OF THE INSTITUTES OR ELEMENTS OF OUR LORD THE MOST HOLY
IN THE NAME OF OUR LORD JESUS CHRIST.
The Emperor Cæsar, Flavius, Justinianus, Alemannicus, Gothicus,
Francicus, Germanicus, Anticus, Alanicus, Vandalicus, Africanus, Pious, Happy,
Renowned, Victor and Triumpher, ever Augustus, to the Youth desirous of
learning the laws.
It is expedient that the Imperial Majesty not only be distinguished by
arms, but also be protected by laws, so that government may be justly
administered in time of both war and peace, and the Roman Sovereign not only
may emerge victorious from battle with the enemy, but also by legitimate
measures may defeat the evil designs of wicked men and appear as strict in the
administration of justice as triumphant over conquered foes.
(1) This twofold task We have now accomplished, by means of the greatest
attention and care, and with the assistance of God. For barbarous nations,
subjected to Our authority, acknowledge Our warlike exploits, and Africa, as
well as other numerous provinces after so long a period of time have submitted
to the Roman domination, and have again become a portion of Our Empire by means
of Our conquests through the aid of Celestial Power, and all peoples in fact,
are now governed by laws either promulgated or compiled by Us.
(2) After having brought into perfect harmony the Imperial Constitutions
hitherto involved in confusion, We have directed Our attention to the immense
volumes of ancient jurisprudence, and have finally accomplished this most
difficult task, proceeding, as it were, through the depths of the ocean, and
aided by the favor of heaven.
(3) This having been concluded through the Grace of God, We summoned the
illustrious Tribonian, Master and former Quæstor of Our Sacred Palace,
along with Theophilus and Dorotheus, eminent men and professors, (whose skill,
familiarity with the laws, and fidelity in obeying Our orders We have proved on
many occasions) and especially directed them to draw up Institutes by Our
authority, and with Our advice, that you may be able to learn the first
principles of the law, not from ancient fables, but acquire them from the
Imperial Splendor; so that your ears as well as your minds may absorb nothing
that is useless or incorrect, but whatever is in accordance with reason in all
things. And while, in former times, it was scarcely possible for those who
preceded you to read the Imperial Constitutions in the course of four years,
you may, now, from the very beginning, proceed to do so; being found worthy of
such honor and happiness that both the beginning and the end of your
instruction in the laws issue from the mouth of your Sovereign.
(4) Therefore, after the completion of the fifty books of the Digest or
Pandects, in which all the ancient law has been collected, and which We have
caused to be compiled by the said distinguished personage Tribonian and other
eminent and most illustrious men, We have ordered these Institutes to be
divided into the following four books, that they may constitute the first
elements of the entire science of jurisprudence.
(5) In them a brief explanation has been made both of the principles
which formerly obtained, as well as of those which, after having been obscured
by disuse, have been illuminated once more by Imperial restoration.
(6) These Institutes collected from all those of the ancients and
especially from the Commentaries of Our Gaius, embracing not only what is
contained in his Institutes but also those of his work relating to daily
transactions and compiled from those of many others, the three learned men
aforesaid submitted to Us, and, after having read and examined them, We have
accorded to them the full authority of Our Constitutions.
(7) Accept, therefore, with the greatest ardor and alacrity, these Our
laws, and prove yourselves so well informed in them that, when your course of
law has been completed, the fairest hope may inspire you of being competent to
govern Our dominions in whatever parts of the same the administration may be
entrusted to you.
Given at Constantinople, on the eleventh day of the Kalends of
December, during the third Consulship of Our Lord Justinian, ever Augustus.
THE INSTITUTES OF OUR LORD JUSTINIAN.
CONCERNING JUSTICE AND LAW.
Justice is the constant and perpetual desire to give to each one that to
which he is entitled.
(1) Jurisprudence is the knowledge of matters divine and human, and the
comprehension of what is just and what is unjust.
(2) These divisions being generally understood, and We being about to
explain the laws of the Roman people, it appears that this may be most
conveniently done if separate subjects are at first treated in a clear and
simple manner, and afterwards with greater care and exactness; for if We, at
once, in the beginning, load the still uncultivated and inexperienced mind of
the student with a multitude and variety of details, We shall bring about one
of two things; that is, We shall either cause him to abandon his studies, or,
by means of excessive labor — and also with that distrust which very
frequently discourages young men — conduct him to that point to which, if
led by an easier route, he might have been brought more speedily without much
exertion and without misgiving.
(3) The following are the precepts of the Law: to live honestly, not to
injure another, and to give to each one that which belongs to him.
(4) There are two branches of this study, namely: public and private.
Public Law is that which concerns the administration of the Roman government;
Private Law relates to the interests of individuals. Thus Private Law is said
to be threefold in its nature, for it is composed of precepts of Natural Law,
of those of the Law of Nations, and of those of the Civil Law.
CONCERNING NATURAL LAW, THE LAW OF NATIONS, AND THE CIVIL LAW.
Natural Law is that which nature has taught to all animals, for this law
is not peculiar to the human race, but applies to all creatures which originate
in the air, or the earth, and in the sea. Hence arises the union of the male
and the female which we designate marriage; and hence are derived the
procreation and the education of children; for we see that other animals also
act as though endowed with knowledge of this law.
(1) The Civil Law and the Law of Nations are divided as follows. All
peoples that are governed by laws and customs make use of the law which is
partly peculiar to themselves and partly pertaining to all men; for what each
people has established for itself is peculiar to that State, and is styled the
Civil Law; being, as it were, the especial law of that individual commonwealth.
But the law which natural reason has established among all mankind and which is
equally observed among all peoples, is called the Law of Nations, as being that
which all nations make use of. The Roman people also employ a law which is in
part peculiar to them, and in part common to all men. We propose to set forth
their distinctions in their proper places.
(2) The Civil Law derives its name from each state, as, for example,
that of the Athenians; for if anyone wishes to designate the laws of Solon or
of Draco as the Civil Law of Athens, he will not commit an error; for in this
manner We call the law which the Roman people use the Civil Law of the Romans,
or the Jus Quiritium employed by Roman citizens, as the Romans are
styled Quirites from Quirinus. When, however, We do not add the name of
the state, We mean Our own law; just as when We mention the poet but do
not give his name, the illustrious Homer is understood among the Greeks, and
Virgil among us.
The Law of Nations, however, Is common to the entire human race, for all
nations have established for themselves certain regulations exacted by custom
and human necessity. For wars have arisen, and captivity and slavery, which are
contrary to natural law, have followed as a result, as, according to Natural
Law, all men were originally born free; and from this law nearly all contracts,
such as purchase, sale, hire, partnership, deposit, loan, and innumerable
others have been derived.
(3) Our Law, which We make use of, is either written or unwritten, just
as among the Greeks, written and unwritten laws exist. The written law consists
of the Statutes, the Plebiscita, the Decrees of the Senate, the
Decisions of the Emperors, the Orders of the Magistrates and the Answers of
(4) A Statute is what the Roman people have established as the result of
an interrogatory of a senatorial magistrate, for example, a consul. The
Plebiscitum is what the plebeians have established upon the
interrogatory of a plebeian magistrate, for instance, a tribune. Plebeians
differ from the people as a species does from a genus; for all citizens,
including even patricians, and senators, are understood by the word people, and
by the term plebeians all other citizens, exclusive of patricians and senators,
are designated. Plebiscita have had the same force as statutes since the
passage of the Lex Hortensia.
(5) A Decree of the Senate is what the Senate orders and establishes,
for since the Roman people have increased in numbers to such an extent that it
is difficult for them to be convoked in an assembly for the purpose of adopting
a law, it has seemed advisable for the Senate to be consulted instead of the
(6) Whatever is approved by the sovereign has also the force of law,
because by the Lex Regia, from whence his power is derived, the people
have delegated to him all their jurisdiction and authority. Therefore, whatever
the Emperor establishes by means of a Rescript or decrees as a magistrate, or
commands by an Edict, stands as law, and these are called Constitutions. Some
of these are personal and are not considered as precedents, because the
sovereign does not wish them to be such; for any favor he grants on account of
merit, or where he inflicts punishment upon anyone or affords him unusual
assistance, this affects only the individual concerned; the others, however, as
they are of general application unquestionably are binding upon all.
(7) The Edicts of the Prætors also possess more than ordinary
authority, and we are accustomed to designate them "honorary" laws, because
they derive their force from those who are invested with honors, that is to say
magistrates. The Curule Ædiles, likewise, formerly published edicts
relative to certain matters which also constitute part of the honorary law.
