terms, however, have been preserved, and We have retained in Our corrections whatever was proper and necessary for the meaning of the laws, and therefore where formerly any doubt arose the point has now become entirely safe and indisputable, all ground for perplexity having been removed.
(11) But as We have noticed that uneducated men who, standing in the vestibule of jurisprudence are hastening to fathom its mysteries, are not competent to sustain a mass of such knowledge, We have thought that another abridgment should be made, so that colored by it, and, as it were, imbued with the primary elements of the entire science, they might be able to penetrate into the innermost sanctuary of the same, and view with undazzled eyes the beautiful image of the law. Therefore We have ordered that eminent man Tribonianus, who has been selected for the entire supervision of the work, together with Theophilus and Dorotheus, illustrious men and most eloquent professors, who have been summoned for this purpose, to collect separately all those books composed by the ancients which contain the first principles of the law, and are styled Institutes; in order that whatever was useful, most suitable and elegant in every respect might be rendered available in the present age; and that they should attempt to collect and arrange this in four books, and lay the first foundations and elements of all instruction, so that young men being supported thereby might be able to obtain a more extensive and perfect acquaintance with the laws.
We have also directed them not to lose sight of Our Constitutions which We have promulgated for the amendment of jurisprudence, nor
to fail to insert the same in the compilation of the Institutes; so that not only what was formerly uncertain, but also what had afterwards been established as law, might be made plain. This work having been completed by them, and having been presented to, and perused by Us, We have received it with favor, and decided it to be not unworthy of Our intelligence; and We have ordered that these books shall have the game authority as Our Constitutions, which We have more clearly set forth in Our address prefixed to the said books.
(12) The entire substance of the Roman law having been compiled and perfected in three treatises, namely, that of the Institutes, that of the Digest or Pandects, and that of the Constitutions, and the task having been finished in three years, while when the compilation was first begun it was not expected that it could be completed in ten; We with devout purpose offered this work to Almighty God for the preservation of mankind, and gave abundant thanks to the Supreme Deity who has enabled Us to wage war with success, to enjoy honorable peace, and to establish excellent laws, not only for Our own age, but also for every other, both present and to come.
(13) We have deemed it necessary to promulgate this decree to all persons so that they having been delivered from such infinite confusion may know to what regularity and certainty with respect to jurisprudence they have now attained; and that they may hereafter have laws which are not only direct but comprehensive, and placed within reach of all, and of such a description that the books treating of the same may be easy to procure; so that men may be able, not to purchase works abounding in superfluous laws by the expenditure of immense sums of money, but that the easy acquisition of the same for a small amount may be opened to the wealthy as well as to the poor, and a vast amount of knowledge be obtainable at a reasonable price.
(14) If, however, there shall occasionally be found some matters which are similar and in so great a compilation of laws collected from an enormous number of treatises no one ought to think this to be worthy of censure it must in the first place be attributed to the innate weakness of human nature, for to posses a memory of all things and to be hardly ever mistaken, is rather an attribute of divinity than of mortals, which has also been stated by our ancestors.
Again, it must be remembered that where repetition appears in certain matters, and these most brief, it is not useless, and has not occurred in opposition to Our intention; for either the rule was so important that it was necessary for it to be mentioned under different titles for the proper understanding of the subject, or when it was mingled with other different rules it was impossible to exclude it from some portions in order to prevent the whole from being thrown into confusion; and in those parts in which the perfect views of the ancients were expounded, it would have been inexpedient to divide and separate whatever had been scattered through them, as not only the understanding but also the hearing of the reader would be confused thereby. In like manner, where anything has been provided by the Imperial Constitutions, We have by no means permitted it to be included in the
volumes of the Digest, as the reading of the Constitutions is sufficient; except where this was rarely done for the same reasons for which a repetition was permitted.
(15) Nothing contradictory, however, is to be found inserted in this work, nor can it claim any place for itself; for if one examines with diligent attention the reasons for diversity, something new or which encloses a hidden meaning, will be discovered that disposes of any complaint of inconsistency, giving another appearance to the subject, and excluding the same from the bounds of discord.
(16) If by chance anything was passed by which placed in the depths, as it were, in so many thousands of volumes was there concealed, and, while proper to be used, being involved in obscurity was necessarily omitted, who can with rightful intention make this a subject of reproach; when first the weakness of the human mind is taken into consideration, and then the imperfection of the matter itself which, mingled with many useful things, affords no opportunity of separating it from the others? And again, it is much more profitable that a few good passages should be omitted, than that men should be overwhelmed with many that are worthless.
(17) There is one extraordinary thing that appears in these books, namely: that the great number of old ones are found to be smaller in bulk than those of the present compilation, for the men who formerly conducted lawsuits, although many rules have been established, nevertheless employed only a few of them in judicial proceedings, either on account of the scarcity of books which it was impossible for them to obtain, or because of their own ignorance; and cases were disposed of rather according to the will of the judge than by the authority of the law. In the present compilation of Our Digest, the laws have been collected from numerous volumes, whose titles We not only declare men of former times did not know, but had never even heard of; and all these things have been assembled in abundance, so that Our most opulent brevity makes the great quantity of the ancients appear deficient. That most excellent man Tribonianus has furnished Us with a copious supply of the ancient learning of these books, many of which were unknown even to the most highly educated men; and these having been thoroughly studied, whatever was found best in them was selected, and inserted in Our compilation. The composers of this work, however, read not only the volumes from which these laws are taken, but also numerous others, and finding therein nothing either useful or new, which, if appropriated, could be included in Our Digest, they with excellent judgment rejected them.
(18) But for the reason that only divine things are perfect, and that it is a characteristic of human jurisprudence to be always indefinitely extending, and that there is nothing in it which can endure forever, for nature is constantly hastening to bring forth new forms; We expect that certain matters may subsequently arise which, up to this time, have not been included in the restraints of the law. Therefore, if anything of this kind should take place, recourse must be had to the Emperor, because God has given the Imperial power control over
human affairs in order that wherever any new contingency arises, he might be able to correct and arrange it, and subject it to suitable rules and regulations. We are not the first to promulgate this, for it is derived from an ancient origin; since Julianus himself, that most discerning author of laws and of the Perpetual Edict, declared in his works that if anything imperfect should be found it must be supplied by Imperial Decree; and not he alone, but the Divine Hadrian as well, stated most clearly in the consolidation of the Edict and the Decree of the Senate which followed it, that where anything was not found to have been inserted in the Edict, more recent authority might supply the deficiency in compliance with the rules, the objects, and the resemblances of the same.
(19) Therefore, you Conscript Fathers, and all men of the earth being informed of all these things offer the fullest thanks to the Supreme Divinity who has preserved for your age so salutary a work of which, according to Divine judgment, antiquity does not seem to have appeared worthy, but has bestowed it upon your times. For which reason revere and observe these laws, while all the ancient ones remain quiescent; and let none of you venture to compare them with former ones, or to call in question anything that appears inconsistent in either; because We decree that everything that is inserted herein shall alone be observed. Nor let anyone in a trial or other controversy, where laws are necessary, attempt to cite or support any legal principle from any other book except the said Institutes, and Our Digest and Constitutions composed and promulgated by Us; unless having become liable to the crime of forgery, he, together with the judge who suffers such matters to be heard, desires to be subjected to the most severe penalties.
(20) In order that it may not be unknown to you from what books of the ancients this compilation has been made, We order that this be stated in the beginning of Our Digest, that it may be perfectly plain from what jurists and from which of their books, and from how many thousands of them this temple of Roman justice has been erected. We have, however, selected such jurists and commentators as are worthy of so great a work, and whom the most pious former Emperors did not hesitate to admit; and to all of them, without distinction, We have assigned an equal rank, and have not permitted any to claim superiority; for since We have decreed that the present laws promulgated, as it were, by Ourselves should be observed instead of the constitutions, how can any greater or less credit be imputed to any of them, since the same rank and the same authority are conceded to all?
(21) One matter, however, which seemed to Us proper at the beginning, when, with the assistance of God We ordered this work to be done, also appears to Us to be expedient at the present time; that is that none of those who is now learned in the law, or who may become so hereafter, shall presume to annex any commentaries to these laws, unless he may wish merely to translate them into the Greek language, in the same order and with the same arrangement in which they are set forth in the Roman idiom, which the Greeks call "foot by foot"; and if he wishes to add any notes because of any obscurity in the titles, those
which are called annotations shall be employed; but We do not permit any other construction of the laws, and still less any perversions of the same, to be made by them, for fear that their prolixity may discredit Our jurisprudence by causing confusion. This was done by the old commentators on the Perpetual Edict, for though this work was concisely drawn up, they extended it ad infinitum, drawing it here and there by attributing different meanings to the same thing, so that almost all Roman jurisprudence remained in a confused condition; and if We can not endure them, how can the vain discord of posterity be tolerated? If they dare to do anything of this kind they shall be liable to prosecution for forgery, and their works shall be entirely destroyed. If anything, as has been stated above, appears to be ambiguous, it must be referred by the judges to the Emperor, and be explained by the Imperial authority to which alone has been granted the enactment and interpretation of the laws.
(22) We prescribe the same penalty for forgery also against those who dare to write down Our laws by using the obscure method of abbreviations; for We wish everything, that is to say the names of the learned lawyers, the titles, and the numbers of the books to be indicated by entire letters, and not by abbreviations; so that whoever procures for himself a book of this kind in which abbreviations are employed, no matter in what part of the treatise or of the volume this may occur, will know that he is the owner of a worthless Code; nor do We grant permission for any citation to be made in court from a Code of this kind which contains in any division whatsoever the defect of abbreviations.
Moreover, any copyist who dares to write down such things shall not only be punished criminally, as has already been stated, but shall also restore double its value to the owner of the book, if the latter ignorantly purchased it or directed it to be written; and this We have already promulgated in a Latin and Greek Constitution which We have addressed to professors of law.
(23) We desire that Our laws contained in these books, namely, the Institutes or Elements, and the Digest or Pandects, shall take effect from the present date, that is to say, from our third most fortunate Consulate of this twelfth Indiction, on the third Kalends of January; shall be valid for all time, and shall have the same force as Our Constitutions; exhibiting their authority in all judicial trials, not only in those now pending in the courts but in such as may hereafter arise, where they have not been determined by judicial decision or arbitration; for under no circumstances are We willing that those that have already been settled by judicial decision of friendly agreement shall be revived.
We have hastened to publish these laws during Our third Consulate, because by the grace of the Supreme Deity and of our Lord Jesus Christ, it has been rendered most fortunate for the State, since during it the Parthian War has been terminated, perpetual peace established, and the third part of the world been subjected to Our rule; for after Europe and Asia, all of Lybia has been added to Our Empire,
and this important work on jurisprudence has been concluded, so that all the gifts of heaven have been bestowed during this Our third Consulate.
(24) All Our judges in their several jurisdictions shall receive these laws and enforce them in their tribunals, as well as in this Imperial City, and especially must that illustrious man, the Prefect of this noble capital, do so; and it shall be the duty of the three eminent Prætorian Prefects, of the East, of Illyria, and of Libya, to publish the same by their authority to all those who are subject to their jurisdiction.
Given on the seventeenth of the Kalends of January, during the third Consulship of Our Lord Justinian, 533.
CONCERNING THE CONFIRMATION OF THE DIGEST.
TO THE GREAT SENATE. IN THE NAME OF OUR
LORD GOD JESUS CHRIST.
THE EMPEROR CÆSAR, FLAVIUS, JUSTINIANUS, ALEMANNICUS, GOTHICUS, FRANCICUS, GERMANICUS, ANTICUS, ALANICUS, VANDALICUS, AFRICANUS, PIOUS, FORTUNATE AND ILLUSTRIOUS, VICTOR AND TRIUMPHER, EVER TO BE REVERED AS AUGUSTUS, TO THE GREAT SENATE, THE PEOPLE, AND ALL THE CITIES OF OUR EMPIRE.
After peace was made with the Persians, and after the triumphs over the Vandals and the acquisition of all Lybia, and after having again united the most famous city of Carthage to Our Empire, God permitted Us to bring to a successful conclusion the important work of revision of the ancient laws, which no prince before Our reign thought could either be planned or executed by the human mind. For it was indeed an extraordinary thing to examine the entire body of Roman jurisprudence, from the foundation of the ancient city up to our day, a period embracing almost thirteen hundred years; which sometimes was in agreement with, and sometimes in contradiction to itself, not only in its various parts but also especially in the laws promulgated by Imperial authority; not merely to remove therefrom whatever was inconsistent with itself, but also to reject all that was found to be identical, or similar, and to present the various aspects of the beauty of jurisprudence, so that each law might seem to have been enacted for a single purpose. This result beyond doubt was due to the Supreme Divinity and His beneficence, and not to human thought, enterprise, or power.
Therefore We, having according to Our custom raised Our hands to God, and having invoked Him that He would deem Us worthy of His aid, have undertaken this task, and have at length completed it; hav-
ing employed for this entire service the celebrated Tribonianus, Master of the Offices, and former Quæstor of Our Sacred Palace, as well as former Consul, together with certain other illustrious and learned men; constantly exercising supervision over the matters composed by them and carefully scrutinizing whatever was doubtful, We have imparted to all said matters a suitable form, according to the vigor of Our intellect and the ability conferred upon Us by God and Our Saviour Jesus Christ.
(1) We have then composed a Code dignified by Our Imperial Name, which includes the Imperial Constitutions formerly contained in twelve books. We have afterwards collected in a well-arranged and perspicuous compilation, a multitude of opinions of the ancient founders of the law, which were distributed through almost two thousand volumes and three million sentences. With the assistance of heaven We have included all this in fifty books, accepting everything that was useful, rejecting all ambiguities, and retaining nothing which was contradictory.
These books We have named the Digest or Pandects, for the reason that they contain divisions and decisions of the laws and because everything is collected in one work; and while We have given them this title, they do not contain more than a hundred and fifty thousand lines. Finally, We have divided them into Seven Parts, which was not done improperly, or without reason, but with a view to the nature and harmony of numbers.
(2) Those matters then which are ordinarily called by all prwta, that is to say, "The Elements", We have divided into four books.
(3) Next We have divided whatever relates to Trials into seven other books.
(4) Also, such matters as relate to Things We have divided into not more than eight books.
(5) The next Part of the work, however, which is the Fourth, and occupies the middle of the whole, We have divided into eight other books, in which hypothecary actions, which are not greatly different from those brought for the recovery of pledges, are treated of, and also the Edict of the Ædiles, and stipulations relating to evictions. These two are accessory to, and arise from contracts of sale; and although widely separated from one another in the arrangement of the ancient law, We have brought them nearer together, on account of the common relationship existing between them, and in order that matters that are mentioned as being of almost the same nature may not be widely separated.
Then, after these two books We have introduced those things which have been written on money loaned in commercial transactions, not only on land but also on vessels, or in maritime business; and what relates to evidence and presumptions, which form the substance of one book. In these three books, each devoted to a single topic which bears considerable resemblance to the treatise on Things, We have next brought together those matters concerning marriage and dowries which are set forth in the laws, and have devoted to them three more
volumes in this arrangement. We have also compiled two books on the guardians of minors We mean those which are generally designated by all persons "Concerning Guardianships" and here We have concluded the above-mentioned arrangement of eight books, and have finished the central part of the entire work, as previously stated, inserting therein the most excellent and useful laws.
(6) Moreover, We have assembled in nine books everything relating to legacies and trusts, and those matters are placed at the beginning which relate to testaments and codicils, not only in general, but also to those of soldiers who make such disposition of their property as they desire; and these being arranged in two books are entitled "Concerning Wills".
In the five following books the rules relating to legacies and trusts, and whatever opinions have been rendered with reference to ambiguities arising from them are contained; and as the treatise on the Lex Falcidia includes and depends upon that of legacies and trusts, We have, therefore, placed it immediately after the one on legacies, having devoted one entire book to the subject with some short additions. And again, for the reason that the Trebellian Decree of the Senate was introduced into trusts because of its resemblance to the Lex Falcidia, We have devoted to it the last place in this Part, attributing all the law expounded on these matters to the Trebellian Decree of the Senate, finding the insertion of the Pegasian Decree of the Senate to be superfluous, and considering the differences and resemblances existing between the said Decrees of the Senate to be absurd, which indeed the ancients themselves detested, and designated captious and dangerous; and, having united all this matter in a simple form under the single title of the Trebellian Decree of the Senate, We have completed this Fifth Part of the entire treatise in nine books. In these nine books nothing has been stated by Us concerning what were formerly called escheats, for the reason that no use was made of them in the prosperous days of the State, but they were a sad monument of the Civil War, and should not survive in these times during which God has granted Us peace at home and abroad, and whenever it was necessary to carry on war it was easy for Us, with His favor, to overcome and make captive our enemies.
(7) Next follows the Sixth Part of the entire work divided into eight books. It begins very properly with what are styled "Possessions", and having considered these in a diligent manner, as We have done the other subjects, not only such as relate to free persons but also to freedmen, We have made a lucid compilation of what was characterized by great confusion and obscurity in ancient times, thinking that two books on this subject would be sufficient. We have also treated therein of all successions called intestate, and the different degrees of descent, and have devoted one book to the same; and at the end of all We have placed the Tertullian and Orphitian Decree of the Senate by which mothers and children reciprocally succeed one another.
After this conies another book which treats of the erection of houses, and of the security to be given on account of buildings which
are ruinous, and about to fall down; and concerning those who commit some injury or fraud against others; as well as with reference to such persons as injure their neighbors by the overflow of water; and also concerning collectors of public taxes; and in addition to this, whatever the statutes and laws prescribe with respect to donations, either indefinite or simple, and such as are made in apprehension of death. Again, whatever exists relating to manumission and to such matters as have reference to it is treated in this single book.
We have also inserted into one treatise or book everything that has reference to possession, and acquisition by means of it, and the circumstances under which it is obtained. In the next book has been collected whatever can be found on judicial decisions and on those who have made admissions against themselves; the surrender of property; the detention of debtors, and the sale of their goods; the separation and charge of irresponsible persons; and provisions against the defrauding of creditors. To the discussion of interdicts We have only set apart a single book and then We come to prescriptions or exceptions, and to the terms designated for them. Finally, We discuss the rules governing obligations and actions, and the whole of this Part, which is the Sixth of the entire work and begins, as has been stated, with Possession, We have divided into eight books.
(8) The last Part of the entire treatise which is the Seventh, includes six books, beginning first with stipulations, next taking up whatever has been written relative to suretyship, the paying of money, the discharge of debts and the release of the same, and what relates to stipulations introduced by the jurisdiction of the Prætor; all of which has been included by Us in two books; although it cannot be stated how many the ancients possessed on this subject.
We next proceed to the description of crimes, and all those matters are discussed which relate to minor offences called "private", as well as to those which are unusual and are styled "extraordinary"; then We come to public crimes, which are of the most atrocious character, and deserve the severest punishment. This treatise is also composed of two books, which include those things relative to inferior offences and crimes, and with them are mingled whatever has been written concerning criminals who attempt to conceal themselves, and on the disposal of their property, and also the penalties which are to be inflicted on such as are found guilty, or the pardons which should be granted them are enumerated.
