[Iustiniani Institutiones]

Contrariorum: against: that had a command to give about the law... When...

such value. That is, it holds as much worth where there is no written law as where there is written law. And there are not three virtues of custom: imitating the law as above, interpreting the law where the law is doubtful as Digest, "De legibus," concerning interpretation, at the end, likewise correcting as Digest, "De legibus et senatusconsultis," law "De quibus," at the end, and law "De," section "ea," where it is distinguished: either it is a general custom throughout the whole world, and then it overcomes the law everywhere, as Digest, ibid., "De quibus."

¶ If, however, it is special, then it overcomes the law in the place where it is, as Digest, "Omnia praediorum," law "Venditorum," section "si obstat," provided that it was introduced after the law; otherwise it is overcome by the law supervening, as Digest, "De sepulcro violato," law 3, section "divus." In another place, however, a special custom does not overcome the law, as Codex, ibid., law "Consuetudis." And this is according to Jo[hannes] and P[iacentinus], although others have distinguished otherwise.

Are limited. ¶ And not inelegantly, it seems that civil law is distributed into two species. For its origin seems to have flowed from the institutions of two cities, namely Athens and Lacedaemon. ¶ For in these cities it was accustomed to be done so that the Lacedaemonians committed to memory those things which were to be observed as laws. The Athenians, however, guarded those things which they had gathered as written in the laws. ¶ Nature: what are the laws which are observed among all peoples by equity, are established by some divine providence, and always remain firm and immutable. Those things, however, which each city establishes for itself, are often

ms: he held two prohibitions to... that is, arguments of the established use.

¶ And not here, section "omnis," is to the two aforementioned: that is, to the written and the unwritten, therefore it is well here, section. ¶ Civil law: to be taken broadly, as not in section "obstas." ¶ Origin: that is, of the twelve tables, which was the origin of all law and the beginning. ¶ Institutions: that is, the orders, for even the twelve, Rome sent five men for this law who brought back ten ivory tables, as much of the written law of the Athenians as the unwritten law of the Lacedaemonians.

that which he was deliberating to amend, power was given for one year to these ten men so that they might correct the law and the statutes by adding and taking away, and they interpreted what was meant and made into it those which added two tables; and thus these twelve tables were accelerated, as Digest, "De origine iuris," law 2, section 4. ¶ By itself: understand by natural law, in law "naturalis," section 1, by my own, which moves all animals to do something, as not above, ibid., section 1, in the beginning. ¶ Which you say to be immutable: it is that which is said concerning servitude, which is against natural law and yet prevails, as above, ibid., section "ius autem." ¶ Say: it does not derogate, because the law is not observed in that case, for nevertheless it is equitable and good. ¶ And in that way I respond to that which is said, section "de causa," section 1, "autem," which is against, or there it does not remove the kinship, but the right of succeeding, and in the same way as before I respond to that which [is said] concerning usufruct, section 1, concerning usufruct, in the beginning, which stands against natural law, as Digest, "De obligationibus et actionibus," law "Nam naturalia." Or say that this section speaks concerning the law of nations, which is evident from that letter, which "among all peoples," as above, ibid., section "quae vero naturalis." ¶ Established: that is, concerning special custom, that is, written municipal law. ¶ Tacitly: that is, by consent of custom, as Digest, "De legibus et senatusconsultis," law 8 "de quibus." ¶ Or other: that is, by consent of statute, and thus they render each thing in each. ¶ Concerning: that is, what is the law, from what is it divided, he said; now he puts it among the laws themselves, of which yet it is said, below, in the whole first book. ¶ Or to persons, up to the title "On the division of things." ¶ To things: concerning these, section 1, books 2 and 3, up to the title "On obligations." ¶ To actions: concerning these it is said, below, "On actions."

Ovid
Virgil

¶ Persons: for man is the most worthy of creatures, as Digest, "De edendo," law "iustissime." Whence Ovid: "For whatever animals look upon singular things... he gave to man a sublime face, and ordered him to look at the sky, and to lift his face erect to the stars." And in Virgil: "and to them is a celestial origin."

