Bologna, Collegio di Spagna 285, Justinian's Authenticae
Marriage Novels
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD
THE MOST HOLY EMPEROR JUSTINIAN
FIRST
COLLECTION. CONCERNING HEIRS AND THE FALCIDIAN PORTION.
TITLE I. FIRST
NEW CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Praetorian
Prefect of the East, twice Consul and Patrician.
PREFACE.
While We were
formerly occupied with the cares of the entire government and could think of
nothing of inferior importance, now that the Persians are quiet, the Vandals
and Moors obedient, the Carthaginians have recovered their former freedom,
and the Tzani have, for the first time, been subjected to Roman
domination (which is something that God has not permitted to take place up
to this time and until Our reign), numerous demands have been presented to
Us by Our subjects, to each of which We shall pay attention in the most
suitable manner. Many of these questions, it is true, must be determined in
accordance with existing enactments, and in order that they inure to the
common welfare of all (whenever this is necessary), We have deemed it proper
to establish these matters by law, and to communicate them to Our subjects,
in order that they may take effect of themselves, and not always require the
sanction of Imperial authority.
(1) For people
are constantly importuning Us, some having recourse to Us on account of
legacies which have been bequeathed and not been paid; others because of
grants of freedom; and still others on account of different matters; and,
where estates have been left, certain persons who have been charged either
to give or to do som'e-thing have impiously entered upon the property, and
taken it, but have not complied with what was ordered, although it was laid
down by the ancient legislators that the testamentary dispositions of
deceased persons, when they are not contrary to law, shall, by all means, be
carried out. But as We have found that the greater part of the ancient laws
have been neglected, We have considered it necessary that they should be
revived, and that, by means of them, protection should
be afforded to
the living, as well as respect shown to the dead in this manner.
(2) Therefore,
in the first place, it must be remembered that the law requires testators to
distribute a specified share of their estates among certain relatives as
being due to them in accordance with natural justice, for instance, sons,
grandsons, fathers and mothers, and sometimes even brothers, as well as any
other persons of this kind whom the laws have enumerated as being in the
same class with those from whom We are descended. No necessity, however, is
imposed upon other testators to give any portion of their own property, but
authority is granted them to leave it to anyone whom they may select.
CHAPTER I. WHERE
THE HEIR is UNWILLING TO PAY LEGACIES.
These matters
having been already decided by Us, We order that those who have been
appointed heirs by testators, or who have been charged with the execution of
trusts or the payment of legacies, whether in general terms, or
specifically, shall be obliged absolutely to carry out whatever dispositions
the testator may have made, provided these are in accordance with law, or
when no law prohibits them; and if he who was charged in this manner does
not do as he was directed, he must show clearly that he had a right to act
as he did.
(1) If the
appointed heir should not execute the dispositions of the testator, and the
legatee is entitled to receive the bequest, and, after he has been notified
by a decree of court, the heir fails to make payment for an entire year, or
does not do what he was ordered, and he is one of those who can legally
claim a certain share of the estate, but has been left more than he is
entitled to by law, he can only receive as much as the law grants him, that
is, one-fourth of the estate in case of intestacy; otherwise he will be
deprived of all of it. And if any other persons should be appointed heirs,
they will each be entitled to his or her proportionate share. But when there
is no other heir, or where some have been appointed but do not accept the
estate, then what has been refused by those above mentioned shall be added
to the remainder of the estate, and the legatees, the beneficiaries of
trusts, and the slaves upon whom liberty has been bestowed shall be
permitted to enter upon and acquire the property; so that whatever has been
ordered by the testator shall in every respect be carried out, and security
shall previously be furnished in proportion to their condition and the value
of the property, in order that having received the estate they comply with
the lawful intentions of the testator.
If, however,
none of those mentioned in the will (that is to say the co-heirs, legatees,
beneficiaries of trusts, or slaves to whom liberty has been granted), should
desire to enter upon the estate, then it shall pass to the others whom the
law calls in case of intestacy, after the appointed heir has been excluded
from his legitimate share by this law, and they, in like manner, shall give
security to carry
out what is
contained in the will. We do not, however, wish that there should be any
confusion with regard to this matter, but he who was called first in order
after the one who has been excluded by Our law shall be preferred, and then
the one who comes next after him, and the others in succession, until the
last one who has relinquished the estate shall be succeeded by any stranger
who may be willing to enter upon the estate and carry out the wishes of the
testator, and after these We place the Treasury, if it should be willing to
accept it. For We establish the following rule with reference to legatees
and beneficiaries of trusts, namely: that permission to accept an estate
should first be granted to the beneficiary entitled to all of it, or where
there are several of these to the one entitled to thex-large st share, since
he resembles the heir, this being especially the case with Us, Who, whenever
such beneficiaries of trusts are concerned, have solely adopted the
Trebellian rule, and, holding in contempt the Pegasian circumlocutions,
reject them. If, however, no one should be entitled to the entire estate,
or, being entitled to it, should be unwilling to do what the testator
directed, then the trust shall pass to those to whom has been left the
greater portion of the legacies or trusts; and time shall be granted to
slaves to whom freedom has been bequeathed to enter upon the estate, and,
with their children, give security, receive the property, and do what has
been ordered, the above-mentioned security, of course, having already been
furnished.
But when there
is no legatee or beneficiary entitled to the whole or a greater part of the
estate, by virtue of either a legacy or a trust, but all of them are to
share equally, then all the beneficiaries entitled to the whole of it,
according to the rule just laid down, shall be preferred, or any one of them
who is willing to carry out what was ordered by the testator; and the
remaining legatees or beneficiaries who have no advantage over the others,
so far as the remainder of the estate is concerned, shall be called to the
succession, if they are willing, or those who consent shall be called. If,
however, no legatee or beneficiary should be willing to do this, We grant
permission to the slaves upon whom freedom has been conferred, according to
the order in which they have been mentioned by their master, to take
precedence over one another.
(2) We also
adopt the rule where a necessary bequest is made to anyone to whom an
inheritance is due from the deceased testator according to the Law of
Nature. Where, however, no person of this kind appears among the appointed
heirs, but a spontaneous disposition of his estate has been made by the
testator, and the appointed heir does not comply with what has been directed
within the time hereinbefore established by Us, he shall be deprived of all
that was left to him, so that he cannot receive anything by virtue of the
Falcidian Law, or on any other ground; and if there should be any co-heirs,
We desire that they shall be called in his stead, and, in default of them,
the estate shall pass to the beneficiaries, legatees, slaves, and all those
entitled to it ab intestato, in the order which We have already
prescribed, and wherever a charge has been created, it must (as We
have stated
above) be executed in compliance with what the testator legally ordered.
(3) Where,
however, the appointment of the heir includes a substitution, it is certain
that the entire estate must first pass to the substitute, provided he
consents to accept it and carry out the provisions of the will in accordance
with law; and if he should not be willing, all he is deprived of shall pass
to the co-heirs, the legatees, the the slaves, those who are entitled to it
ab intestato, to strangers, and to the Treasury, in conformity to the
rule which We have established, on condition that all lawful dispositions
shall be executed; for We have taken into consideration all these different
successions in order that the estates of deceased persons may not remain
without acceptance.
(4) We do not
call to the succession, nor do We consider any children who may have been
disinherited (if they have been justly excluded by their father), and who
have received nothing under his will, no matter how many of them there may
be. For the object of the law is, "that the intentions of deceased persons
shall be carried into effect;" and, indeed, how would it be just for anyone
who has been excluded by the testator himself from sharing in his own
property to be called to succeed to what he himself expressly refused by
means of disinheritance? As We have, in the first place, granted to the
substitutes the share of which the heir was deprived because he did not
comply with the wishes of the deceased, and then granted it to the co-heirs,
and after these to the legatees and beneficiaries of trusts, and slaves, and
next to those who are called by the succession in case of intestacy, and
afterwards to strangers, and to the Treasury, this has not been done
absurdly or without reason, or to deprive anyone of his rights, but with
foresight and in accordance with law; so that all persons entitled under the
will having renounced their claims, We may have recourse to the heirs at law
and the others in their designated order.
In every case,
however, in which the appointed heirs do not comply with the wishes of the
testator, We call to the succession either persons mentioned in the will,
the heirs at law, strangers, and the Treasury, and We grant to all such
persons the right to act as heirs, become such and enter upon the estate
(for such are the words of the law), as well as to transact all business
which they may agree upon, just as regular heirs can do. Laws of great
antiquity have by their own authority established these rules, and have made
persons heirs who have not been appointed, or called to the succession ab
intestato.
All these things
having been observed, even though the testator may not have wished anything
to be given or done by the heir, the legatee, the beneficiary of the trust,
or the recipient of the estate mortis causa, if they should be
deprived of the property, the same order should be maintained, beginning
with the substituted legatees and ending with the Treasury. In order that no
one may consider this law to be harsh in case he should be deprived of what
has been left him, he should remember that for all men death is the end of
life, and
should not
selfishly think of only what he receives from others, but he should reflect
upon what he himself when dying may command others to do, and bear in mind
that if he does not deserve the aid of the present law, none of the
dispositions which he himself may carefully plan are liable to be carried
into effect. For it is not for those alone who are subject to Our authority,
but for all future time that We have established this law.
CHAPTER II.
CONCERNING THE FALCIDIAN LAW AND THE INVENTORY.
Hence We have
taken care to consider the Falcidian Law which, even when testators are
unwilling (where their estates are exhausted by legacies), authorizes heirs
to retain a fourth part of the property; for certain persons sometimes are
found to violate the wishes of the deceased, and rely upon the law which
permits this to be done. Therefore, as the wills of deceased persons must
everywhere be protected by Us, We decree that if the heirs desire to enjoy
this advantage, they must strictly observe the law, and not attempt to
introduce the Falcidian Rule with reference to property which they, perhaps,
may have appropriated through fraud or ill will, and to which, under other
circumstances, it would not be applicable.
(1) Therefore an
inventory shall be made by the heir who is apprehensive that he will not
receive the Facidian portion after the debts and legacies have been paid,
and this shall be done according to the manner which We have already
prescribed when We prevented the heir from sustaining a loss of his own
property, and decreed that any burdens imposed upon him shall be in
proportion to the value of the estate which has been left. It has been added
that an heir of this kind, who fears not only the creditors but also the
legatees and beneficiaries of trusts, and is apprehensive that he will be
the loser, and will also obtain no advantage, can call together all the
beneficiaries and legatees who are residents of the same town, or any
persons acting in their behalf, if their personal condition, rank, quality,
age, or any other circumstance does not entitle them to be present when the
inventory is drawn up.
If, however, any
of them should be absent, not less than three credible witnesses who are
owners of property in the same town, and bear an excellent reputation, must
be present; for We do not rely upon notaries alone who are charged with
drawing up the inventory, but it should be made in the presence of the
legatees, so that in case any property forming part of the estate may have
been removed or is not forthcoming, they can make inquiry with reference to
it. They shall be permitted not only to question the slaves (for We permit
this to be done in accordance with what We have previously decreed
concerning the examination of slaves), but also to take the oath of the
heir, as well as that of the witnesses to the effect that "they were present
when the inventory was made and saw everything which took place at the time,
and know that no fraudulent act was committed by
the heir;" and
whatever was left by the testator shall not be considered to have been
established, unless all the legatees are present, or refuse to come and be
present when the inventory is drawn up, as authorized by the aforesaid
Constitution. In case the legatees should not be present, then the heir
shall be permitted to be satisfied with the presence of the witnesses alone,
and he can proceed with the inventory, and the legatees shall be deprived of
the right of having the heir sworn, and of examining the slaves, and all
heirs who observe these provisions shall be entitled to the benefit of the
Falcidian Law. Thus We shall not appear to diminish the force of the law as
observed up to this time, or to do injustice to the deceased; for if anyone
should wish absolutely to appoint heirs to his estate, and to derive some
consolation from his succession, and think that he had a sufficient amount
of property, when in fact this is not the case, it is certain that as the
deceased was not aware of the mistake, his sincerity will show the honesty
of his motives.
(2) If, however,
an inventory should not be made by the heir in the manner which We have
prescribed, he will not be entitled to retain the Falcidian portion, but he
must pay the legatees and beneficiaries of trusts, even though the amount of
the bequests prove to be greater than the value of the estate of the
deceased. We establish this rule without intending to diminish the effect of
the law which We have promulgated, in order that heirs may not cause
creditors any loss, but if guilty of fraud, that they may be punished; for
why should he violate the laws under which, if he acts properly, he can lose
nothing, but, on the other hand, will be benefited by the provisions of the
Lex Falcidia? We accord this privilege where a testator acts in this
manner, through being mistaken as to the value of his estate, or perhaps,
where he should have left ax-large r share to the heir, he leaves him less;
for this is the result of an erroneous opinion, and not of a deliberate and
intentional design. Where, however, he expressly states that, "he does not
desire his heir to retain the Falcidian portion," the wish of the deceased
must be complied with, and the heir who is willing to obey the testator who
has perhaps done nothing but what is just and proper will be benefited not
by receiving any property, but merely through having acted in a dutiful
manner; or if he is unwilling to obey, he can refuse to accept the
appointment, and give place (as We have already provided) to the
substitutes, co-heirs, beneficiaries of trusts, legatees, slaves, heirs at
law, and the other successors, in the order which We have previously
established.
CHAPTER III.
CONCERNING THE EQUALIZATION OF LEGACIES.
We do not
grant permission to an heir who is perfectly acquainted with the value of
the estate to pay certain legatees in full in the beginning, carry out the
entire wishes of the testator (which also has been stated in certain
constitutions of Our predecessors), and afterwards reserve the Falcidian
fourth out of the shares of others; nor indeed to
partially comply with the wishes of the testator and only diminish the
legacies to a certain extent; but the value of the estate must be
ascertained, and the will of the testator afterwards be carried out, so that
there may be no cause for dissatisfaction; otherwise the heir will not
discharge his duty. Nor do We permit those who, in the beginning, have
knowingly and carelessly paid legacies, afterwards to bring suit against the
persons who received them in order to recover from them what they have been
paid. For it is necessary to deliberate before acting, and not bring suit
without proper reflection, after having wrongfully transferred the property,
unless there should be some good cause, for instance, the discovery of an
unexpected debt which may diminish the assets of the estate, and afford a
good reason for taking this course.
CHAPTER IV.
LEGACIES MUST BY ALL MEANS BE PAID WITHIN A YEAR.
We have also
provided that a long time shall not elapse in disposing of such matters. For
We direct that no more than a year shall be allowed for the decision of
questions or litigation of this kind, rendering it necessary, within twelve
months after the acceptance of the estate, for the legacies to be paid and
the wishes of the testator complied with, in accordance with their
character, and for everything which We have previously ordered to be done.
We direct that the year shall begin, as We have already stated, from the
date of the notice of the judicial decree. If, through the negligence of the
heir, the period of a year has elapsed, he shall then lose his right to
whatever has been bequeathed, and the others whom We have previously called
to the succession will be entitled to it.
(1) This law of
Ours does not, in any respect, prejudice the rights of wards and minors, for
in case they should be injured in any of the ways which are mentioned by Us,
they will be entitled to relief from two sources; that is to say, by means
of restitution, and by the recourse of which they can avail themselves
against negligent guardians or curators. We do not, however, by" the
provisions of this law except the successions of patrons, for the lawful
share which We have established shall be preserved for them; and where
anything beyond this has been bequeathed, and some charge has been imposed
upon them by their freedmen and they refuse to execute it, We direct that
the order which We stated in this Our Imperial Constitution in the beginning
shall be preserved, so that the simple legal share may be acquired by them,
and the remainder be divided among the other coheirs, as We have already
directed; for in the constitution promulgated by Us with reference to the
right of patronage We have conceded to freedmen almost the same privileges
as freeborn persons are entitled to.
(2) But for the
reason that there are two kinds of wills, one written and the other
nuncupative, We desire that all these things shall be observed in the same
manner in every instance, and We order that this
shall be done in the case of nuncupative wills as in all others, no matter
who the person may be, whether he is a private individual, a soldier, a
priest, an officer of the Empire, or anyone else whosoever, for We make this
law applicable to all men.
EPILOGUE.
We have
mentioned these things in order that they may be to the advantage of all
persons alike, that the living may obtain what has been left to them, and
the dying may pass from life in security, knowing that the law will
administer their affairs even after they are buried; and that whatever
testamentary dispositions they have made will be carried into effect.
(1) For the
reason that this law is generally useful, Your Excellency will cause all
persons to become acquainted with it; and it shall be proclaimed through the
provinces to all the nations which are already subject to Roman domination,
as well as to those which have, with the aid of God, recently been added by
Us to the Empire. As soon as the judges of the principal cities receive this
law they shall (as has already been decreed by Us) publish it in every town
in their jurisdiction, and no one shall remain in ignorance of the law,
"which does not permit a man to live in poverty, or to die in anxiety."
Given at
Constantinople, on the Kalends of January, during the Consulate of
Flavius Belisarius.
TITLE II.
CONCERNING THE
RULE PROHIBITING WOMEN, WHO HAVE MARRIED A SECOND TIME, FROM MAKING A
SELECTION AMONG THEIR CHILDREN : AND CONCERNING THE ALIENATION AND PROFIT OF
ANTE-NUPTIAL DONATIONS; AND CONCERNING THE SUCCESSIONS OF THEMSELVES AND
THEIR CHILDREN.
SECOND NEW
CONSTITUTION.
The Emperor
Justinian to the Glorious Hermogenes, Master of the Imperial Offices,
Ex-Consul and Patrician.
PREFACE.
Before Our
reign, the great variety of lawsuits gave to the Roman legislators constant
occasion for new enactments, but We have regulated every part of the
legislation of the Empire, and have almost entirely amended it, in some
instances by refusing the demands of applicants, and in others by judicial
decisions; and We have drawn up many laws for Our subjects. An emergency has
induced us to publish this one.
(1) Gregoria
presented a petition to Us setting forth that she had formerly had a husband
who died and left her two children, a boy and
a girl; and as
the boy was particularly attached to her, she thought that it was proper not
to leave him without some recompense, but in doing so she did not wish to
exceed the bounds of moderation. Therefore as she had not yet been married a
second time, she gave him her ante-nuptial donation, but he did not survive
her, and died before his mother married again; so that the ancient law, as
well as Ours, called both the daughter and the mother to the succession of
the deceased minor. No question would have arisen had the mother remained a
widow, but she married a second husband who was entitled to the entire
usufruct of the ante-nuptial donation, while she had given it in such a way
that she could enjoy the use of the same, and that the ownership would vest
in her son. The daughter, however, demanded the entire ownership of the
donation, not merely as the heir of her brother, but by virtue of what her
father had given her mother, alleging that, as the latter had contracted a
second marriage, she was not worthy of any confidence, and that on no ground
whatever was she entitled to the ownership of the donation. Her mother, on
the other hand, declared that the ante-nuptial donation was not at all in
dispute, for the property of which it was composed had already been united
with that of her son, and, as it were, formed a part of his estate, and not
of the donation which no longer existed, and that she was entitled to
six-twelfths of the ownership and the usufruct. Nor was this the only
question involved in this matter, for the daughter claimed the estate of her
brother as against her mother, although the latter demanded half of it, a
share to which, where there is only one surviving sister, We have called the
daughter along with her mother. The daughter, however, in order to obtain
the entire estate of her brother, and strongly relying upon former
constitutions asserted: "That if my mother had not married a second time,
she could justly claim the estate of her son, but as she had married another
husband, she was entirely deprived of the property which her son had
obtained from his father's estate, for the reason that if her son had died
after the second marriage his estate, no matter from what source it was
obtained, would have passed to me, and I would have become the owner of the
same by virtue of the two constitutions which have laid down a rule of this
kind."
The mother,
however, replied: "That these constitutions were cruel, and unworthy of the
clemency of Our age." However, availing herself of the Constitution
promulgated by Us, she alleged that: "This Constitution could not be
subordinated to the former ones, and that mothers who have not yet
contracted a second marriage are called to the succession along with their
surviving children, and are by no means excluded where they have married
again," and also, "that this case was an unusual one, in that she had
bestowed a gift upon her son by means of exercising her choice, and should
be considered rather to have acquired the donation a second time than by
this means merely to have made an unreasonable profit." We, after having
examined the matter thoroughly, and having taken into consideration the
question of selections and inheritances of this kind, have considered it
necessary to
enact a special law with reference to these matters, by means of which this
controversy may be terminated.
CHAPTER I.
CONCERNING THE ABOLITION OF THE RIGHT OF CHOICE.
Therefore, in
order not to leave the question of choice confused and undetermined, We have
seen fit to establish the following order, namely: "Whenever a mother is
married a second time, the ownership of the ante-nuptial donation shall be
vested in all the children, and the mother shall not be permitted to select
any of them, and exclude the others, as she injures all of them at once by
her second marriage. Wherefore, in the present case, the entire ownership of
the antenuptial donation shall pass to the daughter, and the mother shall
retain the use of the same for her lifetime; and, in accordance with Our
Constitution (if the mother should die first), the entire ante-nuptial
donation shall belong to the daughter; but if the daughter should die first,
the mother shall be entitled to the benefit of it by virtue of the agreement
relating to children who are not living; the remainder of the estate shall
pass to the daughter; and when she dies, it will be transmitted to her heirs
who are called to the succession by law.
CHAPTER II.
CONCERNING THE
ALIENATION OF A DOWRY OR OF A DONATION MADE TO A STRANGER ON ACCOUNT OF
MARRIAGE.
There is a
question which often arises, and has not yet legally been decided, and we
dispose of it by the present law, in order that the greatest advantage may
be obtained. Where a mother who has not yet contracted a second marriage
gives, or alienates in any other way, a portion of an ante-nuptial donation,
or any article included in it, or all of it, not to her son, but to some
stranger, and then marries a second husband, it is clear that the alienation
remains in abeyance on account of the second marriage; for if there are any
surviving children, what has been done will be absolutely void, as the law
bestows the ownership of the ante-nuptial donation upon the children,
without taking into account anything which their mother may have done to
their injury. If, however, all the children of the mother should die, the
transaction will stand, not in its entirety, but so far as the share of the
ante-nuptial donation is concerned, according to the agreement entered into,
where the children did not survive; and this We have been the first to
introduce, and have recently inserted it into the laws.
Hence the
contract will be valid in some respects and void in others; that is to say,
it will be valid so far as the share which belongs to the mother by virtue
of the agreement made with reference to the death of the children is
concerned, but it will be void with reference to what is transmitted to the
heirs of the son, so that if the mother alone should succeed her son, then
the entire contract will stand.
(1) For the
reason that the disabilities of second marriage are common to both the man
and the woman, the man who marries a second time will run the risk of losing
the dowry, just as the woman will forfeit the ante-nuptial donation in case
she marries a second time. This law which treats of choice, alienation, and
pecuniary profit shall be applicable to persons of both sexes.
CHAPTER III.
CONCERNING THE
SUCCESSION WHERE A SON DIES INTESTATE, AND IN WHAT WAY PARENTS MARRYING A
SECOND TIME CAN BE CALLED TO SUCCEED TO THE ESTATES OF THEIR CHILDREN.
Therefore, as
the subject of the estates of children, concerning which doubts have been
raised, remains to be discussed, We have thought it necessary to dispose of
and decide the present question by means of a general law, and for the
future, to put an end to all disputes which may arise. And We order that,
where any male or female child has made a will, his or her property,
exclusive of that composing the ante-nuptial donation, shall go to the
appointed heirs in accordance with law, and that in this instance the mother
shall not be disqualified from being appointed an heir by her son; but, on
the other hand, she is conceded the right to contest the will, if her son
should have passed her over or disinherited her without a cause.
If, however, he
should die intestate, and should have children of his own, his estate shall
go to them with the exception of the share to which his mother is entitled;
but if he should have no children, his mother shall be called to the
succession along with his brothers (in accordance with what has already been
decreed by Us), and she shall obtain her share of the estate, whether she
intends to marry a second time or not.
We do not
prescribe severe penalties against women who marry a second time, nor do We
reduce them to bitter necessitywhich is Unworthy of Our reignthrough the
fear of lawful nuptials (even though they may be contracted a second time)
of abstaining from such a marriage, and descending to forbidden unions, and
perhaps even to the corruption of slaves, and, as they are not permitted to
live chastely, to illegally indulge in debauchery. Hence We hereby declare
invalid the Constitution that We inserted in the Fifth Book of the Code,
which treats of the estates of children whom mothers, before contracting
second marriages, have seen die; nor the one in the Sixth Book of the same
work which appears under the title "Tertullian," and treats of women who
have lost their children before contracting a second marriage; but the
mother, along with the brothers of the deceased child, shall, by all means,
be called to the succession, and shall unquestionably be entitled to her
share; nor shall her claims be affected in the slightest degree by reason of
her second marriage, and she shall obtain whatever, through consideration of
the present case, has caused the enactment of this law, and shall succeed
to the estate
along with her daughter, and, thus succeeding, shall incontrovertibly be
entitled to her share, without any prejudice to her rights due to the
expectation of a second marriage, but she shall, with her daughter, be the
absolute owner of the estate. Hence the opinion which is best, as well as
most praiseworthy and deserving of citation, is that wives should conduct
themselves in such an honorable manner that, having once been married, they
will preserve inviolate the pledge made to their dying husbands, so that We
may consider a woman of this kind worthy of Our respect and not differing
greatly from a virgin. But where a woman does not consent to this (when
perhaps she is young and cannot restrain herself), or resist the passions of
nature, she should not be molested on this account, nor should she be
forbidden the benefits of the common laws; but she can honorably contract a
second marriage, and abstain from every kind of licentiousness, and she
shall enjoy the succession of her children. For just as We do not deprive
fathers who marry a second time of the estates of their childrennor is
there any law whatever which makes such a provisionso We do not deprive
mothers of the estates of their children when they marry a second time, even
though their children may die either before or after the second marriage.
Otherwise, by the absurdity of the law, even though all the children should
die first, without leaving either children or grandchildren of their own,
the restriction will continue to exist, and their mother will not succeed
them, even if they die without issue; but she will be inhumanly excluded
from the succession, and she will have suffered in vain in having brought
them forth and reared them, as well as be subjected to punishment because of
the contraction of a lawful marriage; and heirs in a distant degree of
cognation may succeed to their estates while their mother will be
unreasonably excluded. Thus she herself will be entitled to inherit from her
children, and so this indulgent and merciful law joins the mothers with
their offspring.
Therefore,
combining the different sections of this law We order that it shall be
obeyed, as We class the mother (according to what We have previously stated)
with the father, so far as the ante-nuptial donation is concerned; and We
hereby order that she shall be subjected to the same penalties in this
respect as the father is with reference to the dowry, and that both the
father and mother shall, without any hesitation, be entitled to the estates
of their children in accordance with their respective claims. Hence mothers
shall be entitled to whatever the fathers have, whether they contract a
second marriage or not; and a mother shall be called to the succession of
her son whether she has already contracted a second marriage, or does so
afterwards.
(1) A woman who
marries a second time shall enjoy an antenuptial donation, not as the heir
of her son, but on the ground that the donation is only a profit bestowed by
the law, and not a part of the estate of her child; but it shall still
retain the nature of an ante-nuptial donation.
This rule shall
also apply to women who now, being widows, have succeeded to the estates of
their own children, and have not yet con-
tracted a second
marriage, although they may afterwards do so. What has been decreed in this
instance shall prevail for all time.
CHAPTER IV.
CONCERNING THE
ADMINISTRATION OF DONATIONS GIVEN
IN CONSIDERATION
OF MARRIAGE WHEN THE WOMAN
MARRIES A SECOND
TIME.
We think that it
is proper to make an addition to the former provisions relating to
ante-nuptial donations, where the woman marries a second time. For these
laws give a woman who contracts a second marriage the choice of accepting
the ante-nuptial donation in accordance with the marriage contract, provided
she gives security to her children; or if she is unwilling, or refuses to
give such security, the property composing the ante-nuptial donation shall
remain in the hands of her children, who shall pay interest on the same to
their mother at the rate of four per cent.
We, being
induced by the number of questions which have arisen on this point, and
having found minors subject to risk when the antenuptial donation consists
of money, some of them, having no resources, being compelled to sell the
entire estates of their fathers in order to discharge the debt of the
ante-nuptial donation; and, as this donation should certainly go to them in
conformity with law, We have deemed it necessary to provide that, when
anyone bestows movable property as an ante-nuptial donation, the mother
shall have the use of the same, and shall accept and not reject it; but she
cannot collect interest from her children at the above-mentioned rate, and
she must take good care of the property, as the law directs, just as the
owners themselves would do, and she can retain it in accordance with the
ancient laws, during the lifetime of her children, or, if all of them should
die, she must observe this present law, and the remainder of the donation
shall be preserved for the benefit of her children's heirs.
If, however, the
entire ante-nuptial donation should consist of money or other personal
property, the mother will be entitled to interest at the rate of four per
cent, if she furnishes the security already provided for; but she cannot
collect the money itself from her children unless the estate of her husband
is ample and includes gold, silver, clothing, or anything else which has
been allotted to the mother. For, in this instance, We give the mother the
choice of either taking the property and furnishing security, or of
receiving what We have declared to be a reasonable rate of interest in
accordance with former laws as well as the present one.
Where the estate
consists of both real and personal property, and the ante-nuptial donation
is composed partly of money and partly of land, the land shall, by all
means, remain under the control of the mother, in order that she may obtain
support therefrom; but the personal property shall be disposed of, as We
have previously prescribed where the entire ante-nuptial donation consists
of chattels.
CHAPTER V.
CONCERNING A
DOWRY WHICH HAS BEEN PROMISED IN WRITING AND HAS NOT BEEN COUNTED OUT OR
DELIVERED.
We think that it
is necessary to plainly establish by law a point which has perhaps already
been too harshly decided, and which rarely comes into court for
determination; so that the rule may commonly be observed in practice and
judgments, in accordance with the public welfare. Where persons are married,
and written provision is made for dowries and ante-nuptial donations, and
the husband bestows the ante-nuptial donation, and the wife agrees in
writing to give a dowry, either to be furnished by herself, by her father,
or by some stranger, and it afterwards appears that the dowry was not given
to the husband at the time of the marriage, but that he paid all the
expenses of the same, and that the marriage was dissolved by his death, it
is absolutely unjustwhere the dowry was not given to the husband for the
wifethat she should receive the ante-nuptial donation. If, however, she did
not give the entire dowry, she can take a proportionate share of the
donation, after having furnished a corresponding amount of the dowry. As We
love equity and justice, and desire them to be observed in all things, and
especially in those relating to marriage, for which reason, where a woman
has given nothing at all as dowry, she shall receive nothing; and she who
has given less than she promised, shall only receive a share proportionate
to what she gave.
The advantage of
the present law is that it decides many cases which are frequently in doubt,
and which are now determined in a way appropriate to legislation. We desire
it to be observed in the case to which it has given rise, as well as in all
pending litigation and any which may hereafter take place.
EPILOGUE.
Hence Your
Highness must hasten to carry into effect what We have decreed, and publish
everywhere by proclamation, in every city, the contents of this Our
ordinance, so that all persons may be informed of what We have prescribed.
TITLE III.
CONCERNING THE
NUMBER OF ECCLESIASTICS ATTACHED
TO THE PRINCIPAL
CHURCH AND THE OTHER CHURCHES
OF
CONSTANTINOPLE.
THIRD NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Most Reverend and Blessed Archbishop of this
Imperial City, and Universal Patriarch.
PREFACE.
Some time ago We
addressed to Your Reverence and the other Most Holy Patriarchs a general law
with reference to the ordination of the venerable bishops and most reverend
clergy, as well as deaconesses, by means of which We reduced the number of
those formerly ordained, a step which seems to Us to be just and proper, and
worthy of ecclesiastical discipline. We address the present law, which
establishes the number of ecclesiastics in this city, to Your Holiness. For
the reason that what is very x-large is rarely very good, it is proper that
the ordinations of the reverend clergy and deaconesses should not be so
numerous that the Church will be subjected to too much expense, and by
degrees be reduced to poverty. We have ascertained that on this account the
principal church of this Imperial City, the Mother of Our Empire, is
oppressed with indebtedness, and cannot pay the clergy without borrowing
x-large sums of money, to obtain which the best of its real property both in
the country and in the suburbs must be hypothecated and pledged. We have
taken measures to ascertain the cause of this condition of affairs, as well
as the unfortunate results which its long duration have brought about.
Therefore,
having thoroughly investigated the matter, We have learned that persons who
have founded churches in this Most Fortunate City have not only made
provision for the construction of the buildings, but have also set apart
sufficient sums to pay the expenses of a certain number of priests, deacons,
deaconesses, sub-deacons, choristers, readers and porters to be attached to
each church, and, in addition to this, have made arrangements for the
expenses of the service; and finally, that they have provided sufficient
income to meet the expenses of their foundation, and have directed that any
subsequent increase in the number of ecclesiastics should by no means be
considered valid.
These
regulations remained in force for a long time, and, while this was the case,
sufficient provision remained for the support of the churches. But when the
bishops, beloved of God, and always attentive to the requests of certain
persons, increased the number of ordinations, the expenses likewise
increased immensely, as well as the creditors and the interest; and recently
no creditors are to be found on account of their lack of confidence, but
alienations of property caused by necessity, contrary to law and for
improper causes, as well as inconsistent with the dignity of the Church,
have taken place; and the real property either in the country or the city,
not being sufficient for hypothecation and pledge, for this reason creditors
could not be found, and the said property became worthless and insufficient
even to pay the salaries of the ministers, which was productive of such
great misfortune that all the property had to be transferred to the
creditors, which is a matter which We dislike to mention, and must provide
means to correct; for where anyone cannot easily support a person who lives
beyond his means, how can We fail to deliberate concerning this matter? It
is not necessary to attempt to make further acquisi-
tions with a
view to defraying the expenses (as this would lead at once to both avarice
and impiety), but the expenditures must be regulated in proportion to the
revenues of the remaining property. Wherefore We must take measures to
reduce the number of ecclesiastics, and thereby provide a remedy for the
evil.
CHAPTER I.
THE NUMBER OF
ECCLESIASTICS SHALL REMAIN AS IT is AT PRESENT, AND THE NUMBER OF THE CLERGY
ATTACHED TO THE PRINCIPAL CHURCH OF CONSTANTINOPLE SHALL BE DETERMINED FOR
THE FUTURE.
Therefore We
order that the most reverend ecclesiastics who are now attached to the
principal church, and all other religious houses, as well as the deaconesses
and porters shall remain as they are at present (for We do not diminish the
existing number, but order this by way of providing for the future), and We
direct that hereafter no ordination shall be made until the number of
reverend ecclesiastics shall be reduced to that established by those who
founded the holy churches. And as the number of the most reverend clergy of
the Principal Church of Our Imperial City was fixed, and at first was very
small because there was only one holy church at the time, but afterwards
that of the Holy and Glorious Virgin Mary, Mother of God, was founded, and
erected adjacent to the Most Holy Principal Church by Verina of pious
memory, and the Church of the Holy Martyr Theodore was dedicated to him by
Speratus of glorious memory, and the Church of St: Helen was also joined to
the Principal Church of the City, it would be for this reason impossible to
limit the number of ecclesiastics to that originally established. For if
there was not a sufficient number of them to conduct the service of so many
houses of worshipfor each of these three churches does not possess its own
priest, but they are common to allthat is, not only to the Principal Church
but to the others, and all of them going from one to another conduct the
services of each in turn, and as a great number of persons, through the
favor of God and Our Saviour Jesus Christ, have, by Our labors and
exertions, been induced to abandon their ancient heresies, and been brought
into the Most Holy Principal Church, it is necessary to set apart for the
present service a greater number of ecclesiastics than was provided for in
the first place.
(1) Wherefore We
order that not more than sixty priests, a hundred deacons, forty
deaconesses, ninety sub-deacons, a hundred and ten readers, or twenty-five
choristers, shall be attached to the Most Holy Principal Church, so that the
entire number of most reverend ecclesiastics belonging thereto shall not
exceed four hundred and twenty in all, without including the hundred other
members of the clergy who are called porters. Although there is such a x-large
number of ecclesiastics attached to the Most Holy Principal Church of this
Most Fortunate City, and the three other churches united with the
same, none of
those who are now there shall be excluded, although their number is much
greater than that which has been established by Us, but no others shall be
added to any order of the priesthood whatsoever until the number has been
reduced, in compliance with the present law.
CHAPTER II.
ECCLESIASTICS
SHALL NOT BE PERMITTED TO PASS FROM
AN INFERIOR
CHURCH TO THE PRINCIPAL ONE THROUGH
PATRONAGE, AND
CONCERNING THE INCREASE OF THE
NUMBER OF
ECCLESIASTICS OF INFERIOR CHURCHES.
It should also
be added that whatever has, up to this time, been improperly done, shall not
in the future be repeated, that is to say, as many of the most reverend
ecclesiastics, both here and in the provinces, have disdained to serve
zealously the churches in which they were ordained, but have resorted to the
Most Holy Principal Church, and have become attached thereto by means of
patronage, We by all means forbid this to take place hereafter. For if, so
far as monasteries are concerned, We forbid their inmates to go from one to
another, We should be still more unwilling to permit the reverend
ecclesiastics to do this, for We are of the opinion that this is
attributable to the desire for gain, and that such persons are actuated by
pecuniary and commercial motives. If, however, Your Holiness should
hereafter think that such a transfer would be advantageous, it can take
place; but not until the number of ecclesiastics has been reduced to that
established by Us, so that the change may be made to fill a vacant position
without exceeding the prescribed number. We permit this to be done without
any intrigue, and for no other motive than that above mentioned. At present
We are only concerned with the Most Holy Principal Church.
(1) With
reference to all the other churches whose expenses are paid by the Most Holy
Principal Church, We order that the ecclesiastics shall remain as they are
at present, and likewise that others shall not be ordained until their
number corresponds with the one originally established' by the founders of
said churches. This applies to priests, deacons, deaconesses, sub-deacons,
readers, choristers, and porters, nor shall the number of these in the
meantime be increased. We shall take measures to see that this rule is
enforced, and shall send priests for ordination, and none of Our judges who
fear Our law shall do anything to violate it. The Most Blessed Archbishop
and Patriarch of this Imperial City is hereby authorized to refuse
ordination under such circumstances, even though the order may proceed from
Our palace; for he who issues it and he who receives it shall both be liable
to a fine under ecclesiastical law if it is executed.
So far as other
churches whose expenses are not borne by the principal church are concerned,
care must be taken that the number of ordained ecclesiastics does not
hereafter exceed that established in the first place; lest, where an immense
number are created and
divided, and the
revenues provided by pious donors, these may not be sufficient for their
support, and they may be reduced to the greatest penury.
