Justinian

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Contents  

Introduction

Justice and Law

The Law of Nature, the Law of Nations, and Civil Law

The Law of Persons

Men Free Born

Freedmen

Repeal of the Lex Fufia Caninia

Paternal Power

Marriage

T he Different Kinds of Things

Soldiers Wills

Obligations Arising from Delict

Robbery

Injuries

Public Prosecutions

Source

   

Introduction

Justinian (483-565 CE), whose Roman name was Flavius Anicius Iustinianus, was probably born of Slavic parents in Illyricum, which stretched along the shores of the Adriatic from Italy to Macedonia. He  received his education in Constantinople and took his Roman name from his uncle, Justin I, whom he guided in policy matters when Justin became Emperor of the Eastern Roman Empire in 518. Justinian married a native of Constantinople called Theodora, which required repeal of a Roman law that forbade marriages between actresses and senators. On the death of Justin I, Justinian succeeded him as Emperor, being at that time about 44 years old; Theodora was in her early twenties.  They reigned as co-emperors, with Theodora entitled to exercise all imperial prerogatives. She is credited with saving his imperial rule when her courage and determination prevented his flight from Constantinople during the Nika insurrection.

 Justinian reigned at Constantinople from 527 until his death. He recognized that Roman law was in a state of confusion—the no-actresses-for-senators law was a minor problem compared with the obfuscations and contradictions among old laws passed in the republic and early empire, subsequent decrees of the senate, and the writings of jurists who had been given the right to declare what was the law. Justinian therefore commissioned a group of distinguished scholars to come up with an imperial constitution free of contradictions. Following the success of this, he authorized a new commission to bring order into the rest of Roman law, publishing their results in 533. The president of the commission, Tribonian, recognized that an outline of the laws was required whereby future lawyers could learn their first lessons, no longer from ancient fables but from the new vantage point of codified legal learning.  The result was the Institutes of Justinan, extracts from which follow. This summary of Roman law in the sixth century provides an insight into the type of humanistic principles that had established themselves in Roman society at this late period of the empire.

Noteworthy are the sentiments to live honestly, to injure no one, and to give every man his due; the definition of things common to all—such as air, running water, the sea, the sea shore; and special consideration given to soldiers, because of their extreme ignorance of law. In the extracts that follow, the original paragraph numbers in the Institutes are shown at the end of each paragraph.

 

 

Justice and Law

Justice is the set and constant purpose which gives to every man his due. Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust.

The precepts of the law are these: to live honestly, to injure no one, and to give every man his due. 3

The study of law consists of two branches: law public, and law private. The former relates to the welfare of the Roman State; the latter to the advantage of the individual citizen. Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome. 4   Title I, Book I

   

2  The Law of Nature, the Law of Nations, and Civil Law

  The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. Hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished.

 The civil law of Rome, and the law of all nations, differ from each other thus. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations. Thus the laws of the Roman people are partly peculiar to itself, partly common to all nations; a distinction of which we shall take notice as occasion offers.  1

. . . the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free. The law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consump­tion, and very many others.  2

Our law is partly written, partly unwritten, as among the Greeks. The written law consists of statutes, plebiscites, senatus consults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law.  3

The unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute.  9

But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.   11   Title II, Book I

   

3 The Law of Persons

In the law of persons, then, the first division is into free men and slaves.

Freedom, from which men are called free, is a man’s natural power of doing what he pleases, so far as he is not prevented by force or law.  1

Slavery is an institution of the law of nations, against nature, subjecting one man to the dominion of another.  2

The name ‘slave ‘ is derived from the practice of generals to order the preservation and sale of captives, instead of killing them; hence they are also called mancipia, because they are taken from the enemy by the strong hand.  3

Slaves are either born so, their mothers being slaves themselves, or they become so; and this either by the law of nations, that is to say by capture in war, or by the civil law, as when a free man, over twenty years of age, collusively allows himself to be sold in order that he may share the purchase money.  4  Title III, Book I

   