(8) The Answers of Jurisconsults are the decisions and opinions of
persons upon whom has been conferred authority to establish laws; for it was
decided in ancient times that the laws should be publicly interpreted by those
to whom the right to answer had been granted by the Emperor, and who were
called jurisconsults, and the unanimous decisions and opinions of the latter
had such force that, according to the Constitutions, a judge was not permitted
to deviate from what they had determined.
(9) The unwritten law is that which usage has confirmed, for customs
long observed and sanctioned by the consent of those who employ them, resemble
(10) Not improperly does the Civil Law appear to have been divided into
two branches; since in its origin it seems to have been derived from the
institutions of two states, namely, Athens, and Lacedæmon; for in these
states it was the practice for the Lacedæmonians to commit to memory the
rules which served them as laws, and the Athenians, on the other hand, observed
whatever legal regulations which they had reduced to writing.
(11) Natural Laws that are observed without distinction by all nations
and have been established by Divine Providence remain always fixed and
unchangeable; but those which every State establishes for itself are often
changed either by the tacit consent of the people, or by some other law
(12) Every law of which We make use has reference either to persons, to
things, or to actions. We shall first treat of persons, for there is little
advantage in being familiar with the law if the persons on account of whom it
was adopted are unknown.1
1 Roman legislation begins with the Leges Regiæ,
the enactments passed by the Comitia, or assemblies of the people,
with the sanction of the sovereign, or rather by his direction, for his
influence and authority long were paramount. The Leges Regiæ were
generally of a religious or social character, and some of them, if not all, can
lay claim to a much higher antiquity than the Twelve Tables. They
TITLE III. CONCERNING THE RIGHTS OF PERSONS.
The principal division of the law of persons is this, that all men are
either free or slaves.
(1) Freedom (from which is derived the designation free) is the natural
right enjoyed by each one to do as he pleases, unless prevented by force or by
(2) Slavery is a provision of the Law of Nations by means of which one
person is subjected to the authority of another, contrary to nature.
(3) Slaves are so called because generals order captives to be sold, and
in this way to be preserved instead of being put to death; and they
dealt rather with moral duties and the ceremonial of pagan worship than
with secular regulations, and bear convincing evidence of sacerdotal origin,
which is especially apparent in those attributed to Numa Pompilius. These rules
were compiled during the infancy of the Republic by Papirius, a member of the
College of Pontiffs.
During the early days of Rome, all judicial and sacerdotal authority
— civil, criminal, and religious — was vested in the Chief of the
State, in this instance, in the King. We have, of course, no authentic record
giving details of the legal foundation and original polity of the greatest city
of the ancient world; and the legendary history of those distant times is so
involved in obscurity that it is now impossible to discriminate between even
probability and mere tradition, or between the true and the fabulous. With the
few reliable data at our command, however, and judging from analogy, there can
be no question of the summary jurisdiction enjoyed by the first Roman Kings in
all matters affecting the welfare of the people, who were presumed to have
delegated their authority to them.
The rights and obligations of the various orders of the State were
defined as follows during the reign of Romulus. "Ac regi quidem haecce
attribuit iura: primum ut sacrorum et sacrificiorum haberet principatum, tum ut
legum morumque patriorum esset custos, de guauioribus delictis ipse
cognosceret, leuiora senatoribus committeret, senatum cogeret et populum
conuocaret, et in bello summum haberet imperium.
"Consilio senatus hanc potestatem dedit, ut deliberaret et suffragium
ferret de qualibet re, quam rex ad eum retulisset.
"Populo uero haec tria concessit, magistratus creare et leges sancire
et de bello decernere, quando rex rogationem ad eum tulisset. Suffragia autem
ferebat non simul totus populus, sed curiatim conuocatus." (Fontes Juris Romani
Antejustinlani, Leges Regiæ, Page 7.)
Religious dogmas, at all times, played a most important role in the
formation of Roman jurisprudence. Some of the principles and rules derived from
this source persisted even until the closing days of the Empire. The College of
Pontiffs, whose province, in the beginning, embraced only questions connected
with sacred subjects, became subsequently the custodian of secular laws. The
absolute separation of what is now known as Church and State was never
effected. The authority of both was centered in the Emperor, who was invested
with the dignity of Pontifex Maximus. The religious element of the Roman
Constitution was always powerful, not infrequently predominant, during the
existence of the Republic. The Twelve Tables, the first statutory enactments
adopted by the Romans, contained many precepts enjoining observances of a
strictly religious nature, some of which, in a fragmentary but legible
condition, have come down to us. This potent sacerdotal influence can be traced
through all subsequent legislation; was recognized by the most renowned
sovereigns, sometimes with sincere reverence, but in general as a matter of
state policy; and appears in many of the laws of Justinian. It had no little
effect in founding and promoting the irresponsible, arrogant, and far reaching
domination of the Popes, the legitimate successors of the Cæsars. —
are also called mancipia, for the reason that they are taken from
the enemy by the hand.
(4) Moreover, slaves are either born or become such. They are born such
when they owe their origin to our female slaves, and they become such by the
Law of Nations through captivity, or in accordance with the Civil Law; as where
a man who is free and over twenty years of age permits himself to be sold in
order to obtain a portion of the price.
(5) No difference exists in the condition of slaves, but among freemen
there are several distinctions for they are either born free, or
TITLE IV. CONCERNING FREEBORN PERSONS.
A freeborn person is one who is free from the instant of his birth,
whether he be the issue of a marriage between two freeborn persons, or that of
two persons who have been liberated from slavery, or that of a person who has
been liberated and one who was born free. Moreover, anyone who is born of a
free mother and whose father is a slave is, nevertheless, born a freeman; just
as he who is born of a free mother and an unknown father, because he was
conceived in promiscuous intercourse. It is also sufficient if his mother was
free when he was born, although she may have been a slave at the time of
conception. And, on the other hand, if a freewoman should conceive, and
afterwards having become a slave should bring forth, it has been decided that
the child is born free, because the misfortune of the mother should not be a
source of injury to her unborn child. From this fact the following question
arose, namely, whether a pregnant female slave who has been set free and having
again become a slave, brings forth a child, shall it be considered freeborn or
a slave? It is the opinion of Marcellus that the child is born free, for it is
sufficient while yet unborn for its mother to have been free, even for an
intermediate period, which we hold to be true.
(1) Anyone who has been born free is not prejudiced by having been
reduced to slavery and subsequently manumitted, for it has very frequently been
determined that manumission is not detrimental to the privileges of birth.
TITLE V. CONCERNING FREEDMEN.
Freedmen are those who have been manumitted from legal servitude.
Manumission is the bestowal of freedom, for so long as anyone is in slavery he
is subject to the control and authority of a master, but when manumitted he is
delivered from his power. This proceeding derives its origin from the Law of
Nations, since, according to Natural Law all men are born free, manumission
could not exist as long as slavery was unknown, but after it was introduced by
the Law of Nations the privilege of manumission followed; and although,
all men were designated by a common name, afterwards, by the Law of
Nations, three different kinds of persons began to be recognized, namely:
freemen; their opposite, slaves; and a third class, freedmen, who had ceased to
(1) Manumission is accomplished in many ways, in the holy churches in
accordance with the Imperial Constitutions; by the wand of the Prætor; in
the presence of friends; by letter; by testament, or by any other indication of
one's last will. There are also many other methods that have been introduced by
ancient Constitutions as well as by Our own, by means of which freedom may be
bestowed upon a slave.
(2) Again, masters can always manumit their slaves, and they can even do
so while walking in the street; for instance, while the Prætor, the
Proconsul, or the Governor is going to the bath or the theatre.
Moreover, the condition of freedmen in former times was threefold, for
as soon as they were manumitted they sometimes obtained entire and legal
liberty and became Roman citizens; sometimes they acquired an inferior species
of freedom and, by the Lex Junia Norbana they became Latins; and then,
again, they obtained a still less degree of freedom, and according to the
Lex Ælia, Sentia they were classed among the dedititii.
This lowest condition of dedititii has long ago fallen into
desuetude, and, indeed -the name of Latins is no longer frequently employed.
Hence, Our good-will being desirous to improve all things and to ameliorate the
condition of mankind has corrected this by two Constitutions, and restored the
matter to its former status; because at the foundation of the City of Rome only
one kind of freedom existed, which was the same that the manumitting party
enjoyed; except where he who was liberated was a freedman, and the party who
manumitted him was freeborn. Wherefore We have abolished the class of
dedititii by one of Our Constitutions which We promulgated among Our
Decisions, by means of which, at the suggestion of that illustrious man the
Quæstor Tribonian, We have settled the disputed question of the ancient
law. At the suggestion of the same Quæstor We have also reformed the
condition of the Junian Latins and everything relating to them, by another
Constitution which is conspicuous among the Imperial Edicts, and have rendered
all freedmen Roman citizens without making any distinction with reference to
age, the mode of manumission, or the authority of the manumitting party, as was
formerly the practice; and have added several other methods by means of which
freedom, together with Roman citizenship, which is the only kind that exists at
the present time, may be conferred upon slaves.