If, however,
ordinations in excess of the prescribed number should be "made, either in
the Most Holy Principal Church or in the other churches, the bishop in
charge of the Most Holy Church and the venerable stewards of the same, who
have paid out sums from the revenues, shall themselves, along with the Most
Blessed Patriarch who allowed these expenditures to be made, be compelled to
make them good out of their own property. For they are hereby notified that,
when anyone acts in this manner, We give permission to the Most Holy
Patriarch who may subsequently be in authority, as well as the stewards and
other reverend ecclesiastics who may succeed, to make a thorough
investigation of these matters, to prohibit them, and give information
thereof to the government, so that the latter, being informed of the facts,
may order the Holy Church to be reimbursed the sums permitted to be expended
by the archbishop, out of the property of the latter and that of the
stewards.
In order that no
confusion may afterwards result on account of the reduction of the number of
ecclesiastics to the figure originally established, as soon as this
reduction has taken place, it shall not be lawful to exceed that number, or
for any deception to be practiced with reference to this matter. For We by
no means permit anything to take place by means of which someone may have
the right to confer ordinations without providing funds for the support of
the incumbents. For this will again be productive of confusion, as a great
increase of ecclesiastics and the foundation of new associations will
result, and numerous fraudulent schemes will open other ways for the
indulgence of avarice, in order to provide for the expenses of maintenance.
We also, under ecclesiastical penalties, forbid ordinations to be made
beyond the prescribed number, being of the opinion that it is highly
desirable that the Most Holy Principal Church should neither be involved in
debt, reduced to poverty, nor remain constantly without resources, but
should always enjoy abundance.
who are
suffering for the necessaries of life. Stewards, beloved by God, are
notified, both now and for the future, that if they do not comply with what
We have ordered, they will be subjected to Divine punishment, as well as be
compelled to indemnify the Holy Church out of their own property.
EPILOGUE.
We direct Your
Holiness who, in the beginning and at a very early age, has been admitted to
all the clerical orders, who is in charge of the Most Holy Church, and who
is descended from a pious race, to continue to observe this law, as you are
aware that Our solicitude is not less concerned with those things which are
profitable to the most holy churches than for the welfare of Our own soul.
Given on the
seventeenth of the Kalends of April, during the Consulate of
Belisarius.
TITLE IV.
CONCERNING
SURETIES, MANDATORS, BONDSMEN AND PAYMENTS.
FOURTH NEW
CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Prefect of the Imperial Praetors.
PREFACE.
We deem it
advisable to revive an ancient law long since established, and, for some
reason with which We are not acquainted, fallen into disuse; which has
reference to matters that are always delicate and necessary, and render it
applicable to the present age. We do not, however, restore it as it was
originally (for a portion of this law was not sufficiently clear), but We,
with the assistance of God, have added to it what is suitable under the
circumstances.
CHAPTER III.
OTHER
ECCLESIASTICAL REVENUES SHOULD BE EXPENDED
BY THE
PATRIARCHS AND STEWARDS FOR Pious USES AND
FOR THE RELIEF
OF PERSONS IN WANT.
Having in this
manner provided for the expenses of churches, it is now proper to direct
that the Most Holy Patriarch and reverend stewards shall see that other
expenses for pious uses, agreeable to God, are paid out of the
ecclesiastical revenues, and bestowed upon persons who are really in need,
and have no other means of subsistence. For it is pleasing to Our Lord God
that the expenditures of the Church should not be made for the protection
of, and in accordance with the desires of men, and lavished upon the rich to
the exclusion of the poor
CHAPTER I.
CREDITORS
SHOULD, IN THE FIRST PLACE, SUE THE PRINCIPAL DEBTOR.
When anyone
loans money and accepts a surety, a mandator, or a bondsman, he should not
first proceed against the said mandator, surety, or bondsman, nor should he
negligently annoy those who are responsible for the debtor, but he should in
the first place have recourse to him who received the money and contracted
the debt; and if he collects what is due to him, he must refrain from suing
the others, for what can he obtain from them after the indebtedness has been
discharged by the debtor? If, however, he should not succeed in collecting
part or the whole of the claim from the debtor, he can then have
recourse to the
surety, the bondsman, or the mandator, for the amount that he has not been
able to collect, and can obtain from him the balance due; and this rule will
apply when both the principal and surety, mandator, or bondsman are present.
But where the surety, the mandator, or the person who rendered himself
liable by a promise is present, but the principal debtor is absent, in this
instance, it would be hard to send the creditor to collect his money
elsewhere when he can at once recover it from the surety, mandator, or
bondsman. It is necessary for Us to provide for this matter, as no remedy
was afforded by the ancient law, although the eminent Papinianus was the
first to suggest one. Therefore, the creditor can have recourse to either
the surety, the bondsman, or the mandator, but the judge having jurisdiction
of the case shall grant time to the surety, the bondsman, or the mandator if
he wishes to make the principal debtor a party to the suit so as to force
him to comply with his agreement and recourse be had to himself in the end,
and the judge must assist the surety, the bondsman, or the mandator under
these circumstances; for it has been decided that other persons of this kind
can be released from liability in the meantime, and the principal debtor can
be produced in court, when they have been subjected to annoyance on his
account. If, however, the time granted the surety (the duration of which
should be fixed by the judge) should have elapsed, then the surety, mandator,
or bondsman shall be discharged; and the debt shall be collected from him in
whose behalf he became responsible either as surety, mandator, or bondsman,
and he will be subrogated to the creditors whose claims have been settled.
CHAPTER II.
CONTINUATION OP
THE PRECEDING CHAPTER. PROPERTY WHICH HAS BEEN TRANSFERRED TO A THIRD PARTY
CANNOT BE RECOVERED BEFORE A PERSONAL ACTION HAS BEEN BROUGHT AGAINST THOSE
WHO ARE LIABLE.
A creditor
cannot bring suit to recover the property of debtors which is in the hands
of other persons, before bringing a personal action against the mandators,
sureties, or bondsmen, having first brought suit against the principal
debtor, or those in possession of the property; and if his claim should not
be satisfied by this means, then he can have recourse to the property of the
sureties, mandators, or bondsmen, or, where they themselves have anyone
indebted to them, or who are liable to hypothecary actions, these may be
held liable.
We grant the
creditor permission to proceed against the principals and their property
(whether he prefers to make use of personal or hypothecary actions or both),
which permission has already been given by Us, and We direct that he can
avail himself of this right against the other persons who are liable under
all circumstances. And We not only establish this rule with reference to
creditors, but also if anyone should purchase property from another and take
a surety (who is called a confirmator), and suit is afterwards brought
against
the vendor for
the purpose of contesting the sale, the purchaser cannot proceed at once
against the confirmator, nor, on the other hand, against whoever holds any
property of the vendor; but he must first sue the vendor, and then have
recourse to the bondsmen, and, in the third place, proceed against the party
in possession. We order that, under the same circumstances, the rule which
We have previously established in the case of sureties, mandators, and
bondsmen shall, in case of either the presence or absence of debtors, also
be observed by creditors in the collection of their claims. In like manner,
this same rule shall apply to other contracts in which sureties, mandators,
or bondsmen have been accepted, as well as to the principals on both sides
and their heirs and successors, and shall benefit Our subjects because of
the justice and order for which it provides.
CHAPTER III.
CONCERNING
PAYMENTS. WHEN THE DEBTOR HAS NOT THE MONEY WITH WHICH TO MAKE PAYMENT His
PROPERTY SHALL BE ADJUDGED TO THE CREDITOR.
Even though what
follows may, perhaps, not be agreeable to some creditors, still, for the
sake of clemency, We decree that relief shall be granted to persons in
financial distress. If anyone should lend money, believing that the borrower
is solvent, and the latter has not the means to pay the debt in money, but
has real estate, and his creditor insists upon payment in cash, it will not
be easy for the debtor to discharge the obligation where he has no personal
property, for We grant the creditor permission to accept land instead of
money if he is willing to do so; but if no purchaser of the land can be
found and the creditor prevents the purchase of the property and keeps
buyers from being present by spreading it abroad that the property of the
debtor is encumbered to him, then the judges in this Most Fortunate City of
Our Glorious Empire, according to the extent of the jurisdiction which has
been granted to them by the law and by Us, and in the provinces, the
Governors, shall see that a correct appraisement of the property of the
debtor is made, and afterwards possession of the land shall be given to the
creditors in accordance with the amount of their claims, with such security
as the debtor can furnish. When a transfer of the property is made in this
way, the best part of it, whatever that may be, shall be given to the
creditor, and what is of inferior value shall remain in the hands of the
debtor, after the indebtedness has been discharged; for it would not be just
for anyone to lend money and afterwards receive property that is not worth
the amount of the loan; and where a creditor who is compelled to take
possession of real property does not obtain the best of what belongs to the
debtor, he is still indemnified, because, while he does not receive money or
other personal property, he acquires possession of something which is not
useless to him, for this is an example of the indulgence of the law.
Creditors will
recognize the fact that if We did not promulgate this law, necessity would
compel the same thing to be done, for if the debtor does not have the money
with which to pay the debt, and no purchaser of his real estate can be
found, he can do nothing else than surrender it, and it will be transferred
to the creditor, who would not otherwise receive what he was entitled to.
Thus, having settled a question which might be productive of recrimination
and bitter feeling to both creditor and debtor, and having decided at the
same time mercifully and legally, thereby affording relief to unfortunate
debtors, We shall not appear harsh to exacting creditors by permitting them
to have recourse to a measure which, even if they did not consent, they
would, nevertheless, finally be compelled to adopt. Hence, if a creditor is
ready to provide a purchaser, the debtor will be obliged to sell the
property, after furnishing such security as the judge may determine, and
which it is possible for him to give; as provision must by all means be made
for the indemnification of the creditors in such a way that debtors may not
be oppressed.
(1) In
compliance with the ancient laws, We consider as a creditor everyone who has
a right of action against another, even though their right may not be
founded on a loan, but on some other contract, thus in the usual course of
business sustaining the obligations of bankers for the benefit of
contractors.
EPILOGUE.
Your Highness
having been informed of what has been decreed by Us, with reference to the
protection of Our subjects, will cause this law to be published by formal
proclamation here as well as in all places subject to Our authority, so that
Our subjects everywhere may ascertain how great has been Our solicitude for
their welfare.
Given on the
seventeenth of the Kalends of April, during the Consulate of Flavius
Belisarius.
TITLE V.
CONCERNING
MONKS.
FIFTH NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Most Holy and Blessed Archbishop of this Royal
City, and Universal Patriarch.
PREFACE.
Monastic life is
so honorable and can render the man who embraces it so acceptable to God
that it can remove from him all human blemishes, declare him to be pure and
submissive to natural reason, enriched in knowledge, and superior to others
by reason of his thoughts. Hence, where anyone who intends to become a monk
is lacking in theological erudition and soundness of discourse, he becomes
worthy of obtaining both by his change of condition. Therefore, We think
that We should
explain what should be done by such persons, and lay down rules which they
must follow in order to pursue a holy life; and it is Our intention after
having treated of the most holy bishops and reverend ecclesiastics in this
law to omit nothing which concerns monks.
CHAPTER I.
CONCERNING
MONASTERIES AND THEIR CONSTRUCTION.
It must be
stated before anything else that, where someone wishes to build a sacred
monastery at any time or anywhere, he shall not have permission to do so
before having applied to the bishop of the diocese, who shall extend his
hands to Heaven and consecrate the place to God by prayer, placing upon it
the sign of Our salvation (We mean the adorable and venerated sign of the
cross), and then the building shall be erected, for this constitutes, as it
were, a good and suitable foundation for the same. The construction of
venerable monasteries should begin in this way.
CHAPTER II.
CONCERNING NOVICES.
The condition of
individual monks must now be considered by Us, and what must be done to
enable slaves as well as freemen to be admitted to the order. Divine grace
considers all men equal, declaring openly that, so far as the worship of God
is concerned, no difference exists between male and female, freeman or
slave, for all of them receive the same reward in Christ. Hence We decree
that those who, following the sacred rules, desire to embrace a religious
life, shall not immediately receive the monastic habit at the hands of the
most reverend superior of the monastery; but, whether freemen or slaves,
they must wait for the term of three years before assuming the monastic
habit, but they shall, while studying theology, wear the tonsure and dress
of those who are called the laity, and the most reverend abbots shall
require them to state whether they are freemen or slaves, and for what
reason they desire to embrace the monastic life, and, after having learned
from them that no unworthy motive has induced them to take this step, they
shall be received among those who are still taught and admonished of their
duties; and their patience and sincerity shall be ascertained by experiment,
for such a change of life is not easy, but is undergone at the expense of
great mental exertion. (1) After the novices have been subjected to
probation for the term of three years, and have convinced the superiors and
other monks of their excellent dispositions and patience, they can assume
the monastic habit and tonsure; and if they are free, can remain without
molestation, and if they are slaves, they can by no means be subjected to
annoyance, as they are consecrated to the common Master of all men (that is
to say the One in Heaven), and become free. For, as in many instances, this
takes place by operation of law and liberty is granted them, why should not
Divine grace also avail to release them from their bonds ?
If, however,
within the aforesaid term of three years, anyone should appear and attempt
to remove any one of the said novices, on the ground that he is a slave, the
same decision should be rendered as in a case which Zosimus of Lyciaa man
most renowned in his order and who had almost reached his one hundred and
twentieth year, but still enjoyed the use of all his mental and physical
faculties (to such an extent was he honored by the favor of God) referred to
Us. If then, as We have stated, anyone should, during the said term of three
years, attempt to reduce a novice to servitude, who still desires to become
a monk, and should declare that the latter took refuge in a monastery
because he had stolen certain property, We order that he shall not be
immediately surrendered, but let it first be established that he is a slave,
and afterwards that he has committed theft, or has led a wicked life, or is
given to the practice of the worst vices, and that, on this account, he has
been induced to conceal himself in a monastery. If it should be established
that the accuser told the truth, and it appears that the novice has embraced
the monastic life for any reason of this kind, or that he has done so
because of the baseness of his former life, and that he intended to assume
the monastic habit without sincerity, he shall be restored to his master
along with anything which he may have stolen, provided the property is in
the monastery, and he who has been proved to be his master swears that he
will receive him and take him home, and do him no harm.
(2) Where,
however, he who alleges that he is his master does not prove this, and he
who is accused under such circumstances shows by his conduct that he is
honest and kind, and can establish by the testimony of others that while he
was with his master he was obedient and a lover of virtue, even if the term
of three years has not elapsed, he shall, nevertheless, remain in the
monastery and be released from the control of those who wish to remove him.
But when the term of three years has once expired, as he is then judged to
be worthy of monastic life, he shall remain in the monastery. Nor do We,
under any circumstances, permit his former life to be investigated, but
whether he is a freeman or a slave We desire that he shall continue to be a
member of the order; for even though formerly his life may have been stained
with vices (for human nature is, to a certain extent, inclined to the
practice of evil), still three years probation is sufficient for the
increase of his virtues and the expiation of his sins. Any property which he
may have stolen, no matter in whose hands it may be found, shall, by all
means, be returned to its former owner.
(3) Where,
however, having escaped the danger of servitude, the novice attempts to
leave the monastery in order to adopt another mode of life, We permit his
master to remove him and include him among his slaves, if he can prove that
this was his original condition; for, having again been reduced to slavery,
he will not suffer as great an injury as he would have inflicted by
abandoning the worship of God.
These are the
rules which We establish with reference to those who wish to embrace a
monastic life.
CHAPTER III.
MONKS SHALL LIVE AND SLEEP TOGETHER.
We must now
consider and show in what way these exponents of monastic philosophy should
live and employ their time. In no monastery established under Our rule,
whether it be composed of many or few members, do We wish the monks who
reside therein to be separated from one another and have their own private
rooms; but We direct that they shall all eat together, and that they shall
all sleep together in the same place, each one, however, occupying his own
pallet, in the same house; or if a single building should not be sufficient
to accommodate the number of monks, they shall be apportioned among two or
more, not separately and by themselves, but in common, in order that they
may be witnesses of one another's honor and chastity, and that they may not
sleep too long, and may only reflect upon what is good; for fear of
incurring the blame of those who see them, unless indeed some individuals
desiring to live in contemplation and perfection may lead solitary lives
apart (these are called anchorites, that is to say, persons who seclude
themselves, and Hesychastes, or those who live in peace, holding themselves
aloof from society in order to improve their morals) ; otherwise, We wish
all other monks who are assembled together to reside in convents, that is to
say, places devoted to life in common; for in this way their zeal will
increase their virtue, and especially will this be the case with those who
are young when they are associated with their elders; for intercourse with
the latter will materially contribute to the perfection of the education of
youth. Monks living together in this way shall be obedient to their own
abbot, and must strictly observe the rules of their order.
CHAPTER IV.
CONCERNING MONKS WHO ABANDON THEIR MONASTERY.
Where anyone has
once professed himself a monk and has assumed the monastic habit, and
afterwards wishes to leave the monastery and lead a private life, he
is-notified that he must satisfy God for so doing, and that any property
which he may have had when he entered the monastery will belong to the
latter, and that he can claim none of the same.
CHAPTER V.
CONCERNING A MAN
OR WOMAN WHO DESIRES TO EMBRACE A SOLITARY LIFE.
We also decree
that any person who desires to enter a monastery shall, before he does so,
have permission to dispose of his property in any way that he may desire;
but the property of one who enters the Monastery shall by all means
accompany him, even though he who brought it there may not expressly state
that this was his intention; and he shall not afterwards be considered the
owner of said property.
When, however,
he has any children, and he has already given them anything either as an
ante-nuptial donation, or by way of dowry, and what was given would amount
to the fourth of his estate if he had died without making a will, his
children shall have no right to the remainder; but where he has either given
them nothing or less than a fourth, and, after having renounced the world,
he should be admitted among the monks, the fourth of his property shall be
due to his children, or enough to make up that amount if they should already
have received something from him. When he has a wife and leaves her to enter
the monastery, she shall be entitled to the dowry and whatever has been
agreed upon in case of her husband's death (which We have prescribed in
another of Our constitutions).
All these rules
which We have laid down regarding monks shall be applicable to women who
enter monasteries.
CHAPTER VI.
CONCERNING MONKS WHO ABANDON THE MONASTERY.
If a monk should
leave a monastery for the purpose of entering the army, or to adopt some
other mode of life, his property shall remain in the monastery (in
accordance with what We have previously stated), and he himself shall be
attached to the service of the illustrious Governor of the province; and the
result of the change will be that he shall serve an earthly tribunal, as
being one who has evinced contempt for the sacred ministry of the Church.
CHAPTER VII.
CONCERNING MONKS
WHO PASS FROM ONE MONASTERY TO ANOTHER.
When a monk,
having left the monastery where he lived in common with his companions,
betakes himself to another, his property shall remain in the hands of and be
claimed by the first monastery to which he took it after having renounced
the world. Anyone who commits an act of this kind should not be received by
the most reverend abbot, for a monastic life of this kind is improper, and
should not be tolerated, as it does not indicate a constant and determined
state of mind, but shows an irresolute disposition, which constantly seeks
change. Bishops, and those ecclesiastics called archimandrites, shall
prevent this, in order to preserve monastic honor in accordance with the
sacred canons.
CHAPTER Vill.
MONKS SHALL NOT MARRY OR KEEP CONCUBINES.
Where anyone
leading a monastic life proves worthy of being ordained a priest, he shall
continue to observe the rule of his order
absolutely. If,
however, having become a priest, he should abuse the confidence reposed in
him, and presume to marry, although there are certain ranks of the clergy
who are allowed to do this and to enter the matrimonial state (We refer to
the orders of choristers and readers, but have forbidden the marriage of all
others in accordance with the rules of the Church, as well as the
entertainment of concubines, or the passage of their lives in debauchery),
he shall, by all means, be dismissed from the priesthood by reason of his
having mingled his former solitary life with that of the world, and shall
hereafter become a private person; nor shall he be eligible to service in
the army, or to any other employment, unless he wishes to render himself
liable to the penalties already prescribed by Us. He himself, then being
abandoned to his own resources, will become aware of the satisfaction that
he owes to God for what he has done.
CHAPTER IX.
CONCERNING THE
ELECTION AND CREATION OF ABBOTS. THIS CONSTITUTION is APPLICABLE TO MONKS AS
WELL
AS NUNS.
We do not wish
the ordination of abbots (where at any time a monastery happens to be
without an abbot) to be made in accordance with the seniority of the most
reverend monks, and that the one who comes directly after the abbot in rank
should be selected; or that the second or the third should be chosen (which
is also provided by another of Our laws), but the bishop of the diocese
shall go over the names of all of them in succession; and he must not limit
himself to their priority of ordination by which their rank is determined,
but must choose the one among all the monks who appears to be the best
fitted for the place, and worthy of becoming the head of the monastery. The
reason for this is that human nature is such that abbots cannot all be taken
from among the oldest or most recent monks, but the examination must be
conducted by the bishop according to rank, and he who appears to be best
qualified of those successively examined shall be created abbot, as
possessing the dignity and virtues requisite for the position. For it is
necessary to choose those who can distinguish what is best from what is
worst, since it is one thing to be unfitted for administration, and another
to have the inclination to become competent, and, through proper
instruction, to acquire, little by little, the faculty of presiding over a
monastery.
(1) The rules
formulated by Us in the preceding laws, as well as in the present one, with
reference to priests, monks, and monasteries, We hereby declare to be
applicable to both males and females, as well as to convents and hermitages;
for We do not distinguish between men and women for the reason that, as We
have already stated, they compose but one in Christ.
The Most Holy
Patriarchs will communicate these matters to the metropolitans under their
jurisdiction, and the latter will bring them to the attention of the
bishops, and the bishops will communicate them to the different monasteries
under their control, to the end that the worship of God may everywhere
remain pure. The most severe punishment shall be inflicted upon those who
disobey the present law (We refer to celestial penalties which it is
necessary to impose upon those who show contempt for the rules of their
spiritual guides). When the judges of Our Empire are informed of any breach
of this law, they should use every effort enjoined by the rules of the
Church to cause it to be observed and carried into effect; for if they
should be guilty of negligence, they shall not escape punishment. Wherefore
it is proper for Your Holiness to conform to the preceding regulations, and
communicate them to the Holy Metropolitans under your jurisdiction.
Given at
Constantinople, on the fourteenth of the Kalends of April, during the
Consulate of the Illustrious Belisarius.
TITLE VI.
How BISHOPS AND
OTHER ECCLESIASTICS SHALL BE ORDAINED, AND CONCERNING THE EXPENSES OF
CHURCHES.
SIXTH NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Archbishop and Patriarch of Constantinople.
PREFACE.
The priesthood
and the Empire are the two greatest gifts which God, in His infinite
clemency, has bestowed upon mortals; the former has reference to Divine
matters, the latter presides over and directs human affairs, and both,
proceeding from the same principle, adorn the life of mankind; hence nothing
should be such a source of care to the emperors as the honor of the priests
who constantly pray to God for their salvation. For if the priesthood is,
everywhere free from blame, and the Empire full of confidence in God is
administered equitably and judiciously, general good will result, and
whatever is beneficial will be bestowed upon the human race. Therefore We
have the greatest solicitude for the observance of the divine rules and the
preservation of the honor of the priesthood, which, if they are maintained,
will result in the greatest advantages that can be conferred upon us by God,
as well as in the confirmation of those which We already enjoy, and whatever
We have not yet obtained We shall hereafter acquire. For all things
terminate happily where the beginning is proper and agreeable to God. We
think that this will take place if the sacred rules of the Church which the
just, praiseworthy, and adorable Apostles, the inspectors and ministers of
the Word of God, and the Holy Fathers have explained and preserved for Us,
are obeyed.
CHAPTER I.
CONCERNING THE
MORALS, THE LIFE, THE HONOR, AND THE STATUS OF ONE WHO is TO BE CONSECRATED
A
BISHOP.
Therefore, We
order that the sacred canons shall be observed hereafter when anyone is
presented to be consecrated a bishop, and that his life shall first
be investigated as prescribed by the Holy Apostle, to ascertain if it is
honorable, without blame, and irreproachable in every respect, and what his
standing is among good citizens, and whether he performs his sacerdotal
functions with propriety.
(1) No one shall
(in accordance with the rule already established) be ordained who has left
an office or other civil employment, unless he is still young; or, where he
has changed his condition by withdrawing from the monastery, he shall first
be required to give the fourth of his property to his curia.
(2) An
uneducated person belonging to the laity cannot immediately be promoted to a
bishopric, nor can he receive a fictitious ordination, where, for example,
being illiterate, he is at first created a priest, and then, after a short
time has elapsed, becomes a bishop.
(3) Nor can. one
who has married a wife, who in the beginning was not a virgin, be a
candidate for a bishopric; but he should have as his consort a woman who was
a virgin when he married her, and not a widow, or separated from her
husband, or who had been the concubine of someone else.
(4) Nor should
he have either children or grandchildren, whether they were legitimate or
odious in the sight of the law; for if anyone should act otherwise, he shall
be expelled from the priesthood, and he who ordained him and violated this
law shall lose his episcopate.
(5) We do not
permit the purchase of an office in the priesthood to be made with money,
for We wish the right to conduct divine service to be obtained from the
Lord, and not to be acquired by human agency.
(6) He shall not
attain to a bishopric who is unfamiliar with the dogmas of the Church.
(7) He who
aspires to be a bishop, and has previously embraced a monastic life, or has
been a member of the priesthood for not less than six months, shall have
neither wife, children, nor grandchildren. We absolutely require this of
bishops, as We have already prescribed in the two preceding constitutions,
without investigating whether they still have wives or have renounced them;
but We, for the future, do not permit anyone who has a legal wife to be
ordained; and this law We now renew, and if it should be violated, the
person guilty of doing so shall be expelled from the priesthood, and at the
same time the bishop who ordained him shall be dismissed.
Therefore he who
is to be consecrated a bishop, whether he belongs to the order of monks or
is a member of the other clergy, must be able to produce proof of a good and
honorable life, and enjoy an unblemished reputation; for this is the very
foundation of the pontificate.
(8) When the
candidate has been selected and prepared for the episcopate, he must, before
his consecration, be familiar with the ancient and accepted canons which Our
faith acknowledges as just and inviolate, and the Catholic and Apostolic
Church has established and transmitted to Us. When, after having frequently
read them previous to his ordination, the official in charge of the same
must interrogate him, and ascertain if he is capable of complying with the
said rules and of doing what they prescribe. If he' should state that he
cannot observe these sacred precepts he shall, by no means, be consecrated,
but if he promises that he will obey them as thoroughly as a man can do,
then he shall be admonished and told that, if he does not do so he will be
alienated from God, and will lose the honor conferred upon him, and that the
civil laws do not leave any offence unpunished, for the reason that Our
predecessors and Ourselves have, very properly, rendered the sacred canons
valid as laws; and if he still adheres to his declaration, he shall then, in
compliance with his professions, be consecrated a bishop.
(9) We decree
that a candidate shall not purchase his consecration with money, or by the
donation of any other property, but shall obtain it gratuitously and without
remuneration, and, as it were, bestowed by God. For if he should employ the
means previously mentioned by Us, he shall be considered to have purchased
the episcopate either with money or with other property; and he is hereby
notified that he will not be permitted to receive it, and he who consecrated
him shall be deprived of his office, forfeit his episcopate, and be expelled
from the priesthood, and thus both parties will be punished, for one will
not obtain what he expected, and the other will lose what he already has.
The money or other property which has been paid in for the consecration
shall be given to the church, whether the bishop received it, and for this
reason was removed from office, or whether someone else belonging to the
clergy did so; for We impose the same penalty upon each, namely, We dismiss
him from the priesthood, and transfer the money or other property given to
obtain the consecration to the church which sustained the injury.
Where anyone who
is a stranger, and not an ecclesiastic, receives money or any other
property, to procure consecration, and especially if he holds any civil
employment, he shall be punished by God Himself, for divine penalties will
be imposed upon him; and he shall also be compelled to give to the church
double the amount of all that he received, and, in addition, he shall lose
his office, and be condemned to perpetual exile. He, also, who purchased the
bishopric with money or other property, is hereby notified that if having
previously been a deacon or a priest, he has been elevated to the priesthood
by favor, he shall not only forfeit the episcopate, but shall be deprived of
the office of priest or deacon. He shall also be excluded from every other
ecclesiastical order for the re*ason that his desires exceeded the bounds of
decency. He who officiates at the consecration must, at the time of the
ceremony, and in the presence of the faithful people, acquaint the candidate
with what has already been stated, and, after
having done so,
shall consecrate him, so that he, having heard these things in public, may
not only experience the fear of God, but also anticipate a criminal
accusation if he should prove unworthy.
(10) Where
anyone who is considered eligible to the episcopate is about to be
consecrated, and it is alleged that he knows that he has committed some
unlawful act, he shall not receive consecration before the charge is
investigated and it is apparent that it is entirely unfounded. If, after an
accusation of this kind, he who is to perform the ceremony does not
institute a judicial inquiry but proceeds without it, he is hereby notified
that whatever he does will be void, and that he who thus acts unlawfully
will forfeit his priestly office; and anyone who confers consecration
without proof shall be deposed from the office of bishop, for he is an
offender against God, who seeks by all means to preserve the purity of his
ministering priests. If, however, he who opposes the consecration is
ascertained to be a slanderer, either before or after the examination, or if
he does not proceed with it, he shall be forever excluded from holy
communion by the bishop, in order that his deceit may not go unpunished. For
as We require him who is to be consecrated to have a good reputation, so We
punish a false accusation when someone brings it without reason. Where,
however, no one makes an accusation, or having done so, does not produce
satisfactory evidence, and after the examination has taken place the
accusation is shown not to be true (as We have previously stated), then he
who appears to be in every respect irreproachable shall be admitted to
consecration.
He who is
consecrated in this manner and is familiar with all the principal sacred
precepts, as well as exemplary in thought, in speech, in bodily conduct, and
in wisdom, cannot fail to lead a proper life.
CHAPTER II.
A BISHOP CANNOT
BE ABSENT FROM His CHURCH FOR A LONGER PERIOD THAN A YEAR.
We also decree
that no bishop shall presume to be absent from his church for a longer time
than a year, unless by order of the Emperor, for in this case he would be
blameless. We direct the Most Holy Patriarch to compel the bishops in their
jurisdiction to remain attached to their churches and not separate
themselves from them by making long journeys, nor dwell in foreign
countries, nor neglect their congregation by being away for a longer term
than a year, which We grant them by way of favor.
When any of them
remains absent from his own bishopric for more than a year, without the
authority of an Imperial order (as We have previously stated), then if he
who has left his church is a metropolitan, the patriarch shall notify him to
return by means of a proper summons, always observing the rules of the Canon
Law.
If, however, he
should continue to be disobedient, he shall be expelled from the holy order
of bishops, and another shall be intro-
duced in his
place who is worthy of the reverence, veneration, and honor of the office.
Where the offender is not a metropolitan, but some other bishop who has
violated the law, this duty shall be performed by the metropolitan; and none
of such persons shall advance the pretext that he has been absent on account
of some litigation or any other private matter; or that he has wandered
about here and there on business connected with the church, or has remained
in one place, or has visited several on this account.
In the eyes of
the multitude, to whom the presence of a bishop is necessary, no valid
reason exists to authorize ministers to travel; nor does any benefit result
to their churches; nor is any assistance afforded to them; nor, under the
circumstances, do they reflect any credit upon their sacred calling by being
absent. For when it becomes necessary, and any litigation gives causes for
any step of this kind to be taken, this can be done by the ecclesiastics of
inferior rank or the stewards, and petitions can be presented to the
government for the purpose of obtaining what is desired.
Hence We order
that if any necessity should arise in a matter in which the interests of the
Church are involved, those persons charged with the conduct of
ecclesiastical affairs (who are called apocrisiarii) or others of the
clergy appointed for that purpose, or the stewards themselves, can notify Us
or Our ministers, and receive proper attention ; and hence there will be no
occasion for bishops to absent themselves, for they will injure their
churches by their absence, and through the great expense incurred by them as
well as by their sojourn in foreign countries, thus not only good will not
result, but the holy churches will sustain great loss.
CHAPTER III.
BISHOPS SHALL
NOT VISIT THE IMPERIAL COURT WITHOUT FIRST OBTAINING LETTERS AUTHORIZING
THEM TO DO so.
A bishop cannot
visit this Most Fortunate City without first receiving letters addressed by
the archbishop to the government, and which, according to the canons of the
Church, disclose a good reason for his presence. If an archbishop wishes to
travel, he must obtain letters from the patriarch, stating that his absence
is necessary, and the Emperor should order him to be presented, for an
ecclesiastic must not rashly, and without the knowledge of the archbishops
or patriarchs go upon journeys, as this is prohibited by the divine rule;
and having arrived, he shall not, at his own instance, presume to present
himself to the government, but must first apply to the patriarch, or to
those charged with the administration of the diocese, and explain to them
the reasons which have induced him to come, and, after having done this, he
can enjoy the sight of the Emperor.
After he has
been presented, the said bishop can either by means of those who were styled
referendarii of the Most Holy Principal Church, or by the agency of
the apocrisiarii in charge of the holy pa-
triarchate, make
application to the government and be insured a speedy reply; so that if his
demands are just, they will be complied with, or if they are not, he may
return quickly to the place from whence he came.
SECOND PART
OF THE LAW.
CHAPTER IV.
CONCERNING THE SELECTION OF ECCLESIASTICS.
After having, in
conformity with the sacred canons, disposed of the preceding matters
relating to bishops, We now decree, in compliance with the same canons, that
no one can be ordained an ecclesiastic until after a careful examination,
and that the candidate must be of good character, and by all means
conversant with letters, and proficient in the doctrines of the Church. For
We are unwilling for persons who are ignorant of letters to be ordained
under any circumstances, that is to say, as clerks, priests, deacons,
readers of the service, or of ecclesiastical or canonical books. Anyone,
however, who is meritorious and blameless, and against whom no complaint or
opposition has arisen, and who has given neither money nor other property,
shall be eligible.
We are unwilling
that any officials charged with the administration of the affairs of a
curia should be ordained, unless in accordance with the laws which We
have already promulgated with reference to this matter, and which We now
confirm. Persons who are ordained shall be instructed in the sacred precepts
in the presence of the entire people, for the same reasons for which We have
directed this to be done in the case of bishops.
CHAPTER V.
We do not permit
anyone to be ordained who is either a deacon or a priest who has either had
a second wife or has one now, or is married to a woman who has left her
husband, or is living with a concubine, but only where he married a wife who
was chaste and a virgin. For, when ordinations take place, We delight in
nothing so much as to know that the candidates are living a chaste life; and
that they are not living with their wives, and have not been married :
more than once to a woman who is chaste, which, according to the sacred
canons, is considered as the principal and true foundation of durable
virtue. But if any priest, deacon, or sub-deacon should afterwards marry, or
keep a concubine either openly or secretly, he shall immediately be expelled
from his order and become a layman. If a reader should, for any reason,
marry a second time, and this was caused by inexorable necessity, he can
never attain to a higher rank in the clergy, nor enjoy a position of greater
dignity, but he shall always remain in the same rank, and shall not contract
a third marriage, for two are sufficient. If, however, anyone should do
this, and after having
contracted a
second marriage, be promoted, he shall thereafter become a private person
and a layman, and be absolutely deprived of his sacred office. For it is
proper, above all things, for Us to live chastely, and if those who become
members of the priesthood are such when they are ordained, it will be easy
for them to attain to the episcopate, and many of their number will be found
eligible to the highest rank of the priesthood.
CHAPTER VI.
CANDIDATES FOR
DEACONESSES WHO ARE UNDER FIFTY YEARS OF AGE SHALL NOT BE ORDAINED.
We desire that
everything which We have decreed concerning ecclesiastics shall be observed
with reference to deaconesses, and they shall not violate these provisions.
In order for them to be ordained, they must be neither too old nor too
young, and not liable to temptation, but they should be of middle age, and,
in accordance with the sacred canons, about fifty years old, and, having
arrived at that age, they shall be eligible to ordination, whether they are
virgins, or have previously been married to one man; for We do not permit
women who have contracted a second marriage, or who (as We have already
stated), have led a vicious life, to be ordained, but they must be free from
all suspicion in order to be admitted into the holy service of the Church,
to be present in baptism, and assist in the celebration of the mysterious
and sacred rites which form part of their duties.
When, however,
it is necessary for a woman under the age of fifty to be ordained a
deaconess, ordination can be conferred upon her in some convent where she
must reside; for she can by no means be permitted to mingle with men, or to
live where she chooses, but by her withdrawal from society she must give
evidence of her retirement and the simplicity of her life. Moreover, We are
not willing that deaconesses who have once been ordainedwhether they be
either widows or virginsto live with any of their relatives, or with such
persons as they may select, for, under such circumstances, they will be
liable to criticism, but they can either reside alone or with their fathers
and mothers, children, or brothers, who are persons that if anyone should
suspect them of criminality, he will be regarded as either foolish or
impious.
If any
disparaging statement should be made with reference to any woman who desires
to be admitted to the order of deaconesses, to the effect that she has lived
with someone under an assumed name, and this should give rise to evil
suspicions, the woman shall, by no means, be ordained a deaconess. And if
she should be ordained, and then commit an act of this kind and cohabit with
anyone under another name, she shall be expelled from the diaconate, and
both the parties shall suffer the penalties prescribed by this law and
others for persons of corrupt morals.
All women who
are ordained deaconesses must, at the time of their ordination, be
instructed in the duties of their office, and have the
precepts of the
sacred canons communicated to them in the presence of the other deaconesses,
in order that they may fear God and have confidence in their holy order; and
they are hereby notified that if they should regret having received
ordination, or, having abandoned their sacred office, they should marry, or
choose any other kind of life, they will render themselves liable to capital
punishment and the confiscation of their property by the holy churches or
monastaries to which they are attached. Any persons who may be so bold as to
marry or corrupt them shall, themselves, be liable to the penalty of death,
and their property shall be confiscated by the Treasury. For if, by the
ancient laws, capital punishment was inflicted upon virgins who permitted
themselves to be corrupted, how much more reason is there for Us to impose
the same penalty upon those who are dedicated to God; and why should We not
wish that modesty, which is the greatest ornament of the sex, should be
preserved, and be diligently practiced by deaconesses, in accordance with
what is becoming to Nature and due to the priesthood?
CHAPTER VII.
CONCERNING
ECCLESIASTICS WHO ADOPT ANOTHER MODE
OF LIFE.
