from: The Digest of Justinian, Charles Henry Munro, tr. (Cambridge, 1904), pp. 3-24.

Book I

I. On Justice and Law

1 Ulpianus     (Institutes 1)     When a man means to give his attention to law (jus), he ought first to know whence the term jus is derived. Now jus is so called from justitia; in fact, according to the nice definition of Celsus, jus is the art of what is good and fair. 1. Of this art we may deservedly be called the priests; we cherish justice and profess the knowledge of what is good and fair, we separate what is fair from what is unfair, we discriminate between what is allowed and what is forbidden, we desire to make men good, not only by putting them in fear of penalties, but also by appealing to them through rewards, proceeding, if I am not mistaken, on a real and not a pretended philosophy. 2. Of this subject there are two departments, public law and private law. Public law is that which regards the constitution of the Roman state, private law looks at the interest of individuals; as a matter of fact, some things are beneficial from the point of view of the state, and some with reference to private persons. Public law is concerned with¹ sacred rites, with priests, with public officers. Private law has a threefold division, it is deduced partly from the rules of natural law, partly from those of the jus gentium, partly from those of the civil law. 3. Natural law is that which all animals have been taught by nature; this law is not peculiar to the human species, it is common to all animals which are produced on land or sea, and to fowls of the air as well. From it comes the of man and woman called by us matrimony, and therewith the procreation and rearing of children ; we find in fact that animals in general, the very wild beasts, are marked by acquaintance with this law. 4. Jus gentium is the law used by the various tribes of mankind, and there is no difficulty in seeing that it falls short of natural law, as the latter is common to all animated beings, whereas the former is only common to human beings in respect of their mutual relations;

2 Pomponius     (Enchiridion)     take, for example, religion as observed towards God; or the duty of submission to parents and country;

3 Florentinus     (Institutes 1)     or the right of repelling violence and wrong; it is in fact by virtue of this law that whatever a man does in defence of his own person he is held to do lawfully; and Nature having made us in a certain sense akin to one another, it follows that it is a monstrous thing for one man to lie in wait for another.

4 Ulpianus     (Institutes 1)     Manumissions also are comprised in the jus gentium. Manumission is the same as dismissal from manus (hand), in short the giving of liberty; as long as a man is in a state of slavery he is subject to manus and potestas (control), by manumission he is freed from control. All this had its origin in the jus gentium, seeing that by natural law all were born free, and manumission was not known, because slavery itself was unknown; but when slavery came in through the jus gentium, there followed the relief given by manumission; and whereas people were once simply called by the one natural name of 'man,' by the jus gentium there came to be three divisions, first freemen, then, as contradistinguished from them, slaves, and then, in the third place, freedmen, that is persons who had ceased to be slaves.

5 Hermogenianus     (Epitomes of law 1)     It was by this same jus gentium that war was introduced, nations were distinguished, kingdoms were established, rights of ownership were ascertained, boundaries were set to domains, buildings were erected, mutual traffic, purchase and sale, letting and hiring and obligations in general were set on foot, with the exception of a few of these last which were introduced by the civil law.

6 Ulpianus     (Institutes 1)     The civil law is something which on the one hand is not altogether independent of natural law or jus gentium, and on the other is not in every respect subordinate to it; so that when we make addition to or deduction from universal law (jus commune), we establish a law of our own, that is, civil law. 1. Now this law of ours is either ascertained by writing or with out writing; as the Greeks say, "τῶν νόμων οἱ μὲν ἔγγραφοι οἱ δὲ ἄγραφοι," (of laws some are in writing and some are not in writing).

7 Papinianus     (Definitions 2)     The civil law is the law which is derived from statutes, plebiscites, decrees of the senate, enactments of the emperors, or the authority of those learned in the law. 1. Praetorian law is that which was introduced by the praetors in or amend the civil law, with a view to the public vantage. The same is also called 'honorary law,' after the honor (public office) of the praetors.

8 Marcianus     (Institutes 1)     In fact honorary law itself is the living voice of the civil law.

9 Gaius     (Institutes 1)     All nations which are governed by statutes and customs make use partly of law which is peculiar to the respective nations, and partly of such as is common to all mankind. Whatever law any nation has established for itself is peculiar to the particular state (civitas), and is called civil law, as being the peculiar law of that state, but law which natural reason has laid down for mankind in general is maintained equally by all men, and is called jus gentium, as being the law which all nations use.

10 Ulpianus     (Rules 1)     Justice is a constant, unfailing disposition to give every one his legal due. 1. The principles of law are these: Live uprightly, injure no man, give every man his due. 2. To be learned in the law (jurisprudentia) is to be acquainted with divine and human things, to know what is just and what is unjust.

11 Paulus     (on Sabinus 14)     The word jus is used in a number of different senses: in the first place, in that in which the name is applied to that which is under all circumstances fair and right, as in the case of natural law; secondly, where the word signifies that which is available for the benefit of all or most persons in any particular state, as in the case of the expression civil law. With equal correctness the term jus is applied in our state to honorary law. We may add that the proctor is said to administer the law even when he gives an unjust judgment, the word referring not to what the proctor did in the particular case, but to what it is his business to do. The term jus is applied in another sense to the place in which law is administered, the name being transferred from the thing done to the place where it is done. What place that is may be stated as follows: whatever place the praetor fixes upon in which to dispense justice, so as he maintain unimpaired the dignity of his own authority and the customs of our forefathers, that place is properly termed jus.