4  Men Free Born

A freeborn man is one free from his birth, being the off­spring of parents united in wedlock, whether both be free born or both made free, or one made free and the other free born. He is also free born if his mother be free even though his father be a slave, and so also is he whose paternity is uncertain. being the offspring of promiscuous intercourse, but whose mother is free. It is enough if the mother be free at the moment of  birth, though a slave at that of conception: and conversely if she be free at the time of conception, and then becomes a slave before the birth of the child, the latter is held to be free born, on the ground that an unborn child ought not to be prejudiced by the mother’s misfortune. Hence arose the question whether the child of a woman is born free, or a slave, who, while pregnant, is manumitted, and then becomes a slave again before delivery. Marcellus thinks he is born free, for it is enough if the mother of an unborn infant is free at any moment between conception and delivery: and this view is right.  Title IV, Book I

 

5  Freedmen

Those are freedmen, or made free, who have been manumitted from legal slavery.

Manumission may take place in various ways; either in the holy church, according to the sacred constitutions, or by default in a fictitious vindication, or before friends, or by letter, or by testament or any other expression of a man’s last will: and indeed there are many other modes in which freedom may be acquired, introduced by the constitutions of earlier emperors as well as by our own.  1

It is usual for slaves to be manumitted by their masters at any time, even when the magistrate is merely passing by, as for instance while the praetor or proconsul or governor of a province is going to the baths or the theater.  2  Title V, Book I

   

6  Repeal of the Lex Fufia Caninia

Moreover, by the Lex Fufia Caninia a limit was placed on the number of slaves who could be manumitted by their master’s testament: but this law we have thought fit to repeal, as an obstacle to freedom and to some extent invidious, for it was certainly inhuman to take away from a man on his deathbed the right of liberating the whole of his slaves, which he could have exercised at any moment during his lifetime, unless there were some other obstacle to the act of manumission.  Title VII, Book I

   

7  Paternal Power

Our children whom we have begotten in lawful wedlock are in our power.

Wedlock or matrimony is the union of male and female, involving the habitual intercourse of daily life. 1

The power which we have over our children is peculiar to Roman citizens, and is found in no other nation. 2

The offspring then of you and your wife is in your power, and so too is that of your son and his wife, that is to say, your grandson and granddaughter, and so on. But the offspring of your daughter is not in your power, but in that of its own father. 3   Title IX, Book I

   

8  Marriage

Roman citizens are joined together in lawful wedlock when they are united according to law, the man having reached years of puberty, and the woman being of a marriageable age, whether they be independent or dependent: provided that, in the latter case, they must have the consent of the parents in whose power they respectively are, the necessity of which, and even of its being given before the marriage takes place, is recognized no less by natural reason than by law. Hence the question has arisen, can the daughter or son of a lunatic lawfully contract marriage? And as the doubt still remained with regard to the son, we decided that, like the daughter, the son of a lunatic might marry even without the intervention of his father, according to the mode prescribed by our constitution.

  It is not every woman that can be taken to wife: for marriage with certain classes of persons is forbidden. Thus, persons related as ascendant and descendant are incapable of lawfully intermarrying; for instance, father and daughter, grandfather and granddaughter, mother and son, grandmother and grand­son, and so on ad infinitum; and the union of such persons is called criminal and incestuous. And so absolute is the rule, that persons related as ascendant and descendant merely by adoption are so utterly prohibited from intermarriage that dissolution of the adoption does not dissolve the prohibition: so that an adoptive daughter or granddaughter cannot be taken to wife even after emancipation.  1

 Collateral relations also are subject to similar prohibitions, but not so stringent.  2  Title X, Book I

 

9 The Different Kinds of Things

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

Thus, the following things are by natural law common to all—the air, running water, the sea, and consequently the sea shore. No one therefore is forbidden access to the sea­shore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations.  1

On the other hand, all rivers and harbors are public, so that all persons have a right to fish therein.  2

The sea shore extends to the limit of the highest tide in time of storm or winter.  3

Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting place for the cargo, as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it.  4

Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. So far as the occupant’s title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man’s land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose.  12

Fowls and geese are not naturally wild, as is shown by the fact that there are some kinds of fowls and geese which we call wild kinds. Hence if your geese or fowls are frightened and fly away, they are considered to continue yours wherever they may be, even though you have lost sight of them; and any one who keeps them intending thereby to make a profit is held guilty of theft.  16

When a man makes a new object out of materials belonging to another, the question usually arises, to which of them, by natural reason, does this new object belong—to the man who made it, or to the owner of the materials? For instance, one man may make wine, or oil, or corn, out of another man’s grapes, olives, or sheaves; or a vessel out of his gold, silver, or bronze; or mead of his wine and honey; or a plaster or eye salve out of his drugs; or cloth out of his wool; or a ship, a chest, or a chair out of his timber. After many controversies between the Siabinians and Proculians, the law has now been settled as follows, in accordance with the view of those who followed a middle course between the opinions of the two schools. If the new object can be reduced to the materials of which it was made, it belongs to the owner of the materials; if not, it belongs to the person who made it. A vessel can be melted down, and so reduced to the rude material—bronze, silver, or gold—of which it is made: but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey of which it was compounded.  25

Writing again, even though it be in letters of gold, becomes a part of the paper or parchment, exactly as buildings and sown crops become part of the soil. Consequently if Titius writes a poem, or a history, or a speech on your paper or parchment, the whole will be held to belong to you, and not to Titius. But if you sue Titius to recover your books or parchments, and refuse to pay the value of the writing, he will be able to defend himself by the plea of fraud, provided that he obtained possession of the paper or parch­ment in good faith.  33

Where, on the other hand, one man paints a picture on another’s board, some think that the board belongs, by accession, to the painter, others, that the painting, however great its excellence, becomes part of the board. The former appears to us the better opinion, for it is absurd that a painting by Apelles or Parrhasius should be an accessory of a board which, in itself, is thoroughly worthless. 34  Title I, Book II

 

10  Soldiers Wills

Soldiers, in consideration of their extreme ignorance of law, have been exempted by imperial constitutions from the strict rules for the execution of a testament which have been described. Neither the legal number of witnesses, nor the observance of the other rules which have been stated, is necessary to give force to their wills, provided, that is to say, that they are made by them while on actual service.  Title XI, Book III

                    

11  Obligations Arising from Delict

Having treated in the preceding Book of contractual and quasi-contractual obligations, it remains to inquire into obligations arising from delict [an offense against the law]. The former, as we remarked in the proper place, are divided into four kinds; but of these latter there is but one kind, for, like obligations arising from real contracts, they all originate in some act, that is to say, in the delict itself, such as a theft, a robbery, wrongful damage, or an injury.

Theft is a fraudulent dealing with property, either in itself, or in its use, or in its possession: an offense which is prohibited by natural law.  1

There are two kinds of theft, theft detected in the commission, and simple theft. The possession of stolen goods discovered upon search and the introduction of stolen goods are not (as will appear below) so much specific kinds of theft as actionable circumstances connected with theft. . .  3

What is simple theft is clear from what has been said: that is to say, it is all theft which is not detected in the commission.

The offense of discovery of stolen goods occurs when a person’s premises are searched in the presence of witnesses and the stolen property is found thereon; this makes him liable, even though innocent of theft, to a special action for receiving stolen goods. To introduce stolen goods is to pass them off to a man, on whose premises they are discovered, provided this be done with the intent that they shall be discovered on his premises rather than on those of the introducer. The man on whose premises they are found may sue the latter, though innocent of theft, in an action for the introduction of stolen goods.  4

The penalty for theft detected in the commission is four times the value, and for simple theft twice the value, of the property stolen, whether the thief be a slave or a free person.   5