Those who have
once become deacons or priests can, under no circumstances, relinquish their
sacred duties. We decree that this rule shall not only be applicable to
priests and deacons, but also, where any sub-deacon or reader renounces his
former condition and embraces another life, he is notified that if he does
anything of this kind (as has already been stated by Us), he shall either be
assigned to his curia along with his property, or, if he is without
resources, shall be devoted to this service.
THIRD PART OF
THE LAW.
CHAPTER Vill.
CONCERNING - THE
EXPENSES OF CHURCHES AND THE PROHIBITION OF INCREASING THE NUMBER OF THE
CLERGY.
It is proper
that the ordinations of ecclesiastics should not be multiplied, and what has
been done up to this time must be corrected. We, however, permit it to exist
temporarily, but for the future it must not be repeated in such a way as to
cause injury to the holy churches. Therefore, as it is necessary to
establish certain regulations with regard to the Principal Church of this
Our Royal City, and others subject to it, We have included these provisions
in this special law. With reference to all churches situated outside the
city We decree that, if anyone should found or build a church, and specify
the number of ecclesiastics to be attached thereto, as well as the sum to be
expended
for its
maintenance, no one can be ordained in that church in excess of the number
originally established. When, however, this has not been done, the Principal
Church shall provide for it, as well as for other churches under its
control; and, in this instance, the number of the clergy shall not be
increased, nor shall the Principal Church be burdened with the expense of
bestowing any privileges or benefits upon it (for this is neither pious nor
becoming to priests), but those charged with the financial situation shall
give what it is possible out of what God has bestowed, or observe the
ancient custom without making any innovations whatever.
The patriarchs
and archbishops should see that the ecclesiastics estimate the resources of
each church, and only confer ordinations in proportion to the revenues of
the same; and the archbishops, warned by the Holy Patriarchs, shall pursue
the same course, and compel the bishops of their dioceses to preserve the
fixed number of clergy, and to avoid not granting ordinations beyond what
the revenues will justify, for We know how many holy churches have become
impoverished by reason of ordinations of this kind, and the payment of other
expenses.
And as We have
with difficulty relieved some of these churches of their burdens, and others
are still oppressed by theirs without being able to discharge their
obligations, the Holy Patriarchs, archbishops, and bishops must in the
future take measures against the recurrence of such an evil; so that We,
having learned of what they have done, may approve of those who have used
every effort to cause this Our law to be obeyed.
EPILOGUE.
The holy
patriarchs of every diocese, the metropolitans and the remaining reverend
bishops and clergy, shall observe inviolate and in conformity with the
sacred canons the rules which We have above established, and shall, for the
future, observe the worship of God and the discipline of the church
unimpaired, under the penalty of being rejected by God, and excluded from
the sacred order of the priesthood as being unworthy of it. We, however,
grant permission to everyone, no matter what may be his office or to what
order he may belong, when he becomes aware of any of these breaches of
discipline, to notify Us, or the government; so that We, who have
established the said rules, in accordance with the sacred apostolic canons
of the Church, may inflict the proper penalty upon those who are guilty.
Whatever has
heretofore been decreed by Us with reference to the property of bishops
shall be observed.
(1) The
patriarch of each diocese shall publish this law to all the churches under
his control, and communicate it to the archbishops. The latter, in their
turn, shall publish it throughout their jurisdiction, and communicate it to
the bishops, each one of whom shall publish it in his own church; so that no
person in Our Empire may be ignorant of what has been done by Us for the
honor and glory of God and Our Savior Jesus Christ. In addition to this,
Your Holiness will see that
this law shall
be always known to, and obeyed by the holy archbishops subject to your
jurisdiction.
(2) Written
copies of this law have been despatched to Ephrenius, Archbishop of
Alexandria; to the Archbishop of Theopolis; to Peter, Bishop of Jerusalem;
to John, Most Glorious Praetorian Prefect, twice Consul and Patrician; to
Dominick, Most Glorious Praetorian Prefect of Illyria, to whom what follows
is addressed. "Your Highness being notified of this law will hasten to
observe it, along with your successors, and if any accusation should be
filed for a breach of the same, and especially for a violation of what has
been forbidden with reference to the ordination of decurions^ or other
officials, you must prevent its continuance, and notify Us, in order that a
proper penalty may be imposed upon the guilty parties. Your Highness will
communicate this, Our Constitution, to the illustrious Governors of
provinces, in order that they may be on their guard, and not permit any
violation of the same to be committed; for if they, being aware of the
offence, do not at once inform your government, or that of the Empire of the
fact, they will be liable to a penalty of five pounds of gold, in order that
ordinations may everywhere be observed with propriety.
"A copy of this
law, with the addition, has also been sent to Dominick, Praetorian Prefect
of Myricia."
AUTHENTIC OR NEW
CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SECOND
COLLECTION.
TITLE I.
CONCERNING THE
PROHIBITION OF ALIENATING OR EXCHANGING IMMOVABLE ECCLESIASTICAL PROPERTY,
OR OF GIVING IT TO CREDITORS UNDER SPECIAL HYPOTHECATION, A GENERAL
HYPOTHECATION BEING SUFFICIENT.
SEVENTH NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Most Holy and Blessed Archbishop of this Fortunate
City, Ecumenical Patriarch, or Patriarch of Constantinople.
PREFACE.
As We are always
intent upon correcting anything which We find to be confused or imperfect,
or removing it, and making clear what is obscure in Our legislation, We
think that it is necessary for everything relating to the alienation of the
property of the Church to be included
in a single law,
which shall replace and amend all others, supply what is lacking, and
rescind what is superfluous. Leo, of pious memory, who, with the exception
of Constantine, of all the Emperors, added more than anyone else to the
Christian religion, and thoroughly established the honor and discipline of
the holy churches, enacted a law concerning ecclesiastical alienations,
which he, however, limited to the Principal Church of this Most Fortunate
City. We applaud the greater portion of this law, because the worship of God
is its principal object, but for the reason that it does not generally apply
to all churches, We think that it requires amendment. An enactment on the
same subject was also published by Anastasius, of pious memory, which,
although it did not resemble the former one, is still restricted in its
effect, for although it applies to places outside of Constantinople, it is
still imperfect for the reason that it has reference only to the clergy and
the diocese subject to the authority of the patriarch of this Royal and Most
Fortunate City, but is not applicable to sees. The author of the law
understood that it should be corrected, as he amended several portions of
it, although he left others untouched, for which reason We decree that it
shall hereafter be void as being imperfect and limited in scope, and not be
included among laws generally as introducing anything that is of value to
jurisprudence. Hence, We have corrected all these matters, and think that it
is necessary for uniform legislation to be imposed upon all churches,
hospitals, monasteries, asylums, infirmaries for the poor, and all other
religious foundations; and We desire that the present law shall be an
addition to that of Leo, of pious memory, of which We are going to enumerate
in a few words such provisions as remain in force. It forbids the archbishop
and patriarch of this Fortunate City or of the principal church of the same,
as well as the steward, to sell, give, or alienate in any other way any of
the immovable property belonging to the holy Principal Church of
Constantinople, whether said property consists of buildings, land, serfs,
rustic slaves, or grain furnished by the State (for these last items are
regarded as immovable), and the law does not permit any transfer to be made
by way of compensation, or under any other pretext; and it renders the
purchaser liable to restore to the steward having charge of the property of
the church whatever he has purchased, together with the profits of the same
which he may have obtained since the alienation, and anything else which he
may have acquired thereby, as well as to forfeit the purchase money, and it
regards the transaction just as if it had never taken place. It also compels
the steward who has failed in the discharge of his duty to pay over any
profits which he has received from what belonged to the holy church, or to
indemnify the latter for the losses which it may have sustained. And, in
addition to this, he shall be deprived of his office of steward, and the law
grants a right of action to the holy church not only against the stewards
themselves, but also against their successors, whether the latter have made
the alienation without the opposition of the bishop in office at the time,
or of that of any of the other clergy, whether they were aware of it and
con-
: jJlS? '
sented, or
remained silent and suffered it to take place, for they are much more
reprehensible if they gave their consent, and knowingly permitted such a
thing to be done without preventing it.
It also punishes
with perpetual exile the notary who drew up the documents, and refuses him
clemency or permission to return; and any judges who consent to the
alienation, and preside in cases of this kind, or who permit such donations
or alienations to be made, it directs shall be deprived of their insignia,
their offices, and their
estates.
Although this
law strictly forbids the alienation of church property, it, nevertheless,
allows the use of the same, which is called usufruct, for a certain time, or
even during the life of the person who obtains it, when this is granted by
the Most Holy Principal Church, under the restriction that the recipient of
this favor shall give to the Most Holy Principal Church a certain portion of
the property by way of compensation, from which the Most Holy Church can
have the same income as he obtains from the use of said property; and, after
the death of the usufructuary, or the expiration of the time prescribed for
its enjoyment, the use and usufruct of the ecclesiastical property which has
been granted shall revert to the Most Holy Principal Church, as well as the
use and ownership of what was given by way of compensation. The law
prescribes that a contract of this kind can be made without any risk.
If, however,
what has been given by way of compensation should happen to be less than
what was transferred by the holy church, the law declares that the contract
shall be void, just as if it had never been entered into, and it grants the
right of recovery just as if the holy church had been defrauded.
(1) These are,
briefly stated, the provisions of the law, and where it imposes a fine, it
only has reference to property belonging to the Most Holy Church of
Constantinople; and while it disposes of all the fraudulent acts which We
have mentioned, it still is not sufficient to restrain the efforts of
persons intending to deceive. For, indeed, certain individuals have invented
what is called leasehold titles, that is, where anyone received from the
church a building whose value was, for instance, one hundred solidi,
and which yielded an annual income of ten solidi, and he paid a
hundred solidi more or less for the same, and agreed to pay every
year out of his own property three solidi by way of rent, he was
called parcecus; and, in consideration of this small payment, he
became the possessor of the property, along with his heirs, in perpetuity.
This right was
not known to any of Our laws, or recognized by any emperor; and, by means of
it, those who invented it could commit great frauds against the law, and
make almost constant alienations, which We forbid to be done hereafter, and
have promulgated the present law for this very purpose. Those having charge
of the administration of the property of said church formerly had recourse
to emphyteusis, and by this means, obtained the greater part of the revenues
of the same. For this reason We, by means of one of Our
preceding
constitutions, have limited the duration of emphyteusis to the lives of
three persons, that is to say, to that of the one who makes the contract,
and his two immediate successors; and We permitted this to be done with
reference to the property of the Most Holy Principal Church, but did not
allow more than a sixth part of the income obtained under emphyteusis to be
collected where unforeseen events occur. We have, however, learned that
documents often have been impiously executed by certain persons under which
a sixth part was left to the holy church, and all the rest of the property
was given in emphyteusis. When Anastasius, of pious memory, decreed that
rules should be drawn up with reference to emphyteutical alienations, in
order that the time of possession might be determined, and decided that an
irregular emphyteusis should last until the death of the emphyteuta, and
that where it was regular, it should be perpetual, he enacted a law which
was useless and imperfect in every respect, and which, as We have already
stated, was only effective within the Patriarchal See of Constantinople.
CHAPTER I.
CONCERNING THE
PROHIBITION OP ALIENATING PROPERTY BELONGING TO RELIGIOUS HOUSES.
Hence We decree
(for it is now time to come to the provisions of the law) that the Holy
Principal Church of Our Most Fortunate City, or any of those which are
subject to its jurisdiction, and are maintained by it (as provided by
Anastasius, of pious memory), and any other churches in this Most Fortunate
City, or within its confines, which are subject to the Patriarchal See, the
archbishops of which obey its patriarch or any other patriarch or bishop (We
refer to those who reside in the East, in Illyria, in Egypt, in Lycaonia,
and in Lycia, together with those who are in the province of Africa, and all
who are distributed throughout Our entire dominions, including the bishops
of the West, from Rome even to the ocean, who have charge of the holy
orthodox churches), as well as superintendents of hospitals, orphan asylums,
infirmaries for the poor, abbots and abbesses of monasteries, and presidents
of sacred colleges, shall not be permitted to alienate any immovable
property, whether it consists of buildings, fields, gardens or anything of
this kind, rustic slaves, and grain provided by the State, or deliver it
under a special contract to creditors by way of pledge.
We accept the
term alienation in its general sense, and hence forbid the sale, donation,
and exchange of property, as well as perpetual emphyteusis, which does not
differ greatly from alienation. We forbid all ecclesiastics, everywhere,
from making transfers of this kind under the penalties prescribed by the
Constitution of Leo, of pious memory. We decree that this law shall be
valid, and hereby ratify it, and, for this reason, We have proposed and
proclaimed it, and have caused it to be written, not in Latin but in Greek,
in order that it may become familiar to all, and its interpretation be
facilitated.
We leave any
alienations which have already taken place in their present condition, for
where so many documents have been executed for a long time, interference
with them at present must result in much confusion. Hence, those which have
existed up to this time shall remain in full force, but, for the future, We
prohibit all alienations under the penalties previously imposed.
CHAPTER II.
CONCERNING THE
GIFT OP IMMOVABLE PROPERTY TO A RELIGIOUS HOUSE BY THE EMPEROR.
In order that
the laws based upon the instability of human nature and events which
frequently occur may always remain unaltered (for how can anything be so
permanent and immovable among men that it cannot suffer any change, when our
entire life is in constant movement?), We have deemed'it necessary to
formulate some exceptions to the laws, which, being applied with reflection
and care, may prove beneficial by preventing their operation.
(1) Therefore We
authorize the government, when it is for the common welfare and the general
advantage of the State, to obtain possession of any immovable property
belonging to churches, religious houses, or associations, where others of
equal or even of greater value than what was received is transferred by way
of compensation. What excuse can the Emperor have to avoid furnishing
greater indemnity? For God has given him possession of enormous wealth, and
has made him the ruler of many subjects, and has rendered it easy for him,
above all, to give to the holy churches, towards which one cannot be too
liberal. Wherefore, if such a thing should take place, the transfer shall be
valid, provided it is preceded by a pragmatic sanction authorizing the
government to transfer property in compensation, where compensation is
provided by reason of the gift of better and more productive immovable
property; and those who have charge of the religious establishments whose
property is alienated, and the notaries who drew up the contracts, shall
everywhere be exempt from blame, and shall not be apprehensive of the
penalties prescribed by Leo, of pious memory, and which have been confirmed
by Us, since the priesthood and the Empire differ greatly from one another,
as sacred things do from those which are common and public, and the
abundance enjoyed by the churches is continually derived from the
munificence of the Emperors.
Hence, where
compensation is given by either party, neither can legally be blamed by
anyone; but, on the other hand, We expressly prohibit every other sale,
donation, exchange, or emphyteusis, whether made by the government or any
other person whomsoever. Nor do We permit the donation of any real property
by way of pledge for the purpose of securing a loan.
We desire this
law to be observed by every church, monastery, hospital, house of refuge,
hermitage, convent, infirmary for the poor, and all other establishments
founded under religious auspices, for no
one can legally
acquire any property from them. Therefore the constitution of Anastasius of
divine memory shall hereafter be of no force or effect, and no law shall be
enacted for the purpose of renewing it, nor shall its provisions be cited,
as they are all hereby annulled.
CHAPTER III.
UNDER WHAT
CIRCUMSTANCES THE EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY MAY BE PERMITTED.
We authorize the
Most Holy Principal Church, and all other religious foundations, to lease
their property by emphyteusis, provided that the duration of the lease is
limited to the life of the emphyteuta, and two of his heirs, that is to say,
his children and grandchildren, both male and female; and the said property
will revert either to the husband or the wife, if this has been expressly
stated in the contract; otherwise, it will not pass to any other heirs, but
will be confined solely to the lives of those who received it, when they
have neither children nor grandchildren. We, by no means, allow real
property belonging to churches or hospitals, or even rustic slaves or
supplies of grain to be leased, and We do not permit an alienation made
contrary to these provisions to have any force.
(1) The
Constitution of Leo, of pious memory, permitted ecclesiastical property to
be leased by emphyteusis, where this was done without any loss, but We have
decreed in another constitution promulgated by Us that a sixth part of the
income should be given to him who took the emphyteusis; and thus We
establish a certain rule of diminution, so that the rent of the property
leased may be ascertained with truth and accuracy from the beginning, when
it was acquired by the holy church and the emphyteusis was granted to the
persons whom We have mentioned; for then We concede it to them, scrupulously
reserving the sixth part of what they paid. Where, however, the amount is
diminished through some accident, or the whole of it is lost, a new rate
should be established for the person desiring to lease the property; or,
indeed, none at all shall be made where it is decided to be more
advantageous to lease it in some other way than to subject it to an
excessive diminution of the rent under emphyteusis.
When suburban
ecclesiastical property is leased under emphyteusis which We have
ascertained is, in many instances, done in this Most Fortunate City at a
high priceand it yields but very little rent, or even none at all, We do
not wish the rental to be regulated by the income, but that a just
appraisement shall be made of the land, adopting as a standard the income
collected for twenty years, and that the rate under emphyteusis shall be
based on this appraisement; but We repeat that this must not be done in
perpetuity, but only during the lifetime of the person who receives the
property, and that of two of his successors; but it will also be revertible
to either the husband or the wife, as We have already stated.
(2) It is proper
that emphyteutas should be notified that if they do not pay the rent for two
consecutive years (for the term of three years is established in the case of
other emphyteutas, but We have decided two will be sufficient where
ecclesiastical lands are leased), they shall be deprived of the emphyteusis,
and the officials in charge of the religious houses shall be permitted to
resume possession of them without being liable on account of any
improvements which may have been made. But if the emphyteuta has caused any
deterioration of the land or suburban property, he can be compelled to
thoroughly restore it to its former condition, at his own expense; and he,
together with his heirs, will be obliged to return the said property, with
all the income from it which may be due, without delay. It has already been
stated by Us that no alienation of real property belonging either to a
church or a hospital can take place, and this prohibition has reference to
every person in the Empire, and applies not only to houses, suburban lands,
gardens, fields, and buildings ruined by fire, earthquakes, or any other
calamity, as well as to such as are entirely destroyed and levelled with the
ground, whether enough materials remain for their reconstruction or not, for
We only permit them to be alienated by means of temporary emphyteusis, in
accordance with what has already been stated, and to the three persons whom
We have previously mentioned.
In order that no
fraud may be committed with reference to ecclesiastical property under such
circumstances, an examination shall take place, when said property is in
this city, in the presence of two master mechanics or architects, together
with ecclesiastical stewards, five reverend priests, two deacons, and the
bishop of the diocese; but where the property is situated in a province,
this shall be done in the presence of two master mechanics or architects, or
of one (if there are no more in the town), who shall assemble on the ground,
and decide under oath on the Holy Gospels how much should be paid to the
church under emphyteusis, and an emphyteutical contract may be drawn up in
accordance with what has previously been prescribed.
The emphyteuta
can then erect buildings with the materials, if there are any, and transmit
the emphyteusis to two of his successors (as has already been stated), and,
after the death of the three persons aforesaid, the property shall revert to
the holy church or the venerable religious house by whom the emphyteusis was
executed ; and a contract of this kind shall be valid, provided it is not in
contravention of the terms of the present law.
(3) The various
pretexts which have, up to the present time, been employed to prevent the
termination of contracts of this description, shall no longer be permitted;
and where the term of the two heirs has expired, permission is hereby given
to those who succeed them to lease the property by emphyteusis; and they, in
their turn, shall be allowed to transfer it to others. By resorting to such
fraudulent methods, the consequence is that the emphyteusis always remains
under the control of the same persons, and the church is deprived of its
right to the property. Where anything of this kind takes place,
the reverend
stewards are not obliged to transfer the property to others after the death
of the two heirs of the emphyteuta.
CHAPTER IV.
IN WHAT WAY THE
USUFKUCT OP PROPERTY BELONGING TO THE CHURCH is CREATED.
If anyone should
desire to enjoy the use or usufruct of property belonging to the Holy
Principal Church, or to any other church whatsoever situated in Our
dominions, or which belongs to a hospital, he can obtain it by observing the
rules which have been already laid down, and by complying with the
provisions of the Constitution of Leo, of pious memory, which requires that
the usufructuary shall be a man of means, and the owner of land, and shall
give to the holy church or the religious house, by way of compensation, some
other property yielding at the same times a revenue of equal amount and of
the same character. This should be done in order that, after the death of
the usufructuary, the property belonging to the church or hospital may
revert to it, together with the use which was bestowed, and may not be
extended beyond the lifetime of the person who acquired it. On the other
hand, the usufructuary shall, until his death or for the time agreed upon,
enjoy the usufruct of the property which he is given by way of compensation,
and after the termination of the usufruct, the ownership and the use of the
two pieces of property aforesaid will absolutely belong to the holy church.
CHAPTER V.
To WHAT
PENALTIES PERSONS WHO ALIENATE ECCLESIASTICAL PROPERTY ARE LIABLE.
While the
Constitution of Leo, of pious memory, only prescribed a penalty for the sale
of ecclesiastical property, We, on the other hand, forbid not only the sale
but also the donation, exchange, perpetual lease under emphyteusis, and
pledge of real estate; for We are aware that there are certain persons who
love to take risks, and make a practice of defrauding the laws, and of doing
things which are absolutely prohibited and render those guilty of such
conduct liable to capital punishment, hence We have considered it necessary
to affix a certain penalty to every contract, and those penalties which were
provided for unfaithful stewards by the aforesaid Constitution of Leo, of
pious memory, We decree shall also be applicable to all in charge of houses
for the accommodation of travellers, hospitals, and orphan asylums, as well
as to abbots and abbesses of monasteries and convents, in accordance with
what has been previously established. Therefore, if anyone should presume to
buy property belonging to either a church or a hospital, he shall lose the
purchase-money, and be deprived of whatever he acquired, together with all
its income in the meantime; and he shall be entitled to no right of action
against the said church or religious house, but he can sue the stewards or
other officials
who sold him the property, and recover damages out of what personally
belongs to them, so that if they are not deterred by the fear of God from
engaging in transactions of this kind, the apprehension of losing their own
property may prevent them from
doing so.
(1) If anyone
should presume to accept as a donation anything belonging to a church or a
hospital, he shall, by all means, lose what was given, and shall surrender
to the said holy church or venerable religious house a portion of his own
property equal to that which he received, so that he may realize the
wickedness of his conduct in violating this law by suffering the loss of his
private fortune.
(2) If any
exchange should be made by persons except where the transfer of public lands
is involved, as We have previously stated, he who assented to the exchange
shall be liable to the penalty, shall lose what he received, which shall
revert to the venerable religious house from which it was taken, and
whatever was given by way of compensation shall also be acquired by it. He
who is guilty of thus violating the law shall thus be deprived of both, and
be punished by the loss of his own property as well as of that which he
expected to gain; but, in this instance, a right of action will lie against
those who made the contract with him.
CHAPTER VI.
IT is LAWFUL TO
ENCUMBER ECCLESIASTICAL PROPERTY BY A GENERAL BUT NOT BY SPECIAL
HYPOTHECATION.
Where a creditor
chooses to take security for money loaned on immovables belonging to a
church or hospital, which consist of buildings, suburban lands, fields,
gardens, supplies of grain, or rustic slaves, he shall be deprived of such
property, and the holy church which received the money shall keep it. In
this case, however, the creditor will be entitled to bring suit against the
steward, the official in charge of the hospital or the orphan asylum, the
superior of the convent or monastery, or the superintendent of any other
religious house responsible for the transaction, and he can also proceed
against the abbesses of convents.
(1) Where,
however, holy churches or other religious houses, are compelled to borrow
moneyand this is so necessary that if it is not borrowed they cannot comply
with their contractsor there is any other good cause to induce them to do
this, it will be lawful to have recourse to a general hypothecation, but no
special pledge of property can be given to creditors.
CHAPTER VII.
To WHAT
PENALTIES THOSE WHO MAKE A PERPETUAL EMPHYTEUTICAL CONTRACT ARE LIABLE.
If, however,
anyone should, in violation of the provisions of this Our law, presume to
take either a perpetual or a temporary lease
under an
emphyteutical contract, he will lose the land in question, as well as what
he paid for it, which shall be forfeited to the religious house. He will
also be required to pay the rent for which he bound himself, just as if he
had made a legal contract, and he will obtain no benefit from the property
of the poor which was uselessly transferred to him under the emphyteusis.
(1) All these
provisions shall be observed, subject to the abovementioned penalties, and
notaries, even though relying upon Imperial authority, must be careful not
to draw up any instruments with reference to such contracts, but shall have
the fear of exile before their eyes, with the understanding that they never
will return; nor shall judges venture to authorize the execution of any
false documents, or perform any act for the purpose of confirming those
which already have been executed, under the penalty of being deprived of
their insignia of office, their rank, and their property, in accordance with
the Constitution of Leo.
CHAPTER Vill.
CONCERNING THE
PROHIBITION OF ALIENATING SACRED
UTENSILS.
The same
punishment shall be inflicted upon those who, in violation of Our law,
either pledge, sell, or melt for the purpose of alienation, any sacred
vessels, for We think that they who presume to commit an impious act with
reference to sacred utensils consecrated to God should be punished with the
same, or even with a greater penalty. Still, an exception may be made in the
case which We have mentioned regarding the redemption of captives, where the
souls of men are released from death and chains by the sale of inanimate
vessels.
The same rule
applies (as We have frequently stated) to the alienation of public supplies
of grain, as We have ascertained that such supplies exist not only in this
Most Fortunate City, but also at Alexandria as well as at Theopolis, and
also, perhaps, in other provinces. Whenever this is the case elsewhere, the
present law is applicable and shall be observed.
CHAPTER IX.
CONCERNING HIM
WHO PURCHASES THE PROPERTY OF THE CHURCH BY VIRTUE OF A PRAGMATIC SANCTION.
For the reason
that it is probable that someone, for the purpose of evading this law, may
attempt to obtain from Us a pragmatic sanction authorizing the purchase of
ecclesiastical property, We hereby prohibit everyone, of whatever rank or
political station, or those immediately attached to Our service, or anyone
residing among the people, from doing anything of this kind; and We decree
that it shall, under no circumstances, be lawful to produce a pragmatic
sanction for the purpose of acquiring immovable property belonging to
churches, monasteries, convents, or any other religious establishments. The
quaestor who
authorizes such a transaction will be liable to a fine of a hundred pounds
of gold. Judges or other magistrates who sanction it will be liable to the
same penalty; notaries who have drawn up the agreements shall be punished in
accordance with the Constitution of Leo, of pious memory; and bishops and
stewards who can refuse to obey any pragmatic sanction of this description
shall forfeit the priesthood, if they accept it and allow it to be executed,
and ignoring these laws, they comply with the terms of the pragmatic
sanction.
(1) It is
necessary for laws which are promulgated for the common and general welfare
of all to be of more force than those enacted for the benefit of individuals
to the prejudice of such as are of general application. It is for this
reason that a special enactment for the purpose of leasing or transferring
ecclesiastical property by emphyteusis has been deemed necessary.
CHAPTER X.
CONCERNING
OFFICIALS WHO ALIENATE PROPERTY BELONGING TO THE CHURCH.
Stewards, or
other ecclesiastical officials who are entrusted with the management of
church property, cannot be compelled under a pragmatic sanction, by persons
who are in authority, to lease or transfer by emphyteusis the said property
to anyone who has obtained the pragmatic sanction; and anyone who does so
will not only render himself liable to the penalty for sacrilege, but will
also be subjected to all the fines and other punishments enumerated in this
Our law.
CHAPTER XL
CONCERNING THE
PROHIBITION OF ALIENATING MONASTERIES.
We have
ascertained that unusually flagrant violations of the law have been
committed by the people of Alexandria and other Egyptians, as well as in
other places in the Empire, and that persons do not hesitate to sell the
monasteries themselves, or exchange them for other property, or give them
away (a place is monastic in which an altar has been erected and religious
service is performed, as is customary in churches, -or where the Scriptures
are read, or the holy and ineffable communion is administered), so that
these buildings consecrated to God are transferred to private ownership and
uses; hence We absolutely prohibit this to take place in the future,
permitting no one to violate this law, and We declare that everything done
in contravention of the same shall be invalid. We impose the forfeiture of
the purchase-money upon those who receive the property, the vendor shall
lose what he sold, and both the property and the purchase-money shall belong
to the church of the diocese and the monastery. By this means it is provided
that whatever has been alienated fraudulently shall be returned to the
monastery, and that no hypothecation
of the property
shall be of any force or effect, but shall be void, and the property itself
be restored to the monastery to which it belongs.
CHAPTER XII.
WHERE A STERILE
FIELD COMES INTO THE POSSESSION OF A CHURCH.
As We forbid
injurious alienations to be made, so also We prohibit the acquisition of
property which is unprofitable. For many questions have been submitted to Us
in cases where persons have bestowed worthless lands upon a church or other
religious house, or have sold such lands as being valuable, when this was
not the case, as they were barren in the beginning, and, on this account,
the religious house suffered a loss. Hence We forbid officials in charge of
religious establishments to do anything of this kind, and We require them to
inform themselves absolutely concerning the property in question; for if
they do not use every effort to this end, when a contract is made and
property which is either sterile or injurious is transferred to a church, a
monastery, a hospital, or any other religious foundation, the contract shall
be void, and he who fraudulently alienated the property shall take it back,
and the steward, abbot, or official in charge of the said religious house or
orphan asylum shall be personally liable for the loss resulting from the
transaction. If, however, the agreement was of such a nature that money was
given along with the property, it shall belong to the religious house, and
he who paid it will be entitled to an action against the official who made
the contract, as We have previously stated.
EPILOGUE.
This law shall,
by all means, be observed with reference to the alienation of property
belonging to churches or other religious foundations, in accordance with the
terms of the Constitution of Leo of pious memory, and if it provides for
nothing else, it still neglects nothing on this subject, and shall apply to
all the provinces governed by Roman law and subject to the authority of the
Catholic Church, and must be perpetually observed and executed by the
patriarchs of every diocese as well as by the metropolitans, bishops,
priests, stewards, abbots, and superintendents of hospitals, orphan asylums
and all other similar religious institutions, and be maintained by them in
all its force; and everyone is authorized to denounce those who violate it,
or fail to observe its provisions. For anyone who does this is worthy of
praise, as he does not merit the name of a false accuser who exposes any
violation of the laws, for he performs a pious action and one which is
beneficial to all religious houses.
All judges
throughout Our Empire, no matter what their rank, or whether they are in the
civil or military service, shall see that this law is enforced; this
especially applies to the most glorious praetorian prefects throughout all
the dioceses, as well as to those invested with less important jurisdiction,
who are designated spectabiles, for We
include the
Augustal proconsular and spectabile Counts and other officials of the
East, and the magistrates who are inferior to them that is, those of
consular rank or the Governors of provincesas well as the defenders of
cities. All persons in civil, military and public employments are required
to observe this Our law, for the promotion of the public welfare and the
increase of the piety of the entire country; and those who violate it shall
be liable to the penalties which We have previously enumerated.
We hereby
confirm whatever has been enacted in former chapters, or by Our
predecessors, with reference to the leasing of ecclesiastical property, and
it shall remain inviolate; nor shall any innovation take place with
reference to this Our present Constitution, for We authorize the
preservation of the provisions in other laws when they conform to this one
which We have promulgated, as it has greater scope than that enacted by Leo
of pious memory, and is sufficient to remove every pretext for the
alienation of property belonging to the Church.
Your Holiness,
as well as those who may succeed you in the Pontifical See, will take
measures to carry into effect the provisions which have been enacted by Us.
May the Lord preserve you for many years, most Holy and Religious Father.
Given at
Constantinople, on the seventeenth of the Kalends of May, during the
Consulate of Belisarius.
TITLE II.
JUDGES SHALL NOT
OBTAIN THEIR OFFICES BY PURCHASE. EIGHTH NEW CONSTITUTION.
The Emperor
Justinian to John, Praetorian Prefect, twice
Consul and Patrician.
PREFACE.
We pass entire
days and nights in reflecting upon what may be agreeable to God and
beneficial to Our subjects, and it is not in vain that We maintain these
vigils, but We employ them in attempting to deliver those who are subject to
Our government from care and anxiety; and, undertaking this Ourselves, We
attempt, in every way, to do what may render Our people happy and relieve
them of all onerous charges and impositions, with the exception of duties
and taxes. We have found that great injustice has been committed in many
instances, and, if this is not the case at present, it has been so at other
times; and this oppression has impoverished Our subjects to such an extent
that they have been reduced to indigence, taxes cannot be collected, and the
lawful and customary tribute be obtained, without the greatest difficulty;
for, when the Emperors try to obtain money from magistrates by selling them
their offices, and the latter, in their turn, indemnify themselves by
extortion, how can those subject to taxation endure these unjust impositions
as well as the lawful contributions for which they are liable?
(1) Hence We
have thought that any changes which We make in Our provinces should be
liberal, and for the general welfare. We believe that this can be
accomplished if the Governors invested with the civil administration of the
provinces keep their hands clean, and abstain from accepting anything,
remaining content with the remuneration given them by the Treasury. This,
however, cannot take place unless they obtain their offices without
purchasing them, and give nothing either to officials or to other persons in
order to obtain their influence. Although the suppression of unlawful gains
of this kind may cause the Empire some financial loss, We, nevertheless,
think that Our subjects will ultimately be benefited by it, if they are not
imposed upon by magistrates, and that the government and the Treasury will
obtain a great advantage in having wealthy subjects, and that, under such
circumstances, there will be a great increase of riches and extraordinary
prosperity. For is it not clear to all that anyone who gives money to obtain
an office does not merely disburse it for that purpose, but pays out still
more to the persons who procure it for him, or promises to do so ?
Where money is
thus corruptly used in the first place, many hands are required to aid him
who made the donation, and if he does not make the payment out of his own
property, he must borrow, and in order to do so will appropriate that of the
public, as he must obtain enough from his province to pay his debts, both
principal and interest, and indemnify himself for what he has borrowed; and
he will also, in the meantime, incur greater expense, and the judges and
subordinates attached to his office will do the same thing; and he will make
secret acquisitions with a view to providing for the future when he will no
longer be in authority. For which reason he collects three times the amount
of what he has paid out, and sometimes more, or even ten times as much if
the truth be told, and the revenues of the Treasury are diminished to this
extent, for what should have been paid into it if they had been entrusted to
honest hands is collected for the private use of the official, which renders
Our taxpayers poor, and their indigence which is caused by his conduct
becomes a source of reproach to Us. How impious is such conduct, and of how
many thefts is it the immediate cause ?
Those who
administer the affairs of the provinces, thinking incessantly of what their
offices will cost them, discharge many criminals by selling them freedom
from prosecution, and convict many who .are innocent, in order that they may
profit thereby; and this not only occurs in pecuniary cases, but also in
prosecutions for crime in which the death penalty is inflicted; and many
persons in the provinces, including priests, decurions, various officials,
owners of property, citizens, and farmers, flock to this city with good
cause, complaining of injustice, and accusing the magistrates of theft.
Not only do
these things occur, but also the seditions in cities, and public
disturbances which take place everywhere, go unpunished, in consideration of
money paid. Corruption is undoubtedly the cause of these evils, it being the
beginning and the end of all wickedness,
confirming the
truth of the sacred precept that avarice is the mother of all crime;
especially when it is not confined to private persons, but even takes
possession of the minds of magistrates. For who cannot steal without danger?
Cannot anyone commit robbery with the certainty of appearing innocent in the
eyes of the magistrate when he knows that he has purchased everything with
gold, and that no matter what illegal act he may commit, he can escape by
the payment of
The result of
this condition of affairs is homicide, adultery, violence, wounds, the rape
of virgins, commercial difficulties, contempt of the laws and judges, all of
which are attributable to venality, and the immunity sold to criminals in
the same manner as a vile slave. We are unable to consider or enumerate the
evils resulting from thefts committed by the Governors of provinces, and
still no one is courageous enough to accuse them of having corruptly
purchased their offices.
CHAPTER I.
CONCERNING
MAGISTRATES WHO SHOULD BE CREATED WITHOUT EXPENSE.
Having reflected
upon all these matters, and discussed them with Our Most August Consort whom
God has given Us, as well as conferred with Your Highness, and been advised
by you, We enact the present law, by which We direct that no one of
proconsular rank, nor any Imperial Deputy who, up to this time, has been
appointed; nor any Count of the East, nor the incumbents of any other
offices, whether they are proconsular or governmental (which derive their
names from Consuls and Governors), who have been especially mentioned in the
notice following the present law, shall give anything for his appointment;
and that no donation whatsoever shall be made to any judge, magistrate, or
any of those charged with the administration of the government, in order to
obtain an office, or shall be bestowed upon anyone for the sake of his
influence, but all offices shall be obtained gratuitously, and very little
be expended for the procuring of commissions; for We have placed at the end
of this Our law a statement setting forth what ought to be paid for this
purpose to the Imperial Laterculus, and what to the court of Your
Highness; which We have done in order that the proceedings may be
simplified, and no loss be sustained by the magistrates.
CHAPTER II.
CONCERNING THE
VICEGERENT OF ASIA AND THE GOVERNOR OF PHRYGIA, AND THE TRANSFER OF THEIR
OFFICES TO THE COUNT OF PACATIAN PHRYGIA.
We decree that
it is necessary for the Vicegerent of Asia, who is also the Governor of
Pacatian Phrygia, to be no longer designated in this manner, but for the
future to be called the Count of Pacatian
Phrygia, and to
receive from the Treasury under that title what he formerly received by way
of subsistence and emoluments, without any diminution thereof; nor shall he
hold the two offices, but those of Governor and vicegerent shall be
combined, and he shall be styled Count, and, along with his subordinates,
shall be responsible for the discharge of public duties and other
requirements without the division of his office in any way, all official
services being performed by the exercise of a single authority. He shall be
liable for the collection of both subsistence and taxes. He will be
entitled, as We have previously stated, to the salaries of both offices with
which he was formerly invested, and as he is now Count of Pacatian Phrygia,
he shall no longer be Vicegerent, and his jurisdiction will not hereafter
extend to the other dioceses of Asia, but he shall bear the title of Count
of Pacatian Phrygia, and must remain content with the same.
CHAPTER III.
CONCERNING THE
ABOLITION OF THE OFFICE OF VICEGERENT OF PONTUS, AND THE TRANSFER OF THE
SAME TO
THE COUNT OF
GALATIA.
We decree that
the same thing shall take place in the government of Pontus, for We order
that hereafter two administrations shall not exist there, but only one
magistrate, who shall be styled the Count of Galatia, shall have
jurisdiction. He shall command the military forces, just as he does at
present, and shall be entitled to the emoluments of both offices, but his
jurisdiction shall not extend beyond the limits of Galatia, for We do not
give him authority over any of Pontus, but over Galatia alone; nor will he
be responsible to other magistrates, but shall have but one court in which
he will preside over a single province, and, together with his judge, shall
be liable for the collection of taxes.