12 Marcianus     (Institutes 1)     We sometimes apply the word jus to the tie of a personal connexion, for example a man may say 'I have a jus cognationis or affinitatis' (I am connected by blood or marriage) with such a one.

II. On the Origin of Law and of the different Magistracies, as well as the succession of those learned in the Law.

1 Gaius     (on the Law of the Twelve Tables 1)     Having undertaken to give an exposition of ancient statutes, I have as a matter of course thought it right to go back for my account of the law of the Roman people¹ to the foundation of the city; not that I have any desire to write unduly verbose commentaries, but because I observe that in all subjects a thing is only perfect when it is complete in all its parts, and undoubtedly the most essential part of anything is its beginning. Besides this, if with men who are arguing cases in the forum it is, so to speak, a monstrous thing to set the matter forth to the judge, without first making some introductory statement; how much more unsuitable must it be for one who has undertaken to give an exposition to disregard the beginning and omit reference to historical causes, and so to take up at once with unwashed hands, if I may use the expression, the subject-matter which has to be expounded? The fact is, so it strikes me, that some introduction such as I have mentioned makes people more willing to approach the study of the matter in hand, and, when they have got so far, causes the subject itself to be more easily comprehended.

2 Pomponius     (Enchiridion)     Accordingly it seems requisite to set forth the origin and development of law itself. 1. Now at the time of the origin of our state the citizens at large (populus) undertook at first to proceed without fixed statutes or any fixed law at all, and everything was regulated by the direct control of the kings. 2. After that, the state being more or less enlarged, the tradition is that Romulus himself divided the body of the citizens into thirty parts, which parts he called curiæ, for the reason that he exercised his care (cura) of the commonwealth in accordance with the opinions of the parts referred to. Accordingly he himself proposed to the people certain curiate statutes, and the kings that succeeded him did the same thing; all which statutes exist in writing in the book of Sextus Papirius, who was contemporary with Superbus the son of Demaratus of Corinth, and was one of the leading men. That book, as above mentioned (sic), is called the Papirian civil law; not that Papirius inserted anything in it of his own composition, but because statutes which had been 'passed in an unsystematic way were (therein) reduced by him to a single body of law. 3. The kings being subsequently expelled by a tribunician statute, the above statutes all went out of use, and the Roman people came once more to live by loosely ascertained law or by mere custom rather than by any formal statute, to which -condition it submitted for about twenty years. 4. Afterwards, in order to put an end to this state of things, it was determined that ten men should be appointed by the authority of the state through whom application should be made for statutes to Greek cities, and the Roman state should be put on a statutable foundation. The laws so obtained they wrote on ivory tablets, and set them up before the rostra, to the end that they might be the more clearly perceptible, and supreme authority in the state was given for that year to the officers mentioned, their duty being to amend the statutes, where necessary, and also to expound their meaning, and there was to be no appeal from their decisions as there was from those of magistrates in general. They, however, themselves took note of certain deficiencies in the original statutes just referred to, and, accordingly, in the course of the ensuing year they added two more tables to those already existing; hence the statutes taken all together were called the statutes of the Twelve Tables. It has been stated by some writers that the passing of these laws was suggested to the Tenmen by one Hermodorus, an Ephesian, who was living as an exile in Italy. 5. These statutes being enacted, it thereupon followed that discussion in the forum (disputatio fori) became a necessity, as in fact it naturally must be the case that correct interpretation requires the guidance of those learned in the law. [The results of] such discussion, and the rules of that particular law which is composed by the learned and established without the use of writing, are not called by any special name¹ like the other parts of the law which have their respective designations;² they are both comprised under the general appellation of civil law. 6. After this there were at about the same time various forms of actions devised, founded on the above statutes, by which people in general might carry on litigation; and in order to prevent the citizens from bringing their actions in any way they pleased, the Tenmen required that they should be in set and solemn form. This branch of the law is called that of statute-actions (legis actiones), in other words, statutable actions (legitimæ actiones). Accordingly, these three branches of law arose at about the same time, that is to say, the statute of the Twelve Tables was first passed³, these tables gave rise to the civil law, and in accordance with the same were devised the statute-actions. But, in connexion with all these statutes, the knowledge of the way to interpret them and the conduct of actions founded upon them was left to the College of Pontifices, and it was laid down by order which of these should superintend private causes every year; and the people continued to conform to this usage for about a hundred years. 7. Afterwards, Appius Claudius having propounded and reduced to form the actions above mentioned, Gnæus Flavius, his secretary, the son of a freedman, purloined the book and put it in the hands of the people at large, at which service the people were so much gratified that he was made a tribune of the plebs as well as a senator and a curule ædile. The book itself, which contains the forms of action, is called the Flavian civil law, on the same principle as that on which a book already mentioned is called the Papirian civil law, for Gn. Flavius, like Papirius, inserted nothing in the book of his own composition. As the Roman state increased, certain kinds of application not being available, after no long time Sextus Ælius composed additional forms and presented to the people the book which is known as the Ælian civil law. 8. Hereupon, there being in public use the statute of the Twelve Tables and the civil law, and also the statute-actions, it came to pass that discord arose between the plebs and the fathers, whereupon the former seceded and established laws for itself, which laws are called plebiscites. Soon after, on the plebs being induced to return, a great deal of disagreement arose in connexion with these plebiscites, in consequence of which it was enacted by the lex Hortensia that they should be observed as if they were regular statutes. The result of this was that the difference between a plebiscite and a statute consisted thereafter in the formal method of enactment, but the force of the two was the same. 9. Next, seeing that the plebs found in course of time that it was difficult for them to meet together, and the general body of the citizens no doubt found it much more difficult still, considering the vast increase of their numbers, the very necessity of the case caused the administration of the commonwealth to be put in the hands of the senate; hence that body came to take a new part in the management of affairs, and whatever it enacted was observed as law, the enactment being called a senatus-consultum. 10. At this time, besides the above, there were magistrates who administered justice, and in order that the citizens might be aware what kind of pronouncement the officer would make in any given case and take their measures accordingly, the magistrates published edicts. The edicts of the praetor constituted the honorary law, the name honorary being derived from the public office (honos) of the praetor. 11. Lastly, in accordance with the growing uniformity in the methods of creating law which [the state] was found to have already adopted bit by bit, as the occasion required, it came to be a matter of necessity that the business of providing for the public welfare should be in the hands of one man, as it was impossible for the senate to carry on with the same diligence every department of the administration; accordingly a head of the state was established, and he was entrusted with power to the effect that whatever he laid down should be held valid. 12. Hence in our state [the sources of law are as follows :--] a rule may depend on law properly so called, that is, on a statute; or there is the special and particular civil law which is established without writing by mere interpretation on the part of the learned; again, there are the statute-actions, which give the proper formalities to be used in pleading, or there may be a plebiscitum, which is enacted without the authority of the fathers; furthermore there are the edicts of the magistrates, from which is derived the honorary law, or there is a senatus-consultum which takes its force simply from the fact of being enacted by the senate, though there is no statute strictly so called; or, [lastly,] there is an imperial ordinance, the law being that whatever is enacted by the Emperor himself must be observed as if it were a regular statute.