A treatise on appeals which are a frequent and common means of annulling decisions, civil as well as criminal, forms the beginning of another book; and whatever has been written and is to be found in ancient writers on citizens of town or country, Decurion's offices, public and public works, markets, promises for the payment of money, various legal proceedings, interrogations, and judicial investigations, the census of the people, and whatever exists relative to the signification of words and to those things which were drawn up as rules by the ancients; are all contained in the last Book. This Book, therefore, which begins with Stipulations, is the Sixth, if mentioned with
respect to the beginning of this Part, but is the Fiftieth when considered with reference to the entire perfection and harmony of the work.
(9) All these matters have been composed and thoroughly elaborated in compliance with Our command, by the illustrious Tribonianus, most learned Master, and former Quæstor of Our Palace, and former Consul, a man greatly celebrated by reason of his experience in affairs, his eloquence, and his familiarity with the law, and who has never disobeyed any of Our orders. Other men, also, there are, who have assisted in this work under him, namely: Constantinus, the most noble Count of the Sacred Largesses, Secretary, Master of the Requests, of the Imperial Records, and of the Judicial Inquests of the Empire, who has given Us in all matters an excellent opinion of himself; also, Theophilus, the most renowned instructor, who, in a manner worthy of all praise expounds the laws in this Royal City, with the degree of diligence worthy of his exalted office; and Dorotheus, most illustrious Quæstor, appointed Doctor of Laws in his own city We refer to the venerated and splendid metropolis of Berytus whose extraordinary renown and glory have conducted him to Us and induced Us to give him a share in this work; and Anatolius likewise, that most eminent teacher, who himself imparts instruction in a thorough manner to the people of Berytus, on points relating to jurisprudence, and who is a man third in descent in a family famous among the Phoenicians for its interpretation of the laws, (for he traces his lineage to Leontius and Eudoxius, jurists of distinguished reputation after Patricius of famous memory, former Quæstor and Censor; and the most glorious Leontius, who held the office of Prefect and Consul, and Patricius his son, all men worthy of the highest admiration); as well as the most illustrious Cratinus, learned Count of the Imperial Largesses and the best interpreter of the laws in this Royal City; and in addition to these should be mentioned Stephanus, Mena, Prosdocius, Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobuus, Constantinus, Joannes, most accomplished men, advocates of Our most glorious and noble Prefecture, who have also justly acquired a great reputation for wisdom and glory among all men, and who have deservedly been deemed by Us worthy to be chosen as associates in so important an undertaking. These matters which belong to the compilation of the Digest have accordingly been perfected by the above mentioned most eminent men.
(10) We have so much reverence for antiquity that We were not willing for the names of the ancient jurists to be omitted, but We have inserted that of each one of them in the laws. Certain matters, however, have been altered where something did not appear to be correct, and occasionally portions have been removed and elsewhere additions have been made; upon the whole, having always selected what was best, and having conceded to all one and the same force or power, whatever is written in this book shall be considered as Our opinion, without anyone having the audacity to compare the rules which have now been adopted with those which formerly prevailed; for the reason that
We have changed for the better many things not easy to be enumerated, even though some things may have been stated in another form than that in which they appeared in the constitutions of former Emperors; for while preserving the names of the ancient authorities, We have made the truth of their laws Our own, so that where any contradictions of them existed (and many were to be found therein), there has been removed and decided, and every law has been set forth in the clearest terms.
(11) But since it was necessary to prepare an introductory treatise for the benefit of those who have recently begun the study of the law, and who are unable as yet, to understand the more advanced principles of that science, We have not allowed this to escape Our foresight; and therefore having chosen the most distinguished Tribonianus for the direction of the entire work, together with Theophilus and Dorotheus, most eminent and learned professors; We ordered that they be sent for, in order that they might select from the ancient writers such rules as they had composed which were most suitable and weighty in their application, and present them to Us; and that they might make mention of the Constitutions which We promulgated for the amendments of ancient jurisprudence, and compile from them four books embracing the first elements of legal knowledge, and which We have seen proper to designate Institutes; and this part of the work on the law having been completed they presented it to Us; and after having duly considered and weighed the same We have decided that it is properly executed and not unworthy of Our understanding, and have ordered that it shall be adopted and have the same authority as Our Constitutions; which We have made apparent to all by what We stated in the Prefaces of the said work.
(12) That the entire plan of the Roman law and this important work could have been completed in three volumes and in as many years, exceeded all Our hopes in the beginning, and at the end when We learned that this was possible, it did not seem that it could indeed be accomplished in ten years. Therefore, this undertaking having been concluded so quickly in three years, which was made possible by the assistance of God, who permitted Us to make peace, to carry on war successfully, as well as to establish laws for the past, present, and future time; We have deemed it expedient to show to all men both the zeal and the foresight displayed by Us in these matters; and being relieved of the perplexity and confusion with which they were surrounded, which condition seemed interminable, laws which are just and comprehensive are now available and ready at hand for all for the purpose of shortening litigation, and prepared and arranged so as to be easily understood by every one who desires to become familiar with them; and no longer will large sums of money be required for the purpose of collecting a multitude of useless books, but by the expenditure of an insignificant sum the rich, as well as those endowed with a slender patrimony, will be able to obtain these stores of learning.
(13) If any point should be found to be similar to, or identical with something else out of the great number of matters which have
been accumulated and collected from so many thousands of volumes, (and this We think will seldom occur), it will not seem to be inexcusable to those familiar with the weakness of human nature; for not to err, or to be blameless or not liable to correction in any respect, is an attribute of Divinity alone, and does not belong to the character or power of mankind, as has already been stated by the ancients. Wherever then, We inserted matters resembling one another, this has been done either because the subjects required that the same things should be stated under several heads, or it was impossible to dispense with that resemblance, because the matter which seemed similar to what had been already mentioned was confounded with something else in another place; or for the reason that the passages frequently required to be preserved intact, and the mind and attention of the reader could not be separated or distracted by the omission of what had already been written; but where repetition occurs on account of necessity, it is only in passages which are very short and which do not affect the meaning.
(14) This rule We have also observed in everything which relates to the Imperial Constitutions and the law derived from them; for We have not allowed whatever had already been provided for to be inserted into this work, except where a repetition was permitted to stand for some particular reason.
(15) No one will easily find in this compilation a law which is at variance with others if he will only diligently examine all the appearances of contradiction; for some difference always exists, and in such cases it will be apparent that one law treats of one thing and the other of another.
(16) If any of those matters which ought to have been inserted has by chance been omitted (and something of this kind perhaps may occur by reason of the infirmity of human nature) it is certainly much better for Our subjects to be delivered from a multitude of useless laws; although they may be deprived of very few things indeed which appear to be valuable that are buried and deposited in innumerable works, and probably had never been noticed by any mortals.
(17) It is for this reason that the judges, being deprived of so many books which in former times it was necessary to have copied, disposed of lawsuits with too great facility, by having recourse to very few authors and works of law; and rendered decisions without due consideration, either because of the lack of authorities, or because they could not endure the labor required to ascertain many things that were useful, this being beyond their power.
In the present compilation, however, a great number of laws which are in force have been extracted from rare books that can only be found with difficulty, and whose names even are not known to many men most learned in their profession. The above-mentioned distinguished Tribonianus has indeed furnished Us with a copious supply of matter on these subjects by having procured such a multitude of volumes that they can scarcely be counted, all of which having been thoroughly read have been condensed in this work; but, those who have
been commissioned by Us to do this, when they did not find in other treatises anything valuable or different from what had already been compiled, wisely refrained from inserting quotations from them into this book.
(18) If, however, attention should be called to something new, which does not appear to be inserted in these laws (for Nature delights in innovations) God has established Imperial authority over men in order to meet emergencies, dispose of defects in the law, and remove the uncertainty of human nature by the establishment of principles and rules. We are not the author of this, for Julianus, the most learned of all the distinguished lawgivers of former times, said this same thing; and he, by the Imperial authority, directs that the deficiency of the law shall be supplied where ambiguities and important questions arise.
The Divine Hadrian, of pious memory, also makes this statement, when the Edicts which were published by the Prætors every year were collected by him in one volume; and who, for the accomplishment of this work, made use of the illustrious Julianus in an address which he delivered in the Roman Senate: "If any point should arise which had not previously been determined, the members of the magistracy shall attempt to decide it and provide a remedy by comparison with those laws which have already been enacted."
(19) For all these things (since We are speaking to you, great Senators, and all the subjects of Our Empire) you should indeed give thanks to God who has preserved so great a benefit for our times. Make use then of Our laws so that none of those that are inserted in the old books shall receive any attention from you, and do not compare them with those which are now promulgated; because even though some of them may not appear to agree with rules that precede and are older than Our own, whatever is imperfect has been rejected, and what is now approved must be observed. For We forbid the former to be made use of hereafter, and We allow only the latter laws to be obeyed and enforced in the Empire so that whoever attempts to make use of those contained in former works instead of in these two alone, along with the Book of Constitutions compiled or issued by Us, or cites the same in court, or if anyone bases a decision on them having suffered them to be quoted before him, he shall be considered guilty of forgery, shall be prosecuted criminally, and subjected to punishment; which indeed is not necessary for Us to mention because it is sufficiently evident from the fact itself.
(20) We have deemed it best to prefix to the Digest not only the names of the ancient framers of the laws and the titles of their works from which this compilation has now been made by Ourselves; but We have commanded it to be done, and it has been done. At the same time We have directed whatever has been written with reference to these things to be appended to this Our Divine Constitution, so that it may be apparent to all how great was the imperfection and uncertainty of former jurisprudence, and what changes We have effected therein. We have had recourse to legislators and interpreters of the
law who were approved and accepted by all men, who received the commendation of former Emperors and deserved to be quoted by them; and when indeed any author was not known to the ancient legislators We forbade the insertion of any portion of his work into this one of Ours. We have given one rank and authority to all those extracts which have been inserted, and have bestowed no superiority upon one more than another; and if We have conceded the force of Imperial Constitutions to everything which has been written by those authors, what is there that can have greater or less weight than this?
(21) We order, and We decree in confirmation of the same, what in the beginning We directed where this legal compilation was projected by Us; and We again forbid all persons now in existence as well as those who are to come to write any commentaries on these laws, unless someone may wish to translate them into the Greek language and this translation We desire to be literal, or such as are called "according to the foot", to be employed in the interpretation of the laws; but We forbid them to make any other addition to them, however small; or again to give occasion to contradiction and ambiguity, or to an infinite number of laws which previously occurred in the review of the ancient Edict; so that this extremely short work may not be vastly extended by the difference or diversity of the various commentaries.
If, indeed, anything should seem to be ambiguous, either to parties to suits or to those who preside over trials, it must be interpreted by the Emperor, for this privilege is legally granted to him alone. Therefore, if anyone should venture to add to this Our compilation of laws any commentaries whatsoever, or anything prohibited by the terms of this Our order, he is hereby notified that he will be liable to the penalty of forgery under the law, and that whatever he has composed will be taken from him and entirely destroyed.
(22) The same penalty shall be inflicted upon those who make use of notes or any abbreviated characters (which are called singlas) desiring by this means to corrupt the text; as well as upon those who do not write out in full the names and titles of the legal authorities and their laws. Those, also, who obtain books of this kind are notified that they will be useless to them, for We do not grant permission for such books to be employed in court, even if the one which is quoted has no abbreviation or note in that part which is read, and though only one abbreviation may be found anywhere therein. Therefore, he who has such a book must consider it as not written; and he also who wrote it and delivered it to an ignorant purchaser shall pay to him double the amount of the damage which he has sustained, by reason of the same; and shall also be prosecuted criminally. This We have already inserted in other constitutions relating to this subject, not only in those published in the Latin language but also in those issued in Greek, which We have sent to professors of law.
(23) Moreover, We decree that these books, (by which We mean the Institutes and Digest) shall have authority from the end of Our third fortunate Consulate, that is to say, from the third Kalends of January of the present Twelfth Indiction, and shall prevail for all
time hereafter, having the same force and effect as the Imperial Constitutions, not only in such matters as may subsequently arise, but also in those that are still pending in court, and have not yet been disposed of in an amicable manner; as We by no means permit that whatever has been determined or settled up to this time shall be reconsidered. During this, Our third most famous Consulate, which God has bestowed upon Us, peace has been concluded with the Persians, and this collection of laws, which no one had previously devised, has been completed, and besides, the third part of the globe (We mean all Africa) has been added to Our Dominions; all these benefits having been bestowed upon Us during Our third Consulate by Almighty God and Our Saviour, Jesus Christ.
(24) Therefore, the magistrates of Our renowned universal Empire having accepted this Our Sacred Constitution, shall make use of Our aforesaid laws, each of them preparing himself in his own tribunal. The most glorious Prefect shall also publish the same in this the greatest of royal cities. This is also enjoined upon Our most excellent and praiseworthy Master, and Our most glorious and celebrated Prætorian Prefects, not only in the East, but also in Illyria, and in Africa, who, by their Edicts, shall without fail, give notice publicly to all under their jurisdiction and to all Our subjects.
Given on the seventeenth of the Kalends of January, during the third Consulate of Our Lord Justinian, ever Augustus, 533.
THE DIGEST OR PANDECTS.
TITLE I. CONCERNING JUSTICE AND LAW.
1. Ulpianus, Book I, Institutes.
Those who apply themselves to the study of law should know, in the first place, from whence the science is derived. The law obtains its name from justice; for (as Celsus elegantly says), law is the art of knowing what is good and just.
(1) Anyone may properly call us the priests of this art, for we cultivate justice and profess to know what is good and equitable, dividing right from wrong, and distinguishing what is lawful from what is unlawful; desiring to make men good through fear of punishment, but also by the encouragement of reward; aiming (if I am not mistaken) at a true, and not a pretended philosophy.
(2) Of this subject there are two divisions, public and private law. Public law is that which has reference to the administration of the Roman government; private law is that which concerns the interests of individuals; for there are some things which are useful to the public, and others which are of benefit to private persons. Public law has reference to sacred ceremonies, and to the duties of priests and magistrates. Private law is threefold in its nature, for it is derived either from natural precepts, from those of nations, or from those of the Civil Law.
(3) Natural law is that which nature teaches to all animals, for this law is not peculiar to the human race, but affects all creatures which deduce their origin from the sea or the land, and it is also common to birds. From it proceeds the union of male and female which we designate as marriage; hence also arises the procreation of children and the bringing up of the same; for we see that all animals, and even wild beasts, appear to be acquainted with this law.
(4) The Law of Nations is that used by the human race, and it is easy to understand that it differs from natural law, for the reason that me latter is common to all animals, while the former only concerns men in their relations to one another:
2. Pomponius, Enchiridion, For instance, reverence towards God, , and the obedience we owe to parents and country:
3. Florentinus, Institutes, Book I, As we resist violence and injury.
For, indeed, it happens under this law what whatever anyone does for the protection of his body is considered to have been done legally; and as Nature has established a certain relationship among us, it follows that it is abominable for one man to lie in ambush for another.
4. Ulpianus, Institutes, Book I.
Manumissions also, are part of the Law of Nations, for manumission is dismissal by the hand, that is to say the bestowal of freedom; for as long as anyone is in servitude he is subject to the hand and to authority, but, once manumitted, he is liberated from that authority. This takes its origin from the Law of Nations; since, according to natural law all persons were born free, and manumission was not known, as slavery itself was unknown; but after slavery was admitted by the Law of Nations, the benefit of manumission followed, and while men were designated by one natural name there arose three different kinds under the Law of Nations, that is to say freemen, and, in distinction to them, slaves, and as a third class, freedmen, or those who had ceased to be slaves.
5. Hermogenianus, Epitomes of Law, Book I.
By this Law of Nations wars were introduced; races were distinguished; kingdoms founded; rights of property ascertained; boundaries of land established; buildings constructed; commerce, purchases, sales, leases, rents, obligations created, such being excepted as were introduced by the Civil Law.
6. Ulpianus, Institutes, Book I.
The Civil Law is something which is not entirely different from natural law or that of Nations, nor is it in everything subservient to it; and therefore when we add or take anything from the Common Law we constitute a separate law, that is the Civil Law.
(1) This our law then is established either by writing, or without it, as among the Greeks "twn nomwn oi men eggrafoi oi de agrafoi", that is to say, some laws are in writing and others are not.
7. Papinianus, Definitions, Book II.
The Civil Law is that which is derived from statutory enactments, plebiscites, decrees of the Senate, edicts of the Emperors, and the authority of learned men.
(1) The prætorian law is that which the Prætors introduced for the purpose of aiding, supplementing, or amending, the Civil Law, for the public welfare; which is also designated honorary law, being so called after the "honor" of the Prætors.
8. Marcianus, Institutes, Book I.
For honorary law itself is the living voice of the Civil Law.
9. Gaius, Institutes, Book I.
All nations who are ruled by law and customs make use partly of their own law, and partly of that which is common to all men. For
whatever law any people has established for itself is peculiar to that State, and is called the Civil Law, as being the particular law of that State. But whatever natural reason has established among all men is equally observed by all mankind, and is called the Law of Nations, because it is the law which all nations employ.
10. Ulpianus, Rules, Book I.
Justice is the constant and perpetual desire to give to every one that to which he is entitled.
(1) The precepts of the law are the following: to live honorably, to injure no one, to give to every one his due.
(2) The science of the law is the acquaintance with Divine and human affairs, the knowledge of what is just and what is unjust.
11. Paulus, On Sabinus, Book XIV.
The term "law" is used in several ways. First, whatever is just and good is called law, as is the case with natural law. Second, where anything is useful to all or to the majority in any state, as for instance the Civil Law. Nor is honorary law less justly so designated in Our State, and the Prætor also is said to administer the law even when he decides unjustly; for the term has reference not to what the Prætor actually does, but to that which it is suitable for him to do. Under another signification, the word indicates the place where justice is administered, the name being shifted from the act itself to the locality where it is performed, and this locality may be determined in the following manner; whenever the Prætor may designate a place for the dispensation of justice, that place is properly called the law, provided the dignity of his office and the customs of our ancestors are preserved.
12. Marcianus, Institutes, Book I.
Sometimes the term "law" is used to denote a connection, as for instance, "I am connected by the law of consanguinity or affinity with such-and-such a person".
CONCERNING THE ORIGIN OF LAW AND OF ALL MAGISTRATES, TOGETHER WITH A SUCCESSION OF JURISTS.