CHAPTER IV.
No MAGISTRATE
SHALL BE PERMITTED TO APPOINT DEPUTIES.
We do not grant
any magistrate, either civil or military, the right to appoint deputies in
any city of the province of which he is Governor; and if any of those
appointed to this office should knowingly commit an act of this kind, they
shall be deprived of their places, and others shall be appointed in their
stead.
CHAPTER V.
THE OFFICES OF
COUNT OF THE EAST AND GOVERNOR OF ANTIOCH ARE HEREBY CONSOLIDATED.
We hereby decree
that the offices of Count of the East and Governor of Antioch shall be
consolidated, and constitute a single administration, under the name of
Count of the East, who shall administer the
affairs of Syria
and Syristensis, and be entitled to the emoluments of both offices. We
confer upon the incumbent the rank of vicegerent, and he, with his
subordinates, shall be liable for the collection of taxes and the
maintenance of civil and public order.
CHAPTER VI.
ALL PRIVATE
INDIVIDUALS AND THE EXECUTIVE OFFICERS OF THE CITY OF CONSTANTINOPLE SHALL
BE SUBJECT TO THE GOVERNORS OF PROVINCES.
We desire all
persons to be subject to the authority of the Governors of Our provinces;
and this applies to all cases, whether pecuniary or criminal matters are
involved. Those who are appointed for the discharge of civil functions by
special judges shall also be responsible in fiscal and criminal cases.
Governors of provinces must not permit officers despatched from Our court,
or from any other, to carry sentences into execution, or to receive fees
beyond those prescribed by Our law; and if they should knowingly permit this
to be done, they themselves will be liable for any damages sustained by Our
subjects.
We grant the
latter authority to have recourse not only to the magistrates by whom the
said officers were sent, but also to Ourselves, so that We, being informed,
may take such measures as may be proper. Where the Governors ascertain that
any of these officials have employed their authority to commit acts of
violence against Our subjects, We grant them authority to make
investigations, and deprive those who are guilty of their employment, and to
execute Our commands in the provinces in the manner stated in former laws.
For We forbid them to use any unlawful means for the acquisition of gain,
and where they discharge their duties properly, We direct that they shall be
honored and respected in every way, and enjoy the fruits of their fidelity.
CHAPTER VII.
CONCERNING THE
OATH TO BE TAKEN BY GOVERNORS
DECLARING THAT
THEY HAVE NOT PAID ANY MONEY FOR
THE PURPOSE OF
OBTAINING OFFICE.
Therefore, where
anyone has been appointed to office by Us, he must call God to witness in
Our presenceand if We should be absent, in the presence of Your Highness
and the Officials who administer your See, the Count of Our Sacredx-large sses,
the Quaestor of the Imperial Palace, and the Count of Private Affairs, and
also in the presence of the Chartulary 1 of Our Bedchamber, who
is charged with
1 The
term chartularius was generally used in the Greek and Latin Churches
to denote the custodian of charters and other public documents establishing
the title to ecclesiastical property. In this instance it seems to designate
an official, one of whose duties it was to determine the qualifications, and
keep a record of the admission of candidates for government service.ED.
appointmentsand
swear that he has never offered to give anything to obtain either office or
influence; that he did not promise anything, or agree to send anything into
a province, or offer anything to the prefects or other officials, or their
attendants, nor has bestowed anything upon anyone for the purpose of
obtaining his support, but has obtained his position absolutely without
expense to himself; and that he will not take anything from the public
except his regular emoluments, which are all that We allow him to accept;.
that he will administer his office with clean hands, and be accountable to
God and to Us.
Your Highness,
as well as those who will succeed you, are hereby notified that if you, or
the officials attached to your office, should accept anything from
candidates beyond what has been established by Us as customary, and which We
have decreed should be considered sufficient, you will be subjected to
severe punishment; and where any superior magistrates have presumed to
receive anything from persons who are seeking office, or permit any of their
subordinates to do so, and, having been informed of it, do not take measures
to correct this abuse, they shall not only pay quadruple the amount which
they have received, but shall also undergo Our just indignation, and be
deprived of their offices; and if their attendants and subordinates should
attempt to collect more than what has been prescribed by Us, they also shall
be subjected to the penalty of quadruple restitution, and shall forfeit
their offices and their property, and, in addition, be liable to the
penalties which their offences deserve.
CHAPTER Vill.
GOVERNORS SHALL
DILIGENTLY ATTEND TO THE COLLECTION OF TAXES.
Those who in
this manner assume the duties of government, without having incurred any
expense, must by all means give special attention to the collection of
taxes, and, by the exercise of severity, compel those who are negligent to
make payment, and be absolutely in-flexible in this respect, without
considering the gain which they might acquire by being lax in the discharge
of their duty, and treat those who are prompt with paternal kindness. They
should also not display any violence towards Our subjects, nor exact
anything unjustly from them, but be equitable in their decisions, as well as
in the maintenance of public order, prosecuting crimes, but everywhere
guarding the rights of those who are innocent, inflicting punishment
according to law upon such as are guilty, and treating Our subjects
generally as fathers do their children, discriminating between the innocent
and the guilty and punishing the latter, dispensing justice in all public
and private matters, not acting alone and independently, but always
consulting with their attendants and subordinates, so as to avoid punishing
the innocent, which is more dishonorable than if they themselves had
participated in the illegal acts.
Hence Your
Highness must be careful to select for the service of the government honest
men who are experienced in financial matters, and have already held office
in the curia,, or discharged some other magisterial employment. For
who does not respect and honor a man for his integrity when he has been
appointed to office by Us, or by Your Highness, and has a good reputation
because he is of the highest character, above all when he has obtained the
office gratuitously, and does not attempt to enrich himself by acting
dishonestly in the province, or plan to acquire wealth with the connivance
of some one who pays out money, but is solely influenced by the desire to
commend himself to God and to Us, and enjoy the greatest distinction with
the expectation also of receiving a great reward?
(1) If anyone
should violate this law and be proved guilty of theft during his
administration, and it should be established that he had either paid money
to obtain his place, or had received it for any cause while he was in office
(as both of these acts are equally reprehensible), he is hereby notified
that he will be liable to the confiscation of his property and to exile, as
well as to the penalty of being scourged. A person who accepts anything from
him (as We have previously stated) shall be subjected to severe punishment,
for We require the hands of provincial magistrates to be clean, in order
that We may protect Our subjects.
We also desire
that the laws which impose penalties upon persons occupying the offices
aforesaid shall be enforced against all who are guilty, without distinction.
And if an official charged with the administration should be guilty of an
illegal act, or if he should inflict any injury upon, or permit any false
charge to be brought against, any of Our subjects, We hereby authorize the
inhabitants of the province to apply to the bishops and primates of the
diocese, that they may address petitions to Us setting forth the offences of
the said official. For as soon as We are informed of this, We shall send
someone into the province to make an examination of the case in which
injustice was said to have been committed, and inflict the penalty for the
same, in order to serve as an example, and deter anyone else from acting in
this manner hereafter.
CHAPTER IX.
GOVERNORS OF
PROVINCES SHALL REMAIN FOR FIFTY DAYS IN THEIR FORMER JURISDICTION, AFTER
THEIR SUCCESSORS HAVE ARRIVED.
In accordance
with former constitutions, every Governor, after he has relinquished his
office, must remain for the term of fifty days in the province which he
formerly ruled, showing himself publicly and ready to answer any demands
which may be made upon him. If, however, he should take to flight before the
said term of fifty days has expired, he shall be arrested in the same manner
as a dishonest slave; and We give Our subjects permission to detain him in
the province, and to exact from him everything which they may illegally
have given him
in the presence of the bishop (the examination not being committed to
writing), until he returns everything he is proved to have stolen; and if
the inhabitants of the province should find that any theft has been
committed by the Governor, they shall have the right, or rather be required
to communicate the matter to Us; so that, being informed that he has sold
justice for money, We may subject him to the penalties aforesaid, in
addition to which he will be liable to punishment by Heaven for having
violated the oath which he took at the time of his inauguration.
But if the
Governor should, for some reason or other, make up his mind to flee from the
province before the said fifty days have elapsed, then he shall be arrested
wherever he may be found, and be returned to the province in which he
administered his office, and he shall return fourfold the amount which he is
proved to have received.
CHAPTER X.
ALL THE PEOPLE
OF THE PROVINCE SHALL SHOW THEIR GOVERNOR THE HONOR AND RESPECT TO WHICH HE
is
ENTITLED.
It should, under
all circumstances, be observed that Our subjects are not authorized to
proceed against their magistrates except in case of extortion, and not even
then unless the Governor has been extremely active in the illegal exaction
of sums of money, or corrupt in the execution of persons guilty of crime,
for only in such cases do We authorize them to take measures against him.
On the other
hand, where Governors have clean hands, and have collected taxes with
honesty, We prescribe the severest penalties against those who presume to
bring charges against them after they have relinquished their office; and
when, having left the province after the time prescribed by law, they are
not treated with honor oti their return. For those who, subsequent to the
enactment of this law, may be appointed Illustrious Provincial Judges, must
consider what distinction they will attain if they observe it, as well as
what difficulties they will encounter if they disobey it. For it would be
absurd for magistrates, who torture vile thieves and do not relax their
efforts until the stolen property is returned, to themselves remain
unpunished after having committed the most flagrant thefts, and who do not
blush at the evil example they afford to persons who are honorable, free,
and everywhere respected, and being worthy of Our esteem are justified in
cherishing the hope of promotion.^
(1) Nor do We
permit the distinguished judges or other magistrates to inflict oppression
or injustice upon anyone, or to countenance the institution of any civil
proceedings against them, in order that We may preserve Our dignity, and
that they may manifest the purity of their intentions and their devotion to
Our service. For all Our subjects are informed that, in order to promote
their welfare, guard them everywhere against loss, and contribute to their
repose, so
that they may
not be compelled to leave their respective provinces and travel into foreign
countries, We have enacted the present law, which We dedicate to God to be
published on festival days by the reverend ecclesiastical authorities, and
especially by those of the same communion, in order that all persons may
regard their magistrates rather as fathers than as thieves and persons
plotting to deprive them of their property.
(2) It is also
necessary for you, who are Our subjects, being conscious of Our anxiety for
your welfare, to pay your taxes without diminution, and with all
punctuality, and not compel the officials to adopt extreme measures, but to
act in such a way as to show Us by your conduct that you are deserving of
Our indulgence, and that you are not insensible to the favor and solicitude
which We are inclined to manifest for you. Being aware of this, and knowing
that the magistrates are responsible for the payment of taxes, and that it
is clear that their administration is at their own risk, you must avoid all
improper delay, and not willingly violate the laws to the extent of
provoking harsh acts of the Governors, which may be necessary to secure the
inevitable fiscal exactions; and you also know that diligence is required to
meet military expenses, including those contracted through the invasion of
the enemy, and that these things cannot be accomplished without money, and
admit of no delay, We, not consenting to the diminution of the territory of
the Roman Empire, have recovered all Lydia, reduced the Vandals to
servitude, and, with the assistance of God, hope to achieve still greater
results, for whose accomplishment, however, taxes must be promptly paid
without diminution at the times prescribed. Wherefore, if you notify the
magistrates and they assist you in the payment of what is due, We shall
praise their zeal, and approve your good intentions, and the concord
existing between you and them will be for the advantage and welfare of all.
CHAPTER XL
ALL PERSONS
SHOULD RENDER THANKS TO GOD ON ACCOUNT OF THIS LAW.
All Our subjects
should sing hymns of praise to God and to Our Saviour Jesus Christ for this
law, which gives them the free exercise of their faculties, permits them to
live in their country with safety, and to obtain justice from magistrates.
When We promulgated it, We intended to dedicate to God the justice which it
contains, and also to commend Ourselves and Our Empire to Him in order that
We may not seem to depise oppressed persons whom He has entrusted to Our
care, but, imitating His kindness, exercise benevolence towards them in
every respect. Therefore, as far as We are concerned, this law shall be
consecrated to God, since in framing it We have omitted nothing which We
could think of that would be available for the protection of Our subjects.
For, desiring to repress all dishonesty and base thefts, and retain Our
subjects in peace through the agency
of provisional
magistrates, We have gratuitously bestowed government upon them, in order
that there might be no inducement to oppress those for whose benefit We have
exerted Ourselves; disdaining to imitate such of Our predecessors as made
appointments in consideration of the payment of money, and, concealing the
gifts bestowed upon them, granted permission to Governors to abuse their
authority; and while they were considered just, still could not protect
their own subjects from corrupting magistrates, nor consistently proceed
against the latter for the reason above stated. We believe that the
government will receive sufficient revenue from the taxes imposed upon the
people, and that no necessity will arise to annoy Our subjects by the
imposition of other burdens.
CHAPTER XII.
IN WHAT CASES
PERSONS DETAINED BY A GOVERNOR CAN HAVE NO LEGAL RECOURSE AGAINST HIM.
We think that
what has already been decreed by Us should be included in legislation of
greater scope, and set forth in more explicit terms, in order that Our
meaning may be clear to all; for We decree that the illustrious Governors of
the provinces of Our Empire who, mindful of their official oath, have been
appointed without expense, shall be so favored by Us that no one in their
jurisdiction can institute legal proceedings against them, whether for
violence, for criminal offences, or for such as arise from injuries, public
sedition, or the collection of taxes; but all persons shall be subject to
their authority, and they shall not expect the ordinary judges to proceed
against guilty persons, nor shall they file any accusations before them, but
shall remain content with this Our law, by which We have conferred full
power upon them; and no one shall, in the cases aforesaid, be permitted to
avail himself of any special privilege for the purpose of committing crime
with impunity. For if one has reason to fear magistrates who, because they
have received money from Our subjects, prefer everything else to God and Our
law, he, on the other hand, need not apprehend anything from those who act
honorably, dispense justice to Our subjects, and observe the law under all
circumstances.
(1) For this
reason We place the soldiers stationed in the provinces under the control of
the Governors, so that the latter may not require any order from Us or from
Our magistrates in order to avail themselves of their services, but they
shall make use of the present law, and show it to them, and call upon them
for aid in enforcing their commands. If, however, the latter, being aware of
these facts, should fail to obey, they shall lose their military emoluments,
as well as run the risk of corporeal punishment, and We have made this
provision in order that there might be no need for other magistrates to send
officers to pursue thieves, or prevent violence, who, summoned for this
purpose, themselves are frequently guilty of greater offences, and, availing
themselves of plausible pretexts, are instrumental in
causing the
commission of the most atrocious deeds. For where the Governors of
provinces, discharging the duties of the highest magistracy, perform the
functions prescribed for them by Our law, who would be so bold as to file an
exception against them in court, or adopt any other measures of this kind?
CHAPTER XIII.
CONCERNING
OFFICIALS DESPATCHED IN THE PURSUIT OF
THIEVES.
We forbid the
glorious Commander in Chief and all Our magistrates to send into the
provinces officers in the pursuit of thieves, or for the purpose of
suppressing violence, or dispersing persons who are armed. Those who have
been appointed for this purpose and, after the promulgation of this law,
presume to do anything of this kind, are hereby notified that, if arrested
by Our provincial magistrates, they shall be placed in chains, and that We,
after the matter has been brought to Our attention, will subject them to
severe penalties. Those who have despatched them on such an errand shall be
liable to a penalty of thirty pounds of gold and shall, in addition to this,
suffer the consequences of Our righteous indignation.
Hence the
Governors of provinces must, to the extent of their authority, act in such a
way as to render themselves justly and lawfully feared by all, constantly
bearing in mind that if they should unworthily abuse the administration and
authority conferred upon them by Us, they will be liable to the punishment
which We have previously prescribed, and that not only while they remain in
office, but even after they have relinquished it, they will be liable to
prosecution. For We do not give them permission to depart from the provinces
over which they had jurisdiction until the fifty days prescribed by law have
expired, whether this is done on account of their being recalled, because
they have taken to flight, or for any other reason whatsoever; they being
well aware (as We have previously stated) that they shall be returned to the
province which they governed, and undergo all the penalties which We have
previously enumerated, whether they come to this Most Fortunate City or
betake themselves elsewhere.
CHAPTER XIV.
How, AND BEFORE
WHOM, MAGISTRATES SHOULD BE
SWORN, AND
CONCERNING THE SECURITY WHICH SHOULD
BE REQUIRED OF
THEM.
Magistrates
shall take the oath which We have mentioned above. Where commissions are
sent to any provinces, magistrates must be sworn in the presence of the
archbishop and other principal ecclesiastics, and in this way they will be
invested with official authority. Any magistrate appointed either in this
city or in a province shall, as soon as he has received his commission from
Your Highness,
execute a bond
to the Treasury to insure his proper levy of taxes, in such terms as you may
approve.
This law shall
be applicable to all magistrates subsequently created who, from the present
time, shall be appointed without any expense, and will only be subject to
the laws already enacted. No penalty established by this Our law shall
hereafter apply to those already in office, unless they are detected in
dishonest practices after its publication.
EPILOGUE.
Therefore, Your
Highness, being informed of the present law, will proceed to have it
published everywhere throughout the provinces in your jurisdiction, and see
that it is formally executed by the Governors; so that they, being aware of
Our solicitude for Our subjects, and the care which We have exercised in the
selection of honest magistrates, and considering how much has been
undertaken for the public welfare, may not fail to assist the government in
this good cause.
Given on the
sixteenth of the Kalends of May, during the Prefecture of Belisarius.
Edict
Addressed to all Pious Archbishops and Holy Patriarchs Throughout the Earth.
We, "having in
view the interests of the government entrusted to Us by God, and desirous of
living in the practice of justice toward all Our subjects, have enacted the
present law, which We think proper to address to Your Holiness, and by your
agency have published to all the inhabitants of your province. We therefore
commit it to the care of Your Reverence and the other ecclesiastics, and if
any of its provisions are disregarded by magistrates the matter should be
referred to Us, in order that none of those regulations which have been
piously and justly approved by Us may be violated with impunity. For as Our
unhappy subjects have been subjected to illegal fiscal exactions, and have
suffered violence through the dishonesty of magistrates, due to the sale of
the administration of provinces, We have attempted to remove these evils by
the enactment of the present law.
You must not
fail to report to Us any violation of this constitution, otherwise you will
be responsible to God (to whom We have consecrated it) for all the injustice
committed in Your diocese; and when you are present in any of the provinces,
you will communicate to Us the names of such magistrates as are just, as
well as those of such as disobey Our law; in order to enable Us to punish or
reward them, as the case may be. When this law has been published and
becomes known to all persons, you will deposit it in the holy church along
with the sacred utensils, as being itself dedicated to God, and written for
the security of the men created by Him.
Your Highness
will act even more advantageously for all persons in your jurisdiction if
you should cause this law to be engraved upon tables or stone, and placed at
the portals of the holy church, as this measure will be beneficial by
affording all persons the opportunity of reading it, and making themselves
familiar with its contents.
CHAPTER XV.
CONCERNING THE DEFENDERS OF CITIES.
If, indeed, We
require purity in the life of judges, it is clear that there is much more
reason that We should not permit defenders of cities to either give or
receive anything whatsoever. For as soon as they have obtained their
commissions, they will be required to pay into the court of the Most
Glorious Prefect (where they are appointed in x-large cities) the sum of four
solidi, and if the cities are small, three solidi, and nothing
more than this. They shall receive nothing from anyone where their salaries
are paid by the Treasury. Where they receive nothing from the Treasury, they
can accept only what is provided by Our Constitution; otherwise, if they
themselves, or those who are called chartularii, or anyone attached
to their service, should take anything, they must refund fourfold the amount
and be deprived of their offices; and, in addition to this, they shall be
punished by perpetual exile, be subjected to corporeal punishment, and be
compelled to surrender the defence of the province to men who are better
than they are.
In the
observance of the present law, it will be your duty to ascertain every act
done in contravention thereof, in order that no violation of the same may
remain undiscovered, and that the culprits, by concealing their offences,
may not go unpunished, but Our subjects be treated at all times with equity
and justice. If, however, after the promulgation of this law, any judges
should not abstain from illegal acquisitions, they are hereby notified that
they will, in accordance with its provisions, render themselves liable to
punishment.
The Edict
Addressed to the Inhabitants of Constantinople is as follows:
The law which We
have just enacted and communicated to Our Most Glorious Prefects shows you
how much interest We take in your welfare. We have published it in the form
of an Edict, in order that all persons may become aware of Our solicitude;
and you should render thanks to God, and sing hymns of joy to Our Saviour
Jesus Christ, because of the exertions which We have made for your benefit.
NOTICE OF
PAYMENTS TO BE MADE BY MAGISTRATES APPOINTED TO OFFICE. No ONE SHALL BE
ALLOWED TO EXACT MORE THAN is HEREIN SPECIFIED.1
Done at
Constantinople, on the seventeenth of the Kalends of May, during the
Consulate of Belisarius.
This Copy of
the Law is Addressed to Dominick, Most Glorious Praetorian Prefect of
Illyria.
Magistrates
shall be sworn in accordance with the form of oath communicated to Your
Highness. Those whom you appoint to office
1 The
list of salaries which follows has been omitted, as containing nothing of
interest or value at the present time.ED.
shall be
installed by virtue of commissions issued by Us, which commissions you will
give them; and they shall take the above-mentioned oath before the Bishop of
the city in which they are, and the inhabitants assembled in your palace, as
well as in the presence of members of your court, and those who exercise
curial or other public employments, to whom We desire that Your Highness
shall show all proper consideration.
You must be
careful not to obtain any profit by the appointment of magistrates, and not
permit them to be injured by anyone, and see that those who are serving in
Our army, or who are invested with curial offices are promptly paid their
salaries; for We expressly charge Your Highness and your successors to
provide for their necessities. Hence, when you send their commissions to the
Governors whom you appoint, you, as well as Your successors, must direct
them to protect in every way magistrates who are exercising curial
employments, and to exact absolutely nothing from them, and not cause them
any loss; and you must notify the said magistrates that if they do not
comply with what We have decreed they will incur the severest penalties.
We also wish you
to restrain and punish the avarice of the defenders of cities, who have no
right to take anything from Our subjects, and who must be content with what
is allotted to them by the government. If, however, any of them should not,
in accordance with ancient custom, be entitled to any salary under these
circumstances, they may receive some small compensation from Our subjects,
which should be given to them voluntarily rather than exacted by compulsion;
and they must accept nothing more than what is necessary to maintain them in
a moderate condition of life. If they should accept anything more than this,
they shall be condemned not only to make quadruple restitution, but also to
undergo perpetual exile as well as corporeal punishment.
TITLE III.
THE OATH TO BE
TAKEN BY MAGISTRATES APPOINTED TO OFFICE.
"I swear by
omnipotent God, by his only Son Our Lord Jesus Christ, and by the Holy
Spirit, by the glorious, perpetually Virgin Mary, by the four Gospels which
I hold in my hand, by the holy archangels Michael and Gabriel, to be
faithful to Our Imperial Masters Justinian and Theodora his wife; to
discharge with the greatest fidelity the duties of the administration of
that part of their Empire and government that their kindness has entrusted
to me; and that I will devote all my efforts to that end, without any fraud
or deceit whatsoever. I also swear that I am a communicant of the Most Holy
Catholic and Apostolic Church, and that no time I will oppose it, or permit
anyone else to do so, as far as lies in my power. I also swear that I have
neither given nor will give anything to anyone for the sake of obtaining my
office, or in consideration of his influence, and that I have
promised to send
nothing out of the province, and shall, by way of contribution, send nothing
either to the Emperor, to the Illustrious Prefect, or their subordinates, or
to anyone else whomsoever. As I have received my appointment without having
paid anything for it, I swear to act honorably with the subjects of Our
Imperial Majesties, and to be content with the allotment of subsistence made
to me by the Treasury. I also swear to devote especial attention to the
levying of taxes; to collect them inexorably from persons who are not prompt
in payment; to show no leniency to them; and not to have in mind any profit
which I might be able to obtain in case I were more indulgent. I promise not
to extort anything from anyone whomsoever; or grant anything to anyone
either through favor or dislike, beyond what he legally may be entitled to;
to treat with paternal kindness taxpayers who are prompt in discharging
their duties, and to protect as much as I can the rights of all the subjects
of Our Most Pious Imperial Magistrates. I also swear to be impartial in
deciding the cases of private individuals, as well as those which concern
the maintenance of public order, and only to compel my subordinates to do
what is equitable; to prosecute crimes; and in all my actions to practice
the justice which may seem to me proper; and to preserve the innocence of
virtuous men, as well as inflict punishment upon the guilty, in conformity
to the provisions of the laws. I also swear (as I have already done) to
observe the rules of equity in all public and private transactions; and if I
should ascertain that depredations have been committed against the Treasury,
that I will not only see that they are punished, but will also supervise the
officials under my control, and induce them to exert the same honest efforts
in the performance of their duties that I do; and if any of them should be
found to be dishonest, I promise that his delinquency shall be made good,
and that he shall be immediately dismissed.
"If I
should not observe all these things which I have sworn to, may I, in the
future as well as at present, undergo the terrible punishment of Our God
arid Saviour Jesus Christ, share the fate of Judas, the leper Gehazi, and
the anxiety of Cain, as well as undergo the penalties imposed by Our pious
magistrates."
A copy of
this oath has been sent to Dominick, Most Glorious Praetorian Prefect of
Illyria.
TITLE IV.
THE ROMAN
CHURCH SHALL ENJOY THE PRESCRIPTION OF A HUNDRED YEARS.
NINTH NEW
CONSTITUTION.
The
Emperor Justinian to John, Most Blessed and Holy Archbishop and Patriarch of
Ancient Rome.
No one is
ignorant of the fact that, in ancient Rome, legislation originally emanated
from the head of the Pontificate. Hence We now deem it necessary to impose
upon Ourselves the duty of showing that
We are the
source of both secular and ecclesiastical jurisprudence by promulgating a
law consecrated to the honor of God, which shall be applicable not only to
this city but to all Catholic Churches everywhere, and exert its salutary
vigor over them as far as the Ocean, so that the entire West as well as the
East, where possessions belonging to Our churches are to be found, or may
hereafter be acquired by them, shall enjoy its advantages.
The
ancient law permitted temporary exceptions to be filed within thirty years,
and, where an hypothecation existed, it granted a slightly longer time; but
We do not consent for the rights of the holy churches to be affected by such
a restrictionespecially in matters through which they may sustain injury,
or where something is due to them but We decree that an exception can be
pleaded against them only after the lapse of a hundred years; that all
ecclesiastical privileges shall remain intact during the aforesaid term; and
that, as aforesaid, no exception will be available in opposition to them
until after the expiration of a century, as this is considered to be the
utmost term of human life.
Therefore
Your Holiness will extend the benefit of this law to the Catholic Churches
of the entire East; and to those parts of the West in which they have any
possessions, so that the protection of Divine property may be an act worthy
of Omnipotent God, and wicked men will no longer be secure in the
perpetration of wrong, and the means of committing sin will be taken from
them; but anyone who is innocent shall not be molested where his rights are
not based upon some false allegation dependent upon lapse of time. This Our
law, enacted in honor of Omnipotent God and the venerable See of the Apostle
Peter, shall be observed in all lands of the entire West, and be applicable
to the most distant islands of the Ocean; and Our solicitude for the
subjects of Our Empire induces Us to declare it to be perpetual. Returning
to the privileges granted by this law (as has been stated above) We desire
that it shall be observed not only in the Western provinces subject to the
Roman Church, but also in the East where are situated any possessions of the
said Church, or which the latter may hereafter acquire; that is to say, that
it must be observed by all superior and inferior magistrates who are
Christians and profess the orthodox faith, or may hereafter do so, under the
penalty of being subjected to celestial punishment, and of being liable to a
fine of fifty pounds of gold.
This law
shall not only be applicable to cases which may hereafter arise, but also to
such as are at present pending in court.
EPILOGUE.
As soon as
Your Holiness has received the present law, which We have dedicated to God,
you will place it among the sacred utensils; and We shall see that it is
executed, and that all ecclesiastical possessions remain inviolate.
Given at
Constantinople, on the sixth of the Kalends of May, during the
Consulate of Belisarius.
TITLE V.
CONCERNING THE REFERENDARIES OF THE PALACE.
NINTH NEW
CONSTITUTION.
The
Emperor Justinian to Hermogenes, Master of the Imperial Offices, Ex-Consul
and Patrician.
PREFACE.
As We have
made suitable provision with reference to other matters, We have thought it
advisable to pay attention to Our referendaries, and especially because they
are extremely useful to Us. These officials were not numerous in the first
place, but We have appointed more than formerly existed, in order that We
might be of assistance to many of Our subjects, who, through them, address
petitions to Us.1
(1) But on
account of the multitude of petitions presented to Us, certain persons have
requested an increase of the number of referendarii, and have not
desisted until We have raised it to fourteen. Having, from time to time,
been influenced by these applications, a great number of referendarii
have been appointed, and now, being apprehensive that the honor of the
position may be diminished, We think that the number should be reduced; but
it is not Our intention to deprive those at present in office of their
employment (which would be an act unworthy of Imperial Majesty), but We
shall make no further appointments, not even of persons who are agreeable to
Us, and faithfully discharge the duties required of them; and We shall
retain the present referendarii in office, until their number is
reduced to eight, which number shall always remain the same hereafter, and
shall not be increased for any reason at any time; these officials being
exhorted to make up for the deficiency by the exercise of their diligence
and zeal in the service of Us and Our Empire. Nor shall anyone hereafter
demand that this number be increased, for an application of this kind will
not only not be entertained, but he who presents it shall be subjected to a
fine of ten pounds of gold, and also be deprived of his office.
We desire
that the referendarii restricted to the number aforesaid shall be
endowed with justice and all other virtues, and be prepared for any
emergency. We are satisfied that nothing honorable can be accomplished by a
great multitude, because among so many few will be found who live in
consonance with the rules of justice. Hence the
1
The office of referendary, whose name indicates his functions, and who was,
as stated in the text, an official charged with the reception and delivery
of petitions addressed to the Emperor, as well as with the communication of
the decisions of the latter, dated from the sixth century. The incumbent
also established the order in which cases were to be heard on appeal, and
frequently acted as intermediary between the great ecclesiastical
dignitaries of the Church of Constantinople, and the secular authorities of
the Empire. He was the prototype of the English chancellor, for the
referendarius, whose employment is suggestive of the services performed
by his immediate successor, was an important member of the government during
a great part of the Anglo-Saxon domination.ED.
number of
referendarii shall, in accordance with what We have previously
stated, be limited to the number aforesaid.
EPILOGUE.
Your
Eminence, having been informed of these matters, must see that what has been
decreed by Us is at no time disobeyed, and that those who violate this law
shall pay the penalty prescribed by it, without being allowed to ask that it
be remitted, nor shall this be done. This law of Ours, while reducing the
number of referendarii, affords an opportunity for the practice of
virtue, which never occurs in a numerous body of officials, and especially
among those whose duty it is to report to Us the requests contained in the
petitions of Our subjects, whose morals, indeed, may be good, but who, like
their fathers, have passed their lives in petitioning Us for relief. Your
Eminence will exert yourself to carry into effect the measures which We have
decreed and promulgated in this Imperial law.
Given at
Constantinople, on the Ides of May, during the Consulate of
Belisarius.
All
churches in the neighborhood of Viminacium, which are under the jurisdiction
of a special archbishop, shall no longer be subject to the authority of the
Archbishop of Thessalonica.
TITLE VI.
CONCERNING
THE PRIVILEGES OF THE FIRST JUSTINIANIAN
.ARCHBISHOP, AND THE PATRIARCHAL SEE OF ILLYRIA IN
SECOND
PANNONIA, WHICH is Now TRANSFERRED TO THE
FIRST
JUSTINIANIAN ARCHBISHOP.
ELEVENTH
NEW CONSTITUTION.
The
Emperor Justinian to Catollianus, Most Blessed Archbishop of the First
Justinianian.
PREFACE.
We, being
desirous of conferring many and various benefits upon the province in which
God first permitted Us to see the light, do hereby establish there the
center of sacerdotal authority; intending that the temporal head of the
first Justinianian shall be not only a metropolitan, but also an archbishop;
and that his jurisdiction shall include other provinces, that is to say
Dacia upon the Mediterranean, as well as Dacia Ripense, Second Mysia,
Gardania, the province of Prasvali-tana, Second Macedonia, and that part of
Second Pannonia in which is the City of Bacense. After the establishment of
the Prefecture of Firmia, all the authorities of Illyria, civil as well as
ecclesiastical, resided in that city; but after the time of Attila, when
this country was laid waste, the Praetorian Prefect Appennius fled from
Firmia, and took refuge in Thessalonica, where the bishop followed him; from
which date the said city became the seat of the prefecture as well as
of the
episcopal authority. The bishop of Thessalonica, however, did not thereby
obtain any prerogatives over the other bishops merely through the exercise
of his own authority, but acquired supremacy by being in the shadow of the
Prefecture.
Now, as by
the aid of God, the public territory is increased, and both banks of the
Danube are occupied by towns subject to Our Empire, and Viminacia, Recidua,
and Litterata, situated on the other side of the Danube, are subjected to
Our dominion, We have deemed it necessary to establish in the province of
Our birth the glorious prefecture formerly situated in Pannonia, for the
reason that it is not far distant from Mediterranean Dacia, and Second
Pannonia; and, moreover, while Our subjects were occupied with the hardships
of war, the public welfare suffered because of the great distance which
separated Macedonia from the seat of the Prefecture, it appeared to Us
necessary to bring this seat nearer to the upper provinces, in order that
they might obtain the advantages incident to its proximity.
Hence Your
Holiness, and all the prelates of the first Justinianian diocese, shall have
the rank of archbishop and enjoy the superior privileges, power, and
authority that this title confers over other ecclesiastics, and it will be
your duty to ordain them; and you will enjoy the first sacerdotal dignity in
all the aforesaid provinces, and the highest honors of the priesthood will
attach to your See; the provinces will have no other archbishop; and you
will, in no way, be subject to the Bishopric of Thessalonica.
When any
dispute arises between the judges and other magistrates, you and your
successors must decide and finally dispose of it, without recourse being had
to anyone else; and all the provinces above mentioned, while recognizing you
as the head of the Church, shall obey your orders, whether they are issued
by you personally and of your own authority, or whether this is done by
members of the clergy whom you may designate for that purpose; for you are
invested with supreme power, unlimited sacerdotal supervision and the right
of appointment.
We desire
Your Highness to select a bishop for the City of Aquis, situated in the
province of Dacia Ripense, so that the said city may no longer be subject to
the spiritual jurisdiction of the Bishop of Southern Thrace, as We "desire
that his authority shall only be exerted in the South, and, under no
circumstances, at Aquis. The Bishop of Aquis shall have that city with all
its castles, territory, and churches under his jurisdiction, so that he can
banish the heresy of the Bono-sians from that city and country, and bring
them into the orthodox faith.
We
communicate this law to your venerated See, in order that Your Holiness may
become acquainted with these provisions, and that the church of Our country
may forever preserve the remembrance of a benefit which We have bestowed
upon it for the glory of Omnipotent God. When anyone who happens to occupy
your See shall have departed from life, We order that his successor shall be
ordained by the Venerated Council of Metropolitans; and, as it is proper for
the
archbishop to be honored by all the churches of his jurisdiction, the
archbishop of Thessalonica shall not be allowed to participate in the
proceedings of the said Council.
EPILOGUE.
Your
Holiness will not delay to see that this law is carried into execution.
Given on
the twentieth, during the Consulate of Belisarius.
TITLE VII.
CONCERNING
INCESTUOUS AND EXECRABLE MARRIAGES. TWELFTH NEW CONSTITUTION.
The
Emperor Justinian to Florus, Most Glorious Count of Private Affairs.
PREFACE.
We
consider the laws heretofore promulgated with reference to incestuous
marriages to be imperfect, as they permit persons who contract such
marriages to go unpunished, and deprive any offspring resulting from them of
the property of their father; so that those who have committed the sin do
not suffer any penalty, and those who are innocent are punished as if they
were guilty.
CHAPTER I.
CONCERNING INCESTUOUS AND WICKED MARRIAGES.
Hence, for
the future, We decree that if anyone should contract an unlawful marriage,
and one contrary to nature (which the law characterizes as incestuous,
abominable, and prohibited), and has no children by a former legal marriage,
he shall at once forfeit all his property, and shall have no control over
anything given to him by way of dowry; but his entire possessions shall be
confiscated to the Treasury, on the ground that when he could have
contracted a legal marriage he preferred to violate the law, confuse his
descendants, and wrong his family; and yielding to such passions as for the
most part influence animals who are deprived of reason, committed an impious
and wicked act.
He shall
not only be liable to the confiscation of his property, but shall also be
deprived of his office, and sent into exile; and if he is of inferior rank,
he shall be scourged, in order that he may learn to live chastely, restrain
himself within natural bounds, and not delight in transgressing the laws of
nature which have been prescribed for Our conduct.
If any
woman, who is aware of this law, should disobey it, and contract an
incestuous marriage, she shall be liable to the penalty established by the
same.
CHAPTER
II.
LEGITIMATE
CHILDREN SHALL BECOME INDEPENDENT WHEN THEIR FATHER is PUNISHED FOR
CONTRACTING AN INCESTUOUS MARRIAGE, AND SHALL BE ENTITLED TO His
PROPERTY.
Where any
man who contracts an incestuous marriage has any children or grandchildren
who are the issue of a former matrimonial union, or any more remote
descendants, they will be entitled to the estate of their father as soon as
he has been punished, and will be released from his control; but they shall
be required to furnish him with food and with the other necessaries of life,
for even if he has violated the laws and acted in an impious manner, he is
still their father.
CHAPTER
III.
WITHIN
WHAT TIME THIS CONSTITUTION SHALL BECOME
OPERATIVE,
AND TO WHAT PORTION OF THEIR FATHER'S
ESTATE
CHILDREN BORN OF AN INCESTUOUS MARRIAGE
SHALL BE
ENTITLED.
This
Constitution shall take effect from this very day, and no one living in
chastity shall be affected by it, and where persons are innocent they shall
not incur its penalties. Those who have already contracted incestuous
marriages shall, by no means, go unpunished, although We do not subject them
to the full measure of Our indignation. Hence where incestuous marriages
have taken place, but have subsequently been dissolved, no matter in what
way, the parties concerned shall not be liable to prosecution; but if, on
the contrary, this Our law should find anyone who has already contracted
such a marriage, he shall be permitted to leave his wife within the term of
two years, and when the separation is not feigned but genuine, she shall not
be permitted to return to him.