13. Now that we are acquainted with the origin and progress of the law, the next thing is to note the titles of the various magistrates and the origins of their respective offices, since, as we have already shown, it is through those who preside at the administration of justice that practical results are secured. What advantage is there in the existence of law in the state, if there are no officers to conduct its administration? After that we will treat of the succession of learned authorities, as there can be no consistent body of law at all, unless there are persons acquainted with the law by whom it can from day to day be advanced and unproved. 14. With regard to magistrates, there is no doubt that in the earliest times of the Roman state all power was in the hands of the kings. 15. It is clear that there was also in those days a tribunus celerum; he was the officer who was at the head of the horsemen, and he may be said to have occupied the first place next after the king; such an officer was Junius Brutus, who took the lead in the matter of expulsion of the king. 16. After the kings were expelled, two consuls were established, and it was, provided by statute that they should exercise supreme authority; their name was derived from the fact that they above all others 'consulted' the interest of the commonwealth. Lest however they should lay claim in all respects to the power that had been wielded by the kings, a statute was passed which provided that there should be an appeal from their decisions, and that they should not be able to inflict capital punishment on a Roman citizen without the order of the people: all that was left them was the power of summary coercion (ut coercere possent), and of ordering persons to be imprisoned in the name of the state. 17. After this, as the business of conducting the census required a longer time, and the consuls were not equal to this in addition to their other duties, censors were appointed. 18. Then, as the nation increased in numbers and frequent wars arose, including some of considerable severity waged against Rome by bordering tribes, it was sometimes resolved, when the case required it, that a magistrate should be appointed endowed with exceptional powers; accordingly dictators were instituted, from whom there was no appeal, and who even had conferred upon them the right of inflicting capital punishment. But it was not held right that such a magistrate, wielding as he did supreme power, should be retained in office for more than six months. 19. The dictators were required to have magistri equitum (masters of the horsemen) just as the kings were to have tribuni celerum (officers of cavalry) ; the office was very much the same as the present office of præfectus prætorio, still the holders were considered statutable magistrates. 20. About the same time the plebs, which had seceded from the patres some sixteen years after the expulsion of the kings, created tribunes for themselves on the Sacred Mount by way of plebeian magistrates. They were called tribunes because at one time the whole body of the citizens was divided into three parts, and one tribune was created from each part; or because they were created by the votes of the tribes. 21. Moreover, in order that there should be officers to superintend the temples, in which the plebs used to deposit all their enactments, two members of the plebs were appointed who were called ædiles. 22. Afterwards, when the national finance had come to be on a larger scale, in order to provide officers to preside over it, quæstors were appointed to superintend money matters, so called because they were created for the purpose of inquiring into [the state of the treasury] and guarding the money. 23. And whereas, as has been mentioned, the consuls were not permitted by law to hold a court for trying a Roman citizen in a capital case without the leave of the people, for this reason quæstors were appointed by the people to preside in capital causes; they were called quæstores parricidii; these are in fact mentioned in the statute of the Twelve Tables. 24. It being also resolved that a body of statutes should be passed, it was proposed to the people that all the magistrates should go out of office in order that Tenmen [should be created for the purpose of drawing up statutes. Accordingly the Tenmen¹] were appointed for one year; but whereas they contrived to prolong their office, and were guilty of oppressive practices, and declined, when the time came, to appoint their successors in office, their object being that they themselves and their faction should keep the government in their own hands without interruption, they brought matters to such a pass by their harsh and tyrannical domination that the army deserted the state. The author of the secession is said to have been a certain Verginius, who found that Appius Claudius, contrary to the rule which he had himself taken from the old law and inserted in the Twelve Tables, had refused to give him the interim custody of his own daughter [pending the trial of the question of her status] and had granted it to a man who had been set on by the judge himself to claim her as his slave; so that, carried away by his desire for the girl, he, the judge, had upset all rules of right and wrong. Verginius, finding this, so it was said, and indignant at such a