institutes of justinian

XII. We have abolished the class of dedititii by a constitutio published among our decisions, by which, at the suggestion of the eminent Tribonian, quaestor, we have put an end to difficulties arising from the ancient law. Pupils, both male and female, are freed from tutelage when they attain the age of puberty. When the usufructus is entirely extinguished, it is reunited to the property; and the person who had the bare ownership begins thenceforth to have full power over the thing. But at the present day none of our subjects may use unrestrained violence towards their slaves, except for a reason recognized by law. Grammarians, rhetoricians, and physicians at Rome, and those who exercise such professions in their own country, and are within the number authorized, are exempted from being tutors or curators. 11. Wars arose, and in their train followed captivity and then slavery, which is contrary to the law of nature; for by that law all men are originally born free. 2. 2. A creditor, also, who has received a pledge, is bound re, for he is obliged to restore the thing he has received, by the actio pigneratitia. The Institutes of Gaius and The Institutes of Justinian are two notable legal textbooks written approximately at the beginning and the end of this process. This the son of a father's sister is related to you not by agnatio, but by cognatio, and you are also related to him by cognatio; as children belong to the family of their father, and not to that of their mother. In the preceding book we have treated of the law of persons. The Institutes of Justinian. But things sold and delivered are not acquired by the buyer until he has paid the seller the price, or satisfied him in some way or other, as by procuring some one to be security, or by giving a pledge. OF PERSONS 10. The curule aediles also used to publish an edict relative to certain subjects, which edict also became a part of the ius honorarium. He is then made a suus heres by the ius postliminii. Several brothers, for instance, in the same degree, are all equally called to be tutor. And it is the same although the fuller or tailor is partially solvent. So, too, he who has the usus of a slave, has only the right of himself using the labor and services of the slave: for he is not permitted in any way to transfer his right to another. 43. When a man has been born free he does not cease to be ingenuus, because he has been in the position of a slave, and has subsequently been enfranchised; for it has been often settled that enfranchisement does not prejudice the rights of birth. And although a child is born after the death of his grandfather, yet, if he was conceived in the lifetime of his grandfather, he will, if his father is dead, and his grandfather's testament abandoned, become the suus heres of his grandfather. 4. Therefore, bees that swarm upon your tree, until you have hived them, are no more considered to be your property than the birds which build their nests on your tree; so, if any one hive them, he becomes their owner. The right of passage for water is the right of conducting water through the land of another. 31. The chief division in the rights of persons is this: men are all either free or slaves. There are also restrictions, though not so extensive, on marriage between collateral relations. 2. For, although he has not delivered it to you for the purpose of the sale or gift, yet by the mere fact of his consenting to it becoming yours, you instantly acquire the property in it, as fully as if it had actually been delivered to you for the express purpose of passing the property. If a tutor fails to appear, that a certain amount of maintenance may be fixed on for his pupil, it is provided by a rescript of the Emperors Severus and Antoninus that the pupil shall be put into the possession of the effects of the tutor, and that after a curator has been appointed, those things, which are perishable, may be sold. of Lincoln's Inn, Barrister-at-Law, Fellow and Late Tutor of New College, Oxford But lest robbers, under cover of such an excuse, find means of gratifying their avarice with impunity, the imperial constitutiones have made a wise alteration, by providing that no one may carry off by force a thing that is moveable, or moves itself, although he thinks himself the owner. The usufructuary of land is not owner of the fruits until he has himself gathered them; and, therefore, if he should die while the fruits, although ripe, are yet ungathered, they do not belong to his heirs, but are the property of the owner of the soil. 14. What we mean by a not manifest thief may be gathered from what we have said, for a theft which is not a manifest theft is a not manifest theft. For when we may not marry the daughter of any person, neither may we marry the granddaughter. A person may adopt another as grandson or granddaughter, great-grandson or great-granddaughter, or any other descendant, although he has no son. Obligationes are formed by the mere consent of the parties in the contracts of sale, of letting to hire, of partnership, and of mandatum. 