If,
however, he should resume his relations with her, a fourth part of his
property shall be confiscated to the Treasury, and the remainder shall go to
his children, whom We consider as innocent of the offence of their father;
for if they are alone, and there are no other legitimate children the issue
of a former legal marriage, they shall not be deprived of the estate of
their father; unless the latter, justly prejudiced against them for a good
reason, on account of some offence which they have committed, excludes them
from the succession to his estate.
(1) But
where there are any children, the issue of a former lawful marriage,
three-fourths of the estate shall go to those who are legitimate and
innocent, unless they have been guilty of some injury which, according to
the law, renders them unworthy of succeeding to their father; and the latter
shall be permitted to leave the remaining fourth of his property to the
children born of the in-
cestuous
marriage, who, sustaining an injury, shall be considered as free from blame;
and We, under these circumstances, order that they, rather than the
Treasury, shall be entitled to the said fourth. We grant these different
shares to the respective children not only where they are bequeathed by
will, but also in case of intestacy, in accordance with the rule of
inheritance which We have established. These provisions shall not only be
observed where the father abandons the woman he illegally married, but also
where he afterwards contracts a legal marriage with another, having issue by
both. We grant this delay in the exercise of Our clemency, allowing the
woman who contracted the former marriage to retain her dowry. But if he who
is living in a criminal union does not dissolve it within the two years
hereinbefore prescribed, he shall lose his property, his wife shall be
deprived of her dowry, and the penalty aforesaid shall be imposed; nor shall
the children born of the marriage be entitled to any share of their father's
estate or of their mother's dowry. If, in this instance, any children should
have been born of a preceding lawful marriage, they will be entitled to the
entire estate (after the fourth due to the Treasury has been deducted), and
they will be released from his control without, however, being freed from
the obligation of supporting him, and providing him with the necessaries of
life, as We have previously stated; and the dowry of the incestuous wife
shall be confiscated to the Treasury. Where, however, there is no issue by a
former legitimate marriage, then the Treasury will be entitled to the entire
estate; for We order that, where anyone who has married illegally in this
way, he shall be placed on the same footing as one who did not leave his
wife in the time prescribed by Us, Who, in Our law, have declared marriages
of this kind to be both incestuous and abominable.
CHAPTER
IV.
CONCERNING
NATURAL CHILDREN BORN BEFORE DOTAL INSTRUMENTS HAVE BEEN EXECUTED.
As doubt
has arisen in certain localities with reference to the legitimation of
children as set forth in one of Our laws, We, as the author of the same,
have thought it proper to make some additions to it, and thereby remove the
doubt referred to. We promulgated the law for the following reason, namely:
where a father has any legitimate children by a first wife, who died, or
from whom he was separated, and then forms a connection with another woman,
with whom he could contract a legal marriage, and, in consequence, children
are born to him, either before or after any dotal agreement has be^en drawn
up; or where children are born before the dowry has been provided for, but
none are born afterwards; or if, after having been born, they should die;
certain authorities have held that such children are not legitimate, as
other legitimate children, the issue of the first marriage, are living,
which opinion is consonant with neither justice nor reason. For if We have
shown that children of this kind are rendered legitimate by the execution of
a dotal contract, there is no doubt that those
born
before the safd contract was drawn up are also legitimate in every instance.
It is
still more reasonable to hold that, if the father should predecease his
legitimate children, and his natural children born before the dotal contract
was made, although none may have been born afterwards, or, if this is the
case, they should be dead, Our law will permit him to follow his own
inclinations when making his will in favor of his descendants; provided he
does not, in any respect, violate the rules which reserve for all children a
certain part of his estate. The result of this is that both these classes of
children succeed to their father equally, whether ab intestato, or
under the terms of his will (that is to say, by testamentary disposition or
by operation of law). Why should We decree anything additional, when what is
allowed by the laws, even against the provisions of the will, is sufficient
to confer upon them the lawful name and rights of proper heirs, and render
them competent to take all to which they are entitled under this
appellation?
EPILOGUE.
Your
Eminence, to whom this law has been communicated, will hasten to put it into
execution and bring it to the attention of the Governors of provinces, in
order that all persons may learn of the care which We take to protect pure
and innocent children, and how odious to Our laws illicit unions are.
Given at
Constantinople, on the sixth of the Ides of October, under the
Consulate of Belisarius.
TITLE Vill.
CONCERNING PRAETORS OF THE PEOPLE.
THIRTEENTH
NEW CONSTITUTION. The Same Emperor to the Inhabitants of Constantinople.
PREFACE.
We do not
know the reason why the title bestowed by the ancient Romans upon
magistrates charged with the preservation of order has been exchanged for
another. For in the part of the country in which We were born, such
officials were styled Prefects of the Watch; and in the Greek language they
are called, We do not know why, Prefects of the Night, just as if it were
necessary to call them to the discharge of their duties at sunset. The name
of night seems to be added to that of Prefect, for the purpose of
designating the officer whose duty it was to patrol the streets, and
preserve order during the hours of darkness, but We think it is advisable to
change this name; because, if 'the offices could be divided, and the Prefect
of this Most Fortunate City only took cognizance of acts committed during
the day, and another should be appointed having jurisdiction over offences
com-
mitted
during the night, a conflict of authority would inevitably result. Hence
all. magistrates dislike this obscure and unintelligible title of Nocturnal
Prefect, and regard the discharge of its functions as resembling a penalty,
thinking that such an office is unworthy of appointment by the Emperor.
CHAPTER I.
Therefore
We, having carefully considered this matter, have come to the conclusion
that this public employment should be entirely recreated, and committed to
persons who may administer it without any reference to their nocturnal
duties; for they shall hereafter have jurisdiction by day as well as by
night.
(1) Hence,
as the name of Praetor was very acceptable to the ancient Romans, We have
thought that that of Praetors of the People should be conferred upon
officials whose duty it is to maintain public order, as well as to suppress
popular seditions. And just as the other Praetors preside in the Senatorial
Court, where questions having reference to guardianships, freedom, and other
matters of this kind arise, in like manner, the Praetors whom We create
shall have jurisdiction in cases in which the rights of citizens are
involved, and they shall hereafter be called in Latin, as well as in Greek,
Praetors of the People.
The
designation of Praetor is as honorable as that of Consul, and, indeed, does
not differ greatly from the latter; it is connected with the law, for the
Praetors are obliged to publish edicts, they decide the law in unison with
it, and they are attached to the Consulate. Thus, as formerly the Consuls
presided over the principal curia, and were at the same time the
princes of the people who governed them, so, likewise, there are at present
Praetors who discharge in the Senate the official functions which We have
just referred to, and at the same time the Praetors of the People will be
charged with the preservation of peace and will provide for the public
welfare.
(2) This
office, indeed, was one of great dignity and honor in ancient Rome, and was
exercised with distinction not only under the Emperors, but for a long time
afterwards; and the Great City in receiving it was far from considering it
as unimportant. We have not been able to ascertain the time when any of
these offices at the disposal of the government we're not thought to be
entitled to the same respect; they were, by degrees, divested of the
eminence once attaching to them, and being no longer bestowed by the
Emperor, they passed under the control of the Prefects of this Most
Fortunate City, from whom their incumbents received orders; the consequence
of which was that the duties of this branch of the magistracy were very
badly performed. If, however, anyone should compare the conduct of public
affairs in ancient times with that of the present day, in this respect, he
will learn that a private tribunal of cohorts existed which possessed almost
all the attributes which now attach to the municipal magistracies.
CHAPTER
II.
Therefore,
We, having given the subject due consideration, hasten to restore everything
to its former honorable condition, and promulgate the present law, in order
that thefts and associations of thieves may be less frequent, and that the
decisions of magistrates, being no longer based upon unworthy motives, may
cease to be regarded with contempt. For as pecuniary cases, in the
determination of which litigants do not run any other risk than that of
losing their money, are heard by magistrates of superior rank, and We take
particular pains to see that cases of this kind are disposed of, there is
still more reason for Us to exercise every precaution in the appointment of
officials, whose duty it is to decide concerning the lives of Our subjects,
because when they condemn any of them to death, they can no longer restore
to him that of which he has been deprived.
CHAPTER
III.
Hence We
decree that We Ourself shall appoint the Praetors of the People, and that no
one can exercise the functions of this office unless by virtue of Our
Imperial Letters. We shall only select for this place the illustrious or
respectable Consistorial Counts or the distinguished Praetorian Tribunes and
Notaries, or such other persons as have already been in office, and whom We
regard as qualified, and worthy of Our confidence; which rule We establish
in order that the Praetors of the People may practice what is honorable in
all things, and especially in the administration of justice; since, when
hearing cases of homicide, adultery, felonious assault, robbery with
violence, and other crimes of this kind, they have the right to inflict the
penalty of death.
(1) Hence
it is necessary for magistrates having jurisdiction of offences of this kind
to be honest, irreproachable in character, and worthy of public confidence;
and they must abstain from extortion, or the acceptance of bribes, and keep
their hands clean. They shall have a Council which has been approved by Us,
and will receive an annual salary of a certain sum of solidi
sufficient to prevent them from having recourse to theft or venality, beyond
which they shall be entitled to no compensation whatever.
(2) No
money or presents of any kind shall be bestowed upon anyone for the purpose
of influencing his decisions, as was customary in former times. For he who
gives anything to a magistrate because of his office is guilty of a crime
equal in its enormity to that of which the magistrate himself is guilty who,
in consideration of the money given him to render judgment in a criminal
case, decides in accordance with the oath of the defendant.
CHAPTER
IV.
We have
learned that the Prefects of the Night Watch have been in the habit of
employing persons of bad character, such as informers, poisoners,
pickpockets, and a number of other criminals whom it is
much more
preferable to punish than to afford a living in this way. Such informers do
not accomplish anything beneficial, as the thieves know who they are, and
this enables them to steal with more safety, and corrupt their judges. Hence
those whom We now appoint to the Prefecture of the People shall hate and
avoid persons of this kind, and make use of agents who are of good
reputation in the prosecution of thefts and other crimes, clear the city of
robbers, and only employ men who are skillfulwhom, however, they should
treat with severity to arouse their fears, and compel them to perform their
duties with diligence and good will. If the Praetors properly discharge
their duties, there will be no thieves; stolen property will be easily
recovered; those who are guilty apprehended; their number will be
diminished; and they will have cause to fear a body of magistrates whom no
one can purchase with money.
The
Praetors of the People shall take cognizance of all crimes, no matter how
serious they may be; they shall repress popular seditions; and being
obedient to Our orders should render themselves worthy of honor; the
inferior judges shall, in their turn, exert themselves to assist their
superiors in rank, and do everything with a view to meriting the esteem of
the Imperial Government, and the respect of all good citizens.
(1) If a
fire should happen to break out in this city, at any time (which, however,
is something We do not wish to occur), the Praetors are required to be
present and take measures to prevent thieves from stealing the property of
the unfortunates whose houses are burned, and to save as much as they can
from the violence of the flames. If they are diligent in performing their
duty under such circumstances, the increased distinction of their office
will be reflected upon them, and they will see how much better it is to act
honestly than to incur contempt by employing numerous persons in the
commission of injustice; and they will also learn that gain acquired in an
unlawful manner is of no permanent advantage, and that what has been
improperly obtained is soon lost.
Thus, by
appointing Praetors of the People for Our subjects, We have intended to
provide for their welfare, so that they may receive the benefit of an honest
administration. The said eminent Praetors of the People shall have the
advice of a Counsel worthy of their office, as We have previously stated.
CHAPTER V.
We decree
by the present law that twenty soldiers and thirty firemen shall assist the
Praetors of the People, shall obey their commands, and be authorized to
arrest any persons behaving improperly, as well as to maintain public order.
They are hereby notified that, if they discharge their duties as they ought
to do, they will have the aid of God and enjoy Our approbation, as well as
deserve a longer term of office; for who indeed would wish to remove anyone
who acts with propriety and justice?
CHAPTER
VI.
Whenever
the Illustrious Prefect of this Most Fortunate City sends anyone to be
punished by the Praetors of the People, the latter shall ascertain with
certainty the rank and position of the culprit; the reasons which have
induced him to kill a man, to deprive him of some member, or to perpetrate
any similar offence; they can obtain their information from the Prefect
himself, if the latter is aware of the circumstances; and, after their
investigation, they must condemn the accused person by a just sentence
either to the loss of life, or of one of his members.
(1) As We
concede to the respectable Praetors of the People such dignity as may render
them worthy of holding their office from Us, and as We grant them
subsistence, a title suitable to their rank, and the other advantages
already mentioned, We, on the other hand, require them to serve Us with
honesty and vigilance, and perform their acts with pure and disinterested
motives; because if they should be guilty of malfeasance, of theft; or of
giving thieves immunity and not using every effort to detect them; or if
they should subject honorable men to the penalty of death; and if, in
conclusion, they should not expel persons guilty of minor offences from this
city, the Capital of Our Empire, they are notified that they must render an
account of their behavior, not only to God, but also to Ourself; that they
will be responsible for all the evils which Our subjects may suffer; that
they will incur Our indignation, and be rendered infamous, as well as be
dismissed from the office which We have bestowed upon them. For We perform
great labors and incur great expense, in order to preserve Our subjects from
false accusations, and to prevent them from losing their lives or their
fortunes, without knowing why this has taken place.
EPILOGUE.
Therefore,
this law having been brought to Your attention, and being convinced that We
have omitted nothing therein which may be advantageous to you, you must pray
for the prosperity of Our Empire which protects you, and provides for the
welfare of everyone, thus extending its paternal care over all of you. This
law shall be communicated to all the citizens within the jurisdiction of
Constantinople.
Given at
Constantinople, during the tenth of the Kalends of October, during
the Consulate of Belisarius.
AUTHENTIC
OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
THIRD
COLLECTION.
TITLE I.
CONCERNING PANDERS.
FOURTEENTH
NEW CONSTITUTION. The Emperor Justinian to the People of Constantinople.
PREFACE.
The name
and calling of procurer was so odious both to the ancient laws and to those
of the Empire that many legal enactments have been published against persons
committing offences of this description. We, Ourselves, have already
promulgated a constitution increasing the penalties against those who are
guilty of such wicked deeds, and We have, in addition, supplied by other
laws what Our predecessors omitted, and have by no means lost sight of this
matter, for We have very recently been informed of the evil consequences
which such traffic has caused in this great city.
We are
also aware that certain persons are accustomed to employ cruel and odious
means for the purpose of obtaining wealth; making a practice of travelling
through the provinces and other places, in order to deceive young girls by
promising them clothes, and, after having obtained possession of them, they
bring them to this Most Fortunate City, place them in their houses, provide
them with wretched food and clothing, and deliver them up to others for the
purpose of debauchery, they themselves' taking the entire profit of this
wretched trade obtained from the bodies of their victims; and that they also
draw up contracts by means of which the girls aforesaid are compelled to
continue their wicked criminal life as long as those.who have possession of
them may desire.
Some of
them, indeed, require sureties to be furnished, and to such an extent are
their illegal acts carried, that they are perpetrated in almost all this
Imperial City, as well as in the countries beyond seas; and (what is worse)
houses of this kind exist in close proximity to holy places and religious
establishments; and at the present time this wickedness is so prevalent that
any persons who wish to withdraw these unhappy girls from the life that they
are leading, and legally marry them, are not permitted to do so.
Some of
these wretches are so unprincipled as to deliver over to corruption girls
who have not yet reached their tenth year, and in order to ransom these
unhappy beings for the purpose of contracting lawful marriage, great sums of
money are exacted. Ten thousand means of effecting their ruin exist which
are not susceptible of being
described
in words; and the resulting evil is so great, and the cruelty so widespread
that, while it was first confined to the most remote parts of the Capital,
it now not only extends over the city itself but also over all its suburbs.
Persons
informed Us of this condition of affairs some time ago, and recently the
Praetors have been directed by Us to make inquiry concerning it, which they
have done, and made their reports to Us, and We immediately afterwards
deemed it necessary to implore the assistance of God, and purge the city
quickly of this iniquity.
(1)
Therefore We direct all persons to live as chastely as possible, which, with
confidence in God, can alone profit the souls of men. As there are many weak
women, We absolutely forbid that any attempt should be made by fraud,
artifice or compulsion to lead them astray, keep them in a house to be
prostituted, or buy them for any other purpose. We also forbid all persons
from drawing up contracts with these objects in view, of requiring sureties
to be given, or of adopting any means by which they may force these wretched
beings to lose their chastity against their will.
Nor shall
it hereafter be lawful to deceive young girls, and induce them to prostitute
themselves by promising them clothing, food, and ornaments.
We
strictly prohibit all these things; and, after having considered the subject
carefully, We direct that any bonds which may have been executed to secure
the performance of such contracts shall be of no effect; and that those who
are guilty cannot recover any gifts which they may have made to the girls
with whom the said contracts were made; and that they themselves shall be
expelled from this Most Fortunate City as pestiferous persons, and
destroyers of public morals, because of having reduced free women to slavery
by requiring them to lead a licentious life, deceiving them, and bringing
them up for promiscuous debauchery.
Hence We
decree that if anyone should hereafter remove a girl against her will, and
compel her to remain with him, and, without providing her with sufficient
food, appropriate for himself the wages of her prostitution; he shall be
arrested by the respectable Prsetors of the People of this Most Fortunate
City, and condemned to death. We have already entrusted the Praators of the
People with the prosecution of persons guilty of pecuniary theft and
robbery; and is there not much more reason for Us to do so where crimes
against chastity are concerned? If any owner of a house should rent it to a
procurer for this purpose, and, knowing who he is, should not eject him; he
shall be sentenced to pay a fine of a hundred pounds of gold, and his house
shall be confiscated. If anyone hereafter should draw up an agreement in
writing as evidence of a contract of this kind, and receive a surety with
reference to the same, he is hereby notified that he will not be benefited
in any way either by the obligation of the girl, or by that of her surety;
for as her agreement is void in every respect, her surety will, under no
circumstances, incur any liability. The guilty person shall, as We have
already stated, undergo corporeal punish-
ment, and
shall be expelled far from this great city. We exort the women of Our Empire
to remain chaste, and not allow themselves to be persuaded or compelled to
embrace a life of debauchery; We absolutely prohibit panderism, and when it
is committed, We shall punish it.
These
provisions apply to this Most Fortunate City and its environs, as well as to
the adjoining provinces, which, from the beginning, have been subject to Our
government, and especially those which have been donated to Us by God, for
the reason that We desire to retain pure and without blemish the gift which
He has seen fit to confer upon Our Empire, for We believe that the present
law, enacted in the interest of chastity, will be acceptable to God, and be
of great benefit to Our government, and that as a reward for it God will
bestow all manner of blessings upon Us.
EPILOGUE.
We
communicate this law to You, Our citizens, who will be the first to
experience its beneficial effects, in order that you may be aware of Our
zeal for your welfare, Our desire for the preservation of good morals, and
the extent of the labors by means of which We hope that Our Empire will be
preserved in the enjoyment of every advantage.
A copy
of this law, with a, slight change of phraseology, is also addressed to the
Most Glorious Master.
As soon as
Your Highness has received a copy of this law, you will publish it by a
special proclamation, and communicate it to all the subjects of Our Empire,
including not only the citizens of Constantinople, but also those of the
provinces, who shall implicitly obey it; and all to whom it is directed
shall receive it as being authorized by God, to whom it is dedicated.
Given at
Constantinople, on the Kalends of December, during the Consulate of
Belisarius, 535.
TITLE II.
CONCERNING THE DEFENDERS OF CITIES.
FIFTEENTH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Pratorian Prefect, twice Consul and
Patrician.
PREFACE.
Unless We
make haste to recall the defenders of cities to the performance of their
duties, their ancient titles will no longer be applicable; for, as formerly,
names indicative of their functions were given to magistrates, and that of
defender certainly indicates that such officials were charged with seeing
that no injustice was committed; so in like manner, in paternal language We
style them defenders, because they were appointed to defend persons
suffering from
the acts
of wicked men. When, however, the name of defender is treated with contempt
in many parts of Our Empire, and is so despised that its use is rather
considered an insult than a distinction; the reason for which is that it is
not so much a judicious choice as pity which is responsible for such
appointments, they being conferred upon obscure men who have nothing to live
upon, and who obtain these employments by solicitation. Then, defenders are
entirely dependent upon the Governors, by whom they are removed at will,
without any reasons, or on insufficient grounds, and are then replaced by
others, who are treated merely as holders of the position; and as many
removals take place during the same year, the result is that the officials,
the municipal magistrates, and the citizens themselves have not the
slightest respect for the defenders, nor is any confidence reposed in the
documents which they execute, and which the defenders themselves refuse to
draw up if the Governor forbids them to do so; for, being absolutely
subjected to his authority, they comply with his slightest inclinations.
When documents are drawn up by them in the first place, they only do this
for money; and then, as there are no archives in which these documents can
be deposited, they are lost; and no monuments of former times are ever found
in the possession of those who receive them, but when a demand is made upon
their heirs or other successors, they either do not have them, or where any
are found they are not worthy of consideration, or have been defaced to such
an extent that they can no longer be deciphered.
Therefore,
as We have already decreed with reference to Governors, to whom We have
granted great authority in the provinces, and who should exercise
supervision over cities at a distance, We think that it is necessary to also
regulate the conduct of defenders, and We believe that the relations
existing between these officials will be advantageous to both, if We confer
judicial authority upon the defenders of cities, for then the Governor of a
province will be regarded as a judge of judges, and his office will appear
more honorable than formerly, in accordance with the rule that the
distinction of a superior magistrate is always increased in proportion to
that of an inferior one.
CHAPTER I.
No
INHABITANT OF A CITY SHALL BE PERMITTED TO REFUSE THE OFFICE OF DEFENDER.
Notice is
hereby given, in the first place, that no man shall be allowed to reject the
appointment of defender, and that all the nobles of cities shall be required
to exercise its functions regularly in their turn, for We have learned that
in the early ages of the Republic this course was productive of great
benefit, hence no person can decline this office, even when he belongs to
the rank of those who are styled illustrious, or is invested with a military
employment, or can plead some privilege bestowed by the Imperial enactments,
or produces a pragmatic sanction authorizing such an exemption. A list of
the
principal
inhabitants alternately eligible for the office of defender shall be drawn
up, and when this list has been exhausted, each one of those included
therein shall again begin to discharge the same public functions in his
order; and this is provided in order that he who occupies this position in
any city shall rather be considered as a judge than a defender. When the
list is to be drawn up, all owners of property resident in the city, with
the exception of those who do not have their domicile therein, shall be
sworn.
(1) The
defender who is about to assume office shall swear to perform his duties in
accordance with law, and without distinction of persons, and shall (as is at
present the case) be confirmed by Our Glorious Prefect. He shall remain in
office two years, after the expiration of which time he shall be replaced by
someone else; the Governor of the province shall not be authorized to remove
him, but if he should not discharge his duty properly, the prefects must be
notified, so that he may be dismissed by the same officials who appointed
him.
CHAPTER
II.
We
absolutely forbid Governors as well as defenders to cause substitutes for
themselves to be appointed. For We do not wish magistrates in cities to be
succeeded by any other persons than defenders, who alone shall represent
them, and should exert all their efforts for the welfare of the cities in
which they reside.
CHAPTER
III. ALL DOCUMENTS SHALL BE REGISTERED BY DEFENDERS.
All wills,
donations, and other documents of this kind shall be registered by
defenders; and no Governor of a province shall prohibit any instrument from
being drawn up or published, for We do not grant permission for anything of
this kind to be done. We think it would be most absurd for men to be
compelled to refrain from necessary transactions, in accordance with the
unreasonable wishes of the authorities; and We desire full liberty to be
granted everyone to make any contract he wishes, and publish the same; and
even if what is done has reference to the Governor of the province, or to
any other official, it still shall not be forbidden. For those who are in
charge of the government, or hold'some position of responsibility, should
conduct themselves so as not to prevent any charge from being brought
against themselves, but, on the other hand, they should render their conduct
so irreproachable that no occasion may exist for such- complaints to be
made; and whether the Governor is in the city or not, no one shall be
prohibited from filing documents with the defenders in any matter
whatsoever, with the exception of such as are not in his jurisdiction, but
belong to that of the Governor.
(1) Again,
the defenders of cities shall, along with the other officials charged with
this duty, collect taxes, and if anyone should prove refractory, and refuse
to pay what is due, they must draw up
the papers
necessary under the circumstances; and We order that this shall be done
without delay; and also that they exercise strict supervision over persons
of bad behavior, and obtain evidence against them.
They must
also repress all public sedition, and, in every respect, exercise the
functions of judges, especially when the latter are absent; and all the
officials of the province who are in the city where the defender exercises
his authority are required to obey and assist him, so that where the
Governor is away, his presence will not seem to be necessary. Defenders
shall have a clerk subject to their orders, as well as two officers to carry
their decrees into execution.
(2)
Defenders shall have jurisdiction in all pecuniary cases where the sum
involved is not more than three hundred aurei; and Our subjects shall
not be permitted to appeal to the illustrious Governors of provinces, where
the amount in controversy is less than the aforesaid sum.
CHAPTER
IV.
A
plaintiff shall not estimate the property in dispute in excess of its real
value, for the purpose of avoiding the jurisdiction of the defender, and
bringing his action before the Governor of the province. If anyone should
commit an act of this kind, and the judgment shows that the property in
litigation was worth less than three hundred aurei, and that its
value had been designedly increased in order to bring the case before the
Governor of the province, and prevent the defender of the city from deciding
it, the plaintiff shall be liable to all the costs of litigation.
CHAPTER V.
Appeals
from the decisions of defenders of cities shall be brought before Governors.
When officials are guilty of any abuse of defenders the Governors of
provinces can punish them. If the Governors should fail to do this, We grant
the defenders permission to have recourse to Your Highness, who will afford
them any relief which may be proper. Defenders are authorized to prosecute
persons guilty of crime, ^ust as Governors can do.
(1) When
the office of defender of a city becomes vacant, it shall immediately be
bestowed upon the person next on the list, who shall be sworn, and shall be
confirmed by letters from Your Highness. We (as has previously been stated)
by no means desire that defenders shall be permitted to substitute anyone in
their places, lest, if this should be done, matters will again be involved
in confusion.
(2) Your
Highness will issue orders in every province for a building to be furnished
in which the defenders can keep their documents, and someone must be
selected to have charge of the same, in order to prevent their destruction,
and enable them quickly to be found by persons desiring to inspect them; and
thus archives will be provided for the defenders, and what hitherto has been
lacking in cities will be supplied.
CHAPTER
VI.
As the
defenders of cities discharge the duties of their office without any
compensation, when they are residents of a x-large city, they shall not pay
more than four aurei to the court of Your Highness for their letters,
and where they hold office in smaller towns, they will only be required to
pay three aurei, as has already been prescribed by Our laws; but
where they are paid by the public, they shall continue to receive their
salaries, as has been customary.
(1)
Defenders shall take cognizance of minor offences, and inflict proper
punishment for their commission. Where persons are arrested for serious
crimes, they shall place them in prison, and then send them to the Governor
of the province, so that in this way every town will enjoy the benefit of a
judicial examination. The entire province, being under the jurisdiction of a
superior magistrate of high rank, will experience the beneficial effect of
his wise administration, and the great care that Governors take for the
benefit of those subject to them will be diminished, for the reason that
defenders, in devoting all their attention to their own cities, will prevent
oppression; remove the doubts which arise in the transaction of business;
and (as has been often stated) will communicate to the government the names
of persons who discharge their duties with fidelity.
When
anyone opposes the levy of taxes, the Governors shall order the defenders to
proceed against him, and they shall take measures to do so. Where, however,
the appointment of a defender is made in any other way than the one
prescribed, or someone appointed to this position in the order in which his
name appears on the list refuses to assume its duties, whether this be on
account of his dignity, his military rank, some special privilege, or for
any other reason whatsoever, he shall be liable to a penalty of five pounds
of gold, and after the defender then in office retires, he shall be
compelled to take his place. For it is proper that this employment should
always be exercised by the most distinguished inhabitants of the city in
return for the residence which it affords them.
EPILOGUE.
Your
Highness will, by means of special proclamations publish throughout the
provinces in your jurisdiction the provisions which We have determined to
enact and promulgate by means of this Imperial law, in order that everyone,
no matter what his rank or fortune, may become aware that Our solicitude
extends to all persons, and that there is nothing to which We do not direct
Our attention. Your Highness will issue orders to the Governors of
provinces, and they, as soon as they have received them, will see that in
every city a list of the most distinguished citizens who are eligible to
perform the duties of defender is drawn up (as has already been stated), and
that general appointments are made followed by the prescribed oath; to the
end that the names in the list may be determined, and that, for the future,
defenders may continue to exercise their functions for the term of
two years;
and that, finally, when each one of those included in the said list for any
reason fails to act, another may immediately be introduced in his stead
(always after having taken the oath), whose selection shall be made by the
bishop, the venerable members of the clergy, and other persons of good
reputation in the city.
These
provisions, embodied in a general law, shall (as already has been stated)
hereafter be complied with in every respect. Defenders who are at present in
office shall, if considered worthy, be included in the list, and shall serve
the remaining portion of the two years, and in case their term of office has
expired, they shall be replaced by others, provided that they themselves are
not reappointed for another term of two years. If, then, such defenders as
are considered eligible have not served the entire two years of their term,
they shall do so, and, after the said term has elapsed, none of them shall
remain in office; and when (as has just been stated) a defender is
reappointed with the consent of the entire city, and without any opposition,
he shall serve another term of two years, at the expiration of which time he
shall retire without being eligible to reappointment, until his term again
arrives, which rule We establish in order not to confer too much authority
upon anyone by the frequency and duration of his terms of office.
This law
shall be valid for all time, as We have drawn it up with the greatest zeal
and care, and after having implored Divine assistance, We have communicated
it to Our subjects.
Given at
Constantinople, on the sixteenth of the Kalends of August, during the
Consulate of Belisarius.
TITLE III.
CONCERNING
THE NUMBER OF CLERKS WHO SHOULD BE
ORDAINED.
SIXTEENTH
NEW CONSTITUTION.
The
Emperor Justinian to Anthemius, Most Holy and Sacred Archbishop of
Constantinople, and Universal Patriarch.
PREFACE.
We have
recently published a law having reference to ordinations, prescribing that
their number shall not be excessive, either in the Most Holy Principal
Church of this Most Fortunate City, or elsewhere, and We now desire to
confirm this law, and decree that it shall remain in full force. For as Our
intention is to diminish the number of ordinations and reduce the expenses
of the principal church of this city within reasonable bounds, We do not
neglect anything to accomplish this, and therefore We promulgate the present
law, which in no respect changes the former one, but is rather a
continuation of the same, by means of which the Most Holy Principal Church
shall enjoy still greater advantages.
CHAPTER I.
We decree
that if a priest, deacon, reader, or chorister should happen to die in any
one of the holy churches dependent upon the principal church, and whose
expenses are paid by the latter, a stranger shall not be ordained in his
stead, before having previously inquired into the number of the clergy
attached to the said church, for the reason that if it should exceed the
established number, no ordination shall take place until the number has been
reduced to the prescribed limit.
Where,
however, the number of the clergy, being so small as to cause apprehension
that the ranks will not be full, and it becomes necessary to appoint an
ecclesiastic to take the place of the one who is dead, Your Holiness will
inquire whether in any other churches than the principal one there is an
ecclesiastic of the same order, who is in excess of the established number,
and if any should be found, he shall be transferred to the church which has
need of him, and there will be no necessity to make a new ordination. For in
this way any ecclesiastics who are lacking in a church will be replaced by
those who are in excess in another, their number will be reduced to the
prescribed limit, and, by degrees, the Holy Mother Church will be released
from its indebtedness.
Otherwise,
if We did not adopt this plan, and ecclesiastics should be ordained the
moment that anyone died in the church, the consequence would be that the
same number would always exist, and that an indefinite time would elapse
before the surplus could be disposed of.
EPILOGUE.
Your
Holiness will hasten to carry into effect these regulations which We have
prescribed for the welfare of the churches. If this law should not be
obeyed, and anyone should violate its provisions, he who has presumed to
dispute Our authority is hereby notified that the ordination will be void,
and the reverend stewards cannot claim any expenses from the principal
church; so that in this way they may become aware of the penalty for their
negligence.
Given at
Constantinople, on the Ides of August, after the Consulate of
Belisarius.
TITLE IV.
CONCERNING IMPERIAL MANDATES.
SEVENTEENTH NEW CONSTITUTION.
The
Emperor Justinian to Tribonian, Quaestor of the Imperial Palace and
Ex-Consul.
PREFACE.
Your
Highness is aware how many legislators have, each one in a single volume,
written on the mandates of the Emperors in the ancient
books
which enclose the laws of the Roman name. Therefore We, who have
re-established the already perishing and diminished respect accorded to
legislation, have determined not only to commission magistrates appointed to
inferior and intermediate administrations of no matter what description,
whether of judicial, consular, or higher rank, but, in addition to this, to
lay down certain rules in conformity with which they can exercise their
official functions in a praiseworthy manner. Hence We have composed a book
of instructions, which, written in both languages, is appended to the
present law. It is issued in both Greek and Latin, and addressed to Our
officials in the language spoken in the countries where they perform their
duties, in order that they may become familiar with their obligations; and
they must not neglect to comply with the salutary rules which We have
promulgated, but must employ them to govern Our provinces and the subjects
of Our
Empire.
Your
Illustrious Authority, being charged with the quaestorial censorship, will
order these instructions to be recorded in the book of laws, and deposited
in the Imperial archives, so that when officials receive them with their
commissions, they may not be ignorant of how they can render themselves
useful to the government.
Given on
the sixteenth of the Kalends of May, after the Consulship of
Belisarius.
In the
Name of Our Lord Jesus Christ Our God, the Emperor Ciesar, Flavins,
Justinian, Alananicus, Gothicus, Francicus, Germanicus, An-ticus, Alanicus,
Vandalicus, Africanus, Pious, Fortunate, Glorious, Victor, Triumpher, Always
Adorable and Augustus.
Although
We have already stated in a law the manner in which those who are appointed
to office should conduct themselves in the discharge of their duties, and
have prescribed the oath to be taken by them, still, We deem it necessary to
act with reference to you in the same manner as Our predecessors were
accustomed to do, under the same circumstances, who issued certain rules
called Imperial Mandates, directed to magistrates when assuming their
offices, and which the latter were obliged to comply with.
CHAPTER I.
MAGISTRATES APPOINTED GRATUITOUSLY SHALL PERFORM
THEIR
DUTIES WITHOUT REWARD, AND REMAIN PURE IN
THE SIGHT
OF GOD, THE EMPEROR, AND THE LAW.
As you
have received your office without any expense to yourself, your
administration should, above all, be pure in the eyes of God, of Ourself,
and of the law; you must not attempt to profit by it to any extent, either
great or small; you will not engage in any transaction injurious to Our
subjects; you will remain content with the compensation given you by the
Treasury; and, together with Your subordinates, You will observe the rules
of law in every respect. In the first place,
You must
vigilantly require the payment of the fiscal tributes; you must use every
effort to insure the payment of all demands due to the Treasury; and You
shall preserve at all times everything belonging to it; for as We come to
the relief of private individuals who are suffering injustice, We also
desire that the interests of the public may remain uninjured. Hence citizens
must be kept free from all oppression, in order that they may easily and
promptly pay their taxes; and if those who have been guilty of fraud, and
still remain indebted to the Treasury, from this time forward discharge
their obligations, they shall be released from liability.
CHAPTER
II.
MAGISTRATES SHOULD TAKE CARE TO PREVENT SEDITION,
AND SEE
THAT PUBLIC TRANQUILLITY is MAINTAINED BY
PERSONS OF
ALL RANKS.
Next, it
is proper for you to see that the people do not foment sedition against one
another, and that peace is preserved in all the cities given Us by God;
while justice is dispensed from here to Our subjects, and Our conduct toward
them is not, under any circumstances, determined either by the desire of
gain, or by passion.
CHAPTER
III.
CASES OF
INFERIOR IMPORTANCE SHALL BE DECIDED WITHOUT HAVING THE PROCEEDINGS REDUCED
TO WRITING. THE PRESENT RULE GOVERNING THE TAXATION OF COSTS SHALL BE
OBSERVED.
In the
third place, you will endeavor to be mindful of equity in rendering Your
judicial decisions, and summarily dispose of all cases of inferior
importance, especially where the parties are of low degree; nor shall the
proceedings in such cases be reduced to writing. You will avoid all
unnecessary arguments, and only in a controversy where the property in
litigation is under the value established by Our laws shall you permit the
parties litigant to pay the costs provided they are able to do so.
Moreover,
you will hear and determine all causes gratuitously; you will use every
effort to prevent anyone from coming from a province to this city and
annoying Us with his complaints. For you are hereby notified that We shall
examine anyone who makes an appeal of this kind, and if after he has applied
to Us We should ascertain that he has been refused justice, Our indignation
will be directed toward you. But if he presumes to come to this Imperial
City without having previously appeared before You, We shall punish him, and
send him back without giving him an answer.
CHAPTER
IV.
MAGISTRATES SHALL NOT PERMIT THEIR SUBORDINATES
OR
ATTENDANTS TO COLLECT ANYTHING FOR THE REPAIR
OF HARBORS
OR PUBLIC MONUMENTS.
In the
next place, it will be your duty not to allow any officials despatched by
Us, or by any other magistrate or court, to oppress Our subjects, or extort
from them anything more than is due. Where any requisition of this kind is
made, and a complaint is filed, you must obtain indemnity for the person
injured, and not permit anyone acting under orders of any court whatsoever,
which have reference to the repair of aqueducts, harbors, highways, statues
and walls, as well as the demolition of houses that have been erected in
public places, or other similar matters, to do anything to the detriment of
Our subjects, for We do not wish them to suffer loss under such
circumstances. You will see that everything is done without injury, in all
cases of this kind. If anyone who has been directed to carry out such orders
should come into your jurisdiction, you must by no means receive him, unless
he is the bearer of a written Imperial pragmatic sanction, and even then,
although you may acknowledge it, you must not permit it to be executed
before having notified Us, and obtained a second order to the same effect.
(1) You
will also maintain the public works of cities in good condition, and obtain
for the municipal magistrates the money necessary to repair buildings,
bridges, highways, harbors, and other public works of the province in your
jurisdiction; you will take good care of the ports and walls; and you will
by all means give attention to, and cause to be performed, all labor
beneficial to the people and advantageous to the towns.
(2) The
soldiers stationed in your province shall be subject to your orders,
whenever you have need of them to enforce your decrees. If you should find
them disobedient, you can inflict on them a suitable penalty, and will cause
the inhabitants of provinces who have been injured by their acts to be
properly indemnified.
