The Code (Codex)

REAL EXCERPTS FROM THE JUSTINIAN CODE...

The Free-born (Those who were born free)

A person is free-born who is free from the moment of his birth, by being born in marital matrimony, of parents who have been either both born free, or both made free, or one of whom has been born and the other made free; and when the mother is free, and the father a slave, the child nevertheless is born free; just as he is if his mother is free, and it is uncertain who is his father; for he had then no legal father.  When a man has been born free he shall never cease to befree-born.

Freedmen (Those who earn freedom)

Freedmen are those who have been freed from servitude (slavery). For while any one is in slavery, he is under "the hand" and power of another, but by the process known as manumission, he is freed from slavery.

1. Manumission can occur in many ways; either in the face of the Church, according to the imperial constitutiones, or by vindicta, or in the presence of friends, or by letter, or by testament, or by any other expression of a man's last will. And a slave may also gain his freedom in many other ways, introduced by the  emperors.

2. Slaves may be freed by their masters at any time.

Slaves

We now come to another division relative to the rights of persons; for some persons are independent, some are subject to the power of others. Of those who are subject to others, some are in the power of parents, others in that of masters. Let us consider those who are in the power of masters.

1. Slaves are in the power of masters, a power derived from the law of nations: for among all nations it may be remarked that masters have the power of life and death over their slaves, and that everything acquired by the slave belongs to the master.

2. But at the present day none of our subjects may use unrestrained violence towards their slaves, except for a reason recognized by law. He who without any reason kills his own slave is to be punished equally with one who has killed the slave of another. 

3.  It shall be decided that if the severity of masters should appear excessive, they might be compelled to make sale of their slaves upon equitable terms, so that the masters might receive the value; and this was a very wise decision, as it concerns the public good, that no one should misuse his own property. 

The Power of Parents

Our children, begotten in lawful marriage, are in our power.

1. Marriage, or matrimony, is a binding together of a man and woman to live in an indivisible union.

2. The power which we have over our children is peculiar to the citizens of Rome; for no other people have a power over their children, such as we have over ours.

3. The child born to you and your wife is in your power. And so is the child born to your son of his wife, that is, your grandson or granddaughter; so are your great-grandchildren, and all your other descendants. But a child born of your daughter is not in your power, but in the power of its own father.

Marriage

Roman citizens are bound together in lawful matrimony when they are united according to law, the males having attained the age of puberty, and the females a marriageable age, whether they are fathers or sons of a family; but, of the latter, they must first obtain the consent of their parents, in whose power they are. For both natural reason and the law require this consent; so much so, indeed, that it ought to precede the marriage. 

Hence the question has arisen, whether the daughter of a madman could be married, or his son marry? 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.

1. We may not marry every woman without distinction.  Marriage cannot be contracted between persons standing to each other in the relation of ascendant and descendant, as between a father and daughter, a grandfather and his granddaughter, a mother and her son, a grandmother and her grandson; and so on, ad infinitum. And, if such persons unite together, they only contract a criminal marriage; so much so, that ascendants and descendants, who are only so by adoption, cannot intermarry; and even after the adoption is dissolved, the prohibition remains. 

2. There are also restrictions, though not so extensive, on marriage between collateral relations. 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. And, if a woman becomes your sister by adoption, you certainly cannot marry; but, if the adoption is destroyed by emancipation, you may marry her; as you may also, if you yourself are emancipated. 

3. If persons unite themselves in contravention of the rules thus laid down, there is no husband or wife, no nuptials, no marriage, nor marriage portion, and the children born in such a connection are not in the power of the father. For, with regard to the power of a father, they are in the position of children who are looked upon as having no father, because it is uncertain who he is; and are therefore called spurii, either from a Greek word sporadan, meaning "at hazard," or as being sine patre, without a father. 

4. It sometimes happens that children who at their birth were not in the power of their father are brought under it afterwards. Such is the case of a natural son, who is given to the curia, and then becomes subject to his father's power. Again, a child born of a free woman, with whom marriage was not prohibited by any law, but with whom the father only cohabited, will likewise become subject to the power of his father if at any time afterwards instruments of dowry are drawn up according to the provisions of our constitutio. And this constitutio confers the same benefits on any children who may be subsequently born of the same marriage.

Adoptions

Not only are our natural children, as we have said, in our power, but those also whom we adopt.

1. Adoption takes place in two ways, either by imperial rescript, or by the authority of the magistrate. The imperial rescript gives power to adopt persons of either gender who are sui juris; and this species of adoption is called arrogatio. By the authority of the magistrate we adopt persons in the power of an ascendant, whether in the first degree, as sons and daughters, or in an inferior degree, as grandchildren or great-grandchildren.

2. But now, when a adoption is made by his natural father to a stranger, the power of the natural father is not dissolved; no right passes to the adoptive father, nor is the adopted son in his power, although we allow such son the right of succession to his adoptive father’s dying estate. 

3. A younger person cannot adopt an older; for adoption imitates nature; and it seems unnatural that a son should be older than his father. 

4. A person may adopt another as grandson or granddaughter, great-grandson or great-granddaughter, or any other descendant.

5. Women, also, cannot adopt; for they have not even their own children in their power; but, by the indulgence of the emperor, as a comfort for the loss of their own children, they are allowed to adopt.