4. 3. 6. 04, 2015. The Emperor Marcus declared by rescript in his Semestria, that a person engaged in administering the property of the fiscus is excused from being tutor or curator while his administration lasts. But if the theft has been committed by the assistance and advice of another, as a theft is actually committed, this person will be subject to the actio of theft as a theft is undoubtedly committed through his means. Any person may execute any number of duplicates of the same testament, each, however, being made with prescribed forms. For instance, when the praetors and consuls throw their largesse to the mob, they do not know what each person in the mob will get; but as it is their intention that each should get what he gets, they make what each gets immediately belong to him. ), zu dem auch der Codex und die Digesten gehören. III, TIT. But if he will not or cannot fix a price, the sale is then void, as being made without any price being fixed on. Neither the prefect of the city, nor the praetor, nor the praeses of a province, nor any one else to whom the appointment of tutors belongs, will be liable to this actio, but only those whose ordinary duty is to exact the security. The opinion of the ancients, who thought that there could be a theft of a piece of land or a place, is now abandoned, and there are imperial constitutiones which provide that no possessor of an immoveable shall be deprived of the benefit of a long and undoubted possession. Thus the law of testament seems to have had a triple origin. 4. But the other constitutiones, being general, are undoubtedly binding on all. A brother and sister are forbidden to marry, whether they are the children of the same father and mother, or of one of the two only. The second head of the lex Aquilia is not now in use. This always consists of things which may be weighed, numbered, or measured, as wine, oil, corn, coin, brass, silver, or gold. Justice and Law. It is also usual to assign curators in the place of tutors excused for a time only. 19. You should not rely on this information. The opinion of Proculus, who maintained that exchange is a particular kind of contract distinct from sale, has deservedly prevailed, as it is supported by other lines from Homer, and by still more weighty reasons adopted by preceding emperors: it has been fully treated in our Digests. If, however, it remains for long united to your neighbor's land, and the trees, which it swept away with it, take root in his ground, these trees from that time become part of your neighbor's estate. 2. The law of the nations is common to all mankind, for nations have established certain laws, as occasion and the necessities of human life required. From a regard to what is useful, and conformably to an opinion of Marcellus, we have published a decision, by which we have permitted those who have this right of habitatio, not only themselves to inhabit the place over which the right extends, but also to let to others the right of inhabiting it. It is also to be observed that a parent having in his power a son, and by that son a grandson or granddaughter, may emancipate his son, and retain in his power his grandson or granddaughter; or, conversely, he may emancipate his grandson or granddaughter, and retain his son in his power; or, he may make them all independent. Every community governed by laws and customs uses partly its own law, partly laws common to all mankind. 2. 9. In the condition of slaves there is no distinction; but there are many distinctions among free persons; for they are either born free, or have been set free. IV. For example, a vessel when cast, can easily be reduced to its rude materials of brass, silver, or gold; but wine, oil, or wheat, cannot be reconverted into grapes, olives, or ears of corn; nor can mead be resolved into wine and honey. These edicts are called the ius honorarium, because those who bear honors [i.e., offices] in the state, that is, the magistrates, have given them their sanction. But if Maevius assists Titius to commit a robbery, both are liable to an actio of theft. The children of two brothers or two sisters, or of a brother and sister, may marry together. You cannot, therefore, marry a woman who has been either your daughter or granddaughter by adoption, although you may have emancipated her. Let us first treat of those which arise from a contract; which again are divided into four kinds, according as they are formed by the thing, by word of mouth, by writing, or by consent. The master of a slave who is killed may bring a private actio for the damages given by the lex Aquilia, and also bring a capital actio against the murderer. At the death of the father, ownership in an inheritance is at once continued; accordingly, the authority of a tutor is not necessary, as inheritances may be acquired by sui heredes without their knowledge: neither does an insane person acquire by assent of his curator, but by operation of law. But if they are emancipated by their adoptive father after the death of their natural father, they are equally considered as strangers to the adoptive father; and yet do not gain the position of children with regard to the inheritance of their natural father. It seems to us the better opinion that the tablet should accede to the picture; for it is ridiculous that a painting of Apelles or Parrhasius should be but the accessory of a thoroughly worthless tablet. 