Page images
PDF
EPUB

history of the contests between the senatorial and equestrian orders for the right of being judges already referred to (see sec. 12), applies to criminal and civil judges equally. Before the quæstiones perpetuæ any citizen might be an accuser. He had to swear that his charge was not false, and he had to prove the guilt of the accused- so that the system under which a criminal trial is regarded as a suit between parties was thus introduced into Roman law. Private persons had from an early time of Roman law recovered penalties in a civil action for delicts committed to their injury, and, so too, the criminal proceeding took the form of an action between the private person accusing and the accused. The judges were under the guidance of a president (præses), and each judge pronounced that he condemned, absolved, or that there was not proof either way, by dropping into an urn one of three tablets, bearing respectively the words condemno, absolvo, non liquet. If the accused was condemned, he received the precise punishment provided by the law creating the quæstio perpetua. During the last century of the republic, and in the early days of the empire, a great number of laws, each handing over a special head of offence to a quæstio perpetua, were passed, and thus something like a system of criminal law and criminal procedure was established. Under the empire, as time went on, exactly what happened in civil suits happened in criminal proceedings. The magistrates had exercised a power of dealing with some offences in a summary manner (extra ordinem), and the sphere of their authority was gradually enlarged until it superseded the quæstiones perpetuæ altogether, as the formulary system of actions was superseded by the extraordinary jurisdiction of the magistrate in civil suits.

INSTITUTIONUM JUSTINIANI

PROCEMIUM.

IN NOMINE DOMINT NOSTRI JESU CHRISTI

IMPERATOR CESAR FLAVIUS JUSTTNIANUS ALAMANNICUS GOTHICUS FRANCICUS GERMANICUS ANTICUS ALANICUS VANDALICUS AFRICANUS

PIUS FELIX INCLYTUS VICTOR AC

TRIUMPHATOR SEMPER AUGUSTUS

CUPIDE LEGUM JUVENTUTI.

Imperatoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus et bellorum et pacis recte possit gubernari et princeps Romanus victor existat non solum in hostilibus præliis, sed etiam per legitimos tramites calumniantium iniquitates expellens, et fiat tam juris religiosissimus quam victis hostibus triumphator.

1. Quorum utramque viam cum summis vigiliis et summa providentia adnuente Deo perfecimus. Et bellicos quidem sudores nostros barbaricæ gentes sub juga nostra deductæ cognoscunt et tam Africa quam aliæ innumerosæ provinciæ post tanta temporum spatia nostris victoriis a cælesti numine præstitis iterum dicioni Romanæ nostroque additæ imperio protestantur. Omnes vero populi legibus jam a nobis promulgatis vel compositis regun

tur.

2. Et cum sacratissimas constitutiones antea confusas in luculentam ereximus consonantiam, tunc nostram extendimus curam et ad immensa

IN THE NAME OF OUR LORD JESUS CHRIST.

THE EMPEROR CESAR FLAVIUS JUSTINIANUS, VANQUISHER OF THE ALAMANI, GOTHS, FRANCS, GERMANS, ANTES, ALANI, VANDALS, AFRICANS, PIOUS, HAPPY, GLORIOUS, TRIUMPHANT CONQUEROR, EVER AUGUST, TO

THE YOUTH DESIROUS OF STUDYING THE LAW, GREETING.

The imperial majesty should be not only made glorious by arms, but also strengthened by laws, that, alike in time of peace and in time of war, the state may be well governed, and that the emperor may not only be victorious in the field of battle, but also may by every legal means repel the iniquities of men who abuse the laws, and may at once religiously uphold justice and triumph over his conquered enemies.

1. By our incessant labours and great care, with the blessing of God, we have attained this double end. The barbarian nations reduced under our yoke know our efforts in war; to which also Africa and very many other provinces bear witness, which, after so long an interval, have been restored to the dominion of Rome and our empire, by our victories gained through the favour of heaven. All nations moreover are governed by laws which we have already either promulgated or compiled.

B

2. When we had arranged and brought into perfect harmony the hitherto confused mass of imperial constitutions, we then extended our

prudentiæ veteris volumina et opus desperatum, quasi per medium profundum euntes, cælesti favore jam adimplevimus.