departure, in the case of his own daughter, from a very long-established rule of law (the fact being that Brutus, the earliest consul at Rome, had allowed interim liberty in the case of Vindex, the slave of the Vitellii, whose information. had brought to light a treasonable conspiracy), Verginius, I say, who deemed² the honour of his daughter more precious than even her life, snatched a knife from the shop of a butcher and killed her with it, his object being that the girl's death should preserve her from the dishonour of suffering foul outrage, and thereupon, fresh from the deed, before his daughter's blood was dry, he took refuge with the ranks of his fellow-soldiers. The legions were at that time at Algidum, on a military expedition, but the whole army at once abandoned their actual leaders and earned the standards to the Aventine mount, soon after which the plebs of the city betook themselves in a body to the same spot, and by the common consent of the citizens [the Tenmen] were [some of them driven into exile and³] some put to death in prison; whereupon the commonwealth returned once more to its previous condition. 25. Next, several years having elapsed after the passing of the Twelve Tables, a contest arose between the plebs⁴ and the patres, the former desiring that the consuls should be chosen⁵ out of their own body as well as from the patres, to which the latter refused to consent; whereupon it was resolved that military tribunes should be created with consular power, being taken partly from the plebs and partly from the patres. The number of these officers varied from time to time, sometimes there were twenty, sometimes more, occasionally not so many. 26. Afterwards, it having been resolved that the consuls might be taken from the plebs itself, they came to be appointed from both bodies; whereupon, by way of allowing the patres some kind of precedence⁶, it was resolved that two officers should be appointed from their number [to superintend the games⁷], and this was the origin of the curule ædiles. 27. Again, as the consuls were called away by wars on the border, and there was thus no one left to administer justice at home, it came to pass that in addition to them a prætor was created who was called the prætor urbanus, because he administered justice in the city. 28. Some years after this, as this prætor was not equal to the discharge of his duties, in consequence of the excessive crowding of actual foreigners into the city, another prætor was created in addition, called the prætor peregrinus, because his chief duty was to administer justice to the peregrini (foreigners). 29. Again, it was necessary that there should be some magistrate to preside⁸ at the court of the hasta; accordingly the 'Tenmen for⁹ determining causes' were appointed. 30. About the same time were also appointed the 'Fourmen to take charge of highways' and the 'Threemen of the Mint' who melted bronze, silver, and gold; also the 'Threemen for capital cases' who were to have the care of the prison, so that, when punishment was to be inflicted, it might be done by their agency. 31. And as it was unsuitable for the magistrates to be engaged in public affairs in the evening, there were appointed the Fivemen for the hither side and the other side of the Tiber who might act in the place of the magistrates. 32. After this, Sardinia being annexed, then Sicily, also Spain, and next the province of Narbo, so many additional prætors were appointed, corresponding to the number of provinces which had come under the Roman sway, some of which prætors had to superintend home, and some provincial affairs. Later on, Cornelius Sylla instituted State inquisitions (quæstiones publicæ), for example, for forgery (de falso), for parricide, for stabbers; and he also created four additional prætors. Next Gains Julius Cæsar appointed two prætors and two ædiles to preside over the distribution of corn, who¹⁰ were to be called Cereal, from the goddess Ceres. Thus there were created twelve prætors and six ædiles. After this the Divine Augustus appointed sixteen prætors. Then the Divine Claudius added two more prætors to hold courts on 'questions of testamentary trusts (de fideicommisso), but one of the, two was suppressed by the Divine Titus; and the Divine Nerva added a judge who should adjudicate on cases between the fiscus and private persons. This makes the number of persons who administer justice in the state eighteen. 33. All the above holds good as long as the magistrates are at home; but whenever they. leave the city, one is left to administer justice who is entitled præfectus urbi. He used at one time to be appointed when the others took their departure¹¹, afterwards he may be said to have been, regularly instituted on account of the Latin festivals, and the appointment is made every year. The fact is that the prefect of the corn supply and the prefect of the watch (præfectus annonæ and præfectus vigilum) are not magistrates, they are extraordinary officers appointed in the interest of the public. At the same time the Cistiberes above referred to (tribunes for the hither side of the Tiber) were by a decree of the senate afterwards made ædiles. 34. On the whole then, as it appears by the above, there were ten tribunes of the plebs, two consuls, eighteen prætors and six ædiles exercising jurisdiction in the city.