WHO CANNOT MANUMIT OTHERS, AND WHY THEY ARE UNABLE TO DO SO.
No one, however, has the right to confer manumission whenever he wishes
to do so; for if it is done to defraud creditors the act is void,
because the Lex Ælia Sentia prevents freedom under such
(1) A master who is not solvent may, however, by will appoint his slave
his heir, and give him his liberty so that he becomes free and his sole and
necessary heir; provided no other heir is created by said will, either because
no one has been appointed an heir by the same, or because he who was appointed
did not for some reason or other become the heir. This provision has been made
by the said Lex Ælia, Sentia, and justly, for it was necessary to
provide that persons in reduced circumstances who had no other heirs, might
constitute their slaves their necessary heirs for the purpose of satisfying
their creditors; or, if they did not do this, the creditors could sell the
property of the estate in the name of the slave, so that no ignominy might
attach to the memory of the deceased.
(2) The same rule applies even where the slave has been appointed an
heir without receiving his freedom, and this Our Constitution has established
on a new basis of humanity, not only with reference to a master who is
insolvent but generally; and liberty is bestowed upon the slave by the very
document in which he was appointed an heir, for it is not probable that he who
selected him as his heir and omitted to grant him freedom wished him to remain
a slave, and that there should be no heir to his estate.
(3) He is deemed to have granted manumission in fraud of his creditors
who, either at the time when he did so was insolvent, or who having bestowed
freedom became insolvent by that act. Still, it seems to have been established
that the grant of freedom would not be prevented, unless the manumitting party
had the intention to defraud, even though he did not have sufficient property
to satisfy his creditors; for men often except more from their resources than
they are worth. We understand then that the grant of freedom is void when
creditors are defrauded in one of two ways, that is to say by the design of the
manumitting party and by the fact itself, where the property is not sufficient
to pay the creditors.
(4) According to the same Lex Ælia
Sentia,1 where the master is under twenty years of age he
is not permitted to manumit anyone except by means of the wand of the
Prætor, and after a legal cause for doing so has been established in the
presence of the Council.
(5) The legal causes of manumission are the following: for example,
where anyone desires to liberate from slavery his own father, mother, son,
daughter, brother or sister, or his attendant, his nurse, his foster-father,
his foster-child, his foster-son or foster-daughter, his foster-brother, a male
slave for the sake of making him his agent, a female slave for the purpose of
marrying her (provided she becomes his wife within six months and no lawful
impediment exists). Where a slave is manumitted in order to be made an agent he
must be at the time not less than seventeen years of age.
1 The Lex Ælia Sentia restricted the right of
manumission by the masters of criminal slaves, who were thus enabled to avoid
responsibility for their acts. — ED.
(6) When a reason has once been approved, whether it be true or false,
it shall not subsequently be reconsidered.
(7) Therefore, as a particular method of manumission by will was
established by the Lex Ælia Sentia in the case of masters who are
minors under twenty years of age, the result was that while anyone who was
fourteen years old could make a will and thereby appoint an heir for himself
and bequeath legacies, still he could not grant freedom to a slave if he was at
the time less than twenty years old. As it, however, appeared intolerable that
power to dispose of all his property by will should be conferred upon anyone,
and that he should not be allowed to grant liberty to a single slave; then why
should We not permit him to dispose of his slaves by his last will in any
manner he wishes — just as he can do with his other property — in
order that he may be able to grant them freedom? But as liberty is an
invaluable possession, and for this reason antiquity forbade it to be conferred
upon a slave by anyone under twenty years of age; therefore We, to a certain
extent, selecting a middle course, have granted the right to a minor under
twenty years of age to confer freedom upon his slave by will, provided he has
completed his seventeenth year and entered his eighteenth. For as the ancients
permitted persons of this age to appear in court in behalf of others, why
should it not be believed that their soundness of judgment is sufficient to
entitle them to enjoy the privilege of granting freedom to their slaves?
CONCERNING THE ABROGATION OF THE LEX FURIA CANINIA.
A certain method was prescribed by the Lex Furia Caninia for the
testamentary manumission of slaves; but We have determined that this should be
abrogated as being a hindrance to liberty and to some extent odious; for it was
positively unkind to permit living persons to have the power to manumit all
their slaves where no other impediment existed, and to refuse that privilege to
CONCERNING THOSE WHO ARE THEIR OWN MASTERS, OR ARE UNDER THE CONTROL OF
Another division of the law of persons follows here, for some persons
are independent, and some are subject to the authority of others; and again of
the latter some are under the control of their parents, and others under that
of their masters. We shall first treat of those who are subject to the
authority of others, for when We ascertain who these persons are, We shall, at
the same time, know who those are that are independent.
In the first place let Us consider those who are under the control of
(1) Slaves are under the control of their masters, and this authority is
derived from the Law of Nations, for We can perceive that among almost all
nations masters have the right of life and death over their slaves, and that
whatever is acquired by a slave belongs to his master.1
(2) At the present time, however, no persons who are subject to Our
authority are permitted, unless for a reason recognized by the laws, to
exercise unusual cruelty against their slaves; for by a Constitution of the
Divine Pius Antoninus he who kills his slave without a reason shall not be
punished with less severity than he who kills the slave of another; and by the
Constitution of the same sovereign the excessive severity of masters is still
further repressed; for, having been consulted by certain governors of provinces
with reference to slaves who flee for refuge to a sacred edifice or to the
statues of the Emperors, he decreed that if the barbarity of the masters
appeared to be intolerable, they could be forced to sell their slaves under
favorable conditions and have the price paid to them, which is a just
provision; for it is to the interest of the State that no one abuse his
The following are the terms of the rescript addressed to Ælius
Martianus: "It is necessary that the power of masters over their slaves should
be unimpaired, and that no man should be deprived of his right, but it is to
the interest of masters that relief against rage, starvation, or intolerable
injury should not be denied to those who justly implore it. Therefore, take
cognizance of the complaints of the slaves of Julius Sabinus who have fled for
refuge to the statue; and if you find that they have been treated with more
harshness than is just, or have suffered any infamous injury, order them to be
sold, so that they may not be restored to the power of their master; and if he
seeks by fraud to escape the effect of My Constitution let him know that I will
take more rigorous measures."
TITLE IX. CONCERNING PATERNAL AUTHORITY.
Our children, the issue of lawful marriage, are in our power.
(1) Marriage, or matrimony, is the union of man and wife entailing the
obligation to live together.
(2) The authority which We exercise over Our children is peculiar to
Roman citizens, for there are no other men who have such control over their
children as We have.
(3) Therefore, whoever is born of yourself and your wife is under your
authority just as he who is born of your son and his wife, that is to say, your
grandson and your granddaughter are also under your authority, just as your
great-grandson and great-granddaughter, and all others in succession; but a
child born of your daughter is not under your authority, but under that of its
1 "Quicquid acquiritur servo acquiritur domino."
TITLE X. CONCERNING MARRIAGE.
Roman citizens unite in legal marriage when they are joined according to
the precepts of the law, and the males have attained the age of puberty and the
females are capable of child-birth, whether they are the heads of families or
the children of families; if the latter have also the consent of the relatives
under whose authority they may be, for this should be obtained and both civil
and natural law require that it should previously be secured. Wherefore it has
been asked whether the daughter of an insane person could be married, or the
son of an insane person take a wife; and as various opinions prevailed with
regard to the son, We have rendered a decision by which it is permitted that
the son of an insane person, just as the daughter of one, can also in a way
prescribed by Our Constitution contract marriage without the intervention of
(1) We cannot, however, marry every woman, for we must refrain from
contracting matrimony with some of them.
Hence, marriage cannot take place where the relationship of parents or
children exists; as, for instance, between father and daughter, grandfather and
granddaughter, mother and son, grandmother and grandson, and so on with respect
to all other degrees; and if such persons cohabit with one another they are
said to have contracted an infamous and incestuous marriage.
These principles are so generally applicable that even if the parties
stand in the relationship of parents or children to one another by adoption
they cannot be united in matrimony; and even after the adoption has been
dissolved the same legal restriction exists; and therefore you cannot take as a
wife any woman who has been your adopted daughter or granddaughter, even though
you may have emancipated her.
