The Institutes of Justinian | Page 3

race; for nations have settled certain things for themselves as occasion and the necessities of human life re- quired. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free. The law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consumption, and very many others.
3 Our law is partly written, partly unwritten, as among the Greeks. The written law consists of statutes, plebiscites, senatusconsults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law. 4 A statute is an enactment of the Roman people, which it used to make on the motion of a senatorial magistrate, as for instance a consul. A plebiscite is an enactment of the commonalty, such as was made on the motion of one of their own magistrates, as a tribune. The commonalty differs from the people as a species from its genus; for `the people' includes the whole aggregate of citizens, among them patricians and senators, while the term `commonalty' embraces only such citizens as are not patricians or senators. After the passing, however, of the statute called the lex Hortensia, plebiscites acquired for the first time the force of statutes. 5 A senatusconsult is a command and ordinance of the senate, for when the Roman people had been so increased that it was difficult to assemble it together for the purpose of enacting statutes, it seemed right that the senate should be consulted instead of the people. 6 Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the ��lex regia,�� which was passed concerning his office and authority. Consequently, whatever the Emperor settles by rescript, or decides in his judicial capacity, or ordains by edicts, is clearly a statute: and these are what are called constitutions. Some of these of course are personal, and not to be followed as precedents, since this is not the Emperor's will; for a favour bestowed on individual merit, or a penalty inflicted for individual wrongdoing, or relief given without a precedent, do not go beyond the particular person: though others are general, and bind all beyond a doubt. 7 The edicts of the praetors too have no small legal authority, and these we are used to call the ��ius honorarium,�� because those who occupy posts of honour in the state, in other words the magistrates, have given authority to this branch of law. The curule aediles also used to issue an edict relating to certain matters, which forms part of the ius honorarium. 8 The answers of those learned in the law are the opinions and views of persons authorized to determine and expound the law; for it was of old provided that certain persons should publicly inter- pret the laws, who were called jurisconsults, and whom the Emperor privileged to give formal answers. If they were unanimous the judge was forbidden by imperial constitution to depart from their opinion, so great was its authority. 9 The unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute. 10 And this division of the civil law into two kinds seems not inappropriate, for it appears to have origin- ated in the institutions of two states, namely Athens and Lacedaemon; it having been usual in the latter to commit to memory what was observed as law, while the Athenians observed only what they had made permanent in written statutes.
11 But the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute.
12 The whole of the law which we observe relates either to persons, or to things, or to actions. And first let us speak of persons: for it is useless to know the law without knowing the persons for whose sake it was established.
TITLE III OF THE LAW OF PERSONS
In the law of persons, then, the first division is into free men and slaves. 1 Freedom, from which men are called free, is a man's natural power of doing what he pleases, so far as he is not prevented by force or law: 2 slavery is an institution of the law of nations, against nature subjecting one man to the dominion of another. 3 The name `slave' is derived from the practice of generals to order the preservation and sale of captives, instead