35. The knowledge of civil law has been professed by a great number of distinguished men; we will at present mention such of them as held the first rank in the estimation of the Roman people, so as to set forth the names and characters of those who originated and handed down our rules of law. Of all those who acquired systematic knowledge, no one, so the tradition is, made a public profession of it before Tiberius Coruncanius; all those who preceded him either desired to keep the civil law in the background, or else¹ were in the habit of bestowing their time on such as consulted them, rather than putting themselves at the disposal of persons who wished for systematic instruction. 36. One lawyer of pre-eminent learning was Publius Papirius, who drew up a consolidated version of the Royal statutes (leges regiæ). After him came Appius Claudius, one of the Tenmen, who had the chief voice in the composition of the Twelve Tables. After him another Appius Claudius of the same family possessed the greatest knowledge of the law; he was cared the hundred-handed, he laid down the Appian road, he made the aqueduct for the Claudian water, he voted that Pyrrhus should not be admitted into the city; and he it was, according to tradition, who first wrote forms of action for cases of interruption to possession, but his book is not extant. The same Appius Claudius devised the letter R, a consequence of which seems to have been that Valesii was turned into Valerii and Fusii into Furii². 37. A man of very great learning after these was Sempronius, whom the Roman citizens called σοφὸς (the wise), and no one else either before or after him received that surname. [Then there was] Gaius Scipio Nasica, who was called by the senate 'the Best'; in addition to which he was presented by the state with a house in the Via Sacra, so as to make it more easy to consult him. Next came Quintus Mucius; he was once sent as envoy to Carthage, where, two dice being laid before him, one for 'peace' and the other for 'war,' he was given the choice between them and requested to take back to Rome whichever he preferred; whereupon he took up both, saying that the proper course was for the Carthaginians to ask for whichever of the two they would rather receive. 38. The above were succeeded by Tiberius Coruncanius, who, as already mentioned, was the first public professor of law; there is however no written work of his to be met with, though his formal opinions were numerous and noteworthy. After him Sextus Ælius and his brother Publius Ælius and also Publius Atilius displayed very great learning as public teachers, so much so that the two Ælii were in fact made consuls, and Atilius was the first person to whom the people gave the title of Sapiens. Indeed Sextus Ælius is mentioned by Ennius, and there exists a book of his bearing the title Tripertita, containing a sort of cradle of the law; it is called Tripertita because in it we have first the statute of the Twelve Tables, this is followed by an exposition, and lastly the work concludes with the statute-actions. There are three other books which are said to be by the same author, though some persons maintain that this is not the case; these latter have been to some extent followed by Cato. We next have Marcus Cato, the head of the Porcian family, and some books are extant written by him; but there are a great many by his son, and it is on these last that the subsequent works are founded. 39. After these were Publius Mucius and Brutus and Manilius, who were the founders of the civil law. Of these P. Mucius left as many as ten treatises, Brutus seven, Manilius three; and written rolls of Manilius are preserved³. The two former were of consular rank, Brutus had been prætor, P. Mucius had been even Pontifex Maximus. 40. Pupils of these were Publius Rutilius Rufus, who was consul at Rome and proconsul of Asia, Paulus Verginius and Quintus Tubero, the well-known Stoic, who studied under Pansa and was himself consul. Sextus Pompeius, the paternal uncle of Gnæus Pompeius, lived at the same time, and so did Cælius Antipater, an author of historical works, but a man who bestowed more pains on the art of public speaking than on legal learning; there was also Lucius Crassus, brother to Publius Mucius, who was called Munianus, this last is said by Cicero to have been the best speaker of all jurisconsults. 41. After these Quintus Mucius, the Pontifex Maximus, son of Publius, was the first who made a digest of the civil law, which he arranged under heads in eighteen books. 42. Mucius had a great number of pupils, but those of most authority were Aquilius Gallus, Balbus Lucilius, Sextus Papirius, and Gaius Juventius; of these Gallus is reported by Servius to have had most authority with the people at large. They are however all cited by Servius Sulpicius; but no original works of these men are extant of such a character as to be in general demand; indeed their writings are not in frequent and general use at all, though Servius⁴ constantly made use of them in compiling his own books, and it is owing to his writings that they themselves are held in remembrance. 43. Servius Sulpicius, at a time when he occupied the chief place as a pleader of causes, or, at any rate, the next after Marcus Tullius [Cicero], is said to have gone to Quintus Mucius for his advice about an affair in which a friend of his was concerned, and to have very imperfectly understood an answer which Mucius gave him⁵ on a point of law. Hereupon, as the story is, he asked the question again, and received an answer from Mucius, which he still failed to comprehend, which drew upon him a severe reproach from Mucius; it was disgraceful, he said, that a patrician, a member of a family of distinction and a pleader of causes, should be unacquainted with the law in which his business lay. Stung with this taunt, so to call it, Servius took pains to learn the civil law, and received a great deal of instruction from teachers above mentioned; he was taught by Balbus Lucilius, and helped on his way a great deal by Gallus Aquilius who lived at Cercina; hence it comes that a great many works of his now extant were composed at that place. Servius died in the course of serving as a legate, whereupon the Roman people erected a statue to him before the rostra, which is to be seen at this day in front of the rostra of Augustus. A number of rolls of his works are in existence; he left behind him nearly a hundred and eighty books. 