1. Gaius, On the Law of the Twelve Tables, Book I.
Being about to give an interpretation of ancient laws, I have thought it necessary, in the first place, to go back to the origin of the City, not because I wish to make extensive commentaries, but for the reason that I notice that that is perfect in all things which is finished in all its parts; and indeed the most important part of anything is the beginning. Then, where causes are argued in the forum, if I should say that it is abominable to state the matter to the judge without making any previous remarks, it would be much more improper for those making an explanation to neglect the beginning and avoid reference
to the origin of the case; proceeding with unwashed hands, so to speak, without delay to discuss the question which is to be decided. For, unless I am mistaken, these previous explanations render persons more inclined to examine the question at issue, and when we have approached it, make the comprehension of the subject more clear.
2. Pomponius, Enchiridion.
It, therefore, seems necessary to explain the origin of the law itself, as well as its subsequent development.
(1) In fact, at the beginning of our State the people undertook to act at first without any certain statutes or positive law, and all government was conducted by the authority of the Kings.
(2) Afterwards, the State being, to some extent enlarged, it is said that Romulus himself divided the people into thirty parts which he called curiæ; because he then exercised care over the Republic in accordance with the decisions of the said parts. Thus he proposed to the people certain laws relating to their assemblies, and subsequent kings also made similar proposals, all of which having been committed to writing, are to be found in the book of Sextus Papirius, who lived in the time of Superbus, the son of Demaratus of Corinth, and who was one of the principal men. This book, as We have stated, is called the Papirian Civil Law, not because Papirius added anything of his own to it, but because he compiled in a single treatise laws which had been passed without observing any order.
(3) The kings having afterwards been expelled by a Tribunitian enactment, all these laws became obsolete, and the Roman people again began to be governed by uncertain laws and customs, rather than by statutes regularly passed, and this state of affairs thus endured for almost twenty years.
(4) Afterwards, in order that this condition might not be continued, it was decided that ten men should be appointed by public authority, through whose agency laws should be applied for to the States of Greece, and that the Commonwealth should be founded upon statutory enactments. Those thus obtained were inscribed upon ivory tablets, and placed before the Rostra, so that the laws might be the more clearly understood; and supreme authority in the State was conferred upon said officials for that year, so that they might amend the laws, if it was necessary, and interpret them; and that there should be no appeal from their decisions, as there was from those of other magistrates. They, themselves, observed that something was lacking in these original laws, and therefore during the following year they added two other tablets to them, and for this reason they were called the Laws of the Twelve Tables; and some writers have asserted that a certain Hermodorus, an Ephesian exile in Italy, was responsible for the enactment of the said laws.1
1 It is clear that the Decemviri who were appointed as a commission about 450 B. C. by the patrician order for the purpose of revising the ancient statutes and customs, and incorporating them into a new Code for the government of the
(5) These statutes having been passed, it follows as a natural consequence that discussion in the forum became requisite; as a proper interpretation demands the authority of persons learned in the law. This discussion and this law composed by jurists and which was unwritten, was not designated by any particular name, as were the other parts of the law by their specific appellations, but they are called by the common designation the Civil Law.
(6) Afterwards, at about the same time, certain actions based upon these laws were established, by means of which men might argue their cases; and in order to prevent the people from bringing these actions in any way they might desire, the magistrate required that this should be done in a certain and solemn manner; and this part of the law is called that of statutory actions, that is to say, legal actions. And thus about the same time these three divisions of the law originated; that is, the Laws of the Twelve Tables, and from these arose the Civil Law, and from this source likewise were derived the legal actions. But the knowledge of interpreting all these, and the actions themselves, were assigned to the College of Pontiffs; and it was established which
Roman people, did not depend upon Greece for the greater part of the rules which they afterwards adopted and published. The share of Grecian legislation in the formation of the Twelve Tables is small, indeed, when compared with the body of ancient law included therein, much of which dated back to the early days of the regal period, and constitutes, in fact, a summary of long existing and well recognized jurisprudence, with which all classes were already more or less familiar; and which, shorn of useless verbiage, ambiguities, and contradictory precepts, was now abridged and condensed into a practical and useful form. The fragmentary condition of the Twelve Tables, despite the frequent attempts at their reconstruction by various scholars, renders it impossible for us to arrive at a satisfactory conclusion as to the original source for which any particular portions of the compilation have been derived, and thus enable us to establish and formulate the primitive rules of Roman judicature; and reliance must principally be placed upon the citations from legal writers scattered through the Digest, whose works, for the most part, exist only in a badly mutilated condition, or are only known to us by name.
The high encomiums bestowed upon the Twelve Tables by the historians and jurists of the Republic and the Empire indicate the estimation in which they were held by the educated classes of the Roman world. Livy calls them "The source of all public and private law"; "Fons omnis publici privatique juris" (Livy XII, 34); and Cicero refers to them as "A compendium of the maxims of all philosophers"; "Bibliothecas mehercule omnium philosophorum unus mihi videtur XII tabularum, libellus, si quis legum fontes et capita viderit, et auctoritatis pondere et utilitatis ubertate superare (De Oratore I, XLIV). Every student of law was compelled to thoroughly memorize them before he could proceed to further prepare himself for his profession; and as the tablets on which they were inscribed originally of ivory and afterwards of bronze were posted in the Forum, all citizens were presumed to be, to a certain extent, acquainted with the cardinal principles of the legal system of their country, a rigid adherence to which was long required of magistrates in rendering their decisions, regardless of any hardship which such a strict interpretation of the laws entailed. By the public exposition of these time-honored statutes, the monopoly of legal information for ages enjoyed and jealously guarded by the patricians as a peculiar privilege of their rank was largely abrogated; the lower orders of the people were the better enabled to protect themselves from oppression and injury; and no one could allege want of knowledge in order to liberate himself from the consequences of an illegal act; giving rise to the maxim "Ignorantia juris neminem excusat". ED.
one of them should have jurisdiction over private actions during each year. The people made use of this custom for almost a century.
(7) Afterwards, Appius Claudius arranged these actions and reduced them to a certain form, and Gnæus Flavius, his secretary, the son of a freedman, gave the book to the people after it had been surreptitiously obtained; and so acceptable was that gift that he was made Tribune of the people, Senator, and Curule Ædile. This work which contains the method of bringing actions is called the Flavian Civil Law; just as the former one is called the Papirian Civil Law; for Gnæus Flavius did not add anything of his own to the book. As the commonwealth became enlarged, for the reason that certain methods of procedure were lacking, Sextus Ælius not long afterwards framed other forms of action, and gave the book to the people which is called the Ælian Law.
(8) Then, there being in use in the State the Law of the Twelve Tables, the Civil Law, and that of Statutory Actions, the result was that the plebs disagreed with the fathers, and seceded, and enacted laws for itself, which laws are called Plebiscites. Afterwards, when the plebs was recalled because much discord arose on account of these plebiscites, it was established by the Lex Hortensia that they should be observed as laws, and in consequence of this the distinction between the plebiscites and the other laws existed in the manner of their establishment, but their force and effect were the same.
(9) Then, because it was difficult for the plebs any longer to assemble, and much more so for the entire body of the people to be collected in such a crowd of persons; necessity caused the government of the commonwealth to be committed to the Senate. Thus the Senate began to take an active part in legislation, and whatever it decreed was observed, and this law was called a Senatus-Consultum.
(10) At the same time there was also magistrates who dispensed justice, and in order that the citizens might know what law was to be applied in any matter and defend themselves accordingly, they proposed edicts, which Edicts of the Prætors constituted the honorary law. It is styled honorary, because it originated from the office of the Prætor.
(11) Finally as it became necessary for the commonwealth that the public welfare should be attended to by one person, for the mode of enacting laws seemed to have progressed little by little as occasion demanded; and since the Senate could not properly direct the affairs of all the provinces, a supreme ruler was selected, and he was given authority, so that whatever he decided should be considered valid.
(12) Thus, in Our commonwealth everything depends either upon statute, that is upon legal enactment; or there exists a peculiar Civil Law which is founded without writing upon the sole interpretation of jurists; or there are the statutory actions which contain the method of procedure; or there is a plebiscite passed without the authority of the fathers; or there is the edict of the magistrate, whence is derived the honorary law; or there is the Senatus-Consultum, which is based
upon the action of the Senate alone, without any statute; or there is the Imperial Constitution, that is, that whatever the Emperor himself formulates shall be observed as the law.
(13) After the origin of the law and the procedure have been ascertained, it follows that We should be informed concerning the titles of magistrates and their origin; because, as We have stated, it is through those who preside over the administration of justice that matters are rendered effective; for how much law could there be in a State unless there are persons who can administer it? Next in order after this, We shall speak of the succession of authorities; for law cannot exist unless there are individuals learned in the same, by means of whom it can daily be improved.
(14) As to what concerns magistrates, there is no question but that in the beginning of the commonwealth all power was vested in
(15) There existed at the same time a Tribunus Celerum who commanded the knights, and held the second rank after the king; to which body Junius Brutus, who was responsible for the expulsion of the kings, belonged.
(16) After the kings were expelled two consuls were appointed, and it was established by law that they should be clothed with supreme authority. They were so called from the fact that they specially "consulted" the interests of the republic; but to prevent them from claiming for themselves royal power in all things, it was provided by enactment that an appeal might be taken from their decisions; and that they should not be able, without the order of the people, to punish a Roman citizen with death, and the only thing left to them was the exertion of force and the power of public imprisonment.
(17) Subsequently, when the census occupied much time, and the consuls were not able to discharge this duty, censors were appointed.
(18) Then, the people having increased in numbers, and frequent wars against neighboring tribes having taken place, it sometimes became necessary for a magistrate of superior authority to be appointed, and hence dictators arose, from whose decisions no right of appeal existed; and who were invested with the power of capital punishment. As this magistrate had supreme authority, he was not allowed to retain it for a longer period than six months.
(19) To these dictators Masters of Cavalry were added, who occupied the same place as the Tribuni Celerum under the King, whose duties were almost the same as those discharged at present by the Prætorian Prefect; and they were also considered lawful magistrates.
(20) At the time when the plebs had seceded from the fathers, about seventeen years after the expulsion of the Kings, they created tribunes for themselves on the Sacred Mount, who were Tribunes of the People; and they were called "tribunes" for the reason that formerly the people were divided into three parts, and one tribune was taken from each one, or because they were created by the votes of the tribes.
(21) Again, that there might be officials who would have charge of the temples in which the people deposited all their statutes, two persons were selected from the plebs who were styled ædiles.
(22) Next, when the Public Treasury began to increase in importance, quæstors were appointed to have charge of the same, and to take care of the funds, and they were so called because they were created for the purpose of examining the accounts and preserving the money.
(23) And for the reason (as We have already stated), that the consuls were not permitted by law to inflict capital punishment, without the order of the Roman people; quæstors were also appointed by the people to preside in capital cases, and these were designated quæstores parricidii, of whom mention is made in the Laws of the Twelve Tables.
(24) And as it was also determined that laws should be enacted, it was proposed to the people that all magistrates should resign in order that Decemviri might be appointed for one year; but as the latter prolonged their term of office, and acted in an unjust manner, and were not willing afterwards to elect the magistrates who were to succeed them, so that they and their faction might retain the commonwealth constantly under their control; they conducted the public affairs in such an arbitrary and violent manner that the army withdrew from the commonwealth. It is said that the cause of the succession was one Virginius, who when he learned that Appius Claudius, in violation of the provision which he himself had transferred from the ancient law of the Twelve Tables, had refused to give him control of his own daughter, but gave it to a man who, instigated by him, claimed her as a slave, as he, influenced by love for the girl, had confounded right and wrong; and the said Virginius being indignant that the observance of a law of great antiquity had been violated with reference to the person of his daughter, (just as Brutus who, as the first Consul of Rome had granted temporary freedom to Vindex, a slave of the Vitelli, who had revealed by his testimony a treasonable conspiracy) and thinking the chastity of his daughter should be preferred to her life, having seized a knife from the shop of a butcher, killed her, in order that, by the death of the girl, he might protect her from the disgrace of violation; and immediately after the murder, when still wet with the blood of his daughter, he fled to his fellow soldiers, all of whom deserting their leaders at Algidiun (where the legions were at the time for the purpose of waging war) transferred their standards to the Aventine Hill; and soon all the people of the city at once betook themselves to the same place, and by popular consent some of the Decemviri were put to death in prison, and the commonwealth resumed its former condition.
(25) Then, some years after the Twelve Tables had been enacted, a controversy arose between the plebs and the fathers, the former wishing to create consuls from their own body and the fathers refusing to consent to this; it was resolved that military tribunes should be created with consular power, partly from the plebs, and partly from the fathers. The number of these was different at various times, some-
times there were twenty of them, sometimes more than that, and sometimes less.
(26) Subsequently it was decided that consuls could be taken from the plebs, and they began to be appointed from both bodies; but in order that the fathers might have more power, it was determined that two officials should be appointed from the number of the latter, and hence the Curule Ædiles originated.
(27) And as the consuls were called away by distant wars, and there was no one who could dispense justice in the State, it happened that a Prætor also was created, who was styled "Urbanus", because he dispensed justice in the city.
(28) Then, after some years, this Prætor, not being found sufficient because of the great crowd of foreigners who came into the city, another Prætor called "Peregrinus" was appointed, for the reason that he usually dispensed justice among foreigners.
(29) Then, as a magistrate was necessary to preside over public sales, Decemviri were appointed for deciding cases.
(30) At the same time Quatuorviri also were appointed who had supervision of the highways, and Triumviri, who had control of the mint, who melted bronze, silver, and gold, and capital Triumviri, who had charge of the prisons, so that when it was necessary to inflict punishment it might be done by their agency.
(31) And, for the reason that it was inconvenient for magistrates to appear in public during the evening, Quinqueviri were appointed on each side of the Tiber, who could discharge the duties of magistrates.
(32) After Sardinia had been taken, and then Sicily and Spain, and subsequently the Narbonnese province, as many Prætors were created as there were provinces which had come under the Roman rule; part of whom had jurisdiction over matters in cities, and part over provincial affairs. Next Cornelias Sylla established public investigations, as for instance, those concerning forgery, parricide, and assassins, and added four Prætors. Then Gaius Julius Cæsar appointed two Prætors and two Ædiles, who superintended the distribution of grain, and were called Cereales, from Ceres. In this way twelve Prætors and six Ædiles were created. Then the Divine Augustus appointed sixteen Prætors, and afterwards the Divine Claudius added two more who administered justice in matters of trust; one of whom the Divine Titius dispensed with; and the Divine Nerva added another who expounded the law in questions arising between the Treasury and private individuals. Thus eighteen Prætors administered justice in the Commonwealth.
(33) All these regulations are observed as long as the magistrates are at home, but whenever they travel abroad one is left who expounds the law, and he is styled the Prefect of the City. This Prefect was created in former times; he was afterwards appointed on account of the Latin festivals, and this is done every year; but the Prefect of Subsistence and that of the Night Watch are not magistrates, but are extraordinary officials appointed for the public welfare; and also those
whom we have mentioned as being appointed for this side of the Tiber, were afterwards created Ædiles by a decree of the Senate.
(34) Therefore, from all these things we learn ten Tribunes of the People, two Consuls, eighteen Prætors, and six Ædiles dispensed justice in the city.
(35) Many distinguished men have been professors of the science of the Civil Law; and of these at present We will mention those who enjoyed the highest esteem among the Roman people; to the end that it may appear from whom these laws have been derived and handed down, and what was their reputation. And, indeed, among all who acquired this knowledge, it is said that no one publicly professed it before Tiberius Coruncanius; others, however, before him attempted to keep the Civil Law secret, and only to give advice to those who consulted them, rather than to instruct such as desired to learn.
(36) Publius Papirius, who compiled the royal laws in one treatise, was in the first rank of those versed in the Royal Statutes; then came Appius Claudius, one of the Decemviri who took the most prominent part in the compilation of the Twelve Tables. After him, another Appius Claudius was the possessor of great legal learning, and he was called "Hundred Handed", for he laid out the Appian Way, constructed the Claudian Aqueduct, and gave it as his opinion that Pyrrhus should not be received into the city; it is also said that he drew up forms of action in cases of wrongful occupation of property, which book no longer exists. The same Appius Claudius invented the letter R, from which it resulted that the Valesii became Valerii, and the Fusii became Furii.
(37) After these came Sempronius, a man of preeminent learning, whom the Roman people called sofoV, that is to say, "wise", nor was anyone either before or after him designated by this title. Next in order was Gaius Scipio Nasica, who was styled by the Senate "The Best", to whom a house on the Via Sacra was given by the State where he might the more easily be consulted. Then came Quintus Mucius, who was sent as envoy to the Carthaginians, where when two dice were placed before him, one for peace and the other for war, and it was left to his judgment to select whichever he chose and take it to Rome; he took both, and said that the Carthaginians must ask for whichever one they preferred to have.
(38) After these came Tiberius Coruncanius, who, as I have already stated, was the first of the professors of the law, but no work of his is extant; his opinions, however, were very numerous and remarkable. Next in order Sextus Ælius, his brother Publius Ælius, and Publius Atilius had the greatest success in imparting instruction; so that the two Ælii also became consuls and Atilius was the first person invested by the people with the appellation of "The Learned". Ennius praises also Sextus Ælius and a book of his entitled Tripertita which still exists and contains, as it were, the cradle of the laws. It is called Tripertita because it includes the Law of the Twelve Tables, to which it added the interpretation of the same, as well as the method of legal procedure. Three other books are also attributed to him of which,
however, certain writers deny him the authorship. Cato, to a certain degree, followed these men. Subsequently came Marcus Cato, the head of the Porcian family whose books are extant; but a great many were written by his son, from which still others derive their origin.
(39) After these came Publius Mucius, Brutus, and Manilius, who founded the Civil Law. Among them Publius Mucius left ten works, Brutus seven, and Manilius three; and written volumes of Manilius are also extant. The first two were of consular rank, Brutus was Prætor, and Publius Mucius had been Pontifex Maximus.
(40) After these came Publius Rutilius Rufus, who was Consul at Rome, and Proconsul of Asia, Paulus Virginius, and Quintus Tubero, the Stoic, a pupil of Pansa, who was himself Consul. Sextus Pompeius, the paternal uncle of Gnæus Pompeius, lived at the same time, and Cælius Antipater, who wrote historical works, but paid more attention to eloquence than to the science of the law. There was also Lucius Crassus, the brother of Publius Mucius, who was called Mucianus, and whom Cicero declared to be the best debater of all the jurists.
(41) After these came Quintus Mucius, the son of Publius, the Pontifex Maximus, who first codified the Civil Law by drawing it up under different heads in eighteen books.
(42) The pupils of Mucius were very numerous, but those of most eminent authority were Aquilius Gallus, Balbus Lucilius, Sextus, Papirius, and Gaius Juventius; of whom Servius declared that Gallus had the greatest authority among the people. All of them, however, are mentioned by Servius Sulpicius, but none of their writings are of such a kind as to be generally sought after; and, in fact, their works are not usually found in men's hands at all, though Servius made use of them in his own books, and on this account it is that the memory of them still survives.