CHAPTER V.
CONCERNING CRIMES.
You will
not permit persons guilty of crime to avail themselves of any privilege in
order to avoid punishment; but you should only manifest indulgence toward
those who are shown to be innocent of what they are accused. You must
severely punish persons guilty of homicide, adultery, the rape of virgins,
trespass with force and arms, and oppression; punishing the culprits
according to Our laws, in order that the penalties inflicted may enure to
the safety of all persons.
(1) You
must restrain all your subordinates, and not permit them to plunder Our
subjects; for as they are under your orders, it will be supposed that they
have acted in compliance with your wishes.
(2) You
will be careful in selecting your legal adviser, as well as all other
officials attached to your service, and be sure to select a man of high
character, and in every respect irreproachable, who will be satisfied with
the salary paid by the Treasury; and if he should take any more than he is
entitled to, and you should find that he is abusing your confidence, you
must dismiss him from office, and select another adviser who, keeping his
hands clean, will observe the law and the principles of justice.
(3)
You must conduct yourself both in public and in private in such a way as to
cause terror to malefactors and persons who are slow in paying their taxes,
and be gentle and kind to such as are quiet and prompt, treating them with
the consideration of a father.
CHAPTER
VI.
PRIVILEGES
INVOLVING THE PUBLIC FAITH OR SECURITY SHOULD NOT BE INCONSIDERATELY
BESTOWED.
You must
not grant too readily or for a protracted period privileges which are
established by oath, but this should only be done for a reasonable time, and
not longer than for thirty days; and this is provided to prevent
controversies among men from becoming interminable. If, however, you should
grant a privilege to anyone orally, and afterwards someone should accuse
him, you must keep your word to him, and have him brought before you and
examine the case, still allowing him his privilege; and if it should be
necessary to decide against him, you will do so and give him the choice of
one of two things, that is, of either absolutely rescinding the privilege
and himself executing the judgment, or, if he is unwilling to do this, of
being sent back to the place of asylum, and there having your judgment
executed, which you will have done with all due reverence for the locality.
CHAPTER
VII.
THE RIGHT
OF ASYLUM DOES NOT ATTACH TO HOLY PLACES IN CASE OF HOMICIDE AND OTHER
CRIMES.
You will
not permit homicides, adulterers, and ravishers of virgins to enjoy the
right of asylum in places where they have taken refuge, but you must remove
them, and cause them to be punished; for it is not proper to show indulgence
to criminals of this kind, as this right only applies to such as sustain
injury, to prevent them from being oppressed by unjust persons. The
privilege of taking refuge in temples is not granted by law to criminals but
to persons who are injured, and it would not be possible for the protection
of sacred places to be enjoyed by both those who commit wrongs and those who
suffer them.
(1) You
must see that the taxes are properly collected, even in the temples, as they
are necessary for the maintenance of soldiers, as well as for the support of
the temples themselves, and are useful to
the entire
government. The defenders and stewards of the churches will assist you in
this matter, and must not oppose those charged with the collection of taxes,
or permit them, on this account, to be subjected to any violence or
resistance, as they are notified that if they should do anything of this
kind, they will be responsible to the Treasury out of their own property.
CHAPTER
Vill.
TAX-COLLECTORS MUST STATE IN THEIR RECEIPTS THE AMOUNT OF THE PROPERTY
SUBJECT TO TAXATION.
You will
compel the collectors of taxes to state in their receipts the amount of
immovable property, that is to say, the number of teams or yokes of animals,
according to the method of enumerating them in different parts of the
country, on which, as well as on what land, taxes are levied; as well as the
amount of the latter, and whether it is payable in kind, or in money. And
you must notify all persons that, if they have not complied with the laws
previously enacted for this purpose, or the one which is now promulgated,
they will sustain great loss of property, as well as the amputation of their
hands.
If, indeed
(as is sometimes the case), a collector should be found who says that he
cannot estimate the amount of property to be taxed, We think that such
persons are undoubtedly dishonest; however, neither the Treasury nor the
taxpayer shall suffer any loss on this account, for the Treasury shall
collect everything due to it without prejudice, and nothing more shall be
collected from persons who have discharged their obligations and obtained
regular receipts; for no one shall be oppressed, but the taxes shall be
collected from all who owe them and paid into the Treasury. Notice shall be
given to Our Prefects, to whom tax-collectors are required to show their
registers, and if any doubt should arise with reference to the latter, the
Prefect shall resolve them; and when the truth has been established
concerning these matters the tax-collectors shall be obliged hereafter to
describe in detail the various kinds of property subject to taxation, as has
previously been decreed by Us.
(1) You
will not permit officials of the curia or the census to be guilty of
delay, and prevent the possession of land which has been sold from passing
to the purchasers; but you will compel them to proceed without the change of
ownership causing any loss of taxes, and whenever officers of the census
state that the change of ownership should not be made, for the reason that
the purchasers are insolvent, you will examine as to the truth of this
allegation, without any expense ; and if the purchaser appears to be
solvent, you will compel the officers of the Treasury to make the transfer
of the taxes gratuitously.
If, on the
other hand, you should find that the purchaser is insolvent, you must compel
the vendor to state in the conveyance that he will be responsible for the
payment of the taxes for which the purchaser will hereafter be liable, for
We are aware that this course is pursued
in many of
the provinces of the East. In this way no loss will result to the Treasury;
the taxes will be paid by the possessors of the property; and it cannot be
said that one holds it, while the other pays the tax on the same; for
payment should certainly be made by the party in possession, and not by him
who no longer has it.
CHAPTER
IX.
JOURNEYS
MADE BY GOVERNORS SHOULD NOT BE A SOURCE OF ANNOYANCE OR VEXATION TO THE
PEOPLE OF THE
PROVINCES.
If We
desire you to travel into another province, you must be content with the
salary which you receive from the Treasury, and not oppress Our subjects by
compelling them to pay your expenses. You must not use the money of the
province for this purpose, and neither you nor your subordinates shall
require the inhabitants to furnish you with transportation, but you must
travel with your own horses, and at your own expense. You must obey what We
have commanded, even though you do not pass beyond the boundaries of a
province, and some necessary occasion requires you to go from one city to
another.
CHAPTER X.
We
absolutely forbid Governors to send deputies into the towns of the provinces
under their jurisdiction, even though these deputies belong to the most
distinguished classes of the nobility. Nor shall you permit any soldiers who
may accompany you in your journeys to have their expenses defrayed, for We
desire them to pay them out of their own salaries. If, indeed, they should
not do this, but should take their expenses out of the taxes, and require
horses to be furnished them, Our subjects must be indemnified, and you will
see that the sums expended are deducted from the pay of the soldiers at your
own risk.
CHAPTER
XI.
GOVERNORS
SHALL NOT OBEY ANY ORDERS HAVING REFERENCE TO RELIGIOUS MATTERS WHICH MAY BE
COMMUNICATED TO THEM.
You will
not permit anyone to. cause annoyance on account of religion and heresy in
the province which you govern, and you will oppose any order having
reference to this subject from being executed within your jurisdiction; just
as you will also, for the advantage of the Treasury, take care to
investigate all innovations which may be attempted, and not allow anything
to be done in religious matters which is contrary to Our orders. Where,
however, either through the agency of bishops or other persons, an
ecclesiastical controversy arises, you must hear and decide it along with
the metropolitan of the province, and dispose of it in a way agreeable to
God; preserve the orthodox
faith;
secure the indemnification of the Treasury; and maintain the rights of Our
subjects inviolate.
CHAPTER
XII.
WHERE
PERSONS ARE CONDEMNED TO DEATH THEIR
PROPERTY
SHALL NOT BE CONFISCATED BUT SHALL PASS
TO THE
NEXT OF KIN.
You will,
in every instance, provide for the punishment of those who deserve it; you
must not touch their property, but permit it to go to those entitled to the
same either by blood or by law, according to their degree; for the property
does not commit the crime, but those who possess it. Up to this time, the
order has been reversed; persons meriting punishment have been discharged
and deprived of their estates, and others whom the law calls to the
succession have been punished in their stead.
CHAPTER
XIII.
CONCERNING
THE PROHIBITION OF EXERTING UNJUST PROTECTION.
We have
ascertained that unjust protection is granted in Our provinces, and wishing
to correct this in every respect, We forbid any person to assume the conduct
of another's lawsuit, or to charge himself with contesting the title to
property to which he has no right, or of promising to defend anyone to the
prejudice of others, or with detriment to the Treasury. You will not permit
persons to act for the owners of property in this way, for both the law and
the Imperial favor should be sufficient to enable you to exert all the
authority requisite.
CHAPTER
XIV.
No ONE
SHALL PRESUME TO HARBOR SERFS BELONGING TO OTHER CENSUS TENANTS.
You will
entertain great aversion for persons who harbor the serfs of others, and you
must compel them to return immediately what they have illegally received;
and if they should remain for a considerable time disobedient, you will
impose all the expenses of the province upon those having serfs in their
possession. Where the serfs are said to be in other provinces, you will
address public letters to the Governors of the same, stating therein that
they are fugitives, and requesting that they be surrendered along with any
property in their possession, and returned to the province of which you are
Governor; and you will punish those who have harbored them by forcing them
to pay the amount of depreciation suffered, through the absence of the
serfs, by the land to which they are attached. Hence, they will make good
the diminished value of the said land, and will understand what it means to
injure others.
You will
see that these provisions are executed, whether owners of land have harbored
the fugitive serfs, or whether this was done by persons holding the property
under lease or by virtue of any other lawful contract; for both of them must
avoid obtaining what does not belong to them, thus wickedly profiting by the
injury of others.
CHAPTER
XV.
CONCERNING
THE ASSERTION OF CLAIMS TO THE PROPERTY OF OTHERS.
You are
hereby notified that to place inscriptions asserting a claim to the land of
others, or to inscribe a name as owner upon property in a city which does
not belong to the person who does so, is a dangerous proceeding; and those
who act in this manner are liable to have their possessions confiscated to
the Treasury. For if anyone should attempt to obtain anything by the
exercise of a right enjoyed only by the Government and the Treasury, he
shall be personally responsible, and his punishment shall afford an example
to others; and where he has any accomplices, they shall be subjected to the
same penalty. Therefore you will observe all these provisions, being aware
that Our opinion of you will be regulated in accordance with your behavior,
whether you are disobedient, or comply with Our precepts and laws.
CHAPTER
XVI.
WHAT
GOVERNORS SHOULD DO WHEN THEY FIRST ENTER THEIR PROVINCES.
As soon as
you enter your province, all the people of the metropolis should be
assembled (We mean the bishop, the clergy, and the principal citizens), and
you will cause Our Imperial instructions to be recorded in their presence,
and post a copy of the same not only in the capital, but also in the other
towns in the province, transmitting them by means of your subordinates
without expense, so that all persons subject to your authority may see that
you obey these regulations, and show yourself to be worthy of Our choice.
CHAPTER
XVII. CONCERNING ARMS.
If you
obey Our orders, you will exercise the functions of the office with which We
have invested you with more glory and for a longer time; above all, if you
were careful not to allow anyone, who is not a soldier, to make use of
weapons. If you do this, you will render yourself very dear to God, to the
laws, and to Us.
Again, if
any person attempting to stir up sedition should, at any time, leave this
great city either alone, or in the company of others, and repair to the
province which you govern, you must make
diligent
inquiry concerning him, ascertain the place of his residence, and inform Us
of the same, in order that if investigation of his conduct should be
necessary, he can be brought to this Most Fortunate City, and undergo the
penalty which the law has prescribed in such cases.
Given at
Constantinople, on the sixteenth of the Kalends of May, during the
Consulate of Belisarius, 535.
TITLE V.
CONCERNING
THE LEGAL PORTIONS OF THE THIRD AND HALF OF ESTATES ; AND OF THE SUCCESSIONS
OF NATURAL CHILDREN AND GRANDCHILDREN ; OF HOTCHPOT AND DISTRIBUTION; AND OF
THE DISAVOWAL OF THE EXECUTION
OF
INSTRUMENTS OR THE PAYMENT OF MONEY, AS WELL AS OF PROPERTY IN THE
POSSESSION OF OTHERS.
EIGHTEENTH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Imperial Prefect of the East,
Ex-Consul and Patrician.
PREFACE.
The
government of the Romans which, as someone has said, was certainly founded
by God, has already many good laws relating to wills; Our Codes abound in
them; and not only have ancient jurists and pious Emperors written on this
subject, but We, Ourself, no less than Our predecessors, have devoted much
attention to this branch of legislation. And, as We are accustomed to
consider God in everything that We do, Our sole desire is to please Him, and
to perform acts worthy of honor. With this object in view, We incessantly
direct Our attention to laws which are agreeable to Nature, and corrective
of former enactments ; hence We have frequently been surprised that jurists
and Emperors only allowed the fourth of an estate to be left to legitimate
children who have not been disinherited by their parents, which share was
given the name of a debt, whilst they permitted the remainder of the estate
to be disposed of as the father might desire; and he often leaves it to
cognates, strangers, or slaves who have been bequeathed their freedom.
We are all
the more surprised that the jurists and Emperors made no distinction where
there are numerous children, even when they had not offended their parents;
and, in every instance, even where there are ten, or a greater number, they
did not allot them any more than three-twelfths of their father's estate.
The result of this is that children who are in good circumstances during the
lifetime of their father become poor after his death.
CHAPTER I.
CONCERNING
THE LAWFUL SHARE WHICH FATHERS
SHOULD
LEAVE TO THEIR CHILDREN; THAT is A THIRD
WHERE
THERE ARE FOUR OR LESS, AND HALF WHERE
THERE ARE
MORE THAN FOUR.
These
reasons induce Us to amend the law, and to provide that where fathers or
mothers have one, two, three, or four children, they shall be required to
leave them not merely three-twelfths of their estates, but the third of the
entire property, that is to say four-twelfths; and if the parents have more
than four children, they must leave them half of their estates, namely,
six-twelfths; and the four-twelfths where there are four children, and the
six where the latter exceeds this number shall be apportioned among them in
equal shares; for We are not willing that the allotment shall be determined
inequitably through convenience in dividing the property (for where, under
these circumstances, what is good is given to some, and what is bad to
others, injustice will result), but such measures should be taken that each
participant in the estate shall receive property of the same quality and
quantity as the others; which will occur whether the father bequeaths his
estate with the appointment of an heir, or distributes it by means of
legacies or trusts. So far as the eighth, or six-twelfths belonging to the
residue of the estate is concerned, the father shall be free to dispose of
it for the benefit of his children or leave it to others; hence it is only
after having done what they owe to nature, that parents shall have the right
to manifest their generosity to strangers.
The
advantages of the present law shall extend to all persons to whom are
conceded the right to complain of inofficiousness, in instances where the
ancient fourth of the father's estate was not left to them.
CHAPTER
II.
THE LEGAL
SHARE OF CHILDREN OCCUPYING MUNICIPAL OFFICES SHALL BE NINE-TWELFTHS OF THE
ESTATE.
The law
recently promulgated by Us concerning decurions, and which provides that
nine-twelfths of an estate shall go to the sons or daughters of decurions,
is an exception to the general rule; and the remaining three-twelfths may be
disposed of by the parents in accordance with their wishes. All laws
relating to inofficious testaments and ungrateful and natural children, and
especially those enacted by Us, shall remain in full force; and, in
accordance with what has already been stated, We only increase the amount of
the legal shares.
CHAPTER
III.
WHERE A
FATHER LEAVES His CHILDREN THE MERE OWNERSHIP OF His PROPERTY AND His WIFE
THE Usu-
FRUCT OF
THE SAME.
We hereby
prohibit an existing evil which, while it appears to have a lawful motive,
is still productive of hard and bitter cruelty. For We
have
ascertained that when persons who are abouf to die have left the entire
usufruct of their property to their wives by will, not acting in a paternal
manner as men should do, but manifesting weakness and disregard for duty by
leaving their offspring the bare ownership of their estates. Wherefore, I
think that the object of a will of this kind is to enable wives to obtain
the property, and the children to die of hunger. For how can they be brought
up and have their daily food after the death of their father when nothing
has been left to them, and the hatred of the wife which perhaps has no
reasonable foundation, and deprives them of their daily subsistence? It
shall not be lawful, hereafter, for anyone who has children to act in this
manner, for he must, by all means, leave them their legitimate share, which
We now establish, as well as the usufruct and ownership of the property, if
he does not wish his children to perish suddenly of hunger, but to live in
health, and call him father.
We decree
that these rules shall not only apply to the father but to the mother,
grandfather, great-grandfather, and the wives of these persons; that is to
say the grandmother, and great-grandmother on both the paternal and maternal
sides.
CHAPTER
IV. IN WHAT WAY CHILDREN DESCENDING IN THE FEMALE
LINE CAN
SUCCEED IN CASE OF INTESTACY.
In the
future, the law which provides that children and grandchildren, who are not
proper heirs or under paternal authority, shall not be entitled to the third
part of the estates which their parents, when living, ought to have left
them by will, shall not be observed. Nor do We except grandchildren born to
the son of paternal grandparents, for they can receive the entire share to
which their father would be entitled if he were living. Grandchildren,
however, descended from a grandfather through a daughter, whether on the
father's or mother's side, shall have a third less of the estate; but only
one order of succession shall apply to grandchildren and
great-grandchildren, as We are not willing that females shall be
distinguished from males by obtaining a smaller share under such
circumstances. For neither a male nor a female alone is sufficient for the
propagation of the race, but as God has formed both for the work of
generation, We also preserve the same equality so far as both of them are
concerned.
(1) -We
make this law even more comprehensive, for We decree that it shall be
applicable to such children as are only legitimated by marriage, even though
dowries were not given after the ceremony took place; for the reason that
the undoubted affection manifested by the parties is a sufficient
justification of the legitimacy of their offspring. Not the gift of a dowry,
but the affection of those who were united, constitutes a marriage. This law
shall apply to children who, in accordance with Our Constitution, become
legitimate after the subsequent matrimonial union of their parents, and this
shall be the sanction of their legitimacy.
CHAPTER V.
CONCERNING
CONCUBINES AND NATURAL CHILDREN, AND IN WHAT WAY THEY CAN SUCCEED IN CASE OF
INTESTACY.
We have
considered Nature alone in the enactment of the following provisions, for
many weeping children, who are in distress, have frequently addressed their
petitions to Us; and, indeed, We have always treated them with indulgence,
but We have blushed because We could not do this legally; and therefore We
have enacted the present law in order to benefit Our subjects and afford
them all a legal remedy. We hereby permit the fathers of legitimate
offspring to leave to their natural children any amount up to one-twelfth of
their property, which share they must divide with their mother (as was
formerly the case), and, where there are no legitimate children, an amount
equal to half their entire estates. These provisions are contained in laws
formerly promulgated by Us, which authorize a father to transmit this lawful
share either by will, or in any other way whatsoever.
On the
other hand, the present law establishes the right of succession to the
estates to the fathers of natural children, in case of* intestacy, and
therefore lays down a new rule. For if anyone should die without having made
a testamentary disposition of his property, leaving no legitimate issue (We
mean children, grandchildren, or other descendants entitled to the
succession), or a lawful wife, and the cognates, for example, or the patron
who claims the estate, or even Our Treasury, is called to the succession
(for it is Our intention not to show any partiality), and while the deceased
was living he had in his house a free woman with whom he lived in
concubinage, and by whom he had issue (We do not permit this to be
applicable except where it is certain that the concubine and her children
resided in the father's house), We grant these children their maintenance;
and, no matter what their number may be, they shall, in case of intestacy,
be entitled to two-twelfths of their father's estate, and shall share the
said two-twelfths with their mother in such a way that she will have a
portion equal to that of one of them.
This rule
shall be observed, whether the father has children resulting from his
cohabitation with a single concubine, or whether he has in his house other
children of a concubine who is dead, or from whom he is separated; for in
both instances We concede to all .of them two-twelfths of the property of
their father who died intestate. Where, however, a father has been given to
licentiousness to such an extent that, having had several concubines in
addition to the first one, he leaves at his death a number of them with
their children, such a man is odious, and We absolutely exclude him from
participation in the benefits of this law. For, as when a man is married to
a lawful wife, he cannot have other wives and legitimate issue by them, so
in like manner, We do not permit anyone who has children by a recognized
concubine (as We have previously stated) to let the offspring of
his other
acts of debauchery share in the distribution of his property when he dies
intestate. If We did not lay down a rule of this kind, a number of women
would be found who were more or less attached to the deceased, and this
would also be the case with children; and We are not enacting laws for the
benefit of those living licentious lives, but for those who are chaste. We
make no distinction whether the children are male or female, for, in
accordance with nature, We do not prescribe one rule for women, and another
for men. Therefore this law shall be observed for the future, and We shall
repeal all others on the subject, as it corrects and explains many things
which formerly were not intelligible or observed; and it shall not be
applicable to what is past, for such matters cannot be subjected to rules
which did not exist when they originated.
Such are
the provisions which have been established by Us with reference to the
aforesaid successions.
CHAPTER
VI.
CONCERNING
COLLATION IN CASE OP DOWRIES OR ANTENUPTIAL DONATIONS.
We think
that it is advisable to enact what is contained in the following law. For,
according to former constitutions, where parents died intestate, everything
was brought into hotchpot, but where the deceased executed a will without
mentioning it, hotchpot did not take place; and any dowry or other property
which had been given remained intact, and only what had been bequeathed was
taken into consideration. Without adopting this principle in its entirety,
We order that, whether the deceased died testate or intestate (as it is
uncertain whether he voluntarily failed to mention the donations which he
made, or that this occurred on account of the suffering which preceded his
death), collation shall be made in every instance, and that the estate shall
be divided in conformity with preceding laws, unless the father expressly
stated that it was not to be collated; but, on the contrary, his intention
was that he whom the laws compel to collate property should keep what had
already been given him, as well as what he was entitled to by the will.
Everything
heretofore provided by Us with reference to collation shall remain in full
force.
CHAPTER
VII.
WHERE A
FATHER DESIRES TO DIVIDE His ESTATE AMONG His CHILDREN DURING His LIFETIME.
We think
that it is necessary to insert in the present law a matter which has often
been judicially determined by Us. For it frequently happens that fathers who
have many children wish to divide their property among them before they die,
in order to prevent them from
engaging
in fraternal controversies, which might cause even greater and more bitter
disputes. In order to do this, they must clearly distribute their estates by
will, or draw up other instruments making such a distribution and sign them;
for, by so doing, they will divide their property among their children
without giving cause for any doubt; but fathers do not do this, since they
either only describe in their own handwriting a portion of the division
which they make (and this does not always happen), or they frequently
interline some other document, or fail to give an exact description of the
property to be divided, and do not leave the paper in the hands of persons
worthy of confidence.
So far as
the other part of the distribution not mentioned by them is concerned, this
is usually done by a public writer, or by someone else who is corrupt; hence
arise ten thousand grounds for litigation; because it is uncertain whether
the division was voluntarily made by the father, or was due to the artifice
of the person who, in drawing up the instrument, unduly favored one of those
entitled to the succession.
We,
desiring that, for the future, Our subjects shall no longer be annoyed in
this manner, do hereby decree that where anyone wishes to divide all of his
estate among his children, or to bequeath only a certain portion of the same
as a preferred legacy, he ought, as far as* possible, to state this fact in
his will, in order to benefit his children in a manner which will give no
room for doubt. Where, however, by reason of some impediment which often
embarrasses men, he failed to make such an arrangement and distribute his
estate by his will, but nevertheless enumerated the articles which he
desired to divide, and either signed the instrument with his own hand, or
caused this to be done by his children, and his wishes are in this way
rendered so clear that they cannot be doubted, the division shall be valid,
and no other security shall be required.
When
anyone does not do this, but makes a confused division of his estate without
the signature of witnesses (as very frequently happens) notice is hereby
given that his children will reap no benefit from what he has done, but that
they must divide the estate just as if no disposition whatever had been made
of the same, and the judges of the case (whom the laws style judges of
partition) will not be compelled to comply with what is stated in the
document. For fathers must carefully provide security for their children,
and not leave them any less than they are entitled to, or make any illegal
bequests; for the reason that this gives rise to interminable difficulties,
and often results in the commission of crime. All other provisions having
reference to successions, collations, and other matters, made up to this
time, are hereby confirmed.
CHAPTER
Vill. WHERE ANYONE DENIES His OWN HANDWRITING.
The
perversity of certain persons renders it necessary for Us to re-enact a law
which bore the name of a tribune, and received from
him the
name of the Lex Aquilia. In accordance with its provisions having
reference to denials, a man guilty of duplicity who attempted to deny his
signature was subjected to a double penalty; and this rule was also
applicable to other acts committed under the same circumstances. This law
was, by degrees, deprived of its force through the exertion of mistaken
clemency, which usually encourages the malevolence of unprincipled persons;
hence, it has appeared to Us necessary to subject persons guilty of such
improper and base denials to the punishment aforesaid. Therefore, if anyone
should produce a written instrument, and the other party should deny that it
is genuine, or he should acknowledge it, but denies having received the
money mentioned therein, and his opponent proves this in a lawful manner, in
both these instances We order that he who makes the denial shall be liable
to double damages. This provision is not enacted because We delight in
severe laws, but for the purpose of diminishing litigation; as We believe
that the fear of a penalty is more promptly instrumental in effecting the
acknowledgment of the truth. We desire that this penalty shall be incurred
by persons making all kinds of denials, and judges are notified that if they
should fail to enforce this law, they themselves will be liable to it.
Where,
however, the plaintiff does not attempt to prove the instrument, and
gives.his consent for the defendant to swear to its denial, the latter will
not be liable to the double penalty, if, when the oath is tendered him, he
immediately retracts. But if, in the course of the trial, the plaintiff
should tender the oath to the defendant, and the latter should confess the
truth, We release him from liability to the double penalty; but, on account
of his denial, We condemn him to pay the plaintiff all the costs incurred up
to that time in the proof of his claim, and to establish the amount of said
costs, recourse shall be had to the oath of the -plaintiff.
When the
defendant, in the beginning, denies that the money has been loaned to him,
and he afterwards admits certain payments, he shall be required to repay the
entire debt by way of punishment for his original denial, just as one of Our
Imperial predecessors decided; and We do not permit the judges to diminish
this penalty, but, on the other hand, they must observe the law in its
integrity. If, however, the defendant should produce receipts given by the
plaintiff, and prove their genuineness, and the plaintiff disputes them, and
claims not only the sums he denies having received, but a stillx-large r one,
the same reason exists for tendering him the oath under such circumstances.
CHAPTER
IX. CONCERNING DENIALS BY GUARDIANS AND CURATORS.
Where
curators are involved in litigation, in matters in which persons subject to
their control are interested, punishment for contradictions of this kind
(when they are made in the writing of the said curators) shall not be
inflicted upon those of whom they have charge, but against the individuals
who made the base and improper
negation.
Where anyone has rendered himself liable to the penalty of double, triple,
or quadruple damages prescribed by the ancient laws, or contained in the
Constitutions of the Emperors, it shall continue to be imposed as formerly,
just as We have decreed in Our Institutes, Digest, and Book of
Constitutions, for the present law is only intended to be a continuation of
the former ones.
CHAPTER X.
CONCERNING
EXCEPTIONS OF BAD FAITH PLEADED BY POSSESSORS.
We think
that what follows with reference to judicial decisions is more important
than anything that all Our predecessors have decided or established. For if
someone, after having been sued on the ground that he has possession of
property, which the plaintiff alleges does not belong to him but to a third
party, and in which he himself has an interest, and he who brings the action
is compelled to show either by documents, witnesses, or in any other way
that the said property belongs to him, and finally the defendant who
constantly denied that the property belongs to the third party admits his
claim, and maintains that the latter has a better title to possession of the
property in litigation than the plaintiff himself has, on account of
hypothecation, or some other right vested in said third party, and as Our
predecessors have not provided for this kind of a case, We think it proper
to punish the defendant by granting the possession of the disputed property
to the plaintiff, during the trial of the action, in order to indemnify him
for having made the aforesaid proof; which, however, will not prevent the
defendant, after having relinquished the property, from establishing the
rights of the third party which he had at first refused to acknowledge, and
where these rights are well founded, enable him to obtain the justice to
which he is entitled, for the penalty only consists in the loss of
possession during litigation.
These
rules We have established with reference to successions, collations, the
distribution of estates, and the security of litigants, to the end that the
number of lawsuits may be diminished; and they shall hereafter be observed,
and no one will have reason to plead ignorance of what relates to
successions, collations, or the distribution of estates; and litigants who
display bad faith shall no longer be able to deny their own handwriting, nor
shall they deny that money has been paid to them, and afterwards avail
themselves of acknowledgments of payment. Nor shall they, in conclusion,
dispute the rights of third parties of whose property they have possession,
but shall exhibit moderation and mildness in the legal controversies in
which they are involved, and thereby obtain an impartial decision.
CHAPTER
XI.
IN WHAT
WAY CONCUBINES OF A SERVILE CONDITION CAN BECOME LAWFUL WIVES.
Doubts
have been raised by certain persons, with malicious intent, concerning a
subject treated of in some of Our Constitutions, and with reference to which
several decisions have been rendered. As it is just that this condition
should not longer prevail, We have disposed of it in the present law, for We
have held that if anyone should live in concubinage with a reputable woman,
and have children by her without the execution of any dotal instrument, and
should afterwards desire to marry her, and a contract should be drawn up to
this effect, and he should beget other children, then not only those born
after this contract was executed, but also those born previously, will be
legitimate. For the purpose of avoiding fraud and the malicious
interpretation of persons constantly inclined to deceit, We have drawn up
another constitution, by which We direct that even though no children may
have been born after the dowry was given, or, if born, did not survive, the
others shall be considered legitimate. Another doubt has been raised as to
whether this rule is applicable to men living in concubinage with their
freedwomen; but Our intention is clear in this respect, and this has already
been decided by Us, for marriage with a freedwoman is by no means
prohibited, and what We have decided with reference to other persons is also
applicable to them.
In order
to dispose of all ambiguity on this point, We decree that if anyone, who has
no legitimate wife or children, should entertain affection for his female
slave, and have children by her, while she is in servitude, and should
afterwards manumit her and her children, and confer upon all of them the
rank of freeborn persons, and honor them with freedom in accordance with the
prescribed formalities, and then should marry the woman, and, after the
ceremony, should draw up a nuptial contract; whether any children are born
afterwards or not (We include in this provision both cases of Our
Constitution), she shall be his legal wife, and his children shall be under
his control, and his proper heirs, as well as his heirs at law, in case of
necessity (We refer to those born'before the marriage), and by this means
all of them will be placed in the rank of freeborn persons, and by the
subsequent marriage they will enjoy the privilege of legitimacy.
EPILOGUE.
Therefore
Your Excellency will publish special proclamations in the provinces which
you govern for the purpose of making all Our subjects acquainted with this
law, and informed that, as We exert Ourselves to insure their welfare, We
shall be fully rewarded for Our solicitude and foresight by the glory which
God has conferred upon Our reign.
Given at
Constantinople, on the Kalends of May, the year after the Consulate
of Belisarius, 536.
TITLE VI.
CONCERNING
CHILDREN BORN AFTER THE EXECUTION OF THE DOTAL CONTRACT.
NINETEENTH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
It has
come to Our knowledge that certain persons have, without good reason,
doubted whether what We have decreed concerning children begotten before the
execution of the dotal contract should have a retroactive effect, and be
applicable to preceding litigation which had not yet been terminated by
either judgment or compromise. We very clearly recall that when We enacted
the laws with reference to this subject We expressly directed in a former
constitution that it should apply to previous cases which had not been
decided or disposed of by compromise, whether the fathers were living or
not; and subsequently We published another constitution supplementary to the
first one, by which We declared that the provisions already established in
favor of children born before the dotal contract was drawn up should be
observed, and that such children should be considered legitimate, whether
there were none born after the contract, or whether, having been born, they
were no longer living; and We added to this constitution that its provisions
should relate back to former times, and We only excepted from its
application such cases as had been terminated by judicial decree or
compromise.
After the
enactment of these two laws, certain audacious persons tried to change their
meaning and give them a false interpretation, which compels Us to promulgate
a third law, providing that where a man who was married to a lawful wife had
children by her, and, after the dissolution of his marriage, brought about
either by the death of his wife or by her repudiation, he had children by
another woman whom it was lawful for him to marry, but with whom he did not
contract marriage until after the birth of said children, the latter shall
be legitimate.
But, for
the reason that We did not insert in this third constitution, or in the two
preceding ones, that they would apply to lawsuits not yet terminated;
certain individuals have thought that We did not intend them to have a
retroactive effect in favor of children born before their publication, for
they said that this retroactive effect is clearly stated in the first and
second constitution of Our Code. This opinion We consider to be absurd. For
We very properly omitted this in the first and second laws, and did not
include it in the third; since, though in special enactments, it may be
necessary to expressly mention their retroactive effect, We did not insert
this clause in another law which was only a repetition of a former one, in
order that the Code might not be encumbered with a multitude of superfluous
provisions.
We did not
insert in the third constitution anything with reference to the time when it
would become operative, for the reason that it is understood that one law
which is interpretative of another is dependent upon the one to which it
relates.
CHAPTER I.
THE LAST
CHAPTER OF THE TWELFTH NOVEL HAS REFERENCE TO CASES WHICH HAVE NOT YET BEEN
DECIDED OR COMPROMISED.
We have
enacted this law for the purpose of disposing of the objections raised by
certain persons who are constantly employed in contention, and who adopt
erroneous opinions; again ordering that the three constitutions aforesaid
shall be observed, and shall have a retroactive effect so far as the cases
on account of which they have successively been promulgated are concerned,
that is to say, whether the fathers of children of this description are
still living, or whether they are dead; all cases terminated before the
enactment of these laws by either compromise or judgment solely being
excepted.
EPILOGUE.
It is Our
pleasure that Your Highness shall provide for the publication of the present
law.
Given at
Constantinople, on the fifteenth of the Kalends of August, after the
Consulate of Belisarius.
TITLE VII.
CONCERNING
THE OFFICIALS CHARGED WITH PRESENTING APPEALS TO THE EMPEROR.
TWENTIETH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect, twice Consul
and Patrician.
PREFACE.
We have
already enacted a law concerning appeals which prescribes the method of
presenting them, and designates those to whom they should be made. This law
was at the same time addressed to Your Highness, and the Most Glorious
Quaestor; but because doubt has arisen concerning the officials charged with
this duty, and as the employees of the Imperial Bureau of Epistles have
claimed this service for judges, and, on their side, the officials belonging
to your jurisdiction have stated that their rights would be infringed if any
innovation should be made, and they be prevented from discharging the
functions with which they were formerly invested with reference to appeals
taken from the illustrious Governors of provinces, through your
tribunal,
as well as to what took place when you alone had cognizance of such appeals
in your consistory; but as the distinguished title accorded to these
Governors caused appeals to be taken to the Imperial Consul from the
tribunal where you and the Most Glorious Quaestor preside; and the employees
of the Bureau of Imperial Records, who took part in the presentation of
appeals to the Quaestor, did not alone discharge the duties of the two
offices combined in the tribunal of Your Highness, and still more often in
that of the Most Glorious Quaestor; they themselves brought up this same
question which you recently verbally referred to Us. Your application does
not seem to Us unimportant, as, in the meantime, Paphlagonia and Honoria,
formerly divided between two Governors, have been united under a single
magistrate invested with the title of Praetor, appeals from whom undoubtedly
belong to your jurisdiction; just as one Governor, with the rank of
spectabilis, has been substituted for the two magistrates who formerly
presided over the provinces of The Hellespont and Pole-moniac Pontus, where
the same question again came up; for appeals taken in these provinces should
only be brought before your tribunal, in accordance with what is provided at
the end of the constitution which treats of this subject.
CHAPTER I.
THE
OFFICIALS ATTACHED TO THE PRAETORIAN PREFECTURE SHOULD ALONE BE EMPLOYED IN
APPEALS.
As both
your offices and those of the Quaestor have approved of it, it seems to Us
proper to have the officials attached to the tribunal of Your Excellency
alone discharge the duties of attendants in the appeals previously referred
to; and these appeals shall (as was formerly the case) be heard and decided
in the Imperial Audience-Chamber and Our Most Glorious Quaestor shall be
present, and take part in the proceedings.
CHAPTER
II.
As the
Governor of First Cappadocia, whose appeals were formerly brought before
your tribunal, has just been appointed proconsul, it is proper that appeals
from this magistrate should, in conformity with Our Constitution, be heard
in the Imperial Audience-Chamber, where Our Most Glorious Quaestor shall
preside and give his opinion, and where your officers alone shall act as
attendants, as was formerly the custom; for although the office of Count of
the Houses has been merged into that of Proconsul of Cappadocia, and as
formerly very few cases were brought before this distinguished Count, and
very few appeals, indeed, were taken to Us from his tribunal, now that We
have entrusted the administration of the Treasury to the Proconsul, and have
charged other persons with these duties, there is no reason to limit your
jurisdiction on this account, hence the officers attached to your court
shall alone be employed where appeals are taken from the Proconsul of
Cappadocia.
CHAPTER
III.
This rule
shall also apply to the Proconsul of Armenia, for while this province was
formerly subject to an ordinary administration, We, without adding anything
to it, have changed it into a proconsulate. And as the subordinates of Your
Highness formerly had charge of appeals, and as these are now regularly
brought before the Imperial Audience-Chamber (as We have previously stated),
and both of you should examine them; your executive officers shall,
nevertheless, be employed in these cases, as was done when the Province of
Armenia was subject to ordinary administration, no change being made in the
former method of procedure.
CHAPTER
IV.
The
Provinces of Lycaonia, Pisidia, Isauria, which originally were under the
charge of Governors, and took their appeals to your tribunal, are now
subject to Praetorian magistracy. Although it is apparent in what way this
change of administration was effected, as at first there was a general
stationed in each one of these provinces, We have, nevertheless, deemed it
necessary, because of this innovation, to confer upon your tribunal and that
of the Most Glorious Quaestor the right to take cognizance of appeals from
the decisions of the Praetors of said provinces, but your subordinates will
have the privilege of acting as executive officers in cases of this kind. We
also direct that the same order shall be observed in cases of appeal,
whether they have been brought before, or after the enactment of the present
law.
CHAPTER V.
When two
administrations, namely, those of the Count of the East and the Governor of
First Syria, existed, appeals from the Governor of Syria were brought before
your tribunal, where your subordinates alone discharged the duties of
executive officers; on the other hand, appeals from the decisions rendered
by the Count of the East, invested with the character of Imperial hearings,
were brought at the same time before your tribunal and that of the Most
Glorious Quaestor, where the employees attached to the Bureau of Imperial
Records performed the functions of executive officers.
