INSTITUTES OF JUSTINIAN
TRANSLATED INTO ENGLISH
by
J. B. MOYLE, D.C.L.
OF LINCOLN’S INN, BARRISTER-AT-LAW
FELLOW AND LATE TUTOR OF NEW COLLEGE, OXFORD
FIFTH EDITION
1913
In writing this translation I have derived much assistance from Mr. Poste’s translation of the Institutes of Gaius. Where, as is often the case, the words of the latter are transcribed literally or in substance by Justinian, I have frequently adopted Mr. Poste’s rendering with very little if any alteration, and I must acknowledge once for all my debt to him. I have also consulted the translation of Mr. Sandars, and that by Mr. J. A. Cross embodied in Dr. Hunter’s Roman Law
, and have found Schrader’s Commentary of great service in assisting me to bring out the full meaning of the more difficult parts of the text.
In the rendering of technical terms my usual plan has been to discover, if possible, some English equivalent which will fairly represent them: thus tutor
has been uniformly translated guardian
, fideicommissum
fiduciary or trust bequest
, &c. Where I have found this out of my power, I have not unfrequently adopted an English form of the original Latin word, where this (though probably not to be found in any English dictionary) has won an air of familiarity for itself by the usage of writers on Roman Law: e. g. adrogation
, agnation
. Lastly, where I could do neither of these things, the original Latin term has been retained; as, for instance, in the names of many of the servitudes in Book II. 3, and in the Title on bonorum possessio
in Book III: and this has been done even in cases where (though a tolerable equivalent was at hand, as with the names of coins) the employment of an English word might appear somewhat grotesque.
J.B.M.
Oxford, January, 1883.
| Prooemium | ||
| Book I. | ||
| Title | i. | Of Justice and Law |
| „ | ii. | Of the law of nature, the law of nations, and the civil law |
| „ | iii. | Of the law of persons |
| „ | iv. | Of men free born |
| „ | v. | Of freedmen |
| „ | vi. | Of persons unable to manumit, and the causes of their incapacity |
| „ | vii. | Of the repeal of the lex Fufia Caninia |
| „ | viii. | Of persons independent or dependent |
| „ | ix. | Of paternal power |
| „ | x. | Of marriage |
| „ | xi. | Of adoptions |
| „ | xii. | Of the modes in which paternal power is extinguished |
| „ | xiii. | Of guardianships |
| „ | xiv. | Who can be appointed guardians by will |
| „ | xv. | Of the statutory guardianship of agnates |
| „ | xvi. | Of loss of status |
| „ | xvii. | Of the statutory guardianship of patrons |
| „ | xviii. | Of the statutory guardianship of parents |
| „ | xix. | Of fiduciary guardianship |
| „ | xx. | Of Atilian guardians, and those appointed under the lex Iulia et Titia |
| „ | xxi. | Of the authority of guardians |
| „ | xxii. | Of the modes in which guardianship is terminated |
| „ | xxiii. | Of curators |
| „ | xxiv. | Of the security to be given by guardians and curators |
| „ | xxv. | Of guardians’ and curators’ grounds of exemption |
| „ | xxvi. | Of guardians or curators who are suspected |
| Book II. | ||
| „ | i. | Of the different kinds of Things |
| „ | ii. | Of incorporeal Things |
| „ | iii. | Of servitudes |
| „ | iv. | Of usufruct |
| „ | v. | Of use and habitation |
| „ | vi. | Of usucapion and long possession |
| „ | vii. | Of gifts |
| „ | viii. | Of persons who may, and who may not alienate |
| „ | ix. | Of persons through whom we acquire |
| „ | x. | Of the execution of wills |
| „ | xi. | Of soldiers’ wills |
| „ | xii. | Of persons incapable of making wills |
| „ | xiii. | Of the disinherison of children |
| „ | xiv. | Of the institution of the heir |
| „ | xv. | Of ordinary substitution |
| „ | xvi. | Of pupillary substitution |
| „ | xvii. | Of the modes in which wills become void |
| „ | xviii. | Of an unduteous will |
| „ | xix. | Of the kinds and differences between heirs |
| „ | xx. | Of legacies |
| „ | xxi. | Of the ademption and transference of legacies |
| „ | xxii. | Of the lex Falcidia |
| „ | xxiii. | Of trust inheritances |
| „ | xxiv. | Of trust bequests of single things |
| „ | xxv. | Of codicils |
| Book III. | ||
| „ | i. | Of the devolution of inheritances on intestacy |
| „ | ii. | Of the statutory succession of agnates |
| „ | iii. | Of the senatusconsultum Tertullianum |
| „ | iv. | Of the senatusconsultum Orfitianum |
| „ | v. | Of the succession of cognates |
| „ | vi. | Of the degrees of cognation |
| „ | vii. | Of the succession to freedmen |
| „ | viii. | Of the assignment of freedmen |
| „ | ix. | Of possession of goods |
| „ | x. | Of acquisition by adrogation |
| „ | xi. | Of the adjudication of a deceased person’s estate to preserve gifts of liberty |
| „ | xii. | Of universal successions, now obsolete, in sale of goods upon bankruptcy, and under the SC. Claudianum |
| „ | xiii. | Of obligations |
| „ | xiv. | Of real contracts, or the modes in which obligations are contracted by delivery |