(43) Servius, while he held the first place in arguing cases, or, at all events, held it after Marcus Tullius, is said to have applied to Quintus Mucius for advice concerning a matter in which a friend of his was interested, and as he had a very imperfect comprehension of the answer given him concerning the law, questioned Quintus a second time, and when the latter replied and he still did not understand, he was rebuked by Quintus Mucius, who told him that it was a disgrace for him, a patrician, a noble, and an advocate, to be ignorant of the law which was his profession. Servius was so affected by this reproach that he devoted his attention to the Civil Law, and was especially instructed by those of whom We have spoken; having been taught by Balbus Lucilius, and also having received much information from Gallus Aquilius, who resided at Cercina; and for this reason many of his books which are still extant were written there. When Servius died while absent on an embassy, the Roman people erected a statue to him in front of the Rostra, and it stands there to-day before the Rostra of Augustus. Many volumes of his remain, for he left nearly one hundred and eighty treatises.
(44) After him came many others, among whom nearly all of the following wrote books, namely: Alfenus Varus, Gaius, Aulus Ofilius, Titus Cæsius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Gaius Ateius, Pacuvius, Labeo, Antistius, the father of Labeo Antistius, Cinna, and Publicus Gellius. Of ten eight wrote treatises, all of which were digested by Aufidius Namusa in a hundred and forty books. Of these pupils Alfenus Varus and Aulus Ofilius possessed the greatest authority; Varus became Consul, but Ofilius remained in the Equestrian rank; the latter was very intimate with the Emperor, and left many works on the Civil Law, which laid the foundation for the greater part of the same, for he first wrote on the laws of the five per cent tax, and on jurisdiction. He was also the first one to carefully systematize the Edict of the Prætor, although before him Servius had left two extremely short books relating to the Edict, which were addressed to Brutus.
(45) Trebatius, a pupil of Cornelius Maximus, also lived at the same time; and Aulus Cascelius, a pupil of Quintus Mucius Volusius, as well, and, indeed, in honor of his teacher he left his property to Publius Mucius, the grandson of the latter. He was also of quæstorian rank but he declined promotion, although Augustus offered him the consulship. Among these, Trebatius is said to have been better informed than Cascellius, but Cascellius is claimed to have been more eloquent than Trebatius, but Ofilius was more learned than either. No works of Cascellius are extant, except one of "Good Sayings", there are, however, several of Trebatius, but they are very little used.
(46) After this came Tubero, who studied under Ofilius. He was a patrician and abandoned arguing cases for the study of the Civil Law, principally because he had prosecuted Quintus Ligarius before Gaius Cæsar, and failed. This is the same Quintus Ligarius that, while he was holding the shore of Africa, refused to allow Tubero, who was ill, to land and obtain water, for which reason he accused him, and Cicero defended him. The oration of the latter, a very elegant one, which is entitled "For Quintus Ligarius", is still extant. Tubero was considered to be most learned in both public and private law, and left a great many treatises on both subjects. He had the affectation of writing in ancient language and therefore his works are not popular.
(47) After him the following were of the highest authority, namely, Ateius Capito, who followed Ofilius, and Antistius Labeo, who studied under all of them, he was also taught by Trebatius. Of these Ateius was Consul, but Labeo declined to accept the office which would have made him temporary consul when it was offered to him by Augustus; but he gave great attention to legal studies, and divided up the entire year so that he could be at Rome for six months with his pupils, and might be absent for the remaining six months, and employ his time in writing books. By doing this he left four hundred volumes, of which a great many are still in use. These two founded, as it were, two different schools, for Ateius Capito retained the principles which had been taught him; but Labeo, from the nature of his genius and
his reliance upon his own learning, and who had given attention to other branches of knowledge, made many innovations. Massurius Sabinus succeeded Ateius Capito, and Nerva, Labeo; and these still further increased the aforesaid distinction between the schools. Nerva was also very intimate with the Emperor. Massurius Sabinus was of Equestrian rank, and was the first who wrote with public authority, and after this privilege was conceded, it was also granted to him by Tiberius Cæsar. And We may remark, in passing, that prior to the reign of Augustus, the right of giving opinions publicly was not granted by the chiefs of the State, but anyone who had confidence in his own attainments gave answers to those who consulted him, but they did not impress their seals upon the latter, and very frequently wrote to the judges, or to those who had consulted them, to bear witness to their opinions. The Divine Augustus, in order to enable the authority of the law to have greater weight, first decreed that jurists might answer in his name; and from that time, this began to be claimed as a privilege. The result was that the distinguished Emperor Hadrian, when certain men of prætorian rank asked of him leave to deliver opinions, told them in a rescript, "that this permission was not to be asked, but was granted as a right; and therefore if anyone had confidence in his knowledge, he should be delighted, and he might prepare himself for giving opinions to the people".1
Therefore, permission was given to Sabinus by Tiberius Cæsar to give opinions to the people. He was already advanced in age when he attained to the Equestrian rank, and indeed was fifty years old, nor was he a man of great pecuniary resources, but was, for the most part, supported by his pupils. He was succeeded by Gaius Cassius Longinus, the son of a daughter of Tubero, who was the granddaughter of Ser-
1 Here is succinctly explained the origin of the Responsa Prudentum, "The Answers of Persons Learned in the Law". These, as previously stated, were an important source of legal knowledge, which by the sanction of Imperial authority obtained the same effect as edicts, decrees of the Senate, and constitutions published by the Emperors. Before the reign of Augustus they possessed no other weight than that derived from the reputation for learning enjoyed by the jurists from whom they emanated. That sovereign, however, issued licenses for this purpose to such as from their eminence in their profession, he considered worthy of this distinction, his example being followed by his successors. Theoretically, such dicta were intended to be merely interpretative of obscure legal questions; but they were in fact acts of legislation, and were regarded with the highest reverence as proceeding indirectly from the throne of the Emperor. These distinguished lawyers rendered invaluable service in alleviating the rigorous and unyielding application of the precepts of the Civil Law, and established the basis of equity jurisdiction, by introducing the actio utilis, or "equitable action", by means of which the severity of the actio directa arising from the strict construction of those precepts, was essentially restrained. When the opinions of the jurisconsults did not agree, the magistrate was compelled to accept the voice of the majority; when they were equally divided, the determination of the point involved was left to his discretion.
The law in general, and equity jurisprudence in particular, are under manifold obligations to those eminent legal expounders of ancient times. The scattered and incomplete remains of their works which have descended to us, afford a glimpse of the enormous contribution to human knowledge which would have resulted had their writings been transmitted intact to posterity. In methodical ar-
vius Sulpicius; and for this reason he alluded to Servius Sulpicius as his grandfather. He was Consul with Quartinus during the reign of Tiberius, and enjoyed great authority in the State until the Emperor banished him, and having been exiled to Sardinia by the latter, he was recalled by Vespasian to Rome, where he died.
Proculus succeeded Nerva, and there was, at the same time, another Nerva, a son; there was also another Longinus, belonging to the Equestrian order, who afterwards attained to the Prætorship. The authority of Proculus was, however, greater. The adherents of the two schools were designated respectively, Cassiani and Proculeiani, having derived their origin from Capito and Labeo. Cælius Sabinus, who had greater influence in the time of Vespasian, succeeded Cassius; Pegasus succeeded Proculus, who was prefect of the City during the reign of Vespasian; Priscus Javolenus succeeded Cælius Sabinus; Celsus succeeded Pegasus; the son Celsus and Priscus Neratius, both of whom were consuls, succeeded his father; (Celsus, indeed, was Consul a second time), Aburnus Valens succeeded Javolenus Priscus along with Tuscinaus, as well as Salvius Julianus.
CONCERNING STATUTES, DECREES OP THE SENATE, AND LONG ESTABLISHED CUSTOMS.
1. Papinianus, Definitions, Book I.
A statute is a general precept; a resolution of men learned in the law; a restraint of crimes committed either voluntarily or through ignorance; or a general obligation of the State.
2. Marcianus, Institutes, Book I.
The orator Demosthenes thus defined it. "A law is something which it is proper for all men to obey for many reasons, and principally because every law was devised by, and is a gift of God; the decree of learned men; the restraint of those who either voluntarily or involuntarily are guilty of crime; it is also a common obligation of the State, by whose rules all those who reside therein should regulate their lives."
Chrysius, a Stoic philosopher of the greatest erudition, began a book which he wrote as follows: "Law is the queen of all things, Di-
rangement, in brevity, in simplicity, in purity of diction, in lucidity of statement, in force of argument, in aptness of comparison, in array of precedents, they find no parallel in the modern law book. Their directness of expression and their discouragement of all subtle distinctions are among their most prominent merits. None of their characteristics are more noteworthy than the avoidance of technicalities, the condemnation of wrong, the inculcation of the eternal principles of honor and morality. The fathers of the Common Law, Glanvil, Bracton, Britton, Selden, Littleton, Coke, and Blackstone, despite their generally avowed hostility to the Roman system when favorably contrasted with that of England, have often, by the adoption of their maxims, tacitly and involuntarily acknowledged their indebtedness to the ancient authorities, to whose untiring labors and legal acumen is largely to be attributed the excellence of that vast compendium of law, known as the Corpus Juris Civilis. ED.
vine and human. It should also be the governor, the leader, the ruler, of both the good and the bad, and, in this way, be the standard of whatever is just and unjust, as well as of those things which are civil by Nature, prescribing what should be done, and prohibiting what should not be done."
3. Pomponius on Sabinus, Book XXV.
Laws, as Theophrastus has stated, ought to be established with respect to matters which often occur, and not with reference to such as occur unexpectedly.
4. Celsus, Digest, Book V.
Laws are not established concerning matters which can only happen in a single instance.
5. The Same, Digest, Book XVII.
For laws ought to be adapted to events which frequently and readily occur, rather than to such as rarely happen.
6. Paulus, On Plautius, Book XVII.
In fact, what only happens once or twice, as Theophrastus says, legislators omit.
7. Modestinus, Rules, Book I.
The office of the law is to command, to forbid, and to punish.
8. Ulpianus, On Sabinus, Book III.
Laws are not established for individuals, but for general purposes.
9. The Same, On the Edict, Book XVI.
There is no doubt that the Senate can make law.
10. Julianus, Digest, Book LIX.
Neither statutes nor decrees of the Senate can be written in such a way as to include all cases at any time which may arise; but it is sufficient if they include such as frequently occur.
11. The Same, Digest, Book XC.
And therefore in those laws which are enacted in the first place, a more certain interpretation or construction must be given by the most excellent Emperor.
12. The Same, Digest, Book XV.
All matters cannot be specifically included in the laws or decrees of the Senate; but where their sense is clear in any instance, he who has jurisdiction of the same can apply it to others that are similar, and in this way administer justice.
13. Ulpianus, On the Edict of the Curule Ædiles, Book I.
For, as Pedius says, whenever anything has been introduced by law there is a good opportunity for extending it by interpretation or
certain construction to other matters, where the same principle is involved.
14. Publius, On the Edict, Book LIV.
Where anything contrary to the principles of the Law has been accepted, it must not be applied to its full extent.
15. Julianus, Digest, Book XXVII.
In those instances where anything has been established contrary to the principles of the law, we cannot follow this rule of law.
16. Paulus, Sole Book on Special Law.
Special law is that which has been introduced by the authority of those establishing it against the tenor of a legal principle, on account of some particular advantage.
17. Celsus, Digest, Book XXVI.
To know the laws is not to be familiar with their phraseology, but with their force and effect.
18. The Same, Digest, Book XXIX.
Laws should be interpreted liberally, in order that their intention may be preserved.
19. The Same, Digest, Book XXIII.
When the terms of the law are ambiguous, that meaning is to be accepted which is without incongruity; especially when the intention of the law can be ascertained therefrom.
20. Julianus, Digest, Book LV.
The principle of every law established by our ancestors cannot be stated.
21. Neratius, Parchments, Book VI.
Hence it is not necessary to seek for the reasons of those laws which have been established; otherwise many rules which are based upon the same and which are now accepted, will be overthrown.
22. Ulpianus, On the Edict, Book XXXV.
When the law pardons anything which is past it forbids it for the future.
23. Paulus, On Plautius, Book IV.
Matters which have always had a certain interpretation should, under no circumstances, be changed.
24. Celsus, Digest, Book IX.
It is not proper without taking into consideration an entire law either to decide, or give an opinion upon any particular portion of the same.
25. Modestinus, Opinions, Book VIII.
No principle of law or indulgent construction of equity permits matters which have been introduced for the welfare of mankind to be interpreted so rigorously as to be productive of hardship to them.
26. Paulus, Questions, Book IV.
There is nothing new in the interpretation of recent laws by former ones.
27. Tertullianus, Questions, Book I.
Therefore, for the reason that it is the custom to interpret recent laws by former ones, it ought always to be understood that the principles of the laws are applicable to such persons or things as may at any time be of a similar character.
28. Paulus, On the Lex Julia et Papia, Book V.
Recent laws are applicable to former ones unless they are opposed to them; and this may be established by many reasons.
29. The Same, On the Lex Cincia.
To do what the law prohibits violates the law, and anyone who evades the meaning of the law without disobeying its words, is guilty of fraud against it.
30. Ulpianus, On the Edict, Book IV.
Fraud is committed against the law when something is done which the law did not wish to be done, but did not absolutely prohibit; and the difference between fraud against the law and violation of the same is that between speech and opinion.
31. The Same, On the Lex Julia et Papia.
The Emperor is free from the operation of the law, and though the Empress is undoubtedly subject to it, still, the Emperors generally confer upon her the same privileges which they themselves enjoy.
32. Julianus, Digest, Book XCIV.
In cases where there are no written laws, that should be observed which has been established by usage and custom, and if anything is lacking therein, then whatever is nearest to, and resulting from it should be observed; and if even this does not exist, then the law which is used by the City of Rome must be followed.
(1) An ancient custom is not improperly observed as a law (and this is what is called law established by usage). For as the laws themselves restrain us for no other reason than because they are accepted by the judgment of the people for it is but proper that what the people have approved without being written should bind all persons for what difference does it make whether the people have manifested their will by vote, or by acts and deeds? Wherefore the rule has also been most justly adopted that laws shall be abrogated not only by the vote of the legislator, but also through disuse by the silent consent of all.
33. Ulpianus, Concerning the Office of Proconsul, Book I.
It is usual for long established custom to be observed as law in those matters which have not come down in writing.1
34. The Same, Book IV.
When anyone seems to be confident concerning the custom of a city or province, I think it should first be determined whether that custom has been confirmed by a judicial decree after it had been disputed.
35. Hermogenianus, Epitomes of Law, Book I.
Those rules which have been approved by long established custom and have been observed for many years, by, as it were, a tacit agreement of citizens, are no less to be obeyed than laws which have been committed to writing.
36. Paulus, On Sabinus, Book VII.
And indeed, a law of this kind has greater authority, for the reason that it has been approved to such an extent that it is not necessary to commit it to writing.
37. Callistratus, Questions, Book I.
When inquiry is made as to the interpretation of a law, it must in the first place be ascertained what rule the State formerly made use of in cases of the same kind; for custom is the best interpreter of the laws.
38. The Same, Questions, Book I.
For our Emperor Severus stated in a Rescript that in questions of doubt arising from statutory enactments, custom, or the authority of decisions which have always been decided in the same manner, should obtain the force of law.
39. Celsus, Digest, Book XXIII.
That which has in the first place been introduced, not by any rule but through error, and has afterwards been confirmed by custom, shall not prevail in other similar cases.
40. Modestinus, Rules, Book I.
Thus all law has been either made by consent, or established by necessity, or confirmed by custom.
41. Ulpianus, Institutes, Book II.
Hence all law consists either in the acquisition, preservation, or diminution of right; for it has reference to the way in which anything becomes the property of a person, or how he can preserve it or his rights, or how he can alienate or lose them.
1 "Consuetudo et communis assuetudo vincit legem non scriptam, si sit specialis; et interpretatur legem scriptam, si lex sit generalis." ED.
TITLE IV. CONCERNING THE CONSTITUTIONS OF THE EMPERORS.
1. Ulpianus, Institutes, Book I.
Whatever the Emperor has decreed has the force of law; since by a Royal ordinance which was passed concerning his sovereignty, the people conferred upon him all their own authority and power.
(1) Therefore, everything which the Emperor decrees by a letter over his signature, whether he decided after examining it or did so without judicial consideration or ordered it by means of an edict, has the force of law; and these are what we generally designate constitutions.
(2) Among the latter there are some which are special, and are not to be employed as precedents; for whatever the Emperor has granted to anyone as a reward of merit, or where he inflicts a penalty, or relieves a person in an unusual way, this does not extend beyond the party in question.
2. Ulpianus, Trusts, Book IV.
In the enactment of new laws evidence of benefit should manifestly appear to justify departure from a law which has been considered just for a long period of time.
3. Javolenus, Epistles, Book XIII.
We should interpret as liberally as possible any favor of the Emperor which in fact proceeds from his Divine indulgence.
4. Modestinus, Excuses, Book II.
Recent constitutions have greater authority than those which have preceded them.1
TITLE V. CONCERNING THE CONDITION OF MEN.
1. Gaius, Institutes, Book I.
All the law which We make use of relates either to persons, things, or actions.
2. Hermogenianus, Epitomes of Law, Book I.
Therefore, since all law has been established on account of mankind, we shall first speak of the condition of persons, and afterwards of other matters, following the order of the Perpetual Edict, and adding to them the titles as arranged and connected with them, as far as the matter permits.
3. Gaius, Institutes, Book I.
The principal division of the law of persons is as follows, namely, that all men are either free or slaves.
1 "Leges posteriores priores contrarias abrogant." ED.
4. Florentinus, Institutes, Book IX.
Liberty is the natural power of doing whatever anyone wishes to do unless he is prevented in some way, by force or by law.
(1) Slavery is an institution of the Law of Nations by means of which anyone may subject one man to the control of another, contrary to nature.
(2) Slaves are so called for the reason that military commanders were accustomed to sell their captives, and in this manner to preserve them, instead of putting them to death.
(3) They are styled mancipia, because they are taken by the hands of their enemies.
5. Marcianus, Institutes, Book I.
One condition is common to all slaves; but of persons who are free some are born such, and others are manumitted.
(1) Slaves are brought under our ownership either by the Civil Law or by that of Nations. This is done by the Civil Law where anyone who is over twenty years of age permits himself to be sold for the sake of sharing in his own price. Slaves become our property by the Law of Nations when they are either taken from the enemy, or are born of our female slaves.
(2) Persons are born free who are born from a free mother, and it is sufficient for her to have been free at the time when her child was born, even though she may have been a slave when she conceived; and, on the other hand, if she was free when she conceived, and was a slave when she brought forth, it has been established that her child is born free, nor does it make any difference whether she conceived in a lawful marriage or through promiscuous intercourse; because the misfortune of the mother should not be a source of injury to her unborn child.
(3) Hence the following question arose, where a female slave who was pregnant, has been manumitted, and is afterwards again made a slave, or, after having been expelled from the city, should bring forth a child, whether that child should be free or a slave? It was very properly established that it was born free; and that it is sufficient for a child who is unborn that its mother should have been free during the intermediate time.