I...

Pledged: and thus immediately placed in the law of persons, and not here this division which was given in the position. So below, "On the goods of the possessed," section "alia vero," and by this we make many formed titles. ¶ Concerning the law of persons: Besica ¶ Sum: that is, the first, which also the others follow, as below, "On those who are under their own or another's power," in the beginning, and law "De," section "tutel," in the beginning. Or: that is, marine, that is, which is in part from natural law, as liberty, and in part from the law of nations.

customarily with the tacit consent of the people or another law enacted afterwards. But all the law which we use pertains either to persons, or to things, or to actions. And first let us see concerning persons. For it is little to know the law, if the persons for whose sake it was constituted are ignored.

Concerning the law of persons

Sum the first division in the law of persons is that all men are either free or slaves. And 2 Liberty indeed, from which also they are called free, is the natural faculty of that which it is permitted to each to do, unless it is prohibited by force or by law.

¶ monstrum: section: suppose that there were two men, one free and another his own. This position is false. Say that the plural speech turns into the singular, and then it is true and not false, as Digest, "De obligationibus," and section 1, "falsa," section, this, and Digest, "De petitione hereditatis," "divus," at the end, and "De origine iuris," law 2, section "epactis," and "De rerum permutatione," it is not. In the same way the singular to the plural, as in the same title, law 1, in the sum, Digest, "De testamentis," "tu," law "queunta," section. And say that the questions are placed, Digest, ibid., law 4, section 2.

Servitude however is an institution of the law of nations by which one is subjected to the dominion of another against nature.

§ Or slaves: that is, what is concerning the status of the free, it is seen as free, as Digest, "Si ex noverca causa agatur," law 1, at the end, section "contra est," as Digest, "De statu libero," law "statu liber." Likewise what concerning the scriptitius or census-bound is seen, that they are slaves? Truth is, it is law at the end, book 2, and Codex, "In quibus causis," law 1, book 11, etc.

¶ Codex, "De agricolis," law 5, book 11, and Codex, "In quibus causis," law 1, book 11, etc. And in the same way, although they distinguish otherwise when they can be made clerics against the will of their masters, which is not true in the case of slaves, as Codex, "De episcopis et clericis," law "iubemus," section "servos," and in the authentic "De sanctis episcopis," section "si quis daticios." Likewise in doubt it is to be judged in favor of liberty, as Digest, "De regulis iuris," law "libertas." And what is contained in contrary laws is spoken of as regards the services to which he is bound. Therefore they could also make a testament and bear witness and exercise other civil acts. Nor can they be alienated without the soil, as Codex, "De agricolis et censitis," law 2, book 11. Likewise below, item what concerning a monk or regular canon? They are free and therefore can render testimony, which I say as we said in the authentic "De monachis," section "cogitandum," although as regards certain acts they are feigned dead, as in the authentic "De monachis," section "illud," and section "si quis autem," collection 1, and in the authentic "De nuptiis," section "sed occasionem," collection 3.

Azo according to Johannes, that to a monk it is not permitted... likewise the rule of monks and canons is not of servitude...

Liberty: this definition can be read in three ways. First, according to the philosopher, so that he defines liberty by that law by which it was invented, that is, natural, and thus even slaves according to this are free. For they themselves can do what they wish, not what by force, that is, by fact, or by law, namely by any one, they are prohibited. And although the words "from which they are called free" can be from the definition, for they themselves are called free according to the same law, as Digest, "De his qui sui vel alieni iuris," section 1. Others say the first is liberty of the free, not liberty of the slave, because from the first they are called, namely, today "free," not from the second according to which slaves hold it. There is therefore liberty, one in the slave, another in the free, and according to them the word "force" is expounded as "law," for neither the first nor the second pleases, because slaves today are by some law free, since the law of nations has derogated in this from natural law, as below, section "servitus." And expound "force," that is, by the law of nations which introduced servitude by some necessity, that is, through captivity.