| „ | xv. | Of verbal obligation |
| „ | xvi. | Of stipulations in which there are two creditors or two debtors |
| „ | xvii. | Of stipulations made by slaves |
| „ | xviii. | Of the different kinds of stipulations |
| „ | xix. | Of invalid stipulations |
| „ | xx. | Of fidejussors or sureties |
| „ | xxi. | Of literal obligation |
| „ | xxii. | Of obligation by consent |
| „ | xxiii. | Of purchase and sale |
| „ | xxiv. | Of letting and hiring |
| „ | xxv. | Of partnership |
| „ | xxvi. | Of agency |
| „ | xxvii. | Of quasi-contractual obligation |
| „ | xxviii. | Of persons through whom we can acquire obligations |
| „ | xxix. | Of the modes in which obligations are discharged |
| Book IV. | ||
| „ | i. | Of obligations arising from Delict |
| „ | ii. | Of robbery |
| „ | iii. | Of the lex Aquilia |
| „ | iv. | Of injuries |
| „ | v. | Of quasi-delictal obligations |
| „ | vi. | Of actions |
| „ | vii. | Of contracts made with persons in power |
| „ | viii. | Of noxal actions |
| „ | ix. | Of pauperies, or damage done by quadrupeds |
| „ | x. | Of persons through whom we can bring an action |
| „ | xi. | Of security |
| „ | xii. | Of actions perpetual and temporal, and which may be brought by and against heirs |
| „ | xiii. | Of exceptions |
| „ | xiv. | Of replications |
| „ | xv. | Of interdicts |
| „ | xvi. | Of the penalties for reckless litigation |
| „ | xvii. | Of the duties of a judge |
| „ | xviii. | Of public prosecutions |
In the name of Our Lord Jesus Christ.
The Emperor Caesar Flavius Justinian, conqueror of the Alamanni, the Goths, the Franks, the Germans, the Antes, the Alani, the Vandals, the Africans, pious, prosperous, renowned, victorious, and triumphant, ever august,
To the youth desirous of studying the law:
The imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times both of war and of peace, and the ruler of Rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes.
1With deepest application and forethought, and by the blessing of God, we have attained both of these objects. The barbarian nations which we have subjugated know our valour, Africa and other provinces without number being once more, after so long an interval, reduced beneath the sway of Rome by victories granted by Heaven, and themselves bearing witness to our dominion. All peoples too are ruled by laws which we have either enacted or arranged. 2Having removed every inconsistency from the sacred constitutions, hitherto inharmonious and confused, we extended our care to the immense volumes of the older jurisprudence; and, like sailors crossing the mid-ocean, by the favour of Heaven have now completed a work of which we once despaired. 3When this, with God’s blessing, had been done, we called together that distinguished man Tribonian, master and exquaestor of our sacred palace, and the illustrious Theophilus and Dorotheus, professors of law, of whose ability, legal knowledge, and trusty observance of our orders we have received many and genuine proofs, and especially commissioned them to compose by our authority and advice a book of Institutes, whereby you may be enabled to learn your first lessons in law no longer from ancient fables, but to grasp them by the brilliant light of imperial learning, and that your ears and minds may receive nothing useless or incorrect, but only what holds good in actual fact. And thus whereas in past time even the foremost of you were unable to read the imperial constitutions until after four years, you, who have been so honoured and fortunate as to receive both the beginning and the end of your legal teaching from the mouth of the Emperor, can now enter on the study of them without delay. 4After the completion therefore of the fifty books of the Digest or Pandects, in which all the earlier law has been collected by the aid of the said distinguished Tribonian and other illustrious and most able men, we directed the division of these same Institutes into four books, comprising the first elements of the whole science of law. 5In these the law previously obtaining has been briefly stated, as well as that which after becoming disused has been again brought to light by our imperial aid. 6Compiled from all the Institutes of our ancient jurists, and in particular from the commentaries of our Gaius on both the Institutes and the common cases, and from many other legal works, these Institutes were submitted to us by the three learned men aforesaid, and after reading and examining them we have given them the fullest force of our constitutions.
7Receive then these laws with your best powers and with the eagerness of study, and show yourselves so learned as to be encouraged to hope that when you have compassed the whole field of law you may have ability to govern such portion of the state as may be entrusted to you.
Given at Constantinople the 21st day of November, in the third consulate of the Emperor Justinian, Father of his Country, ever august.