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