Theft is not confined to carrying away the property of another with intent of appropriation, but comprises also all corporeal dealing with the property of another against the will of the owner. Thus, for the pawnbroker to use the thing which he has in pawn, or to use a thing committed to one’s keeping as a deposit, or to put a thing which is lent for use to a different use than that for which it was lent, is theft; to borrow plate, for instance, on the representation that the borrower is going to entertain his friends, and then to carry it away into the country: or to borrow a horse for a drive, and then to take it out of the neighborhood, or like the man in the old story, to take it into battle.  6

Theft may be chargeable on a person who is not the perpetrator; on him, namely, by whose aid and abetment a theft is committed. Among such persons we may mention the man who knocks money out of your hand for another to pick up, or who stands in your way that another may snatch something from you, or scatters your sheep or your oxen, that another may steal them, like the man in the old books, who waved a red cloth to frighten a herd. . .  11  Title I, Book IV

   

12  Robbery

  Robbery is chargeable also as theft; for who deals with the property of another more against that other’s will than the robber? And thus the description of the robber as an audacious thief is a good one. However, as a special remedy for this offense the praetor has introduced the action for robbery, or plundering with violence, which may be brought within a year for four times the value, after a year for simple damages, and which lies even when only a single thing of the slightest value has been taken with violence.

  This action is maintainable only where the robbery is attended  with wrongful intention; consequently, if a man by mistake thought that property was his own, and, in his ignorance of law, forcibly carried it off in the belief that it was lawful for an owner to take away, even by force, a thing belonging to himself from a person in whose possession it was, he cannot be held liable to this action; and similarly on principle he would not in such a case be sueable for theft. Lest, however, robbers, under the cloak of such a plea, should discover a method of gratifying a grasping habit with impunity, the law has been amended upon this point by imperial constitutions, by which it is enacted that it shall not be lawful for any one to forcibly carry off movable property, inanimate or animate, even though he believe it to belong to him; and that whosoever disobeys this shall forfeit the property, if, in fact, it be his, and if it be not, shall restore it, and along with it its value in money. 1  Title II, Book IV

   

13 Injuries

By injury, in a general sense, is meant anything which is done without any right. Besides this, it has three special significations; for sometimes it is used to express outrage, the proper word for which is contumely. . .some­times it means culpable negligence, as where damage is said to be done (as in the Lex Aquilia) ‘with injury’ . . . and sometimes iniquity and injustice

An injury or outrage is inflicted not only by striking with the fist, a stick, or a whip, but also by vituperation for the purpose of collecting a crowd, or by taking possession of a man’s effects on the ground that he was in one’s debt; or by writing, composing, or publishing defamatory prose or verse, or contriving the doing of any of these things by some one else; or by constantly following a matron, or a young boy or girl below the age of puberty, or attempting anybody’s chastity; and, in  a word, by innumerable other acts.  1

An outrage or injury may be suffered either in one’s own person, or in the person of a child in one’s power, or even, as now is generally allowed, in that of one’s wife. Accordingly, if you commit an ‘outrage’ on a woman who is married to Titius, you can be sued not only in her own name, but also in those of her father, if she be in his power, and of her husband. But if, conversely, it be the husband who is outraged, the wife cannot sue; for wives should be protected by their husbands, not husbands by their wives.  2

The praetors, however, subsequently allowed the person outraged to put his own estimate on the wrong, the judge having a discretion to condemn the defendant either in the sum so named by the plaintiff, or in a less amount. . .. the pecuniary compensation awarded for an outrage rises and falls in amount according to the rank and character of the plaintiff. . .  7

An outrage becomes ‘aggravated’ either from the atrocious character of the act, as where a man is wounded or beaten with clubs by another; or from the place where it is committed, for instance, in the theater or forum, or in full sight of the praetor; or from the rank of the person outraged,—if it be a magistrate, for instance, or if a senator be outraged by a person of low condition, or a parent by his child, or a patron by his freedman; for such an injury done to a senator, a parent, or a patron has a higher pecuniary compensation awarded for it than one done to a mere stranger, or to a person of low condition. Sometimes too the position of the wound makes an outrage aggravated, as where a man is struck in the eye.  9  Title IV, Book IV

 

14  Public Prosecutions

Public prosecutions are not commenced as actions are, nor indeed is there any resemblance between them and the other remedies of which we have spoken; on the contrary, they differ greatly both in the mode in which they are commenced, and in the rules by which they are conducted.