6. Cato, as we learn from the ancients, has with good reason written that slaves, when adopted by their masters, are thereby made free. In accordance with which opinion, we have decided by one of our constitutiones that a slave to whom his master by a solemn deed gives the title of son is thereby made free, although he does not require thereby the rights of a son.

Divisions of Things (Public Laws)

Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all; some are public; some belong to corporate bodies, and some belong to no one. Most things are the property of individuals who acquire them in different ways, as will appear hereafter.

1. By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations.

2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.

3. The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself.  But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.

4. Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any one.

5. Wild beasts, birds, fish and all animals, which live either in the sea, the air, or the earth, so soon as they are taken by anyone, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner. And it is immaterial whether a man takes wild beasts or birds upon his own ground, or on that of another. Of course any one who enters the ground of another for the sake of hunting or fowling, may be prohibited by the proprietor, if he perceives his intention of entering. Whatever of this kind you take is regarded as your property, so long as it remains in your power, but when it has escaped and recovered its natural liberty, it ceases to be yours, and again becomes the property of him who captures it. 

6.  The things we take from our enemies become immediately ours by the law of nations, so that even freemen thus become our slaves; but if they afterwards escape from us, and return to their own people, they regain their former condition.

7. Precious stones, gems, and other things found upon the seashore become immediately, by natural law, the property of the finder.

8. All that is born of animals of which you are the owner, becomes by the same law your property.

9. When an island is formed in the sea, which rarely happens, it is the property of the first occupant; for before occupation, it belongs to no one. But when an island is formed in a river, which frequently happens, if it is placed in the middle of it, it belongs in common to those who possess the lands near the banks on each side of the river.

10. If materials belonging to two persons are mixed together by their mutual consent, whatever is thence produced is common to both, as if, for instance, they have intermixed their wines, or melted together their gold or silver. And although the materials are different which are employed in the admixture, and thus a new substance is formed, as when mead is made with wine and honey, or electrum by fusing together gold and silver, the rule is the same; for in this case the new substance is undoubtedly common. And if it is by chance, and not by intention of the proprietors, that materials, whether similar or different, are mixed together, the rule is still the same. 

11. On the contrary, if anyone builds with his own materials on the ground of another, the building becomes the property of him to whom the ground belongs. But in this case the owner of the property, because he is presumed to have voluntarily parted with them, that is, if he knew he was building upon another's land; and, therefore, if the building should be destroyed, he cannot, even then, reclaim the materials. Of course, if the person who builds is in possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of the materials and the wages of the workmen, the owner may be repelled by an exception of dolus malus, provided the builder was in possession bona fide. For if he knew that he was not the owner of the soil, it may be said against him that he was wrong to build on ground which he knew to be the property of another.

12.  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. And, although this is provided by a law of the Twelve Tables, yet it may be rightly said to spring from the law of nations, that is, the law of nature. But if the seller has accepted the credit of the buyer, the thing then becomes immediately the property of the buyer.

13. Accordingly, it is true to say that anything which is seized on, when abandoned by its owners, becomes the property of the person who takes possession of it. And anything is considered as abandoned which its owner has thrown away with a wish no longer to have it as a part of his property, as it therefore immediately ceases to belong to him.

14. It is otherwise with respect to things thrown overboard in a storm, to lighten a vessel; for they remain the property of their owners; as it is evident that they were not thrown away through a wish to get rid of them, but that their owners and the ship itself might more easily escape the dangers of the sea. 

Giving Consent

Obligations are formed by the mere consent of the parties in the contracts of sale, of letting to hire, of partnership, and of mandatum. An obligatio is, in these cases, said to be made by the mere consent of the parties, because there is no necessity for any writing, nor even for the presence of the parties: nor is it requisite that anything should be given to make the contract binding, but the mere consent of those between whom the transaction is carried on suffices. Thus these contracts may be entered into by those who are at a distance from each other by means of letters, for instance, or of messengers. In these contracts each party is bound to the other to render him all that equity demands, while in verbalobligationes one party stipulates and the other promises.

Buying & Selling Things

1.  The contract of sale is formed as soon as the price is agreed upon, although it has not yet been paid, nor even an earnest given; for what is given as an earnest only serves as proof that the contract has been made. This must be understood of sales made without writing; for with regard to these we have made no alteration in the law. But, where there is a written contract, we have enacted that a sale is not to be considered completed unless an instrument of sale has been drawn up, being either written by the contracting parties, or at least signed by them, if written by others.

2. The price should consist in a sum of money. It has been much doubted whether it can consist in anything else, as in a slave, a piece of land, or a toga. Sabinus and Cassius thought that it could. 

3. As soon as the sale is contracted, that is, in the case of a sale made without writing, when the parties have agreed on the price, all risk attaching to the thing sold falls upon the purchaser, although the thing has not yet been delivered to him. Therefore, if the slave dies or receives an injury in any part of the body, or a whole or a portion of the house is burnt, or a whole or a portion of the land is carried by the force of a flood, or is diminished or deteriorated by an inundation, or by a tempest making havoc with the trees, the loss falls on the purchaser, and although he does not receive the thing, he is obliged to pay the price.