6. Gaius, Institutes, Book I.
Freedmen are those who are manumitted from lawful slavery.
7. Paulus, On the Shares Granted to the Children of Condemned Persons.
A child in its mother's womb is cared for just as if it were in existence, whenever its own advantage is concerned; although it cannot be of any benefit to anyone else before it is born.
8. Papinianus, Questions, Book HI.
The Emperor Titius Antoninus stated in a Rescript that the status of children could not be prejudiced on account of the tenor of an improperly drawn instrument.
9. The Same, Questions, Book XXXI.
In many parts of our law the condition of women is worse than that of men.
10. Ulpianus, on Sabinus, Book I.
The question has been raised to which sex shall we assign an hermaphrodite? And I am of the opinion that its sex should be determined from that which predominates in it.
11. Paulus, Opinions, Book XVIII.
Paulus was of the opinion that a child who was conceived during the life of its grandfather, while the latter was ignorant of the connexion of his daughter, even though it was born after the death of its grandfather, was not the lawful son of him by whom it was begotten.
12. The Same, Opinions, Book XIX.
It is now generally held upon the authority of that most learned man Hippocrates, that a child perfectly formed may be born in the seventh month; and therefore it is established that a child who is born in lawful marriage after seven months is legitimate.
13. Hermogenianus, Epitomes of Law, Book I.
A slave abandoned by his master to fortune in the trial of a capital case does not become free even if he should be acquitted.
14. Paulus, Sentences, Book IV.
Those beings are not children who are born formed in some way which is contrary to the likeness of the human race; as, for instance, where a woman brings forth something monstrous or unnatural. A child, however, which has more than the ordinary number of human limbs seems to be, to some extent, completely formed, and therefore may be included among children.
15. Tryphoninus, Controversies, Book X.
A slave named Arescusa was declared to be free by will if she brought forth three children; and at her first delivery she had one child, and at her second she had three. The question then arose as to which of the said children were free? The condition on which her freedom pended had to be fulfilled by the woman, and there was no doubt that the last child was born free; for nature does not permit two children to come forth from their mother's womb at the same time, by one movement, so that the order of birth being uncertain, it does not appear which one was born in slavery, and which was born free. Therefore, the condition having been fulfilled at the time the birth began, namely that the child should be born of a free woman, it is the one born last, just as if any other condition imposed on the freedom of the woman had been fulfilled at the moment of her delivery; for example, that she should be manumitted on condition that she gave ten thousand sesterces to the heir, or to Titius; and at the instant when she was delivered she fulfilled the condition through the agency of someone else;
it would necessarily be held that she was already a free woman when she brought forth the child.
16. Ulpianus, Controversies, Book VI.
The same thing should take place if Arescusa had first brought forth two children, and afterwards brought forth twins; for it must be held that both the latter are not born free, but only the one who was born last. The question, however, is rather one of fact than of law.
17. The Same, On the Edict, Book XXII.
According to a Constitution of the Emperor Antoninus, all those who were living in the Roman world were made Roman citizens.
18. The Same, on Sabinus, Book XXVII.
The Emperor Hadrian set forth in a Rescript addressed to Publicius Marcellus, that if a free woman after having been condemned to death while pregnant brought forth a child it would be free; and that it was customary to hold her until she was delivered. Also, where a woman who has conceived in lawful marriage is interdicted from fire and water, the child she brings forth is a Roman citizen, and remains under the control of its father.
19. Celsus, Digest, Book XXIX.
When children are born in lawful marriage they follow the condition of the father, but one that is conceived in promiscuous intercourse follows the condition of the mother.
20. Ulpianus, on Sabinus, Book XXXVIII.
Anyone who becomes insane is considered to retain the position and rank he previously held, and also his magistracy and authority; just as he retains the ownership of his property.
21. Modestinus, Rules, Book VII.
Where a freeman sells himself and is afterwards manumitted, he does not recover his former condition of which he deprived himself, but belongs to the class of freedmen.
22. The Same, Opinions, Book XII.
Herennius Modestinus held that if a female slave brought forth a child at the time when, according to the terms of the donation which disposed of her, she should be manumitted; since she was free by the Imperial Constitution, the child born of her is freeborn.
23. The Same, Pandects, Book I.
The term "conceived in promiscuous intercourse" is applicable to those who cannot show who their father is, or if they can do so, he is not their lawful father, and these are called spurious, from spora.
24. Ulpianus, On Sabinus, Book XXVII.
The law of nature is that a child born out of lawful matrimony follows the mother, unless a special law provides otherwise.
25. The Same, On the Lex Julia et Papia, Book I.
We should consider him to be freeborn who has been legally declared such, even though he is in fact a freedman; for the reason that whatever is judicially determined is accepted as truth.
26. Julianus, Digest, Book LXIX.
Those who are unborn are, by almost every provision of the Civil Law, understood to be already in existence; for estates legally descend to them, and if a pregnant woman is taken by the enemy, her child has the right of postliminium, and it also follows the condition of the father, or mother. Moreover, if a pregnant female slave is stolen, even after she may have brought forth in the hands of a purchaser in good faith, her child being stolen property is not acquired by use. The result of this is that a manumitted slave, also, as long as a son can be born to his patron is considered to hold the same position under the law as those who have patrons living.
27. Ulpianus, Opinions, Book V.
Where a man admits that he is a freedman, his patron cannot make ' him freeborn even by adopting him.
CONCERNING THOSE WHO ARE THEIR OWN MASTERS, AND THOSE THAT ARE UNDER THE CONTROL OF OTHERS.
1. Gaius, Institutes, Book I.
Another division of persons follows according to law, some of whom are their own masters, and some are subject to the control of others. We shall now consider those who are subject to the control of others; for if we know who these persons are, we shall at once understand who those are that are their own masters. Let us then examine those who are under the control of others.
(1) Thus, slaves are under the power of their masters, and this power is derived from the Law of Nations, for we may perceive that among nearly all nations masters have the power of life and death over their slaves, and whatever is acquired by a slave is acquired by his master.
(2) But, at present, it is not permitted to any persons living under Roman dominion to be guilty of cruelty to their slaves which is atrocious, or without a cause recognized by the law. For, according to a Constitution of the Divine Antoninus, anyone who kills his slave without a cause shall be punished as severely as one who kills the slave of another; the inordinate severity of masters is also repressed by a Constitution of the same Emperor.
2. Ulpianus, Concerning the Office of Proconsul, Book VIII. Where a master is cruel to his slaves and forces them to licentiousness or to disgraceful violation, the course to be taken by the presid-
ing judge is disclosed by a Rescript of the Divine Pius addressed to Julius Marcianus, Proconsul of Bætica. These are the terms of the Rescript: "It is proper that the power of masters over their slaves should remain unimpaired, and that no man should be deprived of his right; but it is to the interest of the masters themselves that relief from cruelty, hunger, or intolerable injury, should not be denied to those who justly implore it. Therefore, take cognizance of the complaints of those slaves of Julius Sabinus who fled for refuge to the Imperial statue; and if you find that they have been treated with greater severity than was proper, or subjected to disgraceful outrage, order them to be sold, under such conditions that they may not be restored to the power of their master; and if he violates this My Constitutions, let him know that he will be more severely punished". The Divine Hadrian also, banished for five years a certain matron named Umbricia, because she had treated her female slaves with atrocious cruelty for very trivial reasons.
3. Gaius, Institutes, Book I.
Our children also who are born in lawful marriage are under our control; which is a law peculiar to Roman citizens.
4. Ulpianus, Institutes, Book I.
Certain Roman citizens are fathers of families, others are sons of families, some are mothers of families, others again are daughters of families. Those are fathers of families who are their own masters, whether they have arrived at puberty or not; in the same manner those who are under the control of others are either the mothers of families, or the sons or daughters of families. For any child who is born of me and my wife is under my control; also a child born of my son and his wife, that is to say my grandson and granddaughter, are also under my control, as well as my great-grandson and great-granddaughter, and so on with reference to other descendants.
5. The Same, On Sabinus, Book XXXVI.
Grandsons, after the death of their paternal grandfather, usually come under the control of his son, that is, of their own father. In like manner, great-grandchildren and other descendants also come under the control of a son, if he is living, and remains in the family; or under that of an ascendant who precedes them in authority. This is also the law not only concerning natural children but also with reference to those who have been adopted.
6. The Same, On Sabinus, Book IX.
We define a son to be a male child born of a man and his wife. But if we suppose the husband was absent, for example for the term of ten years, and on his return finds a child a year old in his house, our opinion coincides with that of Julianus, that this is not the son of the husband. Nevertheless, Julianus says, it ought not to be tolerated that a man, who has lived constantly with his wife, should refuse to acknowledge his son as not being his own. It appears to me, however, (and this
Scævola also holds), that if it should appear that a husband had not cohabited with his wife for some time, because of disease, or for some other reason, or if he was in such a condition of ill health that he could not procreate, a child born in his house, although this was known to the neighbors, is not his son.
1. The Same, On Sabinus, Book XXV.
Where a father has been condemned to punishment by which he cither loses his citizenship, or is subjected to penal servitude, there is no doubt that his grandson takes the place of his son.
8. The Same, On Sabinus, Book XXVI.
Where a father is insane, his child, nevertheless, remains under his control. The case is the same with all ascendants who have children subject to their authority, for the right of paternal control having been established by custom, no one can cease to have persons under it except where children are released from the same as they are under certain circumstances, and there is no question whatever that they still remain subject to his authority. For this reason a father not only, retains under his control those children whom he begat before he became insane, but also any who were conceived before his insanity developed, and were born while it existed. Moreover, if his wife conceives while he is insane, it must be considered whether the child is born under his control or not; for although an insane person cannot marry, he can still retain his matrimonial condition; and since this is the case he will have his son under his control.
In like manner, if his wife becomes insane, a child conceived by her previous to her insanity is born under his control; but if it is conceived while she was insane and her husband was not, it undoubtedly is born under his control, for the reason that the marriage still exists. But if both husband and wife are insane, and she then conceives, the child is born under the control of its father; for it is presumed that insane persons still have some will remaining; and, as the marriage relation continues while one or the other is insane, it also does so when both are in that condition.
(1) Moreover, an insane father retains his paternal authority to such an extent that everything acquired by his son belongs to him.
9. Pomponius, On Quintus Mucius, Book XVI.
In all matters relating to the public interest the son of a family takes the place of the father of a family; for instance, where he discharges the duty of a magistrate, or is appointed a guardian.
10. Ulpianus, On the Lex Julia et Papia, Book IV.
Where a judge decides that a child is to be brought up or supported, it should be held that it must be certainly ascertained whether it is his son or not; a ruling as to support cannot prejudice the truth.
11. Modestinus, Pandects, Book I.
Illegitimate or emancipated children cannot be brought under paternal authority against their consent.
CONCERNING ADOPTIONS AND EMANCIPATIONS, AND OTHER METHODS BY WHICH PATERNAL AUTHORITY Is DISSOLVED.
1. Modestinus, Rules, Book II.
Sons of families are not only created by nature but also by adoption.
(1) The term "adoption" is one of general signification, and includes two kinds; one of which is likewise styled adoption, the other arrogation. The sons of families are adopted; those who are their own masters are arrogated.
2. Gaius, Institutes, Book I.
Adoption, generally speaking, takes place in two ways, either by the authority of the Emperor, or by the order of a magistrate. We adopt those by the authority of the Emperor who are their own masters; and this kind of adoption is called arrogation, because he who adopts is asked, that is, interrogated, whether he is willing that the party whom he is about to adopt shall be his lawful son; and he who is adopted is asked whether he suffers this to be done, We adopt by the order of a magistrate those who are under paternal control, whether they are in the first degree of children, such as son and daughter, or in one that is more remote, as grandson and granddaughter, and great-grandson and great-granddaughter.
(1) There is one thing common to both kinds of adoption, namely, that those who are incapable of procreation, as for instance, eunuchs, can adopt.
(2) Adoption effected through the Emperor is peculiar in that if anyone who has children under his control gives himself in arrogation, he himself is not only subjected to the authority of his adoptive father, but also his children and grandchildren pass under the control of the former.
3. Paulus, On Sabinus, Book IV.
Where the son of a family becomes a consul, or governor, he can be emancipated, or given in adoption before himself.
4. Modestinus, Rules, Book II.
It is the opinion of Neratius that a magistrate before whom a legal action can be brought can emancipate his own children, or give them in adoption before himself.
5. Celsus, Digest, Book XXVIII.
In adoption, the will of only those parties who are their own masters shall be consulted; but where children are given in adoption by their fathers, the will of both must be taken into consideration, either consent being given, or no opposition being offered.
6. Paulus, On the Edict, Book XXXV.
When a person is adopted as grandson just as if he were born to a son, the consent of the son is required; and this opinion Julianus also rendered.
7. Celsus, Digest, Book XXXIX.
When an adoption is made, the consent of those who will be connected by agnation is not necessary for that purpose.
8. Modestinus, Rules, Book II.
It was formerly held that the authority of a curator could not be interposed in a case of arrogation; but this has been very properly changed by the Divine Claudius.
9. Ulpianus, On Sabinus, Book I.
Even a blind man can adopt, and be adopted.
10. Paulus, On Sabinus, Book II.
When anyone adopts a grandson as if he were born to his own son over whom he has control, with the consent of the latter, he does not become a proper heir of his grandfather; as, after the death of the grandfather he comes, as it were, under the control of his father.
11. The Same, On Sabinus, Book IV.
If anyone who has a son adopts a person as a grandson, just as if he was the son of his son, and the latter does not consent; if the grandfather should die, the adopted grandson does not come under the control of the son.
12. Ulpianus, On Sabinus, Book XIV.
He who is released from paternal authority cannot afterwards be honorably subjected to it again, except by adoption.
13. Papinianus, Questions, Book XXXVI.
By almost every principle of law, when the power of an adoptive father has once been ended, no vestige of it afterwards remains; and even the paternal dignity obtained by adoption is lost when the relationship is terminated.
14. Pomponius, On Sabinus, Book V.
A grandson conceived and born under the control of his adoptive grandfather also loses all his rights by emancipation.
15. Ulpianus, On Sabinus, Book XXVI.
When the father of a family is adopted, all the property which belongs to him and all that can be acquired is, by silent operation of law, transferred to his adoptive father; and, moreover, his children who are under his control follow him, as well as those who may return from captivity under the law of postliminium, and those who were unborn
when he was arrogated are in like manner brought under the control of the arrogator.
(1) Where a man has two sons, and a grandson by one of them, and desires to adopt the grandson as born of the other son, he can do so if he emancipates him and adopts him as if he were born to the other son, for he does this as if he were a stranger, and not his grandfather; and for whatever reason he can adopt anyone born of a stranger he can adopt him as it were born of another son.
(2) In arrogation it must be ascertained whether the arrogator is under sixty years of age, because if he is, he should rather devote himself to the procreation of children; unless, indeed, disease or weakness of any kind, or any other just cause for arrogation exists, as, for instance, if he desires to adopt some person related to himself.
(3) Again, no one should arrogate several children, unless for a good reason. Nor should he adopt the freedman of another, nor anyone older than himself.
16. Javolenus, On Cassius, Book VI.
For adoption can only take place with persons between whom the natural relation of father and son might exist.
17. Ulpianus, On Sabinus, Book XXVI.
Anyone who administers the office of guardian, or has the curator-ship of another, is not permitted to arrogate him, so long as the minor is less than twenty-five years of age, for fear that he may have arrogated him to avoid rendering an account. Inquiry must also be made as to whether the reason for the arrogation is not an infamous one.
(1) Arrogation of wards is only permitted to those who, induced by natural relationship or great affection adopt them; and it is prohibited to others lest it may be placed in the power of guardians to terminate their trust, and invalidate the substitution made by the parent.
(2) It is necessary, in the first place, to learn the amount of property belonging to the ward, as well as that of the party who desires to adopt him; so that, by comparing the two, an opinion may be formed as to whether an adoption would be advantageous to the ward. Then the mode of life of the party, who desires to bring the ward into his family should be investigated; and third, his age must be considered, so that it may be determined whether he had not better pay attention to the procreation of children, than to bring under his control some one belonging to another family.
(3) Moreover, it should be taken into consideration, whether he who already has one or more children ought to be permitted to adopt another, in order that the expectations of those begotten in lawful marriage may not be diminished, which expectations every child prepares for itself by respectful behavior; or whether the ward thus adopted would obtain less than he was worthy of.
(4) Sometimes the adoption of a child who is more wealthy by a person who is poor is permitted; if the latter is of a thoroughly temperate life, or his affection is honorable and publicly known.
(5) It is, however, customary to give security in cases of this kind.
18. Marcellus, Digest, Book XXVI.
For when a man desires to arrogate a ward, if he shows a good reason for doing so in other respects, he can only be heard if he gives a bond to a public slave binding himself, "that he will restore any of the property of his ward that may come into his possession to those persons who would have been entitled to said property, if the arrogated party had remained in his former condition".
19. Ulpianus, On Sabinus, Book XXVI.
By these words of the bond which must be furnished by the arrogating party, "to those entitled to said property", there is no doubt that it was intended to include any manumissions made by a second will; and especially where a slave was substituted as heir, and also to protect the interests of legatees.
(1) If this bond is not given, an equitable action will lie against the arrogator.
20. Marcellus, Digest, Book XXVI.
This bond becomes operative where the ward dies before reaching the age of puberty.
(1) Although the ward is mentioned as a male, the same proceeding must be taken with reference to a female ward.
21. Gaius, Rules.
For women may be arrogated by an Imperial Rescript.
22. Ulpianus, On Sabinus, Book XXVI.
Where an arrogator dies leaving an adopted son who is under age, and he dies afterwards before reaching puberty, will the heirs of the arrogator be liable? It must be held that the heirs also are bound to deliver up the property of the party arrogated, and the fourth part of the estate besides.
(1) The question arises whether the arrogator can substitute another heir to the adopted minor son? I think that the substitution cannot be admitted, unless merely with reference to the fourth part of the estate of his adoptive father to which he is entitled; and that it only extends to the time of puberty. But if he should leave his property in trust to be delivered at a certain time, a trust of this kind should not be admitted; for this share does not vest in him by the will of his father but by an Imperial provision.
(2) All these rules are applicable whether anyone has arrogated a boy under puberty as a son, or as a grandson.
23. Paulus, On the Edict, Book XXXV.
When anyone is given in adoption he becomes cognate to all those to whom he becomes agnate, and does not become cognate to those to whom he does not become agnate, for adoption does not impart the
right of blood but the right of agnation; and therefore if I adopt a son my wife does not occupy the place of a mother to him, nor is she related to him by agnation, because she is not his cognate. Again, my mother does not occupy the place of grandmother to him, since he does not become connected by agnation with those who are outside of my own family; but he whom I have adopted becomes the brother of my daughter, since my daughter is a member of my family, and marriage between them is prohibited.