They are called public because as a general rule any citizen may come forward as prosecutor in them.  1

Some are capital, others not. By capital prosecutions we mean those in which the accused may be punished with the most extreme severity of the law, with interdiction from water and fire, with deportation, or with hard labor in the mines: those which entail only infamy and pecuniary penalties are public, but not capital.  2

The following statutes relate to public prosecutions. First, there is the Lex Iulia on treason, which includes any design against the Emperor or State; the penalty under it is death, and even after decease the guilty person’s name and memory are branded with infamy.  3

The Lex Iulia, passed for the repression of adultery, punishes with death not only defilers of the marriage bed, but also those who indulge in criminal intercourse with those of their own sex, and inflicts penalties on any who without using violence seduce virgins or widows of respectable character. If the seducer be of reputable condition, the punishment is confiscation of half his fortune; if a mean person, flogging and relegation.  4

The Lex Cornelia on assassination pursues those persons, who commit this crime, with the sword of vengeance, and also all who carry weapons for the purpose of homicide. By a ‘weapon’, as is remarked by Gaius in his commentary on the statute of the Twelve Tables, is ordinarily meant some missile shot from a bow, but it also signifies anything thrown with the hand; so that stones and pieces of wood or iron are included in the term. . . . This statute also inflicts punishment of death on poisoners, who kill men by their hateful arts of poison and magic, or who publicly sell deadly drugs.  5

A novel penalty has been devised for a most odious crime by another statute, called the Lex Pompeia on parricide, which provides that any person who by secret machination or open act shall hasten the death of his parent, or child, or other relation whose murder amounts in law to parricide, or who shall be an instigator or accomplice of such crime, although a stranger, shall suffer the penalty of parricide. This is not execution by the sword or by fire, or any ordinary form of punishment, but the criminal is sewn up in a sack with a dog, a cock, a viper, and an ape, and in this dismal prison is thrown into the sea or a river, according to the nature of the locality, in order that even before death he may begin to be deprived of the enjoyment of the elements, the air being denied him while alive, and interment in the earth when dead. Those who kill persons related to them by kinship or affinity, but whose murder is not parricide, will suffer the penalties of the Lex Cornelia on assassination.  6

The Lex Cornelia on forgery, otherwise called the statute of wills, inflicts penalties on all who shall write, seal, or read a forged will or other document, or shall substitute the same for the real original, or who shall knowingly and feloniously make, engrave, or use a false seal. If the criminal be a slave, the penalty fixed by the statute is death, as in the statute relating to assassins and poisoners: if a free man, deportation.  7

The Lex Iulia, relating to public or private violence, deals with those persons who use force armed or unarmed. For the former, the penalty fixed by the statute is deportation; for the latter, confiscation of one third of the offender’s property. Ravishment of virgins, widows, persons professed in religion, or others, and all assistance in its perpetration, is punished capitally under the provisions of our constitution, by reference to which full information on this subject is obtainable.  8

The Lex Iulia on embezzlement punishes all who steal money or other property belonging to the State, or devoted to the maintenance of religion. Judges who during their term of office embezzle public money are punishable with death, as also are their aiders and abettors, and any who receive such money knowing it to have been stolen. Other persons who violate the provisions of this statute are liable to deportation.  9

Other statutes which give rise to such prosecutions are the Lex Iulia on bribery, and three others, which are similarly entitled, and which relate to judicial extortion, to illegal activities for raising the price of corn, and to negligence in the charge of public moneys. These deal with special varieties of crime, and the penalties which they inflict on those who infringe them in no case amount to death, but are less severe in character.  11  Title XVIII, Book IV

              

Source

 Adapted from The Institutes of Justinian, translated by J.B. Moyle. Fifth Edition, Clarendon Press, Oxford, England, 1913.

Selection and adaptation Copyright © Rex Pay 2000