(2) A similar rule applies to persons related in the collateral degree,
but this is not so strict. Marriage is indeed prohibited between brother and
sister, whether they are the issue of the same father or mother, or of either
of them; but where a woman becomes your sister by adoption, marriage cannot be
contracted between yourself and her as long as the adoption exists, but after
the adoption has been dissolved by emancipation, you can marry her, and also if
you have been emancipated no impediment to the marriage exists. For this reason
the rule has been established that if anyone desires to adopt his son-in-law,
he must first emancipate his daughter; and if anyone wishes to adopt his
daughter-in-law, he must previously emancipate his son.
(3) It is illegal to marry the daughter of your brother or sister; nor
can anyone marry the granddaughter of his brother or sister, although they are
related in the fourth degree; for whenever it is not lawful to contract
matrimony with the daughter of anyone, marriage with his granddaughter is also
prohibited. You are, however, not prevented from marrying the daughter of a
woman adopted by your father, for the reason that she is not related to you
either by natural or civil law.
(4) The children of two brothers or sisters, or of a brother and a
sister, can marry.
(5) Moreover, a man cannot marry his paternal aunt, even though she may
have been adopted, nor can he marry his maternal aunt, because they stand in
the relationship of progenitors; and for the same reason you are very properly
forbidden to marry your great aunt, either on your father's or your mother's
(6) It is also necessary to avoid matrimony with some women on account
of the respect entertained for affinity. For example, to marry either a
step-daughter or a daughter-in-law is not permitted for the reason that they
both stand in the relationship of daughters; but it must be understood that the
woman in question has been either a daughter-in-law or a step-daughter, for if
she is still a daughter-in-law and married to your son you cannot take her as a
wife for another reason, that is, because the same woman cannot be married to
two men; and if she is still your step-daughter, that is to say, if her mother
is married to you, you cannot contract matrimony with her because it is not
lawful to have two wives at the same time.
(7) To marry a mother-in-law or a step-mother is also prohibited,
because of their maternal relationship, and this rule also applies only after
the affinity has ceased to exist; otherwise, if she is still your step-mother
and married to your father, you are prevented from marrying her by the general
rule that the same woman cannot be married to two men; and if she is still your
mother-in-law, that is, if her daughter is still married to you, the marriage
cannot take place for the reason that you cannot have two wives at the same
(8) The son of a husband by another wife and the daughter of a wife by
another husband, or vice-versa, can lawfully contract matrimony,
although they may have a brother or sister who is the issue of the marriage
(9) Where your wife after having been divorced has a daughter by another
husband, the latter is not your step-daughter, but Julianus says you should
abstain from marriage with a woman of this kind; for the betrothed of your son
is not your daughter-in-law, nor the betrothed of your father, your
mother-in-law, still those who avoid marriage with persons of this description
act more properly and legally.
(10) That relationship existing among slaves is an impediment to
marriage is certain where a father and daughter, or a brother and sister have
(11) There are also other persons who, for different reasons, are
prohibited from contracting matrimony, and these We have permitted to be
enumerated in the books of the Digest or Pandects compiled from the ancient
(12) Where persons cohabit in violation of the laws which We have
prescribed, neither the relationship of husband or wife, nor a nuptial
ceremony, marriage or dowry is understood to exist; hence those who are born
from this intercourse are not under the authority of their fathers, but so far
as relates to said authority are in the same category as those whom a mother
has conceived in promiscuous inter-
course; for these also are understood to have no father, as the latter
is uncertain; hence they are ordinarily designated spurious children, either
from a Greek word meaning "conceived at random", or because they are children
without a father. It follows, therefore, that where an union of this kind is
dissolved there is no claim for the return of the dowry; and, moreover, those
who contract prohibited marriage are liable to other penalties which are set
forth in the Imperial Constitutions.
(13) It sometimes happens that children are not under paternal authority
when they are born, but are afterwards subjected to it. Such a one is he who
being a natural son, is subsequently brought under the control of his father
through becoming a member of the curia. He also belongs to this class
who is born of a free woman with whom matrimony was by no means forbidden by
the laws but with whom his father was accustomed to cohabit; and who was
afterwards brought under the authority of his father by means of dotal
instruments executed in accordance with the provisions of Our Constitution. Our
Constitution likewise gives him this advantage, even though there are other
children the issue of the same marriage.
TITLE XL CONCERNING ADOPTION.
Not only are Our natural children under Our authority as We have already
stated, but those whom We adopt as well.
(1) Adoption is accomplished in two ways, either by Imperial Rescript or
by the order of a magistrate. By the authority of the Emperor anyone can adopt
persons of either sex who are their own masters, and this kind of adoption is
styled arrogation. By order of a magistrate it is lawful for anyone to adopt
persons of either sex who are under paternal control, whether they belong to
the first degree of descendants, as, a son or a daughter, or to an inferior
degree, as a grandson or a granddaughter, a great-grandson or a
(2) At present, however, in compliance with one of Our Constitutions,
when the son of a family is bestowed in adoption by his natural father upon a
stranger, his natural father's rights to authority are by no means abrogated,
nor do any of them pass to the adoptive father, nor is the son subject to his
control, although he is permitted by Us to enjoy the rights of succession if
his adoptive father dies intestate. Where, however, his natural father gave his
son in adoption, not to a stranger, but to the maternal grandfather of his son;
or if his natural father had been emancipated and gave him in adoption even to
his paternal grandfather or great-grandfather, or to his maternal
greatgrandfather in like manner; in these instances, as both the natural rights
and those of adoption are united in one and the same person, the power of the
adoptive father remains fixed, being connected by the natural bond and
strengthened by the legitimate method of adoption,
so that the son both belongs to the family and is subject to the
paternal authority of an adoptive father of this kind.
(3) When, however, a person who has not reached the age of puberty is
arrogated by Imperial Rescript, arrogation is only permitted after the
circumstances have been thoroughly investigated, and the reason for arrogation
examined to ascertain whether it is honorable and beneficial to the minor; and
the arrogation must be established under certain conditions, that is to say,
the adopting party must give security to some public personage, namely a
notary, that if the minor should die before reaching puberty, he will surrender
his property to those who would have been entitled to the succession if the
adoption had not taken place.
Again, an arrogator cannot emancipate his adoptive children unless,
after proper investigation, they are found worthy of emancipation, and he must
then restore their property to them. And again, if a father, when dying,
disinherits his adoptive son, or, while living, emancipates him without just
cause, he is required to give him the fourth part of his property, in addition
to what he brought to his adoptive father and of which he subsequently obtained
for him the benefit.
(4) It is held that a minor cannot adopt anyone older than himself, for
adoption imitates nature, and it is monstrous that a son should be older than
his father. Therefore, he who takes for himself a son either by arrogation or
adoption should do so by full puberty, that is he should be his senior by
(5) It is also lawful to adopt a person to occupy the place of a
grandson, or a great-grandson, a granddaughter or a great-granddaughter, or of
any descendant further removed, although the party may have no son.
(6) Anyone can also adopt the son of another as his own grandson, or
another person's grandson as his son.
(7) Where, however, anyone adopts a person instead of his grandson
either as the child of a son whom he has already adopted, or in the place of
the child of a son under his authority, in this instance the son should
consent, in order that he may not be given a proper heir in spite of himself;
but, on the other hand, where a grandfather gives his grandson in adoption it
is not necessary for his son to consent.
(8) An adopted or arrogated son in many respects resembles one born into
lawful wedlock, and therefore if anyone adopts another by Imperial Rescript, or
before the Prajtor or the Governor of a province and the adopted party is not a
stranger, he can give him in adoption to another.
(9) It is a regulation common to both kinds of adoption that those who
cannot beget, for instance, such as are born without procreative power, like
natural eunuchs, can adopt; but persons who have been castrated cannot do
(10) Women also cannot adopt because they have not even control over
their own children, but by the indulgence of the Emperor they can do so by way
of consolation of the children they have lost.
(11) It is also peculiar to the adoption which is effected by rescript
that where a man who has children under his authority permits himself to be
arrogated, not only he himself is brought under the power of the party adopting
him, but his children are also subjected to the authority of the latter as
grandchildren; and in accordance with this rule, the Divine Augustus did not
adopt Tiberius until he himself had adopted Germanicus, so that he might begin
to be the grandson of Augustus immediately after the adoption occurred.
(12) Antiquity ascribes an appropriate statement to Cato, namely, that
where slaves are adopted by their master they are liberated by his very act;
and therefore We, accepting this opinion, have inserted in one of Our
Constitutions that when a master has mentioned his slave as a son in a public
instrument he shall be free, although this is not sufficient to invest him with
the rights of a son.
TITLE XII. IN WHAT WAYS THE RIGHT OF PATERNAL POWER Is ABROGATED.
Let Us examine now by what methods those subjected to the authority of
others are liberated from this authority.