44. Many lawyers derived instruction from him, among whom the following were the chief writers: Alfenus Varus [Gaius⁶], Aulus Ofilius, Titus Cæsius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Gaius Ateius, Pacuvius Labeo [Antistius], the father of Labeo Antistius, Cinna, Publicius Gellius. Of these ten, eight wrote books, the matter of the whole of whose existing works was arranged by Aufidius Namusa in a hundred and forty books. Among the abovementioned pupils [of Servius those of greatest authority were Alfenus Varus and Aulus Ofilius; Varus attained the consulship, Ofilius always kept his equestrian rank. He was on very intimate terms with the Emperor, and he left a large number of books on civil law which were intended to serve as a groundwork in every part of the subject. He was⁷ the first author to write about the statutes relating to the five per cent. duty; he was also the first to make a careful arrangement of the matter of the prætor's edict so far as it bore on jurisdictio; though before him Servius left two very short books addressed to Brutus bearing the title On the Edict. 45. An author of the same day was Trebatius, he was a pupil of Cornelius Maximus; there was also Aulus Cascellius, a pupil of Quintus Mucius Volusius⁸, in fact in honour of his instructor, he made Mucius's grandson Publius Mucius his, heir. He was a man of quæstorian rank, and he did not care to rise higher, though Augustus himself offered him the consulship. Among the three last-named, Trebatius, it is said, had more practical acquaintance with law than Cascellius, but Cascellius surpassed Trebatius in eloquence, while Ofilius excelled both in learning. No works of Cascellius remain except a single book of "good sayings." There are a good many books of Trebatius, but they are not much used.. 46. After these came Q.⁹ Tubero, who studied under Ofilius; he was a patrician, and he gave up the business of a pleader for the study of the civil law, his chief reason for this being that he had prosecuted Quintus Ligarius before Gaius Cæsar without success. Quintus Ligarius was the man. who, being in command on the African coast, refused to allow Tubero to land when he was ill, or to take water, on which Tubero prosecuted him, and Ligarius was defended by Cicero; Cicero's oration is preserved, and may fairly be called a very fine one; it is entitled Defence of Quintus Ligarius. Tubero was accounted most learned in public and private law, and he left a great many books on both subjects, but he affected antique language in his writing, and for that reason his books are not popular. 47. After him very great, authority, was allowed to Ateius Capito, who followed Ofilius, and Antistius Labeo, who studied under all the above (sic); though he was especially instructed by Trebatius. Of these two, one, Ateius, was consul; Labeo, when the same office was offered him by Augustus, the holding of which would have made him interim consul (consul suffectus), declined to accept it, but he bestowed great pains on legal studies. In the prosecution of these he divided the year into two parts, so as to pass six months at Rome with his pupils, and for the remaining six months to be absent and give himself up to writing books. In the end he left four hundred volumes, many of which are in constant use. These two men may be said to have founded two schools respectively; Ateius Capito adhered to the doctrines which had reached him by tradition; Labeo, who was gifted with original ability and relied on his own learning, having given attention to many other branches of knowledge, undertook to make a good many innovations. 48. In connexion with this distinction, Ateius Capito was succeeded by Massurius Sabinus, and Labeo by Nerva; these two in fact widened the difference between the two schools above mentioned. Nerva was on very intimate terms with the Emperor. Massurius Sabinus was a member of the equestrian order, and was the first to give opinions in the public interest (publice) ; †the fact being that after this privilege had come to be given, it was allowed to him by Tiberius Cæsar†.¹¹ 49. It may be observed in passing that before the days of Augustus the right of delivering opinions in the public interest was not granted by the head of the state, but any persons who felt confidence in their own learning gave answers to such as consulted them; moreover they did not always give their answers under seal; they very often wrote to the judge themselves, or called upon those who consulted them to testify to the opinions they gave. The Divine Augustus was the first to lay down, in order to ensure greater authority to the law, that the jurisconsult might deliver his answer in pursuance of an authorization given by himself; and from that time such an authorization was asked for as a favour. It was in consequence of this that our excellent Emperor Hadrian, on receiving a request from some lawyers of prætorian rank for leave to give legal opinions, answered the applicants that this privilege was not usually asked for but granted [or that there was no leave asked for this practice, it was simply carried out], consequently, if any one were confident of his powers, he (the Emperor) would be much pleased to find that¹² he took steps to qualify himself for delivering opinions to the citizens. 50. Accordingly leave was given to Sabinus by Tiberius Cæsar to deliver opinions to the citizens. Sabinus himself was admitted into the equestrian order at an advanced time of life, in fact at about the age of fifty. He was not a man of ample means, but he was maintained to a great extent by his pupils. 51. Sabinus was succeeded by Gains Cassius Longinus, the son of a daughter of Tubero's, who herself was grand-daughter to Servius Sulpicius: whence Cassius speaks of Servius Sulpicius as his great-grandfather. Cassius was consul along with Quartinus in the time of Tiberius; he possessed very great influence in the state down to the time when the Emperor expelled him. 52. He was banished to Sardinia, but he lived to be recalled by Vespasian. Nerva was succeeded by Proculus. There lived at the same time another Nerva, the son; there was also another Longinus, who belonged to the equestrian order; he afterwards attained to the office of prætor. Proculus however had the greater authority, in fact he had very great influence. The members of the two schools were called respectively Cassians and Proculians, the distinction between the schools having taken its start from Capito and Labeo. 53. Cassius was succeeded by Cælius Sabinus, who had very great influence in the days of Vespasian; Proculus by Pegasus, who was at the same period prefect. of the city; CæIius Sabinus by Priscus Javolenus; Pegasus by Celsus; Celsus the father by Celsus the son and Priscus Neratius; both the last mentioned were consuls, Celsus indeed was twice consul; Javolenus Priscus was followed by Aburnius Valens and Tuscianus, also by Salvius Julianus.