24. Ulpianus, Controversies, Book I.
Anyone who is absent, or who does not give his consent cannot be arrogated.
25. The Same, Opinions, Book V.
After the death of his daughter who had been living as her own mistress on the ground of having been lawfully emancipated, and who died after appointing heirs by her will, the father is forbidden to institute proceedings against his own act, claiming that the emancipation was not made legally, or in the presence of witnesses.
(1) A party who is absent can neither adopt, nor arrogate, nor carry out by the agency of another any of the formalities which are requisite in such cases.
26. Julianus, Digest, Book LXX.
Anyone whom my emancipated son adopts is not my grandson.
27. The Same, Digest, Book LXXXV.
The child of an adopted son is considered by the Civil Law to occupy the same place as if he himself were adopted.
28. Gaius, Institutes, Book I.
He who has a son and a grandson under his control is at perfect liberty to release his son from his authority, and to retain it over his grandson; or, on the other hand, to retain his son under his control and to manumit his grandson; or to make both of them their own masters. We hold that the same rule applies to a great-grandson.
29. Callistratus, Institutes, Book II.
Where the natural father does not possess the power of speech, but can indicate in some other way than verbally his desire to give his son in adoption, that adoption shall be confirmed; just as if it had taken place under the forms prescribed by law.
30. Paulus, Rules, Book I.
Those who have no wives can adopt children.
31. Marcianus, Rules, Book V.
A son, whether he is natural or adopted, who is under the control of his father, cannot in any way compel him to release him from it.
32. Papinianus, Questions, Book XXXI.
However, a boy who is under puberty and has been adopted, should sometimes be heard if, having arrived at puberty, he desires to be emancipated; and this must be determined by the judge after the case has been stated.
(1) The Emperor Titius Antoninus decided in a Rescript that it was permissible for a man to adopt his stepson of whom he was guardian.
33. Marcianus, Rules, Book V.
And where the adopted son, having arrived at puberty, proves that it is not advantageous to himself to be brought under the paternal control of the other, it is just that he should be emancipated by his adoptive father, and in this way be reinstated in his former condition.
34. Paulus, Questions, Book XL
The question arose where a son is given to you in adoption, for instance under this condition that, "after three years, you will give the same person to me in adoption"; whether any action will lie against you. Labeo thinks that there is no cause of action, for it is not in accordance with our customs for anyone to have a son temporarily.
35. The Same, Opinions, Book I.
The rank of a person is not diminished by adoption, but is in fact increased; therefore a senator, if adopted by a plebeian, remains a senator; and, in like manner, a son of the senator still remains such.
36. The Same; Opinions, Book XVIII.
It is settled that a son can be emancipated anywhere in order to be released from paternal authority.
(1) It has been decided that manumission and adoption can be performed before a proconsul, even in a province which has not been assigned to him.
37. The Same, Sentences, Book II.
Anyone can adopt another as his grandson, even though he has no son.
(1) No one can a second time adopt a person whom he has once adopted and emancipated.
38. Marcellus, Digest, Book XXVI.
An adoption not legally made may be confirmed by the Emperor.
39. Ulpianus, On the Office of Consul, Book HI.
The Divine Marcus stated in a Rescript to Eutychianus that, "The judges will determine whether you can obtain what you desire, after those who may object have been produced before them, that is to say, those who might be injured by the confirmation of the adoption".
40. Modestinus, Differences, Book I.
By the arrogation of the father of a family the children who are under his control become the grandchildren of the arrogator, and at the same time with their father are placed under his authority, which does not also take place in case of adoption; for then the grandchildren remain under the control of their natural grandfather.
(1) He who adopts, and also he who arrogates, must not only be older than the person whom he makes his son either through arrogation or adoption, but he must be so by the term of complete puberty, that is to say, he must be further advanced in age by eighteen years.
(2) A person who is impotent can obtain a proper heir for himself by arrogation, nor is his corporeal weakness an obstacle to his doing so.
41. The Same, Rules, Book II.
When a father emancipates his son by whom he has a grandson under his control and afterwards adopts his son and dies, the grandson does not again come under the authority of his father. Nor does the grandson come under the control of his father if his grandfather retained him in his power when he gave his son in adoption, and readopted him afterwards.
42. The Same, Pandects, Book I.
We can even give an infant in adoption.
43. Pomponius, On Quintus Mucius, Book XX.
Adoption of sons as well as grandsons can take place so that anyone may seem to be our grandson as through a son, although his birth may be uncertain.
44. Proculus, Epistles, Book VIII.
Where anyone who has a grandson by a son adopts another in the place of his grandson, I do not think that when the grandfather dies any bond of consanguinity will exist between the grandsons. But if he adopted him in such a way that he should be his grandson by legal right, for instance, as if he had been the son of Lucius his own son and the lawful wife of the latter, I am of the contrary opinion.
45. Paulus, On the Lex Julia et Papia, Book III.
The liabilities of him who was given in adoption are transferred to the adoptive father.
46. Ulpianus, On the Lex Julia et Papia, Book IV.
A son begotten by me while in slavery can be brought under my authority by the indulgence of the Emperor; still, there is no question that such a son remains in the class of freedmen.1
1 The laws of Hammurabi do not describe the method by which adoption was effected, or the formalities legally required for that purpose. If the adopted son proved rebellious, his adoptive father could send him back to his former parents. In case he did not enjoy all the rights and privileges of a child by blood, or was
TITLE VIII. CONCERNING THE DIVISION AND NATURE OP THINGS.
1. Gaius, Institutes, Book II.
The principal division of Things is under two heads: for some of them belong to Divine and some to human law. Those which come under Divine law are, for instance, sacred and religious things. Sacred things are, for example, walls and gates, which, to a certain extent, are under Divine law. For what is subject to Divine law is not the property of anyone, and that indeed which belongs to human law is, for the most part, the property of someone, nevertheless, it may belong to none, for things belonging to an estate until an heir appears, are not the property of anyone. Again, those things that are under human law
not taught a trade, he was at liberty to depart. An adoptive father was not allowed to cut him off without cause, and was compelled to give him one third of a son's share out of his personal estate. The adoption of female children is not mentioned. (Code of Hammurabi, 186, 191.)
Among the ancient Hindus a magistrate must be notified, a religious ceremony performed, and gold and rice be given to the father of a child by way of compensation, before it could be legally adopted. A woman could adopt, but not without her husband's order. A man who had no son, grandson, or great-grandson, was required to take a boy in adoption. A second child could not be adopted. (Gentoo Code, XXI, IX.)
Under the present Hindu law both men and widows can adopt, and no special form is necessary. The act can be performed by means of a written instrument, verbally, or by will. A widow authorized by her husband may adopt a son even though she be a minor; but the wishes of the deceased must, under all circumstances, be absolutely complied with. A husband cannot delegate authority to adopt to anyone but his widow, and no limit of time whatever is imposed on her after power has once been granted. While many new rules concerning adoption have been framed, the old ones are still in force. (Mayne, A Treatise of Hindu Law and Usage, Chap. V., pages 93, 94, 95.)
Testamentary adoption was not permitted by the Greeks, it was essential that the act be performed by a living person. Parties who had no lawful issue could adopt whom they pleased, with the exception of those who were not independent, such as women, infants, lunatics, minors, and slaves. In Lacedæmon, adoption had to be confirmed in the royal presence. At Athens, permission was required from a magistrate to enable a man to marry after he had adopted a son. Adopted children had no right to inherit from the family from which they had been taken, without first renouncing their adoption; and if they died without issue their estates were transmitted to their adoptive relations. Adopted children enjoyed all the privileges and were subject to all the restraints of those actually begotten. (Potter, Antiquities of Greece, I, 23, IV, 15.)
The restrictions imposed upon adoption by King Alfonso X in his great and comprehensive work, were of the most severe and exhaustive character. Any freeman of age, who was not under paternal control, and who (as under the Civil Law) was eighteen years older than the person to be adopted and was capable of procreation, enjoyed this right. No woman could adopt unless she had lost a son in the service of the King, and in this case the royal sanction must previously be obtained. Consent being indispensably necessary, an infant under the age of seven years was not eligible, nor was a child under fourteen, without the permission of the King. In instances of this kind a careful investigation of the pecuniary condition of both parties was made, as well as of the life, reputation, and motives of the applicant. If the petition was granted, security was demanded of the adoptive father by a bond duly executed before a notary public, providing that if the child in question should die before reaching puberty, he would surrender all the estate
are either public or private. Those which are public are held to be the property of no one, and are considered to belong to the entire community, and those which are private belong to individuals.
(1) Moreover, some things are corporeal, and some are incorporeal. Those are corporeal which are tangible, as for instance land, slaves, clothing, gold, silver, as well as innumerable other articles. Those are incorporeal which cannot be touched as an usufruct, and obligations, in whatever way contracted. It does not matter if corporeal things are included in an estate, for the crops taken from land are corporeal, and whatever is owing to us through the obligation of another, is for the most part corporeal, as land, slaves, money; still, the right of succession, the right of use and enjoyment, and the right based upon an obligation are all incorporeal. To the same class belong all the rights of urban and rustic estates, which are designated as servitudes.
of the latter to those who would have been his heirs had he not been adopted. The adoptive father was, however, entitled to the usufruct of the property while it was in his possession.
In most respects the old Castilian law, which admitted the difference between arrogation and ordinary adoption, followed the precepts of Justinian. (Las Siete Partidas, IV, XVI.)
Under the Mohammedan legal system, while a child of either sex may be adopted, it has no right to inherit from its adoptive parents, and this relationship is not encouraged by law. It may, however, receive property by gift or testamentary disposition. (Hughes, Dict. of Islam, Title Adoption, Page 10.)
The influence of the Romans upon subsequent legislation is, in this as in numerous other cases, disclosed by the fact that while the ceremony of adoption was not known to the Common Law of England, it was nevertheless practically admitted by Bracton as being existent in his time. "Legittimantur etiam quandòquè quasi per adoptionem & de consensu & voluntate parentum." (De Leg. et Consuet. Anglise, Cap. 30, f63.) The rule is so strict that any parental renunciation of the control of a child is void.
Adoption in the United States is, of course, entirely dependent upon statutory regulation. Louisiana, which has incorporated so much of the Civil Law into its procedure, has abolished it. (Civil Code, Art. 232.) In other commonwealths of the Union an infinite variety of rules establishes the rights, liabilities, and duties of adoptive parents and children.
France requires an adoptive father to be over fifty years of age and at least fifteen years older than the child; and that he have no descendants in the direct line. The privilege can only be exercised towards one who, for six months during his minority, has supported or cared for the adoptive parent, or has saved his or her life. In no instance can adoption take place before the attainment of majority. (Code Civil de France, Arts. 343, 345, 346.)
An adoptive parent in Spain must be fifty-five years old, and not an ecclesiastic, or the guardian of the person adopted (unless he has previously rendered a satisfactory account of his trust). In other particulars the law generally coincides with that of France. (Código Civil de España, Arts. 173, 174.)
In Italy, an illegitimate child cannot be adopted by either of its parents. The party adopted must be at least eighteen years old, and his rights and obligations toward his own family remain unchanged by his reception into another. (Code Civile d'Italia, Arts. 205, 206, 212.)
The rule on the subject in Austria closely follows that of the Civil Law. The adopted child, however, loses none of the rights to which he was entitled as a member of his own family. (Allgemeines Bürgerliches Gesetzbuch, Arts. 182, 183, 184, 185.) ED.
2. Marcianus, Institutes, Book HI.
Certain things are common to all by natural law; some belong to the entire community, some to no one, and the greater number to individuals; these are acquired in various ways respectively.
(1) Again, all the following things are common by natural law, namely the air, running water, the sea, and hence the shores of the sea.
3. Florentinus, Institutes, Book VI.
Likewise, precious stones, gems, and other things which we find upon the seashore also at once become ours by natural law.
4. Marcianus, Institutes, Book III.
Consequently no one can be forbidden to approach the shore of the sea in order to fish; still, they must avoid interfering with houses, buildings, and monuments, because they are not subject to the Law of Nations, as the sea is; and this the Divine Pius stated in a Rescript addressed to the fisherman of Formiæ and Capena.
(1) Almost all rivers and harbors are also public.
5. Gaius, Legal Doctrines of Daily Application and Utility. Book II.
The public use of the banks of rivers is subject to the Law of Nations, just as the rivers themselves are. Therefore, everyone is free to conduct a boat to the bank; to attach ropes to trees growing there; to dry nets, and draw them up from the sea; and to deposit any cargo thereon; just as he can navigate the river itself. The ownership of the banks, however, is vested in those to whose lands they are contiguous; for which reason the trees growing upon them also belong to the
(1) Those who fish in the sea have a right to erect a hut upon the shore in which to shelter themselves.
6. Marcianus, Institutes, Book III.
This right exists to such an extent that those who build there actually become the owners of the land, but only as long as the building stands; otherwise, if it falls down, the place reverts to its former condition by the law of postliminium, so to speak, and if another party builds a house in the same place, the soil becomes his.
(1) There are some things which, by natural law, belong to the entire community and not to individuals; as, for instance, theatres, racecourses, and other things of this kind, or anything else which is the common property of a city. Therefore, a slave belonging to a city is not understood to be the property of any individual in particular, but of the entire community; and for this reason the Divine Brothers stated in a Rescript that a slave belonging to a city could be put to torture either against a citizen or in his behalf. In consequence of this, also the freedman of a city is not compelled to ask permission under the Edict, if he brings any citizen into court.
(2) Things which are sacred, religious, and holy are not the property of anyone.
(3) Sacred things are those which are publicly and not privately consecrated; and hence if anyone should make anything sacred for himself privately, it is not sacred but profane; where, however, a temple has once been made sacred the place still remains so, even after the edifice has been demolished.
(4) Anyone by his will can render a place religious by burying a corpse on his own premises; and where a burial-place belongs to several persons, one of the owners can inter a body there, even though the others may be unwilling. An interment can also be made upon the land of another, if the owner consents; and even where he ratifies it afterwards the place where the corpse was buried becomes religious.
(5) Again, the better opinion is that an empty tomb is a religious place, as is stated in Virgil.
7. Ulpianus, On the Edict, Book XXV.
Nevertheless, the Divine Brothers published a Rescript to the contrary.
8. Marcianus, Rules, Book IV.
A holy place is one which is defended and protected from the injuries of men.
(1) The word "sacred" is said to have been derived from the word sagmina, certain plants which were usually carried by the ambassadors of the Roman people to prevent their persons from being violated; just as the Greek Ambassadors carried those which are called khrukia.
(2) Cassius states that Sabinus very properly gave the opinion that the walls of a city were holy, and that it was necessary for persons to be prohibited from placing anything against them.
9. Ulpianus, On the Edict, Book LXVIII.
Sacred places are those which are dedicated to the public, either in the city or in the country.
(1) It should be understood that a public place can only become sacred when the Emperor has dedicated it, or granted permission for this to be done.
(2) It must be remarked that a sacred place is one thing and a sacrarium is another; for a sacred place is one which has been consecrated, and a sacrarium is one in which sacred things are deposited, which also may exist in a private house; and when persons desire to divest such a place of its religious character they usually withdraw the sacred things therefrom.
(3) We properly call those things holy which are neither sacred nor profane, but which have been confirmed by some sanction, hence the laws are holy, for the reason that they are based upon a certain sanction; and anything that is supported by a certain sanction also is holy, even though it may not be consecrated to God; and it is even sometimes added in the sanction itself that anyone who is guilty of an offence in that place shall be punished with death.
(4) Moreover, it is not permitted to repair the walls of cities, or to add anything to them, or place anything upon them, without the authority of the Emperor or the governor.
(5) Anything that is sacred is not susceptible of appraisement.
10. Pomponius, On Plautius, Book VI.
Aristo declares that just as anything built into the sea becomes private property, so whatever the sea encroaches upon becomes public property.
11. Pomponius, From Various Passages, Book II.
Where anyone trespasses upon the walls, he is punished with death; just as where anyone climbs over them by means of ladders, or in any other manner; since Roman citizens are not permitted to leave a city except by the gates; as the former is an act of hostility and abominable. It is said that Remus, the brother of Romulus, was killed because he wished to scale the wall.
TITLE IX. CONCERNING SENATORS.
1. Ulpianus, On the Edict, Book LXII.
No one doubts that a man of consular rank should always take precedence of a woman of consular rank, but it is a matter for consideration whether a man of præfectorian rank takes precedence of a woman of consular rank. I think that he does take precedence of her, because greater dignity attaches to the male sex.
(1) We call the wives of consuls women of consular rank, and Saturninus extends this quality to their mothers, but this is not stated anywhere else and it is nowhere admitted.
2. Marcellus, Digest, Book HI.
Cassius Longinus is of the opinion that when a man has been expelled from the Senate for infamous behaviour, and has not been reinstated, he should not be permitted to preside in court, or testify as a witness; for the reason that the Lex Julia forbids this to be done in cases of extortion.
3. Modestinus, Rules, Book VI.
A senator who has been expelled from the Senate does not lose his citizenship; and the Divine Severus and Antoninus even permitted him to live at Rome.
4. Pomponius, From Various Passages, Book XII.
Whoever is unworthy of a lower rank is still more unworthy of a higher one.
5. Ulpianus, On the Lex Julia et Papia, Book I.
We should understand by the terms "the son of a senator", not only a natural son but also an adopted one, and it does not matter by whom
or in what way he has been adopted. Nor does it make any difference whether he was already invested with senatorial rank when he adopted him, or whether this was done subsequently.
6. Paulus, On the Lex Julia et Papia, Book II.
A son adopted by a senator continues to be such as long as he remains in his family; but when he is emancipated, then by the emancipation he loses the name of son.
(1) When a son is given in adoption by a senator to a person of inferior rank he is always considered the son of a senator; because the senatorial dignity is not lost by an adoption arising from an inferior station, any more than anyone would cease to be of consular dignity under similar circumstances.
7. Ulpianus, On the Lex Julia et Papia, Book I.
It is established that the son of a senator emancipated by his father is always considered a senator's son.
(1) Labeo also declares that a child born after the death of his father who was a senator, shall be considered the son of the senator. Proculus and Pegasus are of the opinion, however, that a child who was conceived and born after the expulsion of its father from the Senate, should not be considered a senator's son.
This opinion is correct, for he whose father has been expelled from the Senate before he was born, cannot properly be called the son of a senator; but where a child has been conceived before its father was expelled from the Senate, and born after his father had lost his rank, the better opinion is that he should be understood to be the son of a senator. It is held by many that the time of conception should only be considered under such circumstances.
(2) Anyone whose father and grandfather have been senators is understood to be both the son and the grandson of a senator; if, however, his father lost his rank before the conception of the former, the question might arise whether he should not be considered the grandson of a senator, even though he was no longer regarded as the son of one? It is the better opinion that he ought to be, so that the rank of his grandfather may be of advantage to him, rather than he should be injured by the condition of his father.