We can learn from what We explained above with regard to the manumission
of slaves in what way they are released from this restraint.
Those, however, who are under the control of a relative become
independent at his death, but this admits of a distinction; for, without
question, when a father dies, his son and daughter, in every instance, become
their own masters. Where, however, a grandfather dies, his grandsons and
granddaughters do not invariably become independent, but only where after the
death of their grandfather they do not again become subject to the authority of
their father. Therefore, if when the grandfather dies their father is still
living and under the authority of his father, then, after the death of their
grandfather they become subject to the authority of their father; but if at the
time their grandfather died their father was either dead, or had passed from
under the control of his father, then the said grandchildren become their own
masters, because they cannot become subject to his authority.
(1) But when one who has been banished to some island on account of a
crime forfeits his citizenship, it follows that the children of a person
removed in this way from the body of Roman citizens cease to be under his
control, just as if he were dead. For a similar reason, if anyone under
paternal authority is banished to an island, he ceases to be under the control
of his relatives; but if restored by Imperial clemency, such a person regains
his former status in every respect.
(2) Fathers who have been temporarily banished to an island retain
authority over their children, and, on the other hand, children banished under
such circumstances, remain subject to parental control.
(3) Anyone who is made a slave by way of punishment ceases to have
authority over his children, and persons are made slaves by way
of punishment who are sentenced to the mines or are exposed to wild
(4) Where the son of a family serves in the army or becomes a Senator or
Consul, he still continues in the power of his father, for neither military
service nor the consular dignity releases a son from paternal control. However,
in accordance with one of Our Constitutions, the highest patrician rank
releases him who receives it from paternal authority as soon as the Imperial
grant is delivered; for who could tolerate that a father should have the power
to release his son from the ties of his authority by means of emancipation,
while the Imperial Dignity could not avail to liberate from the control of
another him whom he selected as a father for himself.
(5) Where a father has been captured by the enemy, although he
temporarily becomes the slave of the latter, nevertheless, by the law of
postliminium his power over his children only remains in abeyance;
because if those who have been captured by the enemy return, they recover all
their former rights; and therefore, on his return, he will have his children
under his authority, because the law of postliminium gives rise to the
fiction that a captive has never been absent; but if he should die in
captivity, his son becomes his own master from the moment when his father was
made prisoner. Again, if a son or a grandson is captured by the enemy, We
declare that, in like manner the right of paternal authority is suspended by
the law of postliminium.
The term postliminium is derived from limen and post,
so that We speak correctly when We say that a man who has been captured by
the enemy and afterwards comes within our boundaries returns by
postliminium: for as threshholds form a kind of boundary in houses, the
ancients also considered the boundary of the Empire as a threshhold. From this
likewise is derived the term limes which is, as it were, an end and
boundary. Postliminium, therefore, is so designated because a person
returns by the identical threshhold from which he was lost. Anyone who is
recovered from conquered enemies is deemed to have returned by
(6) Children also cease to be under the control of their ascendants by
emancipation, and this emancipation was formerly brought about by the ancient
observance of the law, which was effected by means of fictitious sales and
intermediate manumissions, or by Imperial Rescript. Our foresight, however,
has, by means of a Constitution, brought about a change for the better, so that
the ancient fiction having been exploded, relatives can go directly before
competent judges or magistrates, and personally release from their authority
their sons or daughters, grandsons or granddaughters, or other more remote
descendants. And then, according to the Edict of the Prætor, the same
rights are granted to the relatives with reference to the property of the said
son or daughter, grandson or granddaughter who has been manumitted by the said
relative, as are conferred upon a patron with reference to the property of his
freedman; and, moreover, if the son or daughter, or the other descendants have
not arrived at puberty, the relative obtains guardianship over them by reason
of the emancipation.
(7) We must also bear in mind that anyone who has a son under his
control as well as a grandson or granddaughter by him, is perfectly free to
release his son from his authority and to retain his grandson or granddaughter
under it; and, on the other hand, to retain his son in his own power and
manumit his grandson or granddaughter (and it must be understood that the same
rule is applicable to a great-grandson or a great-granddaughter), or to render
them all their own masters.
(8) But where a father who has a son under his control gives him in
adoption to his natural grandfather, or great-grandfather, in accordance with
Our Constitutions enacted for this purpose; that is to say, if he manifests
this intention by a proper instrument executed in the presence of a competent
magistrate, the party who is to be adopted being present at the time and not
offering any opposition — and if the party who makes the adoption does not
do so — the right of the natural parent is extinguished and passes to the
adoptive father in this manner; with respect to whom, as We previously stated,
the adoption is absolutely complete.
(9) It should also be noted that if your daughter-in-law conceives by
your son and you subsequently emancipate the latter, or give him in adoption
while your daughter-in-law is pregnant, the child brought forth by her is
nevertheless born under your authority; but where it is conceived after
emancipation or adoption, it is subject to the authority of its adoptive father
(10) It is further to be noted that there is scarcely any way by which
either natural or adopted children can force an ascendant to liberate them from
Let Us pass now to another division of persons; for of those who are not
under paternal authority some are under guardianship or curalorship, and others
are subject to neither of these rights. Let Us, therefore, direct Our attention
to those who are under guardianship or curatorship, and in this manner We shall
become familiar with those other persons who are subject to neither of these
Let Us first consider those who are under guardianship.
(1) Guardianship, as Servius defines it, is the right and authority over
a free person granted and allowed by the Civil Law for the protection of one
who, on account of his age, cannot protect himself.
(2) Guardians are those who are invested with this power and authority,
from which very fact they have obtained their name, and they are therefore
called guardians from being protectors and defenders, just as those who have
charge of temples are called guardians of temples.
(3) Parents, therefore, are allowed to appoint guardians by will for
children not arrived at puberty and who are under their control, and this
applies to all cases where a son or daughter are concerned.
For grandsons or granddaughters, however, parents can only appoint
guardians where, after their death, they will not be again brought under the
authority of their fathers. Hence, if at the time of your death, your son is
under your control, your grandsons by him cannot have a guardian appointed by
your will, even though they were under your authority; because it is evident
that, when you are dead they will again come under the control of their
(4) But, as in many instances posthumous children are considered as
already born, it has been decided that under such circumstances testamentary
guardians can be appointed as well for posthumous children as for those already
in existence, provided their condition is such that if they had been born while
their parents were living, they would have been their heirs and under their
control. Where, however, a guardian is appointed by the will of a father for an
emancipated son, he must in every instance be confirmed by order of the
Governor, and this is to be done without investigation.
TITLE XIV. WHO CAN BE APPOINTED TESTAMENTARY GUARDIANS.
Not only the father of a family but also a son who belongs to it can be
appointed a guardian.
(1) The slave of a testator can be legally appointed guardian and at the
same time given his freedom; but it must be noted that when he is appointed
guardian without being set free, he is presumed tacitly to have received his
freedom, and on this account he can legally act; but it is evident that if he
is appointed guardian under the presumption that he is free, the case is
different. The slave of another cannot, however, unreservedly be appointed a
testamentary guardian, but the appointment is valid when it is stated that it
will take effect when he shall become free. It is, however, not valid for a
person's own slave to be appointed in this manner.
(2) An insane person or a minor under twenty-five years of age when
appointed guardian by will can act as such when he becomes sane or reaches the
age of twenty-five years.
(3) There is no question that a guardian can be appointed up to a
certain time, or from a certain date, or under some condition, or before the
institution of an heir.
(4) A guardian cannot, however, be appointed on account of some certain
transaction or property, for the reason that the appointment is made with
reference to the person, and not on account of any business transaction or
(5) Where anyone has appointed guardians for his daughters or sons, it
is understood that he has appointed them also for any posthumous daughter or
son, because such children are included in the term "posthumous". But in case
there are many grandsons, are guardians to be appointed for them under the
designation of sons? It must be held that they also appear to be appointed for
them, if the party made
use of the word "children"; but the case is otherwise if he used the
word "sons", for sons are designated by one term and grandsons by another. It
is evident that if he made the appointment for posthumous children both
posthumous sons and other descendants will be included.
TITLE XV. CONCERNING THE LEGAL GUARDIANSHIP OF AGNATES.
By a law of the Twelve Tables agnates are the guardians of those for
whom no testamentary guardian has been appointed and these are called legal
(1) Agnates are persons connected by relationship through individuals of
the male sex, that is to say, related on the father's side; as, for instance, a
brother born of the same father, the son of that brother, and his grandson by
the said son; also a paternal uncle, the son of that paternal uncle, and his
grandson by that son. Those who are connected by relationship through
individuals of the female sex are not agnates but, on the other hand, are
cognates by natural law; therefore, the son of your father's sister is not your
agnate but your cognate; and, on the other hand, you are certainly connected
with him by the same rule, because children follow the family of the father and
not that of the mother.