CHAPTER
VI.
It has
seemed to Us advisable, in these instances, to make the duties of court
attendants common to the employees of the Bureau of Imperial Letters and the
officials attached to your tribunal, but, so far as the two Vicegerents of
Pontus are concerned, each of whom We have established in a separate
province (that is to say one in Galatia, and of one in Pacatian Phrygia)
appeals shall be taken from them to Your Highness, as well as to the Most
Glorious Qusastor, and the attendants of your tribunal shall alone act as
court messengers.
CHAPTER
VII.
What We
decree shall take effect, whether the case has been decided by the
magistrate from whom the appeal was taken, for the reason that it was in his
jurisdiction, or whether the magistrate rendered judgment by virtue of an
assignment by Us. In both instances, the officers attached to the tribunal
of Your Highness shall alone act as messengers.
CHAPTER
Vill.
In like
manner, the officials attached to your tribunal shall also exercise these
functions, whether you, in person, take cognizance of the appeal by virtue
of an assignment by Us, or whether you do so because of the rank of the
magistrate from whose decision the appeal is taken, and as being in your
jurisdiction.
CHAPTER
IX.
Again, in
cases in which We require the services of your officials and those of the
employees of the Bureau of Imperial Letters, We desire that these services
shall be rendered concurrently, whether the appeal of the case comes before
you through assignment, or, whether (as We have just stated) you take
cognizance of it because it naturally comes under your jurisdiction.
So far as
cases which are not determined by the magistrates, but only by the
advocates, are concerned, the appeal shall be taken to your tribunal, and to
that of the Most Glorious Quaestor; and, under these circumstances, the
functions of court attendants shall be discharged by the faithful employees
of the Bureau of Memorials; as We do not make any change in this respect,
and preserve the ancient form of procedure, which We also do with reference
to everything else concerning which nothing new has been enacted; and if
subsequently a reason should arise for making alterations, We shall
designate the persons to discharge the duties of court attendants.
EPILOGUE.
Your
Highness will, by special edicts, make known to all persons the matters
which it has pleased Us to promulgate by means of this Imperial law, so that
no one may be ignorant of what We have decreed.
Given on
the fifteenth of the Kalends, after the Consulate of Belisarius, 535.
TITLE Vill.
CONCERNING THE ARMENIANS.
TWENTY-SECOND NEW CONSTITUTION.
The
Emperor Justinian to Acacius, Proconsul of Armenia.
Desiring
that the country of Armenia should be governed by good laws, and in no
respect differ from the rest of Our Empire, We have conferred upon it a
Roman administration; have delivered it from
its
ancient customs; and familiarized it with those of the Romans, ordering that
it shall have no other laws than theirs. We think, however, that it is
necessary, by means of a special enactment, to abolish a barbarous practice
which the Armenians have preserved; for among them women are excluded not
only from succession to the estates of their ascendants, but also from those
of their own brothers and other blood-relatives; they are married without a
dowry; and are purchased 'by their future husbands. These barbarous customs
they have observed up to the present time, and they are not the only ones
who act in this cruel manner, for there are other races that dishonor nature
in the same way, and injure the female sex just as if it were not created by
God, and took part in the propagation of the human race, and finally, as if
it was utterly vile, contemptible, and not entitled to any honor.
CHAPTER I.
Therefore
We decree by this Imperial enactment that the laws in force in Our Empire,
which have reference to the right of women to succeed to estates, shall be
observed in Armenia, and that no difference shall hereafter exist between
the sexes in this respect; that women, in accordance with the rule laid down
in Our laws, shall inherit from their parents, that is to say, in the
ascending line, from their fathers and mothers, grandfathers and
grandmothers, indefinitely; and in the descending line, from their sons and
daughters, no matter in what way either of these transmit their property.
Hence the
Armenians shall no longer be subject to laws different from those of the
Empire; and if they form part of Our subjects, and are under Our government
like many other peoples, and enjoy the benefits conferred by Us, their women
shall not be the only ones deprived of Our justice; and they shall all enjoy
the benefit of Our laws, whether the. latter have .come down to Us from
former ages and have been inserted into Our Institutes and Digest, or
whether they are called upon to obey the Imperial Constitutions promulgated
by Ourself, or by Our predecessors.
CHAPTER
II.
We decree
that these provisions shall prevail for all time, from the beginning of the
fourteenth indiction, the date when We have enacted the present law. If
anyone examines the ancient laws of this nation, he will find in them great
confusion, instead of the rules of a wise legislation; and, for the future
(as We have already stated) from the fourteenth indiction, the rule of
succession shall be uniform for all persons, and shall equally apply to men
and women. We, however, permit everything to remain in the same condition as
formerly, so far as other family property is concerned; for women shall have
no share in estates which have already been distributed, or be entitled to
successions belonging exclusively to the thirteenth indiction; for Our
legislation shall only be applicable to them from the beginning of the
fourteenth indiction, as aforesaid.
EPILOGUE.
Therefore
Your Highness, Your successors, and Your subordinates, will be careful to
see that what it has pleased Us to promulgate by means of this Imperial law,
is perpetually observed.
Given on
the fifteenth of the Kalends of April, after the Consulate of
Belisarius.
AUTHENTIC
OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
FOURTH
COLLECTION.
TITLE I.
CONCERNING MARRIAGE.
TWENTY-SECOND NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
A great
number of different laws have been promulgated by Us with reference to every
branch of legislation; but as many of them appear to Us to be imperfect, We
desired to open a way to Our subjects for better things, and explain to them
in what way their condition may be improved. This law, which is applicable
to all Our subjects, establishes a general rule for their conduct. For as
marriage is so advantageous that it seems to provide an artificial
immortality for the human race, in that, by the procreation of children,
families are constantly renewed, and if God, in his mercy, by this means,
confers an eternal existence upon our species, as far as is possible, it is
only proper for Us to devote the greatest care to matters relating to
marriage. Other laws that We have previously enacted on this subject are not
applicable to all men in every instance, nor for all times; and since, as We
have already stated, marriage is something which concerns all persons, as
the human race is constantly renewed by its agency alone, there is nothing
more deserving of Our attention. Ancient jurisprudence did not, however,
establish a sufficient distinction between first and second marriages, but
allowed fathers and mothers to contract an indefinite number of matrimonial
unions without depriving them of any advantage, and the entire subject
became confused even in its simplicity.
The
greatest care of the legislator with reference to this matter was exhibited
during the reign of Theodosius the Great, and succeeding Emperors were also
animated with the same feeling, especially Leo, of pious memory. We, also,
have published many decrees relating to this question in Our Book of
Constitutions, and have deemed it necessary to amend it, and make certain
corrections by means of better provisions; giving attention not only to the
laws enacted by others, but also to such as have been promulgated by Us. For
We should not blush to amend laws which We have published, and ought not to
leave this to others, when We ascertain that they can be improved and
rendered more effective.
CHAPTER I.
THIS
CONSTITUTION SHALL BE OPERATIVE IN THE FUTURE, BUT SHALL NOT APPLY TO
ANYTHING THAT IS PAST.
We publish
two provisions antecedent to this law. First: all decrees already
promulgated, either by Us or by Our predecessors, shall remain in full
force, and shall not be altered by the present law; they shall be executed
in every instance whenever they apply; all preceding occurrences shall be
controlled by them; and they shall not be affected by this enactment. The
latter shall only be applicable to cases which may arise hereafter; to first
or second marriages which may be contracted ; to marriage settlements that
may, in time to come, be agreed upon; and to successions to the estates of
children. We leave whatever has occurred in the past to be decided by the
laws already published, and by means of the present one We regulate whatever
may hereafter occur. Thus the question arising from second marriages; the
successions of children born of a first marriage, and to which their parents
are entitled; profits resulting from dowries; donations made in
consideration of marriage, or for any other reason, whether there are or are
not any children by a former union; all these matters shall be decided in
accordance with the laws in force at the time of their occurrence.
Both men
and women shall enjoy the benefit of the present legislation, whether they
have married a second time, or their first marriage still exists; or whether
they have succeeded their children; or no matter what they have done, if it
was in conformity with previous enactments. For where a contract was made
with reference to such laws, no one can be guilty of not having taken the
future into consideration, if he trusted to those in existence at that time,
and had no fear of others which had not yet been passed. All past events
shall then continue to be governed by former legislation; and the future
alone shall be subject to the provisions of the present decree, which (as
has already been stated) when marriages are contracted hereafter, shall be
solely observed in every case to which they are applicable.
This is
the first law of this Constitution.
CHAPTER
II.
MARRIED
PERSONS CAN BY WILL RELEASE THEMSELVES FROM THE
PENALTY IMPOSED BY THIS LAW UPON THOSE WHO
CONTRACT SECOND MARRIAGES.
The second
provision is as follows: Every testamentary disposition whatsoever, which
either a husband or a wife may make with reference to these matters, shall
from this day forward be valid. Hence anyone can dispose of his estate in a
suitable manner, and his will shall be legal, as was provided by the more
ancient Code of the Roman Republic, a short time after its foundation (We
refer to the Twelve Tables), which stated: "Every one can bequeath his own
property; let this be the law."
Hence no
one will have the power to act contrary to the wishes of the testator, even
though he may have in his possession an Imperial Rescript, or some other
document authorizing him to do so.
Return to Justinian's Codification
(1) Where
the testator neither said anything, nor made any disposition unprovided for
by former legislation, or contrary to the laws in general; in this case the
present constitution shall be applicable, for it, as far as humanly
possible, includes everything in a small compass; amends the laws having
reference to first and second marriages, as well as those relating to the
successions to children; to the dissolution of marriage caused either by
death or by separation; and to events that take place before or after the
widow's term of mourning has expired; and operates as a supplement to the
one enacted on these different subjects; improving legislation which was
formerly incomplete, frequently changed within five, fifty, and a hundred
years, very inconsistent with itself, and, in many instances, ambiguous and
constantly requiring correction.
CHAPTER
III. IN WHAT WAY MARRIAGE IS EFFECTED AND
DISSOLVED.
Reciprocal
affection constitutes marriage, without it being necessary to enter into a
dotal contract; for when the parties are once agreed and have been
influenced by pure affection, it is not requisite to stipulate for a dowry,
or a donation on account of marriage. We shall treat of this relation as
regards both its origin and end, whether the latter is accompanied by the
penalty or not, since every tie effected by men is capable of being
dissolved.
A penalty
is also prescribed where marriages contracted without a dowry are dissolved;
and these We shall consider first.
CHAPTER
IV.
CONCERNING
DISSOLUTIONS OF MARRIAGE AND DIVORCES WHICH TAKE PLACE BY COMMON CONSENT AND
IN OTHER WAYS.
Marriages
occasionally are dissolved by common consent during the lives of the
contracting parties, but it is not necessary to examine
this kind of separation, because the parties interested settle their
affairs by agreement among themselves; at other times, they are dissolved
for some good reason, and this kind of separation is called divorce by
common consent; in other instances, separations take place without any cause
whatever, and in others still, for one which is reasonable.
CHAPTER V.
CONCERNING
MONASTICISM.
Divorce
takes place without blame whenever either the husband or the wife enters
monastic life, and desires to live in chastity; for another law of Ours
specially provides that either a man or his wife, who devotes himself or
herself to a monastic life, is authorized to dissolve the marriage, and
separate from his or her consort by serving a notice by way of consolation.
And whatever the parties may have agreed upon in case of the death of
either, as set forth in their marriage contract, shall endure to the benefit
of the abandoned wife or husband. The reason for this provision is, that
wherever anyone embraces a different mode of life from that of his or her
companion, he or she is considered to have died, so far as the marriage is
concerned.
CHAPTER
VI.
CONCERNING
IMPOTENCE.
Marriage
is dissolved for a necessary and not unreasonable cause, when the husband is
incapable of copulation with his wife, and cannot do what nature created him
for; and, in conformity with the law which We have already promulgated, if
two years should have elapsed after the marriage, and the husband still not
be able to show that he is a man, either his wife or her parents shall be
permitted to dissolve the marriage, and give notice of repudiation to her
husband, even if the latter should be unwilling to consent; the wife shall
be entitled to the dowry, if one was given, and the husband shall return it
if he received it; and the latter, on the other hand, shall be entitled to
the ante-nuptial donation, and shall suffer no loss of his property.
We amend
this law by making a certain addition thereto; for We decree that not two
years, but three, shall elapse from the date of the marriage; as We have
ascertained that some persons who were impotent for the term of two years
have afterwards showed that they are capable of the procreation of children.
CHAPTER
VII. CONCERNING CAPTIVITY.
The effect
of captivity is to dissolve marriage by mutual consent, where one of two
married persons is in the hands of the enemy; for where the husband suffers
a misfortune of this kind, and his wife remains at home; or, on the other
hand, the wife is reduced to captivity, and her husband remains in his
country, the marriage is dissolved for a reason derived from the condition
of slavery; as, where a person is once reduced to
servitude, the inequality of condition does not permit the equality derived
from the marriage state to continue to exist: Therefore, considering cases
of this kind from an humane point of view, We desire that the marriage shall
remain undissolved as long as it is clear that either the husband or the
wife is still living, and while this is the case, neither the husband, nor
the wife, who is free, shall presume to contract a second marriage without
suffering the consequences of his or her rashness, and becoming liable to
punishment, which We decree shall be for the husband, the loss of the
antenuptial donation, and for the wife, the forfeiture of her dowry.
When any
doubt arises as to the survival of the person in the hands of the
enemy, then, when either the husband or the wife is captive, it shall be
ascertained whether the term of five years has elapsed, after the expiration
of which time, whether the fact of death is established or remains
uncertain, the person who is free will be permitted to marry without
incurring any risk; which species of separation is classed by jurists among
transactions concluded by common consent. We approve of this, since, under
such circumstances, no notice of repudiation is necessary between persons
thus separated from each other, and neither obtains any advantage; for the
husband does not acquire the dowry, nor the wife the ante-nuptial donation,
but each remains in possession of his or her own property.
CHAPTER
Vill. CONCERNING PENAL SERVITUDE.
We
manifest Our indulgence in an instance in which the severity of the law was
formerly exhibited. For when either the husband or the wife was, by virtue
of a judicial decree, sentenced to the mines (such as are now situated in
the islands of the Sea of Marmora, or in what is called Gypsus), he or she
became a slave; and this being established by the ancient legislators as a
part of the penalty, the marriage was dissolved on the ground that the
culprit had been sentenced to punishment and to service as a slave.
We now
annul this provision, and do not permit any person who was well born in the
beginning to. become a slave as a part of his punishment ; for We by no
means desire anyone who is free to be reduced to a servile condition, as We
have long since embraced every opportunity to promote the manumission of
slaves. Hence marriage is in no respect affected by a decree of this kind,
and shall continue to exist among persons who are free.
CHAPTER
IX. DISCOVERY OP THE SERVILE CONDITION.
If a
judicial decree should reduce a free man, a free woman, or their children to
slavery, and the marriage took place before sentence was passed, and it
should afterwards appear that one of them is a slave, this will cause a
separation of the parties interested, just as if death had occurred; for Our
predecessors declared that where slavery was
imposed it did not greatly differ in its effect from death. Therefore, in a
case of this kind, the one who is free shall be entitled to his or her
property; the children shall receive the shares which would go to them if
their father or mother, who was reduced to slavery, had died; and the
balance shall belong to the person in servitude.
CHAPTER X.
CONCERNING PERSONS WHO MARRY
FEMALE SLAVES SUPPOSING THEM TO BE FREE.
Where a
man marries a woman under the impression that she is free, and she
afterwards proves to be a slave, We do not say that the marriage is
dissolved, but that no marriage existed from the very beginning, in
accordance with what has previously been stated by Us relative to the
inequality of conditions; hence, no advantage can be provided for (nor
anything else of the kind) in such a marriage, but actions for the recovery
of the property of both parties will lie. We hereby decree and decide that a
marriage of this description is void only where the person who contracted it
did not know what he was doing, or the owner of the slave did not consent to
the marriage, and there was no evidence of malicious intent or negligence on
his part.
CHAPTER
XI.
When a
master gives his female slave in marriage, representing her to be free, and
the man who marries her is free, and, having confidence in her master, who
delivers her to him, receives her, whether any dotal contract is drawn up or
not, as the master is responsible for the marriage, it will not be just for
such an union to be dissolved, hence the slave shall receive his or her
freedom by implication; and, as the master is responsible for this, the said
male or female slave shall immediately pass to the condition of freeborn
persons and be considered such.
Where,
however, the master did not cause the marriage to be celebrated, but was
aware of what was being done, and designedly kept silent in order afterwards
to be able to bring suit against the husband, who is free, and his
wickedness should be proved, We punish it by depriving him of his slave, and
confirm the marriage, just as if the owner had given his consent in the
beginning; and he shall lose his ownership of the slave, who shall be
considered freeborn, and this will result, whether the master gave his
consent or designedly kept silent. It is clear that any children born of
such a marriage will be free and freeborn, in accordance with this Our law.
CHAPTER
XII.
WHERE A
MALE OR FEMALE SLAVE WHO is ILL is ABANDONED BY His OR HER MASTER.
There is
much more reason for such marriages to be valid where a slave of either sex,
who is ill, has been abandoned, or has been treated
with contempt and sent away against his or her will. Slaves treated
in this manner shall hereafter be considered free, and shall belong to no
one; nor can they afterwards be molested by those who formerly disdained to
possess them.
CHAPTER
XIII.
Deportation, and the ancient interdiction of fire and water, as specified by
Our laws, does not dissolve marriage; for this was decided long since by
Constantine, and has been confirmed by Us; hence We have not included it in
the present enactment, and, such being the case, the rule shall remain as it
formerly was.
CHAPTER
XIV.
THE FIFTH
MANNER OF DISSOLVING MARRIAGE BY COMMON CONSENT, AND CONCERNING ABANDONMENT.
We are
aware that the founder of this Our Most Fortunate City (We refer to the
Emperor Constantine, of Divine memory) enacted a law which provided that
where anyone went upon a military expedition, and four years elapsed without
his communicating with his wife, or giving her any evidence of his
affection, she was free to marry a second time, after having served notice
in writing upon the general-in-chief of the army, in order that he might
bear witness that this was done; and, under these circumstances, she would
incur no penalty by marrying again, nor would she lose her dowry, or be
entitled to the ante-nuptial donation. The Most Holy Constantine promulgated
this law. It does not, however, seem to Us to have been the result of
careful deliberation, for the sorrow that a husband should experience from
being deprived of the society of his wife, while he is exposed to the
hardships of war, is certainly not less than when he is captive in the hands
of the enemy. For this reason We are not willing for the wife to contract a
second marriage as soon as was decreed by Constantine, but she shall be
required to wait until ten years have elapsed, after which time, in case she
should continue to write to her husband or send him messages by anyone, and
he formally renounces the marriage, or remains absolutely silent, then the
wife shall serve notice upon the Most Glorious Commander-in-chief, general,
or tribune, to whose orders her husband is subject; and she can even address
a petition to Us (which, however, shall not be permitted until after she has
complied with the prescribed formalities), and then she will be free to
contract a second marriage; but she is hereby notified that if she does not
do what We have directed, she will be liable to the penalties prescribed by
law for having rashly contracted a second marriage.
(1) These
are the milder ways of dissolving marriages, just as if the parties had a
common interest in severing the matrimonial tie by mutual consent.
CHAPTER
XV. CAUSES FOR REPUDIATION.
Causes
must be sought for the accomplishment of other kinds of divorce when they
are employed either by the husband or wife, in order that the one who is at
fault may be punished by the loss of his or her property; that is to say,
either the dowry or the donation given on account of marriage. The ancient
Emperors established several different causes for divorce. Theodosius the
Younger adopted some of them, introduced others, and published the
constitution having reference to repudiation, and We have added certain
other causes which We have thought had reference to the fault of either the
husband or the wife.
(1) The
following are the causes of divorce prescribed by the Constitution of
Theodosius, of pious memory. If the wife can show that her husband has been
guilty of adultery, homicide, or the administration of poison; or has taken
part in sedition; or (which is the worst of all offences) has plotted
against the government; or has been convicted of forgery, of violation of
sepulchres; or has stolen anything belonging to a religious house; or has
led a dishonest life; or has been guilty of theft; or is one of those
cattle-thieves (who employ themselves in stealing animals or beasts of
burden belonging to others, and transporting them elsewhere) ; or is proved
to be a kidnapper, or to be living a debauched life, and, while his wife is
living, cohabits with other women (conduct which especially exasperates
married women who are of exemplary chastity, and careful to maintain the
honor of the marriage bed), or if the wife can prove that her husband has
attempted her life either by means of poison, by the use of arms, or in any
other way (for there are numerous means by which human malice can be
manifested) ; or where he has beaten her, these are valid causes for
divorce. Therefore, when a wife can show anything of this kind, the law
gives her permission to avail herself of repudiation to annul the marriage,
and receive her dowry or ante-nuptial donation intact, not only where all
these causes of divorce are susceptible of proof, but also where only one of
them can be established.
(2) On the
other hand, the law allows a husband to repudiate his wife if he ascertains
that she has committed adultery; or has been guilty of the administration of
poison; or of homicide, of kidnapping, of the violation of sepulchres, or
the commission of sacrilege; or has aided thieves; or, without the
knowledge, and against the wishes of her husband, she has enjoyed the
pleasures of the table with guests unfit to associate with; or where, in
violation of the orders of her husband and without good cause, she is in the
habit of passing the night away from home; or, without his consent, she
makes a practice of enjoying herself at the circus, and frequenting plays
and theatres (We mean by this where comedies and similar exhibitions are
presented, or where she attends combats between men and wild beasts) ; or
where she treacherously attempts the life of her husband by means of poison,
weapons, or any other means; or where she becomes the accomplice of
persons plotting the establishment of
tyranny; or where she has been proved guilty of forgery; or has laid violent
hands upon her husband. Under such circumstances the law grants the husband
the right to repudiate his wife, when he is able to prove only one of the
causes hereinbefore enumerated, and authorizes him to take the dowry and
ante-nuptial donation.
(3) But,
in case either of these persons should give notice of repudiation without
good cause for so doing, and, in consequence, the marriage should be
dissolved, he or she shall be liable to the penalties which We have
previously prescribed. Moreover, if the wife has been guilty of one of the
above-mentioned offences, or has served notice of repudiation without
sufficient reason, she will be prohibited from marrying again for five whole
years; and any marriage which she may contract before the expiration of this
time shall not be considered legal, and any person can appear in court and
accuse her of having violated the law.
CHAPTER
XVI.
If,
however, a woman has good ground for serving notice of repudiation, and, in
case of a contest, should be successful; or if her husband, having
repudiated her without sufficient cause, has been subjected to punishment;
she will be entitled both to the dowry and the donation given in
consideration of marriage; but she will have reason to blush if she marries
a second time before an entire year has elapsed. This requirement, however,
is not imposed upon a husband who has repudiated his wife without good
cause; for although he will not obtain any pecuniary advantage by doing so,
he can immediately marry again, as no reasonable suspicion can be raised
with reference to his offspring, on which account women are very properly
forbidden to remarry before a year has expired; and this prohibition is so
important that even though the marriage may have been dissolved by common
consent, still, according to a constitution of Anasta-sius, of pious memory,
the interdiction of a second marriage is still imposed upon women for the
term of a year.
(1) These
are the causes for divorce which Theodosius has communicated to Us, to which
We have added three others taken from former laws. For where a woman is so
depraved as designedly to commit abortion thereby rendering her husband
unhappy, depriving him of the hope of having children; or where she is so
licentious that, for the sake of pleasure, she even bathes with men; or
where, while she is still united to her husband, she refers to her marriage
with others; permission is accorded by Us to her husband to repudiate her,
and acquire the dowry and ante-nuptial donation; since these causes are
sufficient for the dissolution of the marriage, and are included among those
for which the Constitution of Theodosius, of Divine memory, prescribed
penalties.
CHAPTER
XVII. CONCERNING SERFS WHO CANNOT MARRY FREE WOMEN.
A serf,
who is under the control of another, is not allowed to marry a woman who is
free, whether the person entitled to his services does not know it, or,
being aware of it, consents; and where anything of this kind takes place,
the master of the serf shall, himself, be permitted to either punish him by
a moderate castigation, or the Governor of the province can order this to be
done, and separate him from the woman with whom he has been fruitlessly
united; for a legal marriage does not take place under such circumstances,
nor is the tender of the dowry or ante-nuptial donation valid; but there is
merely the punishment of an illegal act.
(1) Such
are the causes of the dissolution of marriage during the lifetime of the
contracting parties; and such are also the pecuniary penalties, which
consist of the loss of the dowry and the betrothal gift.
CHAPTER
XVIII.
CONCERNING
MARRIAGES CONTRACTED WITH DOTAL INSTRUMENTS.
We have
also made provision for the punishment of marriages where persons contract
them without any agreement for a dowry, and separate without good cause; for
where a man marries a woman, or a woman marries a man, merely by consent,
and without any contract for a dowry or the bestowal of a gift at the time
of betrothal, the result will be that if a separation takes place on some
frivolous pretext, the person who has been so rash shall not be liable to
any penalty.
We have
enacted a constitution which provides that if anyone should marry a woman
who is under the control of her parents, with the consent of the latter, or
even if he should marry one who is independent, and no dowry is given, or
dotal instrument drawn up, the husband cannot, on this account (although We
have known it to be done in many instances), drive the wife from his house,
where none of the aforesaid reasonable causes exist which Theodosius, as
well as We Ourself, have enumerated. When, indeed, anything of this kind
occurs, and the husband repudiates his wife without good cause, or even when
he states a reasonable cause why his wife should be divorced from him, he
shall be compelled to give her the fourth part of his property; and if it
should amount to four hundred pounds of gold, she shall be indemnified by
the gift of a hundred pounds, that is to say the fourth of the same; and
when his estate amounts to less than this, the portion to be given shall
always be the fourth. If, however, the estate of the husband should be worth
more than four hundred pounds of gold, he shall not be required to give her
more than a hundred pounds; for, in promulgating this law, We have
considered this sum to be that which, for the most part, is provided for in
the constitution of a dowry, it being, of course, understood that the
property of the husband shall, in accordance with Our laws, be free from all
indebtedness.
On the
other hand, if a wife who has received no dowry, is separated from her
husband on account of some fault of her own, or if she should give notice of
repudiation without any reasonable cause, she will be liable to the same
penalty which We have already mentioned ; and if she is to blame for the
dissolution of the marriage, she must wait five years before contracting a
second one. But if the separation results from some act or fault of the
husband, or this takes place by common consent, she shall only be compelled
to wait a year to avoid any doubt as to the offspring, and in order that Our
law may >be perfect in every respect.
CHAPTER
XIX.
CONCERNING
REPUDIATIONS MADE BY SONS UNDER PATERNAL CONTROL.
Another
pious and beneficial provision has been added by Us where notice of
repudiation has been served during the existence of the marriage, for We
forbid fraud to be committed against their parents by children under
paternal control, as We have ascertained that sometimes men designedly, and
without good cause, give notice of repudiation to their wives, and vice
versa; and the marriage is dissolved in order that their parents may be
compelled to pay the dowry or the betrothal gift, just as if this was
legally done; while the husband and wife secretly cohabit with one another,
and their parents are deceived as a reward for having treated their children
with kindness.
Hence We
have drawn up this law, which provides that emancipated children, or those
still under paternal control, whether male or female, shall not be permitted
to dissolve their marriages to the prejudice of their fathers or mothers who
have given or received dowries or ante-nuptial donations, either alone or
along with their children; for as We require the consent of the parents in
the execution of marriage contracts, We do not allow a marriage to be
dissolved to the prejudice of the parents without their consent.
Where,
however, notice of repudiation is served, We do not permit the penalties to
be exacted from the parents, if they had given or received anything either
alone, or along with others; for it would be unreasonable when a parent
cannot dissolve the marriage without the consent of his child, for the
latter, while still a minor, and not knowing what would be advantageous to
him, to be permitted to dissolve it contrary to the wishes of his parents,
and in this way injure them. The philosophical Emperor, Marcus, was the
first one who provided for this, and Diocletian followed him. We also have
approved of this rule; and We here terminate what relates to the dissolution
of marriage where the contracting parties are living.
CHAPTER
XX.
We shall
next discuss marriages dissolved by death, which puts an end to all things.
When a matrimonial union is terminated by
the death
of either the husband or the wife, if the husband survives, he shall be
entitled to the benefit of the dowry, as set forth in the terms of the dotal
agreement; and if the wife survives, she shall receive the nuptial donation
as was agreed upon by the contracting parties; they are not, however,
prohibited from giving unequal amounts of property under such circumstances,
but they are not permitted to provide for unequal advantages in their
contracts, a regulation established by Leo in his laws, and which We, having
adopted, have set forth with greater clearness. For where either of the
parties in their agreement makes arrangements for either greater or less
pecuniary benefits, it will be uncertain whether the amount should be
increased on one side or be diminished on the other. Wherefore We have
decided that thex-large r donation must be reduced to the size of the smaller
one; for example, if one of the contracting parties has given a third and
the other a fourth, the fourth alone will constitute the donation of each,
and the amount in excess of this shall be equally divided; but this rule
shall not apply to property which the parties themselves have agreed upon.
(1) When
the marriage is dissolved for one of the causes hereinbefore specified, it
will be better for both parties to remain single, and not sadden their
children by contracting other marriages. If they should separate without
marrying again, they will be entitled to retain what belongs to them, that
is to say, the woman shall have the dowry, and the husband the ante-nuptial
donation; still We do not impose any penalty when they contract second
marriages. In this case they shall obtain the same advantages as in the
first instance, for the husband shall be entitled to the dowry, and the wife
to the antenuptial donation, the right to which shall severally vest in
them, and the title shall in no way differ from that of their other
possessions; so that, during their lives, they can alienate them in the same
way as other property belonging to them from the beginning. If, however,
they should die, they shall be permitted to dispose of such property to
strangers by means of legacies and trusts, and We permit alienations of this
kind to be made under the terms of constitutions already promulgated by Us.
(2) When,
however, married persons appoint their children heirs to a portion of their
estates and strangers heirs to the remainder, the property above mentioned
shall be considered as not alienated, for alienation is not held to take
place when a stranger is appointed heir, but the property still remains in
the children. For if anyone should appoint all his children heirs to unequal
shares of his estate, they will not receive the dowry or ante-nuptial
donation in proportion to their hereditary shares, but will divide them
equally, according to their number; and they will do this even if their
father did not appoint any of them, but only strangers, his heirs; or they
will be indemnified in some other way, even if they should not be the heirs
of their parents.
We have
made this provision presuming what the wishes of the parents would be, for
as they did not alienate the dowry or ante-
nuptial
donation while they were living, when they were not obliged to do so, and
when at death they did not expressly dispose of such property in favor of
other persons than their children, and did not leave it to strangers, this
property, according to Our law, will go to the children as a preferred
legacy, even though they did not become the heirs of their father or mother,
or both of them, as well as where some of them become heirs, and others
reject the estate; for this seems to Us more just than the rule established
by Our predecessors. The benefit resulting from this law is that the
children will not be disturbed or their rights affected, unless they
themselves have given cause for this to take place.
CHAPTER
XXI. CONCERNING UNGRATEFUL CHILDREN.
If any
child should be found ungrateful, We give its property to the other children
who have not acted in this manner, in order that We may compel children to
honor their parents and imitate the example of their brothers. But where all
of them are ungrateful, then the property of the deceased, including the
dowry and ante-nuptial donation, shall go to the other heirs, just as if it
had been left to them; for We do not give it to the children, because they
should not be rewarded for having treated their parents with disrespect.
(1) Where,
however, there are children, and grandchildren representing others who are
dead, We give the shares of the latter to their offspring, if they are the
heirs of the father; otherwise We grant it to the brothers of the deceased.
Hence, in enacting this law, We desire that this provision shall not only
apply to the dowry, but also to the ante-nuptial donation, and also be
applicable where no dowry has been provided for, on account of the
advantages introduced by Our Constitution. For when parents do not contract
second marriages but remain single, the property shall belong to the
children in the same manner which We have previously mentioned.
CHAPTER
XXII. CONCERNING SECOND MARRIAGES.
Where
persons, not content with their first marriages, marry again, it is
necessary for the law to provide for cases where there is no issue by the
second marriage; or where there is issue by the second; or where, on the
other hand, there are no children by the second marriage but there are some
by the first; or where there are children by both marriages; or where there
are none by either. Therefore, where the " first marriage, or both, are
childless, no penalty will attach to the second marriage, as the husband
shall be free from the observance of any rule, and the wives shall only be
required to permit a year to elapse before marrying again, for they are
notified that if they marry before the expiration of this time, they will be
liable to punishment
and this
punishment shall be more severe when there are children by the first
marriage than when there are none. When there is no issue, the woman will be
branded with infamy on account of the haste which she shows to contract
another marriage; and she shall not be entitled to anything which may have
been left to her by her first husband, nor shall she enjoy the use of the
ante-nuptial donation; and she cannot give to her second husband property in
excess of the third part of her estate; nor can she receive anything from a
stranger, nor any estate, trust, legacy, or donation mortis causa;
but all these things shall pass to the heirs of the deceased, or to her
co-heirs, where she is called to the succession in default of other heirs.
But where
other heirs are appointed, or are entitled to the succession ab
intestate, they shall receive the property bequeathed to a woman of this
kind, and the Treasury shall not claim it (in order that We may not seem to
have appropriated such property for the benefit of the Treasury), and
whatever may come to her from any outside source shall belong to them.
Anything left by her first husband shall, under such circumstances, pass to
persons related to him in ten degrees of succession, as enumerated in the
Edict; that is to say ascendants, collaterals to the second degree, and the
other degrees in their regular order. In case none of these exists, the
property shall go to the Treasury. The woman will not be entitled to the
estates of her own cognates any farther than the third degree who may die
without leaving a will, for beyond that degree her relatives have other
heirs. We decree that one penalty to be inflicted upon such a woman is
infamy, from which, however, she can be released by Imperial Letters,
provided she has no children by her first marriage. If, however, she should
have children of either sex, she can petition the Emperor to be relieved of
the reproach of infamy, but she cannot obtain any benefit from rescripts.
Where she wishes to enjoy the full effect of Imperial clemency and be
released from other penalties, she must bestow upon her children by the
first marriage half of her property absolutely, and without any condition
whatsoever, nor can she retain the usufruct of the same; and this applies to
all the property which she had when she married the second time, half of
which (as We have already stated) must be transferred to the children who
are the issue of the first marriage. This property the said children shall
divide equally among themselves, and where they have offspring, they will
transmit it to them (for it is necessary to add something to the ancient
laws), but where the deceased did not have any children, her share shall
pass to her brothers; and if all these should be dead, the mother shall be
entitled to the property by way of consolation for her unhappiness; and We
make this provision where the children die intestate, for where the mother
has once been dispossessed of the property, We forbid them to bequeath it by
will; or, when they survive, to dispose of it in any way they may wish.
Women who marry before their year of mourning has expired incur these
penalties; and this law forms a supplement to the three constitutions
already promulgated on this subject.
CHAPTER
XXIII.
WHERE A
WOMAN MARRIES AGAIN AFTER THE YEAR OF MOURNING HAS
ELAPSED, AND CONCERNING THE PROFIT OF THE DOWRY
AND ANTE-NUPTIAL DONATION.
When a
woman allows the prescribed time to elapse without marrying again, and by so
doing escapes the above-mentioned penalties, and she then contracts a second
marriage (as has been previously stated), she can do this without any risk,
provided she has no children. But when there is issue by the first marriage,
as the law considers children dishonored on this account, then all the
property which she has acquired from her husband shall be taken from her,
with the exception of the usufruct of the same.
This rule
also applies to ante-nuptial donations and all other gifts bestowed by her
first husband, either during his lifetime, or left to her by will, or by
donations mortis causa,, whether she received them through an
appointment under a will, or as a legacy, or under the provisions of a
trust. And, generally speaking, where a woman forfeits all right to any
property of her first husband which she may have received, her children
shall be entitled to it, and the ownership shall pass to them from the time
that their mother was married to another man. This penalty is imposed both
upon the husband and the wife, for if the husband has children and marries
again, he cannot enjoy the benefit of the dowry on account of his gain by
the second marriage, because he obtains other property from this source to
which his right is indisputable. He can use and enjoy what he acquired by
the first marriage as long as he remains single, and his children, even
though they may be under his control, acquire the ownership of said property
the moment that he contracts a second marriage.
We make no
distinction where the dowry or ante-nuptial donation has been given by the
contracting parties themselves; or where others have done this in their
behalf; or whether members of their own family or strangers have given it.
This rule applies to both ante-nuptial donations and dowries.
CHAPTER
XXIV.
What is
decreed in this law with reference to the profit derived by persons through
marriage is so strict that it prohibits all alienations, and does not even
permit parents to make them under such circumstances, or to hypothecate the
property, and if they should do so, their own estates will be liable. This,
however, does not prevent them from disposing of such property in any way
which they may desire, for the law would blush to authorize children to
punish their parents. It threatens others, who acquire the property, by
making the transaction void; and persons are notified by this Our law that
where they purchase property from parents under such circumstances, or
accept it from them by way of donation, or commit any of these acts, the
result will be that whatever has been done or written shall have no legal
effect. For the children, their heirs and successors, can
recover
the property from the said third parties, their heirs and successors, who
shall have no right to oppose them, unless the term of thirty years has
elapsed in favor of those who obtained the property, and this shall begin to
run against the children from the time when they attained their majority, or
were emancipated, unless the fact that some of them have not yet arrived at
puberty may cause the prescription to be extended.
CHAPTER
XXV.
Property
of this kind goes to all the children by the first marriage. We do not
permit parents, by means of selection, to give them unequal shares through
being generous to certain ones and unjust to the others, for all the
children are disgraced alike by a second marriage; but as parents succeed to
their children as heirs, receiving equal portions of their estates, why
should they appoint some to the prejudice of others, and not distribute
among them equally the property acquired in this manner? Hence every child
shall be entitled to a share equal to that of each of the others, and if he
has any children, he will transmit it to them. The grandchildren who divide
the property among themselves cannot claim any more than what their father
would have received.
CHAPTER
XXVI.
CONCERNING
THE BENEFIT TO BE DERIVED FROM DOWRIES AND ANTE-NUPTIAL DONATIONS WHEN AN
AGREEMENT HAS BEEN DRAWN UP WITH REFERENCE TO THEIR BEING NO ISSUE BY THE
MARRIAGE. (SEE NOVEL II, CHAPTER II.)