8. The Same, Trusts, Book VI.
Women who are married to persons of illustrious rank are included in the appellation of illustrious persons. The daughters of senators are not known by the name of illustrious women, unless they have obtained husbands of eminent dignity, for their husbands confer illustrious rank upon them; but parents, indeed, do so, so long as they are not connected with plebeian families. Therefore, a woman is of illustrious rank while she is married to a senator or a distinguished man; or, having been separated from him, she has not married a person of inferior station.
9. Papinianus, Opinions, Book IV.
When the daughter of a senator marries a freeman, the condition of her father does not make her a wife; since, on the other hand, where her father had been expelled from the Senate, his children should not be deprived of the rank which they have obtained.
10. Ulpianus, On the Edict, Book XXXIV.
We should consider the children of senators to be not only their sons, but also all those descended from them or from their children, whether they be the natural or adopted offspring of the senators from whom they are said to have descended; but in the case of a child, born to the daughter of a senator, we must examine the condition of the father.
11. Paulus, On the Edict, Book XLI.
Senators are always considered to have their residence at Rome; still, they are understood to have a residence in the place where they were born, for the reason that the rank of senator is considered rather to give an additional domicile than to change the old one.
12. Ulpianus, On Registers of the Censor, Book II.
Women married in the first place to men of consular dignity, and afterwards to men of inferior station, sometimes, though rarely, despite this obtain from the Emperor the privilege of retaining their consular rank; for I know that Antoninus Augustus favored his cousin Julia Mammæ in this respect.
(1) Those are to be considered persons of senatorial rank who are descended from patricians and consuls, or any illustrious men; because these alone have the right to give their opinions in the Senate.
CONCERNING THE OFFICE OF CONSUL. 1. Ulpianus, On the Duties of Consul, Book II. It is the duty of the Consul to appoint a council for those who desire to manumit slaves.
(1) Consuls can manumit together, or alone, but he who has left names with one Consul cannot manumit before another for then the manumissions are separate; and if, for any reason, either through sickness, or through being prevented by any other just cause, one of them cannot manumit, the Senate has decided that his colleague can proceed with the manumission.
(2) There is no doubt that Consuls can manumit their own slaves before themselves, but if it should happen that a Consul is under twenty years of age, he has not the power of manumission in his own tribunal, as he himself is the one who, according to a decree of the Senate, must determine the ground for the appointment of a council. He can, however, do this before his colleague where proper cause has been established.
TITLE XI. CONCERNING THE OFFICE OF PRÆTORIAN PREFECT.
1. Aurelius Arcadius Charisius, Master of Requests, On the Duties of Prætorian Prefect.
It is necessary to state briefly whence the origin of the office of Prætorian Prefect was derived. It has been asserted by some writers that Prætorian Prefects were formerly created instead of Masters of Cavalry; for, as in the time of the ancients the supreme power was occasionally conferred upon dictators, they were accustomed to choose their Masters of Cavalry, who were associated with them in the discharge of their military duties, and held the next rank after them. The government of the republic having been permanently transferred to the Emperors, Prætorian Prefects were chosen by those princes, just as had been done in the case of the Masters of Cavalry, and upon them was conferred greater power for the purpose of promoting public discipline.
(1) The authority of the Prefects having originated in this manner, it was subsequently increased to such an extent that no appeal can be taken from the decision of a Prætorian Prefect; for when formerly a question arose as to whether an appeal could be taken from the decision of a Prætorian Prefect, which, in fact, was allowed by law, and examples of those who did so are extant; afterwards, by an Imperial Decree publicly promulgated, the right of appeal was forbidden. For the Emperor thought that those who were appointed to this high office on account of their eminent industry, after their discernment and integrity had been established, would render judgment not otherwise than he himself would do, the wisdom and enlightenment attaching to their rank being taken into consideration.
(2) Prætorian Prefects also enjoyed an additional privilege; for minors could not obtain restitution after condemnation, from any other magistrates than from the Prætorian Prefects themselves.
CONCERNING THE OFFICE OF PREFECT OF THE CITY. 1. Ulpianus, On the Duties of the Urban Prefect. An Epistle of the Divine Severus to Fabius Cilo, Prefect of the City, states that he has jurisdiction of all offences of every description, not only those committed within the city, but also those which are committed outside of it, in Italy.
(1) He must hear the complaints of slaves against their masters who have fled for refuge to the Imperial statues, or have been purchased by their own money in order to be manumitted.
(2) He must also hear the complaints of needy patrons concerning their freedmen; especially if they assert that they are ill and wish to be supported by them.
(3) He has authority to relegate and deport persons to an island designated by the Emperor.
(4) In the beginning of the Epistle referred to the following appears: "Since We have confided Our City to your care"; hence whatever is done within the city appears to be under the jurisdiction of the Prefect, and this also applies to any offence committed within the hundredth milestone, but beyond that distance the Prefect of the City has
(5) Where anyone accuses a slave of having committed adultery with his wife, the case must be tried before the Prefect of the City.
(6) He can take cognizance of proceedings under the interdicts Quod vi aut clam, or Unde vi.
(7) It is customary to send guardians or curators before the Prefect of the City, who, having administered their trusts fraudulently, deserve a more severe punishment than the infamy arising from suspicion; for example, when it can be proved that they have bought their guardianships with money, or for a bribe have exerted themselves to prevent a suitable guardian from being appointed for anyone; or when they, having declared the amount of the property of their wards; purposely diminished it; or where they alienated the said property evidently with fraudulent design.
(8) When it is said that the prefect must hear the complaints of slaves against their masters, we should understand that this does not mean that they can accuse their masters (for a slave is never allowed to do this, unless for specific reasons), but that they may humbly apply to him where their masters treat them with cruelty, harshness, or starve them, or may state to the Prefect of the City that they have been forced to endure indecent attacks. It was also a duty imposed upon the Prefect of the City by the Divine Severus, that he should protect slaves from being prostituted by their masters.
(9) Again, the Prefect of the City should take care that money-brokers conduct everything connected with their business honestly, and refrain from illegal acts.
(10) Where a patron states that he has been treated disrespectfully or been insulted by his freedman; or that he and his children, or his wife, have been abused by him, or brings any similar accusation; it is customary for him to appear before the Prefect of the City, who will punish the freedman according to the complaint, either by warning him, or by having him scourged, or by inflicting a still more severe penalty, for freedmen very often deserve to be punished. And indeed if the patron can prove that he brought a criminal accusation against him, or that he has conspired against him with his enemy, he can be sentenced to labor in the mines.
(11) Supervision of every kind of meat and its sale at a reasonable price is one of the duties of the Prefect, and the hog market is also in his charge, as well as that of other animals, and herds of cattle and flocks of sheep destined for this purpose come under his jurisdiction.
(12) The preservation of public peace and order at exhibitions is held to be one of the duties of the Prefect of the City; and, indeed, he
should station soldiers at different points for the purpose of maintaining the public peace, and to report to him whatever takes place in the city.
(13) The Urban Prefect can compel anyone to remain away from the city, as well as from any of the other districts, and forbid him to transact any business, or practice any profession, or act as advocate, either temporarily or for all time. He can also prohibit him from attending exhibitions, and if he exiles him from Italy, can remove him from his native province as well.
(14) The Divine Severus stated in a Rescript that those who are said to have held unlawful assemblies must be prosecuted before the Prefect of the City.
2. Paulus, On the Duties of the Prefect of the City.
According to an Epistle of the Divine Hadrian he can be applied to in cases brought by bankers or against them, and pecuniary cases can, for the most part, be tried before him.
3. Ulpianus, On the Edict, Book II.
The Prefect of the City has no jurisdiction beyond the limits of the city, but he can appoint judges outside of it.
TITLE XIII. CONCERNING THE OFFICE OF QUÆSTOR.
1. Ulpianus, On the Duties of Quæstor.
The origin of quæstor is very ancient, more so than that of almost any other magistracy. Gracchanus Julius, in the Seventh Book "On Authorities", relates that Romulus himself, and Numa Pompilius had two quæstors not appointed by themselves, but by the votes of the people; but even if doubt exists whether there was any quæstor during the reigns of Romulus and Numa, it is certain that quæstors existed during that of Tullus Hostilius; and, indeed, it is the prevalent opinion of ancient writers that Tullus Hostilius was the first to introduce quæstors into the government of the commonwealth.
(1) Junius, Trebatius, and Fenestella deduced the origin of the word quæstor from quæro (to seek).
(2) Some of the quæstors were accustomed to draw lots for the provinces assigned by the decree of the Senate, which was also done under the consulate of Decimus Drusus and Porcina. All the quæstors, however, did not obtain their provinces by lot, the candidates of the Emperor being excepted, for these were only employed in reading the Imperial Epistles in the Senate.
(3) At present, quæstors are taken indiscriminately from patricians and plebeians; for the place is an entrance to, and, so to speak, the beginning of other offices, and confers the right to state one's opinion in the Senate.
(4) There are some of these, as We have just stated, who are styled the candidates of the Emperor, and who read his Epistles in the Senate.
TITLE XIV. CONCERNING THE OFFICE OF THE PRÆTORS.
1. Ulpianus, On Sabinus, Book XXVI.
A father can manumit before a son who is under his control, if the son is a prætor.
2. Paulus, On Sabinus, Book IV.
It is also settled that he himself can be emancipated or give in adoption in his own tribunal.
3. Ulpianus, On Sabinus, Book XXXVIII.
Barbarus Philippus, a fugitive slave, sought the prætorship of Rome, and was appointed Prætor. Pomponius is of the opinion that his condition as a slave was no obstacle to his holding the office of Prætor. It is true that he performed the duties of that office, still, let us consider the case of a slave having kept his condition secret for a long time, while he discharged his duty as Prætor. Will all that he decided or decreed be of no force or effect? What shall We say? Or will it be valid on account of the welfare of those who instituted proceedings before him either under the law, or by virtue of some other legal right? Indeed, I think that none of these things should be rejected; for this is the more humane view to take, since the Roman people had the power to invest a slave with this authority, and if they had known that he was such they would have granted him his freedom. Much more must this right be considered well founded with respect to the Emperor.
4. The Same, On All Tribunals, Book I.
A Prætor cannot appoint himself a guardian, or a judge in any special proceeding.
CONCERNING THE OFFICE OF PREFECT OF THE NIGHT WATCH.
1. Paulus, On the Duties of the Prefect of the Night Watch. Among the ancients three men were appointed for the purpose of
providing against fire, who, because they kept watch at night, were styled Nocturni. The ædiles and the tribunes of the plebs also sometimes took part; and there were, in addition, a detachment of public slaves stationed around the gate and the walls, whence they could be summoned if necessary. There were also certain bodies of private slaves who extinguished fires, either for pay, or gratuitously. Finally, the Divine Augustus preferred to have this duty performed under his own supervision.
2. Ulpianus, On the Duties of the Prefect of the Night Watch. Because several fires took place during one day.
3. Paulus, On the Duties of the Prefect of the Night Watch.
In fact, Augustus thought that the safety of the Republic could be protected by no one better than by him, and that no one was so equal to the task as the Emperor. Therefore he posted seven cohorts in proper places, in order that each cohort might protect two quarters of the city; these were commanded by tribunes, and above them was a superior officer who was designated the Prefect of the Night Watch.
(1) The Prefect of the Night Watch takes cognizance of incendiaries, burglars, thieves, robbers, and harborers of criminals, unless the culprit is so savage and notorious, that he is turned over to the Prefect of the City. And as, for the most part, fires are caused by the negligence of the inhabitants, he either has those whipped who have been careless in regard to fire, or he remits the whipping, and gives them a severe warning.
(2) Burglaries are generally committed in houses containing many apartments, or in warehouses where men have deposited the most valuable part of their goods; the burglar either breaks open a storeroom, a closet, or a chest, and those who are appointed to guard this property are the ones ordinarily punished. The Divine Antoninus stated this in a Rescript to Erycius Clarus, for he says: "That if his warehouses are broken open, he can put the slaves who were guarding them to torture, even though some of them may belong to the Emperor himself."
(3) It should be noted that the Prefect of the Night Watch must be on guard during the entire night, and should make his rounds properly shod, and provided with hooks and axes.
(4) He must be careful to notify all occupants of houses not to allow any fire to occur through their negligence, and such occupant must be directed to always have water on his upper floor.
(5) He also has supervision over those who, for a compensation, take charge of clothing in the baths; and if while performing this duty they are guilty of any illegal acts he must take cognizance of them.
4. Ulpianus, On the Duties of the Prefect of the City.
The Emperors Severus and Antoninus stated the following in a Rescript to Julius Rufmus, Prefect of the Night Watch: "If the occupants of blocks of houses, or others are negligent with regard to their fires, you can order them to be whipped with rods or scourged; and those who are accused of arson you may send to Our friend Fabius Cilo, Prefect of the City; fugitive slaves you must seek out and restore to their masters."
CONCERNING THE OFFICE OF PROCONSUL, AND HIS DEPUTY.
1. Ulpianus, Controversies, Book I.
The proconsul bears everywhere the insignia of his rank after he leaves the city; but he does not exercise authority except in the province which has been assigned to him.
2. Marcianus, Institutes, Book I.
All proconsuls after having left the city have jurisdiction, provided it is not contentious, but voluntary; for example, the manumissions of children as well as of slaves, and adoptions can take place before them.
(1) No one can manumit, however, before the deputy, for the reason that he has not sufficient jurisdiction.
3. Ulpianus, On Sabinus, Book XXVI.
Nor can adoptions take place before him, as in fact no legal action can be brought in his court.
4. The Same, On the Duties of Proconsul, Book I.
It is necessary for the proconsul also, to be careful not to oppress his province in the entertainment of officials; as our Emperor, as well as his father stated in a Rescript to Aufidius Severianus.
(1) No proconsul can have his own grooms, but in their stead soldiers should perform their duties in the provinces.
(2) It would also be better for the proconsul to travel without his wife, still, he can bring his wife with him; but he must remember that the Senate, during the consulship of Cotta and Mesalla, decreed, "That in the future if the wives of those travelling to take charge of their offices should commit any offence, an accounting will be required of their husbands and punishment will be inflicted upon them".
(3) Before the proconsul passes the boundaries of the province assigned to him, he should publish an edict announcing his arrival, and containing a recommendation of himself, if he has any acquaintance or connection with the people of the province; and by all means request them not to come to meet him either publicly or privately, it being more suitable that each one should receive him in his own country.
(4) He will also act properly and according to the regular order of proceeding, if he sends a notice to his predecessor indicating the day when he will pass the boundaries of his jurisdiction; for frequently when these things are not certainly known or expected, the people of the province are disturbed, and business transactions are impeded.
(5) It is proper when he enters the province for him to do so in that portion where this is customary; and that whatever city he reaches first he should pay attention to what the Greeks call epidh miaV, that is "the place of sojourn", or kataploun "the port of arrival"; for the provincials attach great importance to the preservation and observance of this custom and of privileges of this description. There are some provinces to which the proconsul goes by sea, as, for instance, Asia; and to such an extent was this carried that our Emperor Antoninus Augustus stated in a Rescript, in reply to a request of the Asiatics, "That the proconsul was absolutely required to proceed to Asia by sea, and to land at Ephesus, before touching at any of the other principal cities".
(6) After having made his entry into the province, he should invest his deputy with his jurisdiction, but he should not do this before,
as it would be absurd for him to confer authority on another which he does not yet himself possess; for he is not entitled to the same until he enters the province. If, however, he should do this before, and after having entered the province should not change his mind, it would probably be decided that the deputy has jurisdiction, not from the time when it had been conferred upon him, but from the day when the proconsul entered the province.
5. Papinianus, Questions, Book I.
There are cases in which a proconsul can delegate his jurisdiction, even though he has not yet entered the province; for example, if he had been subjected to some necessary delay during his journey, and his deputy was able to arrive at the province very soon.
6. Ulpianus, On the Duties of Proconsul, Book I.
It is customary for him to commit to his deputies cognizance of the offences of prisoners; so that, after having been interrogated, the deputies can send them back, in order that the proconsuls may discharge those who are innocent. This species of delegated power is, however, extraordinary; for no one can transfer to another the right to impose the penalty of death, or that of inflicting any other punishment, which has been conferred upon himself, or even that of discharging prisoners who cannot be prosecuted before him.
(1) As the proconsul has the right to delegate or not to delegate his judicial authority according to his will, he has also the right to recall it; but he should not do so without consulting the Emperor.
(2) It is not proper for the deputies to consult the Emperor, but they should apply to their own proconsul, and he is compelled to answer their inquiries.
(3) The proconsul should not absolutely refuse to receive presents, but he should act with moderation, so as not rudely to reject them altogether, nor avariciously transcend the bounds of reason in their acceptance; which matter the Divine Severus and the Emperor Antoninus have very properly regulated in an Epistle, the words of which are as follows: "With reference to presents, We are of the opinion stated in an ancient proverb, viz: 'Not all things should be received, nor at all times, nor from all persons'; for, indeed, it is impolite to accept gifts from no one; but, on the other hand it is most despicable, and most avaricious to accept without distinction everything that is given." And as to what is contained in the Imperial Mandates, namely: "That the proconsul himself, or any other person in office shall accept no gift or present, and shall not even purchase anything except for the purpose of daily subsistence"; this has no reference to small gratuities, but to those which exceed the requirements of ordinary support. Nor should such presents be extended to the point of making donations of great value.
7. The Same, On the Duties of the Proconsul, Book II. When the proconsul enters any other city which is not a populous one or the capital of the province, he should permit it to be placed un-
der his protection, and listen to the compliments bestowed upon him without evincing any discontent, since the people of the province do this in his honor; and he should also appoint festivals in accordance with the manners and customs which have previously been observed.
(1) He should visit the temples and public monuments, for the purpose of inspecting them, and ascertaining whether they are in good condition, and properly cared for, or whether they need any repairs, and provide for the completion of such as have been begun, as far as the resources of the government permit; and he should appoint with the proper formalities superintendents who are diligent in their work, and also detail soldiers for the purpose of assisting the superintendents, if this should be necessary.
(2) As the proconsul has complete jurisdiction, all the authority of those who dispense justice at Rome either in the capacity of magistrates or through the grant of extraordinary power, is vested in him.
8. The Same, On the Edict, Book XXXIX.
Therefore the Proconsul has in his own province greater authority than anyone else except the Emperor.
9. The Same, On the Duties of Proconsul, Book I.
Nor can any question arise in his province which he cannot himself dispose of. However, if any matter relating to the affairs of the Treasury arises and which belongs to the jurisdiction of the Imperial Steward, it will be better for him to pass it by.
(1) In cases where a decree is necessary, the Proconsul cannot dispose of the same by means of a notice by the plaintiff, for all things whatsoever which demand judicial investigation cannot be terminated in this way.
(2) The proconsul must hear the advocates with patience and also with discernment, lest he appear contemptible; nor ought he to dissimulate if he ascertains that parties have trumped up cases, or purchased the right to litigation; and he should only suffer those to institute proceedings who are permitted to do so by his Edict.