(2) The law which appoints agnates guardians in case of intestacy not
only has this application where a man who has the right to appoint guardians
does not make a will, but also when he dies intestate so far as the
guardianship is concerned; which is also understood to take place where the
party appointed guardian dies while the testator is still alive.
(3) The law of agnation is usually abrogated in every respect by the
forfeiture of civil rights; for consanguinity on the male side is merely a
legal term. The law of relationship on the female side is not, however,
entirely altered for the above reason, because while a Civil Law principle may
abrogate civil rights, it can under no circumstances abrogate those which are
TITLE XVI. CONCERNING THE Loss OF CIVIL RIGHTS.
The loss of civil rights is a change of former status, and takes place
in three ways, for it may be the greatest; the lesser, which some persons call
intermediate; or the least.
(1) The greatest loss of civil rights is where anyone forfeits at the
same time both citizenship and freedom. This occurs in the case of those who
are made slaves by way of punishment through the severity of their sentences;
or where freedmen are condemned for having been ungrateful to their patrons; or
where parties suffer themselves to be sold for the purpose of sharing in the
(2) Less, or intermediate loss of civil rights, is where citizenship
itself is lost but freedom is retained; which occurs when a person is
interdicted from fire and water, or is banished for an indefinite term
to some island.
(3) The least loss of civil rights is when both citizenship or liberty
are retained, but the condition of the individual is altered; which happens
when those who were formerly their own masters are subjected to the authority
of another, or vice-versa.
(4) A manumitted slave loses no civil rights because he did not possess
(5) Those persons whose dignity rather than their condition is altered
do not forfeit their civil rights; and therefore it is settled that expulsion
from the Senate involves no such forfeiture.
(6) When it was stated that the right of cognation persisted after the
loss of civil rights, it is to be understood that this is the case where the
least of such losses takes place, for it is under such circumstances that the
cognation remains. But where the greatest loss of civil rights occurs, the
right of cognation is lost; for instance, by the enslavement of any relative on
the female side, and even when such a person is manumitted he does not recover
his right; and also where anyone is deported to an island his cognation is
(7) When guardianship devolves upon persons related on the male side it
does not devolve upon all of them at once, but only upon such as are related in
the nearest degree, or upon all, if they are of the same degree.
TITLE XVII. CONCERNING THE LEGAL GUARDIANSHIP OF PATRONS.
By the same Law of the Twelve Tables the guardianship of male and female
persons who have been set free belongs to their patrons and to the children of
the latter, which is also called legal guardianship; not because by that law
special provision has been made for it, but for the reason that the
interpretation of said law justifies this conclusion just as if it had been
verbally set forth in the same. For from the very fact that the law prescribed
that the estates of freedmen and freedwomen who died intestate should belong to
their patrons and to the children of the latter, the ancient authority
determined that the intention of the law was that their grandchildren shall
also belong to them, since it directed that those agnates on whom it bestowed
the estate should also be guardians; because, generally speaking, where the
benefit of the succession is, there also the burden of guardianship should be
placed. We say generally speaking, because where a slave who has not reached
puberty is manumitted by a woman, she herself is entitled to the estate
although some one else will be appointed guardian.
TITLE XVIII. CONCERNING THE LEGAL GUARDIANSHIP OF ASCENDANTS.
There is another guardianship allowed which follows the example of that
of patrons, and this also is called legal; for where anyone
emancipates a son or a daughter, a grandson or a granddaughter by a son,
and so on through other degrees, so long as the party has not reached puberty,
he will be their legal guardian.
TITLE XIX. CONCERNING FIDUCIARY GUARDIANSHIP.
There is another kind of guardianship which is called fiduciary. For
where an ascendant emancipates a son or a daughter, a grandson or a
granddaughter, and so on, in succession, before they have reached the age of
puberty, he acquires a legal guardianship over them; and where, at his death,
he leaves children of the male sex, they become the fiduciary guardians of
their sons, of their brother, their sister, or their relatives. But when a
legal guardian dies, his children become legal guardians, for the son of the
defunct, if he has not been emancipated by his father while the latter was
still living, would have become his own master after his father's death and
would not have come under the control of his brothers, and for this reason not
under their guardianship; while the freedman, if he had remained a slave, would
have sustained the same relation to the children of his master after the death
of the latter.
Persons entitled to exercise the office of guardian must be of full age,
a rule which one of Our Constitutions has directed to be generally observed in
the case of all guardianships and curatorships.
CONCERNING THE ATILIAN GUARDIAN, AND THE ONE APPOINTED UNDER THE LEX
JULIA ET TITIA.
Where no guardian at all had been appointed for a person it was
customary for one to be given him in the City of Rome by the Urban Prætor
and the majority of the Tribunes of the people under the Lex Atilia; and
in the provinces the appointment was made by the Governors, in compliance with
the Lex Julia et Titia.
(1) But where a guardian had been appointed by will under some condition
or to act upon a certain day, as long as the condition was not fulfilled or the
day had not arrived, another guardian could be appointed under these laws.
Moreover, if the appointment had been made without qualification, as long as
there was no heir under the will, by the same laws application was required to
be made for another guardian to act during that time, and he ceased to be a
guardian if the condition was complied with, or the day arrived, or an heir
(2) Moreover, a guardian was usually applied for under the same laws
when the existing guardian had been captured by the enemy; and he ceased to
hold his office if the former returned from captivity, for having returned he
recovered the guardianship by the law of postliminium.
(3) Guardians, however, are no longer appointed for minors under those
laws, since, in the first place, the Consuls, and afterwards the Prætors,
began to appoint guardians for minors of both sexes after examination, in
accordance with the Constitutions; for by the aforesaid laws no provision was
made for exacting bonds from guardians to preserve the property of their wards,
or for requiring them to properly administer their guardianship.
(4) The practice now prevails at Rome for the Prefect of the City, or
the Prætor, as far as he has jurisdiction, to appoint guardians; and in
the provinces the Governors do this after investigation, or the magistrates do
so by order of the Governors, where the property of the minor is not of great
(5) But We, by means of one of Our Constitutions, having removed the
uncertainties of men on questions of this description, and having caused the
order of the Governors to be no longer expected, have determined that if the
property of a minor or an adult is of the value of five hundred solidi
the Defenders of the City — together with the most reverend Bishop of
the same, or in the presence of other public officials or magistrates, or of
the judge of the City of Alexandria — shall create guardians or curators,
lawful security having been given according to the provisions of the said
Constitution, that is to say, at the risk of those who accept it.
(6) That persons not arrived at puberty should be under guardianship is
conformable to natural law, so that he who has not arrived at full age may be
directed by the guardianship of another.
(7) For this reason, as the guardians of male and female wards transact
their business, they must render an account to them in an action of
guardianship after they have arrived at puberty.
TITLE XXI. CONCERNING THE SANCTION OF GUARDIANS.
The sanction of a guardian in some instances is requisite for wards and
in some instances it is not. For example, when a ward makes &
contract for something to be given him, the guardian's consent is not
necessary, but when wards promise something to others it is necessary; for it
has been decided that they have power to improve then condition even without
the authority of their guardians, but that they cannot make it worse unless
their guardians consent for them to do so. Wherefore, under circumstances in
which mutual obligations arise for instance, in purchases, sales, letting and
hiring, commissions, deposits, if the authority of the guardian is not
interposed, those persons who enter into contracts with wards shall be liable;
but, on the other hand, the wards shall not be responsible.
(1) Nor can they enter upon an estate or demand possession or property,
or accept an inheritance given in trust for their benefit, in any other way
than with the sanction of their guardian, even though it be profitable, and no
loss can arise therefrom.
(2) The guardian should also, at once, and while the transaction is
pending, give his approval, if he thinks that it will be a benefit to the ward;
but if he does this afterwards or sanctions it by a letter, his act is
(3) When an action-at-law is to be conducted between guardian and ward
— for the reason that the guardian cannot give his sanction to anything
relating to his own affairs — a curator is appointed in his place (not a
Prætorian guardian as was formerly the practice), and the case is carried
on by the former who ceases to be curator when it is terminated.
TITLE XXII. IN WHAT WAYS A GUARDIANSHIP Is TERMINATED.