3. Cumque hoc Deo propitio peractum est, Triboniano, viro magnifico, magistro et ex quæstore sacri palatii nostri, nec non Theophilo et Dorotheo, viris illustribus, antecessoribus, quorum omnium sollertiam et legum scientiam et circa nostras jussiones fidem jam ex multis rerum argumentis accepimus, convocatis, specialiter mandavimus, ut nostra auctoritate nostrisque suasionibus componant institutiones: ut liceat vobis prima legum cunabula non ab antiquis fabulis discere, sed ab imperiali splendore appetere, et tam aures quam animæ vestræ nihil inutile nihilque perperam positum, sed quod in ipsis rerum optinet argumentis, accipiant et quod in priore tempore vix post triennium inferioribus contingebat, ut tunc constitutiones imperatorias legerent, hoc vos a primordio ingrediamini, digni tanto honore tantaque reperti felicitate, ut et initium vobis et finis legum eruditionis a voce principali procedat.

4. Igitur post libros quinquaginta digestorum seu pandectarum, in quos omne jus antiquum collatum est (quos per eundem virum excel sum Tribonianum nec non ceteros viros illustres et facundissimos confecimus), in hos quattuor libros easdem institutiones partiri jussimus, ut sint totius legitimæ scientiæ prima elementa.

5. Quibus breviter expositum est et quod antea optinebat, et quod postea desuetudine inumbratum ab imperiali remedio illuminatum est.

6. Quas ex omnibus antiquorum institutionibus et præcipue ex commentariis Gaii nostri tam institutionum quam rerum cottidianarum, aliisque multis commentariis compositas cum tres prædicti viri prudentes nobis optulerunt, et legimus et cognovimus et plenissimum nostrarum constitutionum robur eis

accommodavimus.

care to the vast volumes of ancient law; and, sailing as it were across the mid ocean, have now completed, through the favour of heaven, a work that once seemed beyond hope.

3. When by the blessing of God this task was accomplished, we summoned the most eminent Tribonian, master and ex-quæstor of our palace, together with the illustrious Theophilus and Dorotheus, professors of law, all of whom have on many occasions proved to us their ability, legal knowledge, and obedience to our orders; and we have specially charged them to compose, under our authority and advice, Institutes, so that you may no more learn the first elements of law from old and erroneous sources, but apprehend them by the clear light of imperial wisdom; and that your minds and ears may receive nothing that is useless or misplaced, but only what obtains in actual practice. So that, whereas, formerly, the junior students could scarcely, after three years' study, read the imperial constitutions, you may now commence your studies by reading them, you who have been thought worthy of an honour and a happiness so great as that the first and last lessons in the knowledge of the law should issue for you from the mouth of the emperor.

4. When therefore, by the assistance of the same eminent person Tribonian and that of other illustrious and learned men, we had compiled the fifty books, called Digests or Pandects, in which is collected the whole ancient law, we directed that these Institutes should be divided into four books, which might serve as the first elements of the whole science of law.

5. In these books a brief exposition is given of the ancient laws, and of those also, which, overshadowed by disuse, have been again brought to light by our imperial authority.

6. These four books of Institutes thus compiled, from all the Institutes left us by the ancients, and chiefly from the commentaries of our Gaius, both in his Institutes, and in his work on daily affairs, and also from many other commentaries, were presented to us by the three learned men we have above named. We have read and examined them and have accorded to them all the force of our constitutions.

7. Summa itaque ope et alacri studio has leges nostras accipite et vosmet ipsos sic eruditos ostendite, ut spes vos pulcherrima foveat, toto legitimo opere perfecto, posse etiam nostram rem publicam in partibus ejus vobis credendis gubernare.

Data undecimo kalendas Decembres Constantinopoli domino nostro Justiniano perpetuo Augusto tertium consule (533).

7. Receive, therefore, with eagerness, and study with cheerful diligence, these our laws, and show yourselves persons of such learning that you may conceive the flattering hope of yourselves being able, when your course of legal study is completed, to govern our empire in the different portions that may be entrusted to your

care.

Given at Constantinople on the eleventh day of the calends of December, in the third consulate of the Emperor Justinian, ever August.

« PreviousContinue »