(3) The Proconsul has power to dispose of the following matters extrajudicially; he can order persons to show proper respect to their parents, and freedmen to their patrons and the children of the latter; he can also threaten and severely menace a son brought before him by his father and who is said not to be living as he should. He can, in like manner, correct an impudent freedman either by reproof or by castigation.
(4) Hence he should be careful to have a certain order prevail in legal procedure, namely, that the petitions of all persons shall be heard; lest it may happen that if the rank of some is favored, or attention is paid to others as are not worthy, those of moderate pretensions who have no one to appear for them, or having employed advocates of small experience or no standing, may not be able to properly present their claims.
(5) He must also appoint advocates for those who request it, and especially for female wards or persons otherwise incapacitated; as well
as for those who are out of their minds, if anyone petitions him to do so for them; and if there is no one to request it, he can grant this at his own instance. He must also appoint an advocate for any person who alleges that he cannot himself find one on account of the influence of his adversary, as it is not just for anyone to be oppressed by the superior power of his adversary; for this, indeed, has a tendency to reflect upon the Governor of the province, where anyone acts with so little self-control that all are afraid to appear as advocates against him.
(6) These rules are applicable to all Governors, and should be observed by them.
10. The Same, on the Duties of Proconsul, Book X.
The proconsul must remember that he ought to perform all his duties until the arrival of his successor, for the reason that there is but one Proconsulate, and the welfare of the province requires that there should always be someone through whom the people may transact their business; he should therefore administer justice until the arrival of his successor.
(1) The Lex Julia Concerning Extortion and the Rescript of the Emperor Hadrian to Calpurnius Rufus, Proconsul of Achaia, forbids Proconsuls to dismiss their deputies previously to their own departure.
11. Venuleius Saturninus, On the Duties of Proconsul, Book II. If there is anything that demands severe punishment, the deputy
should send the case to the Proconsul; for he himself has not the right to execute, to imprison, or to scourge with great severity.
12. Paulus, On the Edict, Book II.
A deputy on whom jurisdiction has been conferred has the right to appoint judges.
13. Pomponius, On Quintus Mucius, Book X.
The deputy of a Proconsul has no jurisdiction of his own where none has been conferred upon him by the Proconsul.
14. Ulpianus, On the Lex Julia et Papia, Book XX. Proconsuls are only entitled to six lictors.
15. Licinius Rufinus, Rules, Book III.
The deputies of Proconsuls can appoint guardians.
16. Ulpianus, On the Edict, Book II.
As soon as the Proconsul enters the gate of Rome, he loses his authority.
TITLE XVII. CONCERNING THE OFFICE OF AUGUSTAL PREFECT.
1. Ulpianus, On the Edict, Book XV.
The Prefect of Egypt does not lay aside his prefectship and the authority granted to him by law under Augustus, as Proconsuls do, be-
fore his successor enters the City of Alexandria; even though he may have already reached the province; and it is so stated in his commission.
TITLE XVIII. CONCERNING THE OFFICE OF GOVERNOR.
1. Macer, On the Duties of Governor, Book I.
The title of Governor is a general one, and hence it is applicable to Proconsuls and Deputies of the Emperor, as well as to all Governors of the provinces, and even to senators. The title of Proconsul is one of special signification.
2. Ulpianus, On Sabinus, Book XXVI.
A Governor can adopt before himself, just as he can emancipate a son, or manumit a slave.
3. Paulus, On Sabinus, Book XIII.
The Governor of a province has authority only over the inhabitants of his province; and this only as long as he remains therein, for if he departs from it, he becomes a private person. He sometimes has jurisdiction over foreigners, when one actually commits an offence; for it is stated in the Imperial Mandates that he who presides over a province must take care to purge it of bad characters, without any distinction as to where they come from.
4. Ulpianus, On the Edict, Book XXXIX.
The Governor of a province has greater authority therein than anyone else except the Emperor.
5. The Same, On All Tribunals, Book I.
The Governor of a province cannot appoint himself either a guardian, or a judge in a particular case.
6. The Same, Opinions, Book I.
The Governor of a province must suppress illegal exactions, including such as are committed with violence, as well as sales and obligations extorted by fear, and those where the money is not paid down. He must also provide against anyone unjustly obtaining profit, or suffering loss.
(1) The truth is not changed by error, and hence the Governor of & province must follow the course which is suitable by taking into consideration facts which have been proved.
(2) It is a matter affecting the honor of the Governor of a province to provide that the more humble shall not be injured by the more powerful, and do not persecute the defenders of the innocent by means of false accusations.
(3) He shall restrain unauthorized parties who, under the pretext of assisting officials, proceed to disturb the people; and take measures
to punish them when detected. He must also prevent illegal exactions from being made under the pretence of collecting tribute.
(4) The Governor of a province must make it his especial care that no one shall be prevented from transacting any lawful business, and that nothing prohibited shall be done, and that no punishment shall be inflicted upon the innocent.
(5) The Governor of a province must see that persons of limited resources are not treated unjustly by having their only lamp or small supply of furniture taken from them for the use of others, under the pretext of the arrival of officers or soldiers.
(6) The Government of a province must provide that no partiality shall be shown to soldiers that is which does not benefit all of them by certain ones claiming undue advantage for themselves.
(7) The event of death should not be imputed to a physician, but it is also a fact that he is responsible for anything caused by his lack of skill; for a wrong committed by a person who gives bad advice in a dangerous emergency should not be imputed to human frailty and be considered blameless.
(8) Those who govern entire provinces have the right to inflict the death penalty, and authority is conferred upon them to condemn delinquents to the mines.
(9) The Governor of a province who, after having imposed a fine, ascertains that it cannot be collected from the property of the parties whom he has directed to pay it, must relieve them from the necessity of payment, and repress the unlawful avarice of those who demand it. Where, on account of poverty a fine has been remitted by the provincial authorities, it should not be exacted.
7. The Same, Opinions, Book III.
The Governor of a province where buildings have been inspected by him, can compel their owners to repair them when sufficient cause for this exists; and where a refusal is made, he should take proper measures for their reparation.
8. Julianus, Digest, Book I.
I have often heard our Emperor say that where it is set forth in a Rescript that: "You can apply to him who presides over the province", this does not place the Proconsul, or his deputy, or the Governor of the province under the obligation of hearing the case; but he should consider whether he ought to hear it himself, or appoint a judge for that purpose.
9. Callistratus, On Judicial Inquiries, Book I,
Generally speaking, whenever the Emperor issues a Rescript referring any matter to the Governor of a province, as for instance, when he says: "You can apply to him who presides over the province," or with this addition, "He will consider what his duty requires", no obligation is imposed upon the Proconsul or his deputy to take cognizance of the case; but even where the words "He will consider what his duty requires" are not added, he must make up his mind whether he will hear it himself or appoint a judge to do so.
10. Hermogenianus, Epitomes of Law, Book II.
It is the duty of the Governors of provinces to hear all cases which either the Prefect of the City, the Prætorian Prefect, or the Consuls, Prætors, or other magistrates hear at Rome.
11. Marcianus, Institutes, Book III.
All provincial applications which are made to various Judges at Rome come within the jurisdiction of Governors.
12. Proculus, Epistles, Book IV.
And although he who governs the province ought to be invested with authority to discharge the duties of all Roman magistrates, still, he should pay attention to what should be done in each case, rather than to what is done at Rome.
13. Ulpianus, On the Office of Proconsul, Book VII.
It is proper for every good and worthy Governor to take care that the province over which he presides is peaceable and quiet. This he will accomplish without difficulty if he exerts himself to expel bad men, and diligently seek for them, as he must apprehend all sacrilegious persons, robbers, kidnappers, and thieves, and punish each one in proportion to his crime; he should also restrain those who harbor them, as without their assistance a robber cannot long remain concealed.
(1) In the case of insane persons who cannot be controlled by their relatives, it is the duty of the Governor to apply a remedy, namely, that of confinement in prison, as the Divine Pius stated in a Rescript. The Divine Brothers were of the opinion that where a man had committed parricide, a personal investigation should be made to learn whether he had perpetrated the deed while simulating insanity, or whether, in fact, he was not in possession of his faculties, for if he was feigning he should be punished, and if he was actually insane, he should be confined in prison.
14. Macer, On Criminal Trials, Book II.
The Divine Marcus and Commodus addressed a Rescript to Scapulas Tertullus in the following terms: "If it is positively ascertained by you that Ælius Perseus is to such a degree insane that, through his constant alienation of mind, he is void of all understanding, and no suspicion exists that he was pretending insanity when he killed his mother, you can disregard the manner of his punishment, since he has already been sufficiently punished by his insanity; still, he should be placed under careful restraint, and, if you think proper, even be placed in chains; as this has reference not so much to his punishment as to his own protection and the safety of his neighbors. If, however, as often happens, he has intervals of sounder mind, you must diligently inquire whether he did not commit the crime during one of these periods, so that no indulgence should be given to his affliction; and, if you find that this is the case, notify Us, that We may determine whether he should be punished in proportion to the enormity of his offence, if he committed it at a time when he seemed to know what he was doing.
"But, when We are informed by your letter that his condition so far as place and treatment are concerned, is that he remains in charge of his friends, or under guard in his own house; it appears to Us that you will act properly if you summon those who had care of him at that time, and investigate the cause of such great neglect, and decide the case of each one of them, so far as you discover anything tending to excuse or increase his negligence; for keepers are appointed for insane persons, not only to prevent them from injuring themselves, but that they may not be a source of destruction to others; and where this takes place, those very properly should be held responsible who are guilty of negligence in the discharge of their duties."
15. Marcianus, On Criminal Trials, Book I.
One thing must be observed, he who governs the province must not pass its boundaries unless for the purpose of fulfilling a vow; and, even then he must not spend a night outside.
16. Macer, On the Office of Governor, Book I.
It is provided by a Decree of the Senate "That judicial proceeding must be very sparingly instituted with reference to obligations contracted by those who govern provinces, their attendants, or their freedmen, before they entered the province; for any actions which are not brought for this reason can be filed afterwards when any of the parties have left the province. But where anything occurs against the will of the party, as for instance if he suffers some injury, or is made the victim of theft, proceedings can be instituted to the extent of joining issue, and ordering the production and deposit of the stolen property; or a promise shall be given with security that the party will appear, or that the article in question will be produced."
17. Celsus, Digest, Book III.
Where the Governor of a province has manumitted anyone, or appointed a guardian before he was aware of the arrival of his successor, these acts shall be valid.
18. Modestinus, Rules, Book V.
It is provided by a plebiscite "That no Governor shall accept a present or a gift, except food or beverages which may be consumed within a few days".
19. Callistratus, On Judicial Inquiries, Book I.
He who administers justice must be careful to be easy of access, but not permit anyone to treat him disrespectfully, for which reason it is stated in their directions: "That the Governors of provinces must not admit provincials to great familiarity with them"; for contempt of rank arises from equality of intercourse.
(1) But, in the trial of cases, it is not proper for an official to become inflamed against those of whom he thinks ill, or be moved to tears by the supplications of the unfortunate; for it is not the part of a resolute and upright judge to let his countenance disclose the emo-
tions of his mind. In a word, he should so administer justice as to increase the authority of his rank by the force of his mental qualities.
20. Papinianus, Opinions, Book I.
The Deputy of the Emperor, that is to say the Governor, or the highest official of a province, does not lose his authority by relinquishing his office.
21. Paulus, On the Office of Assessor.
When the Governor is trying the case of a slave who has been corrupted, or of a female slave who has been debauched, or of a male slave who has been indecently attacked; if the slave who is said to have been corrupted is the business agent of anyone, or occupies such a place that, without considering the injury to property alone, the destruction and the ruin of the master's entire household is involved, he ought to be punished with the greatest severity.
CONCERNING THE OFFICE OF THE IMPERIAL STEWARD OR ACCOUNTANT.
1. Ulpianus, On the Edict, Book XVI.
All acts performed by the Imperial Steward are approved by the Emperor, just as if they had been performed by himself.
(1) If the Imperial Steward disposes of any property which belongs to the Emperor as his own, I do not think that the ownership of the same is transferred; for he only makes a legal transfer while he is conducting the business of the Emperor and delivers it with his consent; for if he performs any act for the purpose of effecting a sale, a gift, or an agreement, it is void; as he has no authority to alienate the Emperor's property, but only to diligently administer it.
(2) It is a special function of the Imperial Steward that, by his order, a slave of the Emperor may enter upon an estate, and if the Emperor is appointed heir, the Procurator, by interfering with a rich estate, makes the Emperor the heir.
2. Paulus, Sentences, Book V.
If, however, the estate to which the Emperor is appointed heir is not solvent, after this has been learned, the Emperor must be consulted; for the wishes of an heir who has been appointed must be ascertained as to whether he will accept or reject an estate of this kind.
3. Callistratus, On Judicial Inquiries, Book VI.
The Imperial Stewards cannot sentence to deportation, for the reason that they have not the right of imposing this penalty.
(1) If, however, they forbid anyone to enter upon the land of the Emperor because his riotous or violent conduct might injure the Imperial tenants, the person is obliged to withdraw; for this the Divine Pius stated in a Rescript to Julius.
(2) Stewards cannot give permission to anyone to return after deportation, and this our Emperors Severus and Antoninus stated in a Rescript in answer to a petition of Hermias.
TITLE XX. CONCERNING THE OFFICE OF JURIDICUS.
1. Ulpianus, On Sabinus, Book XXVI.
Anyone can adopt in the tribunal of the Juridicus,1 because the right of legal action is granted him.
2. The Same, On Sabinus, Book XXXIX.
The privilege of appointing guardians was, by a Constitution of the Divine Marcus conferred upon the Juridicus who presides at Alexandria.
CONCERNING THE OFFICE OF HIM TO WHOM JURISDICTION Is DELEGATED.
1. Papinianus, Questions, Book I.
Whatever authority is specially conferred either by a law, a decree of the Senate, or an Imperial Constitution, is not transferred when delegated, but any powers acquired by the right of magistracy can be delegated. Therefore, those magistrates are in error who, having authority conferred upon them by law or by a decree of the Senate, (such for instance as the Lex Julia de Adulteriis, and others of the same kind) to preside in a criminal trial, delegate their jurisdiction. A very strong argument in favor of this is, that in the Lex Julia de Vi it is expressly provided: "That he to whom the jurisdiction belongs can delegate it if he departs." He can not delegate it unless he is absent, although any other jurisdiction can be delegated by one who is present. Where a master is said to have been killed by his slaves, the Prætor cannot delegate the right to try them, which was conferred upon him by a decree of the Senate.
(1) He to whom jurisdiction has been delegated possesses none peculiar to himself, but must only exercise that of the magistrate who conferred it upon him; for while it is true that by the custom of our ancestors jurisdiction can be transferred, the authority conferred by law cannot be transferred. For this reason no one says that the deputy of a Proconsul has the right of imposing penalties when jurisdiction has been delegated to him. Paulus states that the authority attaching to jurisdiction is also delegated with it.
2. Ulpianus, On All Tribunals, Book III.
Where jurisdiction has been delegated by a Governor, he to whom it is delegated cannot assemble a Council.
1 The Chief Magistrate of the city of Alexandria was designated by this title. ED.
(1) Where guardians or curators desire to sell land, the Prætor or Governor can permit this to be done after hearing the case; but if he delegates his jurisdiction he can, under no circumstances, transfer with it the right to conduct the inquiry instituted for this purpose.
3. Julianus, Digest, Book V.
He who exercises the jurisdiction of another, even if he is a Prætor, still does not do so by his own authority, but every time he acts he administers justice in the place of him by whom he was appointed.
4. Macer, On the Office of Governor, Book I.
Cognizance of the acts of suspected guardians can be delegated, and it is settled that this may occur in the general delegation of jurisdiction, on account of the interest of wards, as follows: "The Emperors Severus and Antoninus to Braduas, Proconsul of Africa. Since you have delegated your jurisdiction to your deputies, it follows that they can take cognizance of the acts of suspected guardians."
(1) Thus power can be delegated to give possession of property, as for instance, when an order is issued to take possession where a bond is not furnished to provide against threatened injury; or for possession in the case of a woman in behalf of her unborn child; or to grant possession to a legatee for the preservation of his legacy.
5. Paulus, On Plautius, Book XVIII.
It is evident that anyone to whom jurisdiction has been delegated cannot delegate the same to another.1
(1) When jurisdiction is delegated to a private individual, it is held that all magisterial power except that of condemning to death is delegated with it; because there is no jurisdiction which does not include the right to inflict moderate punishment.
TITLE XXII. CONCERNING THE OFFICE OF ASSESSORS.
1. Paulus, On the Duties of Assessor.
The entire office of assessor in which those learned in the law discharge their duties, embraces, for the most part, the following cases: Judicial inquiries, motions, statements of causes of action, edicts, decrees, and epistles.
2. Marcianus, On Criminal Trials, Book I.
Freedmen can act as assessors, and although persons who are infamous are not prohibited by law from doing so, still, I am of the opinion that they cannot perform the duties of an assessor; and, indeed, it is said that there is an Imperial Constitution extant upon this subject.
1 "Delegata potestas non potest delegari." ED.
3. Macer, On the Office of Governor, Book I.
Where the same province has been divided between two Governors, as for instance, Germany and Mysia, a man born in either can act as assessor in the other and is not considered as acting in his own province.
4. Papinianus, Opinions, Book IV.
When an Imperial deputy dies, his attendants have a right to their salaries for the balance of the time for which they were appointed by the deputy; provided they do not act as the attendants of others during that time. The case is different where the deputy retired in favor of a successor before his term of office had expired.
5. Paulus, Sentences, Book I.
Assessors are, under no circumstances, permitted to transact business before a tribunal where they are councillors; but they are not forbidden to do so before another tribunal.
6. Papinianus, Opinions, Book I.
A citizen of the Republic is not prohibited from acting as assessor in the court of a public official of his own town, because he does not receive a public salary.1
1 Assessors, of whom there was usually but one attached to each tribunal, were associated with the magistrates. They were, for the most part, men learned in the law, who, upon occasion, could give valuable advice; students, however, were often appointed to the position, which afforded unparalleled opportunities for the acquisition of legal information and experience. The assessor also performed much clerical work, as, for instance, the drawing up of various instruments such as notices and decrees. While he was, to a certain extent, a public official, he was, nevertheless, invested with no judicial authority, as the signature of the magistrate to all documents, issued by his court was, in every case, required.
Before the time of the Empire every magistrate had the right to select his own assessors; after that, however, they were appointed by the highest authority of the State, and their term of office did not expire with that of the judge in whose tribunal they sat as advisors, which was the case for centuries after their original institution. The magistrate was not compelled to adopt their opinions, but in consideration of the usually high reputation they enjoyed as jurists, and their extensive knowledge, it may be presumed that their conclusions were rarely disregarded. ED.