Male and female wards are released from guardianship as soon as they
reach puberty. The ancients were disposed to fix the age of puberty, as far as
males were concerned, not only by their years but by their corporeal
development. Our Majesty, however, has considered it proper and worthy of the
purity of the age that what seemed to be immodest to the ancients in the case
of females, that is the inspection of the condition of their bodies, should
also be extended to males; and, therefore, by the promulgation of ah Imperial
Constitution, We have decreed that puberty in males shall begin immediately
after the completion of the fourteenth year, leaving without alteration the
excellent rule of antiquity respecting females, namely, that they should be
considered marriageable after the completion of their twelfth year.
(1) Guardianship is also ended where persons who have not yet reached
puberty are either arrogated or banished; and the same rule applies where a
ward is reduced to slavery or is captured by the enemy.
(2) Moreover, if a guardian is appointed by will to hold office until a
certain condition has been complied with, it also happens that when the
condition has been fulfilled he ceases to be a guardian.
(3) In like manner guardianship is terminated by the death of either the
guardian or the ward.
(4) Again, every guardianship is also determined by any impairment of
civil rights through which either the liberty or the citizenship of the
guardian is lost. By the least forfeiture of civil rights by a guardian, for
example, if he gives himself in adoption, only the legal guardianship
terminates, but other kinds do not. The loss of civil rights, however, by
either male or female wards, even though it be of the least important class,
terminates all kinds of guardianships.
(5) Moreover, guardians appointed by will for a certain period surrender
their guardianship when it terminates.
(6) Those, also, cease to be guardians who are removed from office
either because they are suspected, or excuse themselves for some just cause and
lay down the burden of guardianship, as We shall explain hereafter.
TITLE XXIII. CONCERNING CURATORS.
Males who have attained puberty and women who are nubile receive
curators until the completion of their twenty-fifth year, for even though they
have reached puberty they are still of such an age that they are not capable of
transacting their own affairs.1
(1) Curators are appointed by the same magistrates as guardians, but a
curator is not appointed by will, but after his appointment he is confirmed by
a decree of the Prætor, or Governor.
(2) Minors are not required to accept curators if they are unwilling,
except in lawsuits; for a curator may also be appointed for a specific
(3) Insane persons, likewise, and spendthrifts, even though they may be
over twenty-five years of age, are nevertheless under the curatorship of their
relatives in the male line, according to a law of the Twelve Tables; but it is
the practice for the Prefect of the City or the Prætor at Rome, and in
the provinces for the Governors, to appoint curators for them after
(4) Curators must also be appointed for feeble-minded persons, those who
are deaf and dumb, and those who are suffering from chronic disease, because
they are not able to attend to their own affairs.
(5) Again, curators are sometimes appointed for wards; for instance
where the legitimate guardian is not a suitable person, because a guardian
cannot be appointed for a person who already has one.
1 A certain amount of opprobrium, under the Roman law,
attached to a minor for whom a curator was appointed, as it was considered a
reproach that a freeman who had passed the age of puberty should not be
permitted to dispose of his personal property if he desired to do so. A curator
was usually appointed for a youth over fourteen, although for special purposes,
or as an aid to the guardian, one was sometimes designated for a person under
that age. The consent of the latter was absolutely necessary, except where it
was clear that he was not competent to manage his affairs, or that he was
squandering his estate. Before this could be done, however, the next of kin
were required to apply to the Prætor for an order depriving the minor of
the control of his property, and praying for the appointment of a curator.
Similar proceedings were instituted in the case of lunatics; and, when
necessary, were even employed where the party in question had attained his
These regulations date back to the Twelve Tables. The spendthrift was by
the Civil Law held to be quasi furiosus, that is legally, though not
actually insane, and, so far as the management of his estate was concerned,
classed as a madman. Curators could also be appointed to take charge of the
property of absent persons when their residences or whereabouts were unknown.
The curator differed from the guardian in that his first, and most important
duty was the care of the property, while the guardian was principally
responsible for the person of the minor.
Under the law of Scotland, as in general at Civil Law, curators can be
appointed after the party has passed the age of puberty, as otherwise the
appointment would be void. A father may select the curator or the minor himself
may do so, subject to confirmation by a court of competent jurisdiction. When
the latter avails himself of this privilege, it is customary to leave him in
the house of a disinterested person where all his friends may have undisturbed
access to him, so that, in making his choice, no improper influence may be
exerted in behalf of any certain individual. Curators cannot, like guardians,
act independently of the
Moreover, where a guardian appointed by a will, or by a Prætor or
a Governor is hot a proper person for the office, although he may not be
administering it fraudulently, it is customary for a curator to be associated
with him, and curators are also ordinarily appointed instead of guardians who
are temporarily, and not permanently released from their guardianship.
(6) Where a guardian is hindered by bad health or some other pressing
necessity from transacting the business of the ward, and the latter is either
absent or an infant, the Prætor, or the Governor of the province may by
an order appoint anyone whom the said guardian desires to act for the latter,
but at his risk.
CONCERNING THE GIVING OF SECURITY BY GUARDIANS AND CURATORS.
In order that the property of male and female wards and of other persons
under curatorship may not be wasted or diminished by their guardians or
curators, the Prætor takes care that guardians and curators shall furnish
proper security for this purpose. This rule does not apply to every case,
however, for testamentary guardians are not compelled to give security, for the
reason that their good faith and diligence have been vouched for by the
testator himself; nor are guardians or curators appointed after investigation
burdened with providing sureties because proper persons are chosen.
minor, and therefore the concurrence of the latter in every transaction
is necessary. Where a minor has no curator, he is authorized by law to act for
himself. The office of curator, as well as that of guardian, is gratuitous, and
no compensation for services can be collected, even if any should be agreed
upon between the parties. (More, Lectures on the Law of Scotland, Vol. I, III,
At Common Law, the office of curator is included in that of guardian
which is ordinarily the case in this country, although in some States of the
Union provision is made by statute for the separate appointment of curators.
The Codes of continental Europe vary greatly in their adoption and application
of the principles of Roman jurisprudence with reference to this subject. In
France, a curator is appointed by the family council to assist the guardian in
making up his account. (Cod. Civ., Art. 480.) Spanish legislation vests
in a guardian either care of the person and property of a ward, or both.
(Cod. Civ. de España, Art. 199.) The legal supervision of minors
in Portugal is committed to guardians, protutors, curators, and family
councils. (Civ. Cod. Portuguêz, Art. 187.) The Italian Code allows
the appointment of a special curator for the management of property alone.
(Cod. Civ., Art. 247.) The law of Sweden makes no provision for the
office of curator; all the duties of the latter being discharged by the
guardian. (Sveriges Lag., Kap. XXIII.) Austria recognizes the ordinary
distinction between guardians and curators, and authorizes the appointment of
either. (Allgemeines Bürgerliches Gesetzbuch, Arts. 187, 188.) In
Germany, the guardian has charge of both the person and property of the ward.
(Burgerliches Gesetzbuch, Secs. 1800, 1802, 1809.) Curators, as such, do
not exist under the law of Switzerland, guardians having full control of the
property of minors. (Schweizerliches Zivilgesetzbuch, Art. 367.) The law
of Louisiana practically adopted the Roman doctrine of curatorship in its
entirety. (Civil Cod., Arts. 357, 418.) In Japan curators may be appointed, but
their functions are usually exercised by guardians. Only one of either can act
as such. (Civ. Cod., Chap. VI, Arts. 906, 909.) — ED.
(1) Still, where two or more are appointed by will or after
investigation, one of them may offer sureties for the indemnification of the
ward or minor, and have the preference over his fellow-guardian or
fellow-curator, to such an extent that he may administer the trust alone; or so
that his fellow guardian, by offering equal security, may have the preference
over him, and he himself alone administer the trust. Therefore, he cannot
himself require security from his fellow-guardian or fellow-curator, but he
should make the offer, so as to give his fellow guardian the choice of either
taking security or giving it. Where, however, neither of them offer security,
and it has been stated by the testator which one shall act, the one designated
must do so: but if this was not done, he whom the majority selects must act in
compliance with the Edict of the Prætor. But where the guardians
themselves disagree concerning the choice of the one or more who are to act,
the Prætor should exercise his authority.
This rule also applies where several persons are appointed after
investigation; that is to say, the majority can choose by whom the
administration shall be conducted.
(2) It should further be noted that not only are guardians and curators
held accountable for their administration to their wards, to minors, and to
other persons, but also that a subsidiary action lies against those who accept
security, and provides the former with a final safeguard. This subsidiary
action is permitted against those who have either entirely neglected to take
security from guardians or curators, or have accepted such as is not
sufficient. This action, in accordance with the opinions of jurists as well as
under the Imperial Constitutions, can also be brought against the heirs of
those who are responsible.
(3) In these Constitutions it is also set forth that where guardians or
curators do not give security they may be forced to do so by pledges being
required of them.