2. For the betrothed wife of a son is not your daughter-in-law; nor your betrothed wife your son's step-mother; and yet it is more decent and more in accordance with law to abstain from such marriage. Book III. This is an advance summary of a forthcoming entry in the Encyclopedia of Law. And, therefore, if the real owner afterwards appears and claims his land, he can have no actio for fruits which the possessor has consumed. It was first published on November 21, 533. some by giving copper, others by giving shining steel, In the latter, it is a sum estimated, as we have said, that constitutes the penalty; in the former, the iudex, in the exercise of his duty, inflicts on the offender an extraordinary punishment. If a slave who has been sold runs away or is stolen, without any fraud or fault on the part of the seller, we must inquire whether the seller undertook to keep him safely until he was delivered over; if he undertook this, what happens is at his risk; if he did not undertake it, he is not responsible. For the same reason, a grandson or granddaughter by a son, and a great-grandson or great-granddaughter by a grandson, are called together. Change of Station. The Free-born. Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any one. When, for instance, the pupil stipulates for something to be given him, the authorization of the tutor is not requisite; but if the pupil makes the promise, it is requisite; for the rule is, that pupils may make their condition better, but may not make it worse, without the authorization of their tutor. No person instituted heir, nor any one in subjection to him, nor his father, in whose power he is, nor his brothers under power of the same father, can be witnesses; for the whole business of making a testament is in the present day considered a transaction between the person who has purchased from the testator and the heir. 2. And as opinions were divided as to the son, we decided that as the daughter of a madman might, so may the son of a madman marry without the intervention of the father, according to the mode established by our constitutio. Dated circa 529 AD, it sets out the rule of capture of wild animals that still persists today and gives context and meaning and historical richness to the legal education that is so lacking in the US today. Facies? 10. BOOK III. Thus much concerning sui heredes. * Reprint of the seventh and final edition of one of the finest translations of the Institutes. A sale may be made conditionally or unconditionally; conditionally, as, for example, "If Stichus suits you within a certain time, he shall be purchased by you as such a price." The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it. 2. Things are sacred which have been duly consecrated by the pontiffs, as sacred buildings and offerings, properly dedicated to the service of God, which we have forbidden by our constitutio to be sold or mortgaged, except for the purposes of purchasing the freedom of captives. 8. On the other hand, it is very evident that if the owner originally brings an actio commodati, in ignorance that the thing has been stolen, and, afterwards learning this, prefers to proceed against the real thief, the borrower is thereby entirely freed, whatever may be the issue of the actio against the thief; as in the previous case, the thief would be freed as against the lender, whether the borrower was wholly or only partially able to satisfy the claim against him. A younger person cannot adopt an older; for adoption imitates nature; and it seems unnatural that a son should be older than his father. (A.D.535) BOOK I. The Power of Parents. Appointing of Tutors. And it is immaterial whether a man takes wild beasts or birds upon his own ground, or on that of another. Such were the rules that formerly obtained; but they have received some emendation from our constitutio relating to persons given in adoption by their natural parents. 1. But a child born of your daughter is not in your power, but in the power of its own father. 5. Sometimes, however, it is otherwise; for, if an heir, supposing a thing lent or let to the deceased, or deposited with him, to be a part of the inheritance, sells or gives it as a gift or dowry to a person who receives it bona fide, there is no doubt that the person receiving it may acquire the property in it by use; for the thing is not tainted with the vice of theft, as the heir who has bona fide alienated it as his own, has not been guilty of a theft. 2. 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