III. On Statutes, Decrees of the Senate, and Long Usage.

1 Papinianus     (Definitions 1)     A statute (lex) is a command of general application, a resolution on the part of learned men, a restraint of offences, committed either voluntarily or in ignorance, a general covenant on the part of the state.

2 Marcianus     (Institutes 1)     The orator Demosthenes him self gives this definition: A law (νόμος) is the following: something which all men ought to obey for many reasons, and chiefly because every law is devised and given by God, but resolved on by intelligent men, a means of correcting offences both intentional and unintentional, a general agreement on the part of the community by which all those living therein ought to order their lives. We may add that Chrysippus the philosopher, a man who professed the highest wisdom of the Stoics, begins his book called περὶ νόμου (on law) as follows:--"Law is the king of all things, both divine and human, it ought to be the controller, ruler and commander of both the good and the bad, and thus to be a standard as to things just and unjust and" [director of] "beings political by nature, enjoining what ought to be done and forbidding what ought not to be done."

3 Pomponius     (on Sabinus 25)     Laws ought to be laid down, as Theophrastus said, in respect of things which happen for the most part, not which happen against reasonable expectation.

4 Celsus     (Digest 5)     Rules of law are not founded on possibilities which may chance to come to pass on some one occasion,

5 The same     (Digest 17)     since law ought to be framed to meet cases which occur frequently and easily, rather than such as very seldom happen.

6 Paulus     (on Plautius 17)     What occurs once or twice, as Theophrastus says, lawgivers pass by.

7 Modestinus     (Rules 1)     The use of a statute is as follows: to command, to prohibit, to permit, to punish.

8 Ulpianus     (on Sabinus 3)     Rules of law are not laid down with respect to particular individuals, but for general application.

9 The same     (on the Edict 16)     Nobody questions that the senate can make law.

10 Julianus     (Digest 59)     Neither statutes nor decrees of the senate can possibly be drawn in such terms as to comprehend every case which will ever arise; it is enough if they embrace such as occur very often.

11 The same     (ibid. 90)     Consequently, when a rule is laid down in the first instance, a more precise provision has to be made, either by interpretation or else by direct legislation on the part of the most excellent Emperor.

12 The same     (ibid. 15)     It is impossible for every point to be expressly comprehended in statutes or senatorial decrees; still if, in any case that arises, the meaning of the enactment is clear, the presiding magistrate ought to extend the rule to analogous cases to the one expressed and lay down the law accordingly.

13 Ulpianus     (on the Edict of the Curule Ædiles 1)     For, as Pedius says, whenever this or that is provided by statute, there is a fair opening for any further rule which involves the same beneficial principle being supplied, either by interpreting the statute in that sense or, at any rate, by the ruling of the presiding magistrate (jurisdictio).

14 Paulus     (on the Edict 54)     But where a rule has obtained force which is against legal principle, no analogous extension thereof should be made.

15 Julianus     (Digest 27)     In cases where anything has been laid down which is against legal principle, we cannot follow the rule of law [so laid down].

16 Paulus     (Special law)     Special law (jus singulare) is law which contradicts the ordinary course of legal principle, but has been introduced for the sake of some particular beneficial operation in virtue of the authority of those who laid it down.

17 Celsus     (Digest 26)     To know the statutes does not mean to have got hold of the actual words, but to be acquainted with their sense and application.

18 The same     (ibid 29)     Statutes ought to be interpreted indulgently, so as to preserve the intention.

19 The same     (ibid. 33)     Where a word in a statute is obscure, the meaning which ought rather to be adopted is the one which involves no absurdity, especially considering that it is possible by applying that principle to arrive at the intention of the statute.

20 Julianus     (Digest 55)     It is impossible to assign the principle of every rule of law laid down by our forefathers;

21 Neratius     (Parchments 6)     consequently the reasons for the law laid down ought not to be inquired into; or else a great many rules already established will be upset.

22 Ulpianus     (on the Edict 35)     Where a statute gives an exemption in respect of what is past, it maintains the prohibition for the future.

23 Paulus     (on Plautius 4)     Where a particular interpretation has always been received, there ought to be no change made.