(4) But neither the Prefect of the City, nor the Prætor, nor the
Governor of a province, nor anyone else who has the right to appoint guardians
is liable to the aforesaid action, but only those who are accustomed to demand
CONCERNING THE REASONS FOR EXCUSING GUARDIANS OR CURATORS.
Guardians or curators may be excused for various reasons, but most
frequently on account of their children, whether they are under their authority
or are emancipated; for where any resident of Rome has three children living,
or a resident of Italy four, or a person living in the provinces, five, he can
be excused from guardianship or curator-ship, just as he can from other
employments; for it has been decided that guardianship and curatorship are
public employments. Adopted children are not considered, although children
given in adoption are reckoned in favor of their own father. Grandchildren,
issue of a son, are an advantage in this respect, as they take their
father's place, but this does not apply to those by a daughter; and it is only
living children who are available as an excuse from the charge of guardianship
or curatorship; as those who are dead are not reckoned. The question also has
arisen as to whether those should not be included who have been lost in war;
and it has been determined that those only shall be reckoned who have perished
in actual battle, for such as have died for their country are deemed to live
forever on account of their glory.
(1) The Divine Marcus published in his semi-annual volumes of rescripts
that an official belonging to the Treasury could be excused from guardianship
or curatorship as long as he remained in office.
(2) Those who are absent on business for the State may also be excused
from guardianship or curatorship. Moreover, if they have served as guardians or
curators, and subsequently depart on business for the State, they are excused
as long as they are absent for that reason, and, in the meantime, a curator may
be appointed in their stead. When they return, however, they again take up the
burden of guardianship; and as Papinian stated in the Fifth Book of his
Opinions, they are not even released from responsibility for a year, although
they are entitled to this term when appointed to new guardianships.
(3) Those also who have any other public office may be excused as the
Divine Marcus declared in a rescript, but after they have once assumed a
guardianship they cannot abandon it.
(4) Moreover, no guardian or curator can be excused on account of a
lawsuit which he may have with his ward or any minor in his charge, unless the
litigation has arisen with reference to the entire property or inheritance.
(5) The burden of three guardianships or curatorships, where they have
not been sought for, affords an excuse for exemption so long as they are being
administered; in case the guardianship or curator-ship of several wards, or of
their property, shall be reckoned as only one, just as those of brothers, for
(6) Both the Divine Brothers and the Divine Marcus himself declared by
Rescripts that a person could be excused on the ground of poverty, if anyone
could show that he was unequal to the burden imposed upon him.
(7) An excuse also is valid on account of bad health, by reason of which
a man is unable to transact his own business.
(8) The Divine Pius stated in a Rescript that anyone unable to read
should be excused, although persons lacking knowledge of letters can transact
(9) Again, where a father on account of enmity has appointed anyone a
guardian by his will, this also furnishes a ground for exemption; just as, on
the other hand, those parties are not excused who have promised their father
that they will assume the guardianship of minors.
(10) The Divine Brothers aforesaid published a Rescript stating that the
excuse of a man who relies solely upon the fact that he was unknown to the
father of the minors is not to be entertained.
(11) Where anyone has cherished enmity against the father of wards or
minors, and it was mortal and no reconciliation has taken place, it is
customary to excuse the party from guardianship or curator-ship.
(12) Also, if anyone has had his condition disputed by the father of the
minors, he may be excused from guardianship.
(13) A person over seventy years of age can likewise be excused from
guardianship or curatorship. Also, in former times, those who were less than
twenty-five years of age were ordinarily excused; and by one of Our
Constitutions they are forbidden to claim either guardianship or curatorship,
and for this reason there is no necessity for an excuse. It is also provided by
the same Constitution that neither a ward nor minor shall be called upon to
assume a legal guardianship; for it is contrary to law for those who are known
to require assistance in the transaction of their own business and who are
governed by others, to be invested with the guardianship or curatorship of
(14) This must also be observed in the case of a soldier who, even if he
is willing, cannot be permitted to exercise the office of guardian.
(15) Moreover, grammarians, rhetoricians, and physicians of Rome, and
others who in their own country practice these professions and who are included
in the number of those legally authorized, are also exempt from guardianship or
(16) He who desires to be excused, and has several excuses but fails to
establish some of them, is not forbidden from profiting by the others within
the designated time. When parties desire to be excused they do not take an
appeal, but whatever kind of guardians they may be — that is to say, in
whatever manner they have been appointed — they must offer their excuses
within fifty consecutive days from the time they learn of their appointment, if
they are within the hundredth mile-stone from the place where it was made; but
if they reside beyond the hundredth mile-stone, they may do this after making a
calculation of twenty miles a day and thirty days in addition; but,
nevertheless, as Scævola has stated, the reckoning should be made so that
there may not be less than fifty days in all.
(17) When a guardian is appointed, it is understood that he is appointed
for the entire estate.
(18) Any person who has administered the guardianship of another cannot
be compelled to be the curator of the same person if he is not willing; and
this rule applies to such an extent that although a father who appointed a
testamentary guardian added that he appointed the same party curator, the
Divine Severus and Antoninus stated in a Rescript that he could not be forced
to assume the curatorship if unwilling to do so.
(19) They also stated in another Rescript that a husband who has been
appointed the curator of his wife may be excused, even though he may have
interfered in her affairs.
(20) Where anyone has been excused from assuming guardianship by means
of false statements, he is not released from the burden of the said
TITLE XXVI. CONCERNING SUSPECTED GUARDIANS OR CURATORS.
It should be noted that the offence of suspicion is derived from a Law
of the Twelve Tables.
(1) The power of removing suspected guardians is at Rome conferred upon
the Prætor, and in the provinces upon the Governors of the same and upon
the deputy of the Proconsul.
(2) We have shown who has jurisdiction over a suspected person; let us
now see who can be suspected. And, indeed, all guardians can be, whether they
are testamentary guardians or those of another description; and therefore a
guardian may be accused even though he be appointed under the law. But what if
he be a patron? The same rule will still apply, so long as we remember that the
reputation of the patron must be spared, even though he be removed as a
(3) We must next examine who can accuse suspected guardians, and it is
to be noted that an action of this kind is, to a certain extent, a public one,
that is to say open to all: and, indeed, by a Rescript of the Divine Severus
and Antoninus even women are permitted to bring such an action, but only such
as are actuated by the bond of affection can do so; as, for example, a mother.
A nurse and a grandmother can also institute it, and a sister as well; and,
moreover, if there is any woman whose affectionate inclination is perceived by
the Prætor, and who does not exceed the modesty of her sex but is induced
by her affections not to countenance injury to the minors, he can authorize her
to make the accusation.
(4) Those who are under the age of puberty cannot accuse their guardians
as being suspected persons, but those who have reached puberty can, with the
advice of their relatives, accuse their curators as being suspected; and this
rule the Divine Severus and Antoninus promulgated in a Rescript.
(5) He who does not administer the guardianship with fidelity even
though he be solvent, is a suspected person, as Julianus also stated. Julian
likewise held that a guardian can be removed as being suspected, before he has
begun to administer the guardianship, and a Constitution has been enacted in
agreement with this regulation.
(6) A person who has been removed on account of being suspected becomes
infamous where this is done by reason of fraud, but this is not the case if he
is removed on account of negligence.
(7) If anyone is accused on account of being suspected, the
administration of his trust is forbidden him until the investigation has been
terminated, in accordance with the doctrine of Papinian.
(8) Where the investigation of a suspected person has been begun and he
afterwards dies, whether he be either guardian or curator, the investigation is
(9) Where a guardian does not appear in order that necessaries may be
adjudged to his ward, it is provided by a Rescript of the Divine Severus and
Antoninus that the ward shall be placed in possession of his property, and that
any article which might be damaged by delay shall be ordered to be sold by the
curator appointed under such circumstances. Therefore, a curator who does not
furnish necessaries may be removed as being suspected.
(10) But where the guardian appears, and denies that necessaries can be
furnished on account of the poverty of the estate, and this allegation is
false; it has been decreed that he shall be delivered to the Prefect of the
City to be punished, just as a party is delivered up who has obtained the
administration of a guardianship by the payment of money.
(11) Again, when it is established that a freedman has fraudulently
administered the guardianship of the children or grandchildren of his patron,
he shall be delivered up to the Prefect of the City to be punished.
(12) In conclusion, it must be noted that those who fraudulently
administer a guardianship or curatorship shall be removed from office even
though they offer security; because the tender of security does not change the
malevolent intention of the guardian, but affords him the opportunity to damage
the estate for a longer period.
(13) We, in fact, consider a man suspected whose morals are such that he
is liable to suspicion, and in fact a guardian or a curator, even if he is
poor, should not be removed as suspected if he is also faithful and