24 Celsus     (Digest 9)     It is not like a lawyer to take hold of one particular portion of a statute and found a judgment or opinion upon it without examining the whole statute.

25 Modestinus     (Responsa 8)     It is inconsistent with all principles of law and with all rules of indulgent construction founded on justice that where any provision is happily introduced for the benefit of mankind, we should interpret it so harshly as to make it an authority for severe dealing to the prejudice of those for whose sake it was devised.

26 Paulus     (Questions 4)     There is nothing new in earlier statutes being made use of in interpreting later ones.

27 Tertullianus     (Questions 1)     It being the case that the older statutes are usually made use of for interpreting the newer, it ought always to be understood that it is, so to speak, of the essence of a statute that it should be applicable to any persons or things which may at any time be similar to those specified.

28 Paulus     (on the lex Julia et Papia 5)     But in like manner the later statutes are relevant for interpreting the earlier, unless they contradict them, as may be shown in a number of cases.

29 The same     (on the lex Cincia)     A man who does what a statute forbids transgresses the statute; a man who contravenes the intention of a statute, without disobeying the actual words, commits a fraud on it.

30 Ulpianus     (on the Edict 4)     A fraud is committed on a statute when something is done which the statute desired should not be done, but did not actually forbid; the difference between fraud on the law and transgression of it is the same as that between speech and intention.

31 The same     (on the lex Julia et Papia 13)     The Emperor is not bound by statutes. The Empress no doubt is bound, at the same time the Emperor generally gives her the same exceptional rights as he enjoys himself.

32 Julianus     (Digest 84)     In any kinds of cases in which there are no written laws the rule which ought to be observed is that which has come to prevail by use and custom; and should there in any case be no such rule assignable, then what comes nearest and answers to one; if even this cannot be found, then we ought to go by the law in use in the city of Rome. 1. Immemorial custom is observed as a statute, not unreasonably; and this is what is called the law established by usage. Indeed, inasmuch as statutes themselves are binding for no other reason than because they are accepted by the judgment of the people, so anything whatever which the people show their approval of, even where there is no written rule, ought properly to be equally binding on all; what difference does it make whether the people declare their will by their votes, or by positive acts and conduct? On this principle it is also admitted law, and very rightly so, that statutes are abrogated not only by the voice of one who moves to repeal them (suffragio legislatoris), but also by the fact of their falling out of use by common consent.

33 Ulpianus     (on the office of Proconsul 1)     It is the practice for custom of long standing to be observed for law and statute in all such matters as are not regulated by written rules.

34 The same     (ibid. 4)     Where anyone is found to be confident as to the custom of a city or province, I am of opinion that a question which ought to be asked first of all is this: Has the custom ever been confirmed by a judicial sentence delivered after objections were heard?

35 Hermogenianus     (Epitomes of law 1)     We may add that rules of law which have the sanction of long-established custom and have been kept up for a great number of years, maybe treated as being the subject of a tacit agreement on the part of the citizens in general, and are as fully maintained as those which exist in writing.

36 Paulus     (on Sabinus 7)     In fact especial weight is allowed to a rule which has met with such approval that it was not necessary to embody it in writing.

37 The same     (Questions 1)     If a question is raised as to the interpretation of a statute, we must first inquire what was the rule of law which the state observed previously in cases of the same kind; custom is the best interpreter of statutes.

38 Callistratus     (Questions 1)     In fact the reigning Emperor Severus laid down that where doubts occur owing to the wording a statute, in such a case custom or the authority of constant decisions given to the same kind of effect ought to have the force of a statute.

39 Celsus     (Digest 23)     When some rule has been introduced which was not arrived at by any legal principle, but was founded on a mistake and subsequently maintained by mere custom, it is not to be applied to similar cases.

40 Modestinus     (Rules 1)     Accordingly all rules were either made through agreement or established by necessity or fixed by custom.

41 Ulpianus     (Institutes 2)     Now all law is concerned with¹ acquisition or preservation or restriction of right, as what is in question is either how a thing becomes a man's property or how a man can preserve some thing or right which he already has, or how he can transfer it to some one else or cease to have it.

IV. On Imperial Enactments.

1 Ulpianus     (Institutes 1)     What the Emperor has determined has the force of a statute; seeing that, by a lex regia which was passed on the subject of his sovereignty, the people transfer to him. and confer upon him the whole of their own sovereignty and power. 1. Accordingly whatever the Emperor has laid down by a letter with his signature, or has decreed on judicial investigation, or has pronounced out of court, or enacted by an edict, amounts beyond question to a statute. The above are cases of what are commonly called constitutions. 2. No doubt some of these are of special application, and are not drawn into a precedent; wherever the Emperor shows indulgence to anyone on the ground of his merits, or imposes a penalty on anyone, or gives him relief in a way not practised theretofore, this applies only to the particular person.

2 Ulpianus     (Fideicommissa 4)     Where any new ordinance is made, there ought to be a very clear case of beneficial operation to allow of a departure from the law which has been held just for a long time past.

3 Javolenus     (Epistles 13)     An indulgence vouchsafed by the Emperor, which proceeds in fact from his divine clemency, ought to receive the most extensive construction possible.

4 Modestinus     (Excuses 2)     Later enactments have more force in law than those which precede them.