Since We
have stated that the alienation of property obtained through a former
marriage by parents is void, still it is proper to modify this to a certain
extent. We have provided that such an alienation is absolutely void where
all the children who were the issue of the first marriage are living, and
their parents have died before them; but, on the other hand, if all the
children should die first, the property will belong to the surviving parent;
for who could impose such a restriction, when the children for whose benefit
alone We have enacted this are no longer in existence? But an ingenious idea
has enabled Us to establish a proper medium in these two instances; that is
to say, where the children are still living and the father who married again
is dead, no share of the property obtained by marriage will belong to those
who have contracted second nuptials; and where all the children have died,
the property reverts to them; hence if one of the deceased children has left
any offspring, his property, as We have frequently stated, will pass to
them. But where the said child dies without issue, his share will not
entirely accrue to his brothers, but the parent who is married again will
acquire as much of it as he or she would have a right to by virtue of the
non-existence of children, and the remainder will go to the successors of
the son,
namely,
his brothers, or strangers who were appointed heirs (which usually happens
when the mother marries again), whether the child dies intestate, or after
having made a disposition of his property. We have inserted this rule into
Our laws, and have been the first to adopt it, and to accord this
indulgence. Therefore when a parent has alienated property obtained by a
former marriage before contracting a second one, and then one of his
children dies, the alienation which he made will only be valid so far as the
share to which he would be entitled by virtue of the clause providing for
the non-existence of offspring is concerned; and it will be void with
respect to the other shares to which the heirs of the deceased children are
entitled.
Hence the
effect of the alienation will remain in abeyance, and subject to the
occurrence of subsequent events; and it will either be entirely void from
the very beginning, or perfectly valid; or it will be void or valid only to
a certain extent.
(1) We
make no distinction with reference to any nuptial property which children
may acquire by the second marriage of their parents, where they are the
heirs of the dead husband or wife, or of him who has survived either of
them, when some of them have been appointed heirs, and others have not; for,
as has already been stated, We grant the property obtained by marriage to
all surviving children, whether they have been appointed heirs or not, as it
should be divided equally among them, and any grandchildren will be entitled
to their proportion of the share of their father. But (as We have previously
stated) ingratitude will always be an impediment to a child in acquiring any
of such property; for in Our laws We do not manifest indulgence to
ungrateful children, but, on the other hand, We desire that they shall honor
their parents and show them filial respect. As We prohibit any favoritism,
and accord to all an equal share of the property, so also We do not repeal
what has been provided in case of ingratitude. For it is clear that a child
should be considered as ungrateful who has been guilty of such conduct
either toward both its parents, or toward the one who died last.
CHAPTER
XXVII.
CONCERNING
THE PROHIBITION OF ALIENATING MORE
THAN A
SINGLE SHARE OF PROPERTY OBTAINED BY
MARRIAGE.
The
observations made by Leo, of Divine memory, with reference to the
obligations of persons who contract second marriages, seem to Us to be
excellent. For he says that where parents, who have had children by a first
marriage, contract one or more subsequently, the father cannot give to his
second wife, nor the mother to her second husband, either by a donation
inter vivos or mortis causa, any amount in excess of the share
that a child of either sex, the issue of the first marriage, could claim if
he or she were living; and that where there are several children who succeed
to equal shares, neither the stepfather nor the stepmother will be entitled
to more than each one of
them.
Where a parent, who marries a second time, leaves his or her estate to his
or her children unequally divided, the father is not allowed to give to his
second wife, or the mother to her second husband, either by means of a
donation inter vivos, or by last will, any more than a share of the
estate equal to that of the child who is entitled to the least; and everyone
is aware that formerly a fourth, and that at present a third, and, under
certain circumstances, the half must be left to children, unless they have
rendered themselves unworthy by ingratitude. This rule must likewise be
observed where a grandfather or a grandmother, a great-grandfather or a
great-grandmother having grandchildren or great-grandchildren of either sex
under parental control, or emancipated, and descendants in the paternal or
maternal line, marries.
Leo has
also very properly observed that where anything has been left or given to a
stepfather or a stepmother, in excess of the share to which either is
entitled, this is considered as not having taken place, and the surplus
shall be divided equally among the children.
It has
also been stated in a constitution that children who are the issue of a
second marriage have a right to share in this surplus, but We are not
willing to sanction this, and only the children born of the first marriage,
for whose benefit We have enacted this legislation, shall profit by it,
without anyone being able to deprive them of this advantage, either by the
interposition of other persons or in any other way. This surplus, however,
shall only be divided among children who have shown proper respect to their
parents, for We exclude from this privilege those who have been guilty of
one of the kinds of ingratitude enumerated by the laws, in order that the
hope of sharing in the aforesaid surplus may, in every instance, induce them
not to manifest any insolence, and violate the laws of nature.
It is
perfectly clear that if any of the children entitled to part of the surplus
in question should die, his share shall pass to the surviving children, and
the children of the deceased shall, in accordance with their number, each
receive the portion to which he or she is entitled.
CHAPTER
XXVIII.
Up to this
time, it has not been determined by the laws to what date it is necessary to
refer, in order to decide if the donation made to a second husband or wife
is in excess of what is proper; that is to say, if it is necessary to revert
to the time of the donation, or only to that of the dissolution of the
marriage, and it appears to Us advisable to go back to the date of the death
of the husband or wife who made the donation. For while men at the time of
their decease dispose of more or less of their property, the distribution of
their estates is generally dependent upon the caprices of fortune.
Hence, in
order that there may be no mistake, reference shall be had to the time of
the death of the husband or wife who has married a second time, and from
this date the appraisement of the donation given by the second husband or
wife shall be made; and if it exceeds the amount which could be bequeathed,
the surplus shall be adjudged
to the
children of the first marriage; and, in all cases of this kind, not the date
of the donation or testamentary disposition, but that of its occurrence
shall be considered.
CHAPTER
XXIX.
CHILDREN
BY BOTH MARRIAGES SHALL RECEIVE RESPECTIVELY THE PROPERTY OBTAINED BY THE
MARRIAGE OF WHICH THEY ARE THE ISSUE.
We do not
think that We should neglect confirming what Theodosius the Younger, of
pious memory, decreed, when he stated that where a woman, having had
children by a first marriage, contracts a second by which she also had
children, and then her second husband should die, and she herself should
subsequently die intestate, the children born of the two marriages shall
share her estate equally; but those in each line shall be entitled to the
ante-nuptial donations of their respective fathers. Thus the children by the
first marriage will receive the entire donation given in consideration of
that marriage, just as the children born of the second will also have a
right to all the advantages resulting from it, even when the wife does not
marry a third time; for how would this benefit the children by the first
marriage? And how can it injure the issue of the second marriage, if the
children by the third marriage are not injured? Each set of children shall
then participate in all the advantages enjoyed by their father; those by the
first marriage will be entitled to its advantages, and those of the second
to the benefits conferred by the latter, even though the woman may not marry
a third time. As a natural consequence, whatever applies to the wife is also
applicable to the father when he marries a second time. Hence, just as the
dotal property of the first marriage is preserved for the children who are
the issue thereof, so, likewise, that derived from the second will belong to
the children born of it, even though the father may not contract a third
marriage.
(1) But
either a father or a mother, who contracts a second marriage, will be
entitled to any advantages resulting therefrom through either legacies or
trusts, even if he or she should marry a third time; for they will acquire
full ownership without the third union being able to prejudice them in any
respect, and the property will become a portion of their estates which they
can dispose of in any way that they may desire.
CHAPTER
XXX.
No MATTER
BY WHAT KIND OF A DIVORCE A MARRIAGE MAY BE DISSOLVED, ALL THE PROPERTY
ACQUIRED THEREFROM MUST BE PRESERVED FOR THE CHILDREN WHO ARE THE ISSUE OF
THE SAME.
As We have
established regulations concerning the dissolution of marriage which most
frequently occurs through death, We desire to add a brief provision relative
to the advantages acquired, whatever
they may
be, whether derived from the dowry or the ante-nuptial donation, when the
marriage is dissolved through separation by common consent, or in any other
way; for these advantageslike those obtained through the death of one of
the married personsshall entirely be preserved for the children; and this
rule shall apply even where there is no dotal agreement, whenever, in
accordance with one of Our laws, the presumption of either the husband or
wife, who has given cause for repudiation, is punished. Nor do We make any
distinction as to which one of them is to blame for the divorce. For no
matter in what way it is obtained, the property derived from the marriage
shall go to the children who are the issue of the same, whether the
dissolution of the first or the second marriage be involved, even where no
third marriage has taken place.
CHAPTER
XXXI.
A DOWRY OR
A DONATION ON ACCOUNT OF MARRIAGE GIVEN AT THE TIME OF THE FIRST NUPTIALS
CAN EITHER BE INCREASED OR DIMINISHED, AND THIS CAN ALSO BE * DONE IN CASE
OF A SECOND MARRIAGE WHERE THERE ARE NO SURVIVING CHILDREN WHO ARE THE ISSUE
OF
THE FIRST.
Some
former laws have been enacted with respect to the increase or diminution of
dowries and ante-nuptial donations, and, after due consideration, We have
not only granted permission to married persons to increase donations on
account of marriage during the existence of the latter, but We have also
allowed them to do so from the very beginning; and as We have permitted them
to augment these donations, so also We have allowed them to diminish them;
but in order that what has been stated with reference to diminutions may not
violate the provisions of the Constitution of Leo, of pious memory, We do
not authorize married persons to make any such diminutions during the second
marriage, when there are any children who are the issue of the first. For if
an excessive dowry should be given at the time of the second marriage, or a
similar ante-nuptial donation should be provided for, or any other
extraordinary gift should be made, and afterwards, one of the parents having
ascertained that this was prohibited by law, should defraud his children by
diminishing the said dowry or donation, the consequence would be that the
issue of the first marriage, having been injured, would not receive what
they were legally entitled to, and the stepfather or stepmother would profit
by their
loss.
CHAPTER
XXXII.
CONCERNING
THE USUFRUCT LEFT BY A HUSBAND TO His WIFE OR A DONATION MADE BEFORE THE
MARRIAGE WAS
CONTRACTED.
Where a
husband has given to his wife, or a wife to her husband, by testamentary
disposition, the usufruct of his or her estate, an
ancient
law prescribed that if the spouse who gave it should marry a second time, he
or she would lose the usufruct in the same way in which they would be
deprived of the ownership, if it had been left to either, and that the said
usufruct would afterwards be acquired by the children; and, if they were
under the age of puberty, the parent who married a second time would be
accountable to them for the enjoyment of the usufruct during their minority,
for this is what the law directs.
We do not
think that this provision is satisfactory, and We decree that where the
usufruct of property which anyone is permitted to dispose of in this way is
bestowed as a gift, or as a donation mortis caiisa, the recipient
will be entitled to the enjoyment of it during his lifetime, even though he
may marry a second time; and the same rule will apply to the use of the
property, unless the husband or wife who either gave or bequeathed the
usufruct expressly stated that if the one to whom it is given should marry
again, the usufruct will determine, and revert to the ownership. We decree
that these rules shall be observed whenever a gift of the usufruct is made.
CHAPTER
XXXIII.
WHERE THE
USUFRUCT OF PROPERTY is GIVEN BY WAY OF DOWRY OR ANTE-NUPTIAL DONATION.
Where,
however, the usufruct of property is bestowed by way of dowry, or at the
time of betrothal, We establish no innovation with reference to it, but all
previous regulations are hereby confirmed, and the property shall remain in
the hands of the recipient during his or her lifetime, even though the
persons who made the donations should revoke them ten thousand times when
they are at the point of death; for a private individual is not authorized
to deprive anyone of an advantage conferred by law.
CHAPTER
XXXIV.
A FATHER
DOES NOT LOSE THE USUFRUCT OF PROPERTY WHICH BELONGED TO THE MOTHER OR WAS
ACQUIRED BY
MARRIAGE.
While We
are treating of the subject of usufructs preserved by the laws, it will be
advisable to confirm the provisions included in the three preceding
constitutions, which state that the father, even though he may marry again,
will be entitled to the usufruct of all the property which passes to his
children, whether through the maternal line, by means of donations in
consideration of marriage, or in any other way; for the laws of Our
predecessors have declared (and We hereby confirm it) that fathers, during
their lifetime, have the right to the entire usufruct of property derived
from the mother, or from anyone else, which belongs to the children. We,
however, except from this rule all peculium castrense or quasi
castrense.
CHAPTER
XXXV.
WHERE A
WOMAN WHO HAS GIVEN PROPERTY TO HER CHILDREN DESIRES TO REVOKE THE GIFT ON
ACCOUNT OF THEIR INGRATITUDE, AFTER SHE HAS CONTRACTED A
SECOND
MARRIAGE.
Where a
mother, who has given something out of her own property to her child,
marries a second time, she will not be permitted under the pretext of
ingratitude to revoke the gift which she made. For she cannot allege this
reason because she will be presumed to have acted on account of her second
marriage; still, the case will be otherwise if it is established that the
child has openly attempted the life of its mother, or has raised impious
hands against her, or has tried to deprive her of all her property.
CHAPTER
XXXVI.
WHERE A
WOMAN HAS CONTRACTED A SECOND MARRIAGE SHE CANNOT TAKE ADVANTAGE OF THE RANK
OR PRIVILEGES OF HER FIRST. HUSBAND.
We do not
permit a woman who has contracted a second marriage to continue to enjoy the
dignities and privileges of her former husband, but she shall be reduced to
the condition of the second; and the reason for this is that the woman who
forgets her first marriage ought not to be allowed to profit by the
advantages derived from it.
CHAPTER
XXXVII.
CONCERNING
FREEDWOMEN WHO MARRY THEIR PATRONS.
The
Emperor Alexander, of Divine Memory, has taken precedence of many ancient
legislators by having decreed that if anyone should manumit a female slave,
and then marry her, and she, after having thus been raised above her rank,
should obtain a divorce, the law will not permit her to marry a second time
without the consent of her first husband; for it would consider this second
marriage not as a matrimonial union, but as mere fornication and debauchery,
by means of which a disgraceful injury is inflicted upon him who gave her
her freedom.
CHAPTER
XXXVIII.
We have
also found a constitution of the same Emperor which We think worthy of being
confirmed by Us, which says that, as a mother appears better fitted to
conduct the education of her children than anyone else, this law confers
that right upon her, unless she contracts a second marriage.
CHAPTER
XXXIX.
WHERE A
HUSBAND RETURNS THE DOWRY TO His WIFE DURING MARRIAGE.
Dowries
which the contracting parties have received are not readily transferred to
wives during the existence of the marriage, unless for certain causes
enumerated by the law; and where such a thing takes place, it is held to be
merely a donation. If the woman should die, the husband who returned the
dowry to his wife prematurely will receive it again from her heirs, together
with any profits which may have accrued in the meantime; and he and his
heirs will be entitled to the benefit of the same, in accordance with the
terms of the nuptial agreement. If the husband should marry a second time,
the children can hold the dowry without power of alienation, as is generally
provided. But where the husband did not return the dowry .while the marriage
was in existence, it can be recovered from the heirs after the death of the
wife, in compliance with the dotal contract.
CHAPTER
XL.
WHERE A
WOMAN WHO is ADMINISTERING THE GUARDIANSHIP OP HER CHILDREN MARRIES A SECOND
TIME.
When a
woman who is administering the guardianship of her minor children, and has
sworn that she will not contract a second marriage, disregards her first one
and her oath by marrying a second time, without having previously had a
guardian appointed for her said children, renders her account, and
discharges all indebtedness, the law not only subjects her own property to
hypothecation for the benefit of her children, but also that of her second
husband; and it excludes her from the succession of any deceased child under
the age of puberty, even though she may maintain that its father substituted
her for it. This rule has been established by Our predecessors.
We,
however, are surprised that when a woman is so wicked as to disregard her
oath, and so desirous of contracting a premature marriage as to forget three
most important things, the wrath of God, the respect due to her deceased
husband, and the affection she should entertain for her children,
legislators should have subjected her to such a light penalty, when they
severely punished a woman who marries before her time of mourning has
expired, and thereby manifests but little consideration for her children,
establishing this regulation solely through honorable motives, even where
the woman has no children; and, where she is so under the domination of her
passions, did not subject her to the same penalties to which those women are
liable who marry a second time before their term of mourning has elapsed.
Hence We
decree that, hereafter, when women presume to perjure themselves in this
way, they shall be liable to all the preceding penalties which We have
previously formulated with reference to widows who marry before their term
of mourning has expired, that is to say,
infamy and
other punishments. We, however, grant them the power to release themselves
from these penalties in the same manner as the others are authorized to do,
namely, by petitioning the Emperor, and giving half of their property to
their children without reservation of the usufruct; and We place the woman
who has thus prematurely contracted a second marriage, and the one who has
married before her term of mourning has expired, in the same category. But
where a woman who is administering the guardianship of her natural children
(for We also have authorized her to do this) marries a second time, and does
not do what is hereinbefore prescribed, she shall be liable to the same
penalties.' When a woman who is discharging the duties of a guardian desires
to marry a second time, provision shall be made in the provinces by the
Governors of the same, and here by the Most Glorious Prefect of the City
together with the Praetor having jurisdiction, for the appointment of a
guardian for her minor children; and she must render her account, and
discharge all indebtedness incurred by reason of the trust.
CHAPTER
XLI.
THE LAW OF
ZENO, RELATING TO A LEGACY SUBJECT TO A
CONDITION
LEFT BY A FATHER OR A MOTHER TO His OR
HER
CHILDREN, is HEREBY CONFIRMED.
We adopt
the Constitution of Zeno, of pious memory, which provides that when a father
is directed to bequeath to his own son a legacy either under a condition, or
at some specified date, security to preserve the legacy can only be required
of him in case he marries a second time, for the obligation to furnish it is
among the penalties imposed upon a husband who contracts a second marriage.
CHAPTER
XLII.
CONCERNING
ECCLESIASTICS WHO CANNOT MARRY. (SEE NOVEL VI.)
Where any
member of the most reverend clergy (We refer to those above the rank of
reader and chorister) contracts a marriage, We decree and desire that he
shall be expelled from the priesthood. If a reader should marry, and then,
through some inexorable necessity, should marry again, he shall not be
raised above the rank of reader, and his affection for his wife will be an
impediment to his promotion; but where a layman is about to be ordained a
deacon, a subdeacon, or a priest, and it should subsequently be ascertained
that he had married a woman who was not a virgin, but who had been divorced,
or with whom he had formerly lived in concubinage, or if he who is about to
be ordained has married a second time, he shall not obtain admission to the
priesthood, and if he should obtain it by concealing the facts, he shall, by
all means, be expelled.
CHAPTER
XLIII.
WHERE A
HUSBAND LEAVES PROPERTY TO His WIFE ON
CONDITION
THAT SHE DOES NOT MARRY AGAIN; AND
CONCERNING
THE LEX JULIA MISCELLA.
The matter
which follows is of great antiquity, and has received many corrections, not
only by others but also by Us, without, however, being rendered perfect; for
which reason We now, by way of amendment, establish the present rules.
The
ancient law, styled the Lex Julia Miscella, enacted with a view to
the procreation of offspring, permitted women, even where their husbands had
left them something on condition that they should not marry a second time,
to do so, and to swear that they acted for the benefit of their children;
and even where the woman married within a year the law authorized her to
take what was bequeathed to her.
Where,
however, she allowed the year to elapse without marrying a second time, the
law did not permit her to obtain the legacy without furnishing security that
she would not marry again. It was not Julius Miscellus who caused this to be
enacted, but Quintus Mucius Scffivola, who was instrumental in having
security furnished in cases where prohibitions of this kind existed.
Therefore We, being aware that the x-large majority of women who had sworn not
to marry again were induced to do so not for the purpose of having children,
but through necessity, thus disobeying the directions of their deceased
husbands, have thought that the more sacred part of this law should first be
corrected, and the opportunity for committing perjury removed, and hence
that they should not be required to take an oath, and thereby be tempted to
swear falsely. For it certainly was not the intention of. the law that women
who have no children, as well as those who have, should be sworn, a
proceeding which was offensive to God, as well as insulting to the memory of
the deceased husband, when it was so easy to commit perjury, especially when
the procreation of children was sox-large ly dependent upon chance.
Therefore,
as We have by this Our law excused women from taking the oath under such
circumstances, and authorized them to receive what was left by their
husbands, We have considered it advisable (as this is something which has
also been omitted by Us) to make provision with reference to the memory of
the deceased husband. Hence We promulgate this law, for We do not desire the
wills of deceased persons to be set at naught, or their widows to obtain
anything which is illegal; for if We should say that a woman must, by all
means, comply with the wishes of.her husband by not marrying a second time,
the law would with reason be considered too harsh; but, on the other hand,
it would be too indulgent if it permitted her to marry again, and also to
receive what was left to her; for it would be a most flagrant offence to
treat the wishes of the deceased husband with contempt, and insult his
memory, if permission were given to his widow both to receive the legacy and
to contract a second marriage.
CHAPTER
XLIV.
Wherefore
We decree that when a husband forbids his wife, or a wife her husband (for
the same rule is applicable to both) to marry a second time, and bequeaths a
legacy under this condition, the spouse who was entitled to it shall have
the choice of two things, namely: either to marry again and renounce the
legacy, or if she should be unwilling to do this, and wishes to honor the
memory of the deceased, always abstain from marrying a second time.
(1) But to
prevent the matter from remaining in suspense, and, besides, in order that
the return of the legacy may not be required after the lapse of a certain
time, it seems to Us to be proper for the person entitled to the legacy to
demand it before the expiration of a year, provided an exception is not made
in his case on account of his entry into the priesthood, since he can then
entertain no hope whatever of marriage.
(2) When,
however, the year has expired, We permit the person to whom the legacy has
been left to receive it, not absolutely or simply, but where it consists of
immovable property, the legatee cannot acquire it without furnishing
juratory security,1 and by encumbering his or her own property
(which We give authority to be done tacitly under the terms of this law),
and if the said person should contract a second marriage, he or she must
return what was given, as well as any profits that may have accrued in the
meantime.
(3) But
where the property is movable, the person entitled to it, if solvent, can
obtain it by providing the same security and hypothecation. But when
restitution takes place, the property must be returned in the same condition
in which it was when received, or indemnity must be furnished for any
diminution in value which may have taken place.
(4) When
the legacy consists of money with the interest which can be obtained from
it, the person entitled to the same must furnish juratory security. Where,
however, it was not absolutely given, but only the use of it, interest shall
be paid to the legatee at the rate of four per cent.
1
The juratoria cautio of the Roman law, which was applicable to many
other cases than that mentioned in the text, and by which a promise under
oath was given, generally when no better security could be obtained, is
known to the jurisprudence of Scotland, and may be taken in "advocations,"
or transfers of actions from an inferior to a higher court; and in
"suspensions" of decrees in foro, which practically amount to stays
of execution. "Where the suspender cannot from his low or suspected
circumstances procure unquestionable security, the Lords admit juratory
caution, i. e., such as the suspender swears is the best he can offer; but
the reasons of suspension are in that case to be considered with particular
accuracy at passing the bill." (Erskine, Principles of the Law of Scotland
III, III, Page 357 [note] ; IV, III, Page 621.)
In
offering the juratory caution, the party either enters into his own
recognizance to secure his presence at a criminal trial, or he makes an
affidavit containing a detailed statement of his personal property, which he
thereby assigns to his adversary by way of security. (Vide Paterson,
A Compendium of English and Scotch Law, Pages 495, 546.)ED.
(5) When
the legatee is not a person of means, a surety will be required; and if he
or she is unable to furnish one, then juratory security must be given, and
the hypothecation of his or her property will take place (as has already
been stated).
(6) As
soon as the legatee has married a second time, whatever was given to him or
her can be recovered by the person who gave it, or his representatives; and
We order that this rule shall be observed in every case of restitution,
whether the property be movable or immovable.
(7) When
what has been bequeathed consists of money, and the legatee is not solvent,
and cannot furnish a surety, and is himself unworthy of credit, the money
will then remain in the hands of the person charged with its payment, and
will bear interest at four per cent until the legatee becomes solvent, or
contracts a second marriage (or until the accumulation of interest exceeds
the capital), or until it becomes clear that the legatee will never marry
again either through his or her entrance to the priesthood (in which
instance nothing shall be paid), or in case of death; for then the heirs
shall be entitled to the legacy without being required to refund the
interest.
(8) We
have introduced this provision, which shall apply not only where married
persons have made bequests reciprocally under such a condition, but also
where a stranger has left a legacy to either the husband or wife
conditionally, as aforesaid. This law shall be executed in accordance with
its nature, whether the payment of the legacy or its restitution is
involved.
This is
what We have decreed with reference to the constitutions recently
promulgated by Us on account of the Lex Julia, Miscetta; but the
other kinds of legacies will take effect in accordance with the terms of the
donation, and in conformity with the provisions which We have prescribed.
(9) The
security above mentioned by Us shall be given to the heirs or their
substitutes, or to those to whom they have been bequeathed, where there is a
partial appointment, or portions of legacies are left, and when there is a
donation mortis causa, the security shall be furnished entirely to
the heirs. Where, however, an heir has been appointed to the entire estate
under such a condition, security must be given to the substitutes, if there
are any, or, by all means, to those who are called to the succession in case
of intestacy, so that the law may everywhere be perfect in all its details,
unless the testator directed that the person to whom he left something by
special appointment or the whole estate, or a legacy, a trust, or a donation
mortis causa, shall receive it without giving any security; for the
wishes of the deceased must be complied with, and'it is Our earnest desire
to observe them whenever they are in accordance with law.
CHAPTER
XLV.
CONCERNING
THE ADMINISTRATION OF DONATIONS MADE
IN
CONSIDERATION OF MARRIAGE. (THE SAME SUBJECT
HAS BEEN
TREATED IN NOVEL II, CHAPTER IV.)
As We have
heretofore made very few provisions with reference to the security of
property, and as We are aware that a law of Leo, of Divine memory, relating
to second marriages, provides that where a woman marries a second time, and
cannot furnish a surety who will be responsible for the transfer of the
property to her children, she shall be entitled to the interest on the same
at the rate of four per cent, We now enact the present law, which is better
than the one referred to, and makes a distinction in conformity with what
has been established.
(1) We
decree (as We have already done in a preceding constitution), that where
anyone offers as an ante-nuptial donation property which consists entirely
of immovables, the mother shall have a right to the use of said property
after she contracts a second marriage, and she must accept, and not refuse
it, but she cannot exact interest from her children in proportion to the
value of the same; and she must exercise the same diligence as if the law
had granted her the entire ownership of the property, and must preserve it
for her surviving children as required by law; or if all of them should die,
she must, in accordance with Our law concerning children who are no longer
living, preserve it for the benefit of their heirs.
(2) Where,
however, all the donations made on account of marriage are composed of
money, or other movable property, the mother will be entitled to interest at
four per cent, as the security previously referred to does not require money
to be paid by the children unless it is certain that there is sufficient
gold, silver, clothing, or whatever else was given to her out of the estate
of the husband, to do this; for, under such circumstances, We grant the
mother the choice of accepting the donation by furnishing a bond with a
surety, or of receiving the interest at four per cent, as established by the
ancient laws as well as by Our own.
(3) Where,
however, the property is of different kinds, and the donation is composed of
money as well as of immovable property, the immovable property shall, by all
means, remain in the hands of the mother, in order that she may obtain her
maintenance therefrom. But, so far as the movable property is concerned, the
rule which We have formerly promulgated shall apply, in case the entire
donation comprises this kind of property; and the woman must be careful not
to neglect the immovable property, and to restore whatever she has received
without it having suffered any deterioration.
CHAPTER
XLVI.
CONCERNING
THE SUCCESSION OF MOTHERS TO THE ESTATES OF THEIR CHILDREN, TO WHAT SHARE OF
THE SAME THEY ARE ENTITLED, AND How THEY CAN ACQUIRE IT.
What We
have heretofore provided impels Us to treat of the succession of children,
to which mothers who contract second marriages are entitled. We have always
promulgated a law with reference to these matters, which was addressed to
Hermogenes, of glorious memory, Master of Our Imperial Offices, and dated
the seventeenth of the Kalends of April, before the Consulate of the
Glorious Belisarius; by which We authorized a mother, along with the
brothers of the deceased, to be called to the succession of a son who died
without issue, and granted them the undisputed ownership of the property, as
well as the use of the same, whether an heir was left in the first place, or
she had afterwards married a second time, and this law annuls all others
which provide anything in contradiction to it.
We order
that this Our law shall remain in full force solely with reference to
parents who marry again; and We preserve for them indisputably any property
which they may have received from their children either before or after
having married a second time, where the said property has descended to them.
This, Our
present law, applies to women who may hereafter contract second marriages.
Hence when a child of either sex dies, whether it makes a will or not,
whatever he or she does must be taken into account. We shall, in the first
place, discuss cases where property is left by will, and then proceed to its
disposal in case of intestacy.
(1)
Therefore, when a son has disposed of all or only a portion of his estate in
favor of his mother by will, she shall be entitled to it (because We desire
that in every instance the wishes of deceased persons should be complied
with), and she shall have what was left to her, whether the ownership of the
property or merely the usufruct of the same was bequeathed. Moreover, it
shall be lawful to leave the property to a stranger, and the second marriage
of the woman will not in any way prejudice the heir; so, where anything is
left to the mother, either through a testamentary appointment, or by a
legacy, both the ownership and the usufruct can be bequeathed, whether the
property comes to her from her father, or from some other source; nor can
her brothers, on this ground, dispute the validity of the bequest.
(2) Where,
on the other hand, a child dies intestate before or after its mother has
contracted a second marriage, the latter shall be called to the succession
with the brothers of the deceased son or daughter, in accordance with Our
Constitution having reference to successions in case of intestacy; but the
mother will only be entitled to the usufruct of property obtained by the son
from the estate of his father, whether she marries before or after the death
of the former. So far as property derived from another source than the
paternal estate is concerned, the mother shall be called to the succession
in the way which We recently stated ought to be corrected.
These
rules which We establish have reference to property other than that included
in the ante-nuptial donation. For We order that what has been decreed by Us
in this respect, as well as what has been provided by the Constitution of
Leo, of Divine memory, shall remain intact, in accordance with which the
mother will only be entitled to the usufruct of the property.
(3) With
reference to any other acquisition by the mother, which does not form part
of the donation on account of marriage, whether the child acquired it
through the medium of his father or otherwise, by will, or ab intestato,
We decree that ungrateful children shall continue to be excluded from
the succession to such property when their ingratitude is established; but
We preserve intact all other provisions relating to the succession of
parents to the estates of children, or of children to those of their
parents.
(4) We
consider ingratitude to be a cause of exclusion from inheritance, not only
when it is displayed against the mother, as has previously been stated by
Us, but also when exhibited toward the deceased brother himself.
CHAPTER
XLVII.
As We are
aware that many contentions often arise among brothers, We do not permit one
who has shown himself to be ungrateful towards his brother to share in the
succession to the latter's estate. This rule will also apply where anyone
has attempted the life of his brother, or has brought a criminal accusation
against him, or has attempted to deprive him of his property; for, under
these circumstances, his share will pass to his surviving brothers and his
mother. This law, which relates to the succession of children to which
brothers are called, along with their mother, shall remain in force subject
to the amendment which was made by Us with reference to widows who in the
future may contract second marriages. As for women who have already married
a second time, and can enjoy the benefits of Our above-mentioned law, they
shall be entitled to the succession either by will or in case of intestacy,
both as respects the ownership of the property and the usufruct of the same,
and are fully authorized to alienate, bequeath, and transfer it, without any
impediment being placed in their way by the present law at any time.
(1) We
hereby confirm what We have enacted in a former law with reference to the
issue of former marriages. For if an antenuptial donation which the mother
obtained from her husband should happen to fall into the hands of her dying
son, and hence become a part of his estate, his mother who succeeds him will
not be entitled to the absolute ownership of the property comprised in the
said antenuptial donation, but will only enjoy the use and usufruct of the
same as long as she lives. Hence this provision shall continue to be
operative in favor of the issue of former marriages, unless some settlement
was made either by means of a judicial decision or a compromise before the
aforesaid constitution took effect.
(2) In
accordance with the terms of the Tertullian Decree of the Senate, the mother
was excluded by a male child from the succession to her son, and was placed
in the same position as the daughters. We, however, while not questioning
the claim of the sons, hereafter grant the mother the legal right to their
succession, and call her, along with the brothers of the deceased, to
succeed to an equal share of the estate, no matter how many children there
may be, so that she will obtain as much as each of the brothers. We
establish the same rule where there are both brothers and sisters. Where,
however, there are no other heirs but the mother and the daughters, the same
Decree of the Senate gave half of the estate to the mother and the other
half to the sisters, no matter how many of them there were. As We have not
yet changed this, We do so now, and in this instance call the mother to the
succession pro rata with the children; that is to say, she shall
receive out of the estate of the deceased son a share equal to that of each
of his sisters; and, under all circumstances, she shall be entitled to an
equal share (which is the law), whether there are only male or only female
heirs, or whether they consist of members of both sexes.
CHAPTER
XLVIII.
PARENTS
SHALL ENDEAVOR TO PRESERVE EQUALITY AMONG CHILDREN BY THE FIRST AND SECOND
MARRIAGES.
We have
thought proper to add what follows to this law. Hence if a husband or wife
should die and leave children, the issue of a first and second marriage
(which was contracted after the enactment of this law, for by it We are
providing for the present), We have directed that under such circumstances
any gain acquired by the marriage of which the children are the issue shall
be preserved for them; and We have also designated the shares that parents
should leave to their legitimate offspring who are not ungrateful, but it
would not be just that their entire affection should be manifested for
children of the second marriage by giving them all the remainder of their
property, only leaving to those who were the issue of the first marriage
that to which they were legally entitled, and bequeathing all the rest to
the issue of the second; for it is only just for something more to be left
to the children of the first marriage than what is authorized by law.
Where,
however, the parents entertain such an affection for a child born of either
the first or the second marriage that they wish to give it preference over
the others in the possession of their estates, We grant them permission to
do so, but they must proceed in such a way as not entirely to diminish the
shares of some and increase those of others; and, when favoring the children
of the second marriage, they must be careful not to absolutely forget those
of the first, and not violate the rule that Our predecessors established on
this subject; for when fathers distribute their estates between the issue of
two marriages, they should remember that all of them are their offspring,
and this
should induce them to make a proper division of their property by will. For
as the law calls them all equally to the succession of intestates, it is
proper for them to imitate the law, and not impoverish the children by
depriving them of too x-large a share of their estates; as they should show
themselves to be good parents and worthy of Our legislation, and they should
be just in the observance of the law.
If,
indeed, they should leave them anything over and above what the law
prescribes, they will prove themselves to be at the same time just and
humane. We do not include both grateful and ungrateful children in this
statement (for We have already frequently spoken of those who are
ungrateful), but We refer to such as are more or less beloved by their
parents, as a great difference exists between children who are guilty of
ingratitude and those who cause themselves to be beloved, as well as in the
way in which both of them treat their
parents.
Hence when
We discussed the equality which parents should observe in the distribution
of their estates among their children by the first and second marriages, We
exhorted rather than ordered them, because, having elsewhere increased for
all the share which was absolutely to be left to children in case of
intestacy, and fixed the amount at four-twelfths of the paternal estate,
where there are four children, or less, and half of it, where there are more
than four, We have thereby given the children a sufficient consolation, and
have relieved them from the poverty to which, according to the ancient
apportionment, they were liable to be subjected.
(1)
Therefore the present law, as We have frequently stated, is only applicable
to the future, and has no retroactive effect, but, consolidated and included
under one heading, it regulates almost everything concerning second
marriages, and maintains in full force all preceding enactments, as well as
explains matters having reference to second marriages, concerning which it
introduces a nice and beneficial distinction. Hence, as has already been
prescribed by Us, all these things will be embraced in a single
constitution, which will be sufficient in every case in which such questions
are involved.
EPILOGUE.
Therefore
Your Highness will order this law to be published everywhere in your
jurisdiction, so that all persons may know that We have devoted Ourselves to
labors even greater than Imperial meditations, that We only attempt to
provide for Our safety by collecting from every source the principles of
justice, and that all persons may see that everything relating to this
legislation is condensed under a single head, and learn that We have
preserved laws formerly promulgated, and which We now confirm and declare
shall be valid in the future.
Given at
Constantinople, on the fifteenth of the Kalends of August, after the
Consulate of Belisarius.
Copies of
this Constitution have been addressed to Patricius, Most Glorious Prefect of
this City; to Basilides, Most Glorious Master of the Imperial Offices,
Ex-Consul and Patrician; to Tribonian, Most Glorious
Qusestor,
and twice Consul; to Germanus, General of Cavalry, Ex-Consul and Patrician;
to Tziga, Most Glorious General of Infantry, Ex-Consul and Patrician; and to
Florus, Most Glorious Count of Private Affairs, and Ex-Consul.
Your
Excellency, when informed of the Constitution which it has pleased Us to
promulgate, will cause it to be published in Your Court, not only to the
advocates, but to other persons under Your jurisdiction, and they must all
observe it, as communicated to John, Most Glorious Praetorian Prefect of the
East, twice Consul and Patrician.
Given at
Constantinople, on the fifteenth of the Kalends of April, after the
Consulate of Belisarius.
TITLE II.
CONCERNING
APPEALS, AND WITHIN WHAT TIME THEY SHOULD BE TAKEN.
TWENTY-THIRD NEW CONSTITUTION.
The
Emperor Justinian to Tribonian, Most Glorious Quaestor and twice Consul.
PREFACE.
As We are
accustomed to moderate the excessive severity of ancient laws, We think that
it is necessary to pursue this course in the present case with reference to
appeals. For the ancient law prescribed that anyone who conducted his own
case and lost it should have only two days in which to take an appeal, but
when this was done by means of an attorney, the time could be extended to
three days. We, however, have learned by experience that this was productive
of injury, for many men being ignorant of the subtlety of the law, and
thinking that an appeal could be brought within three days, allowed the two
days to elapse, and thereby lost their right. Wherefore We have considered
it necessary to apply a suitable remedy.
CHAPTER I.
Hence We
order that all appeals from the decisions of judges of either superior or
inferior jurisdiction (with the sole exception of the Sublime Praetorian
Prefects), whether instituted by the parties themselves or by their
attorneys, defenders, curators, or guardians, shall be filed within ten days
after the rendition of the judgment. We grant this term to persons engaged
in lawsuits in order to enable them to determine whether they will take an
appeal or not, and lest, through the influence of fear, an appeal may be
taken without proper consideration, a course which would increase the number
of appellants; but now all shall have a sufficient time for deliberation,
which will restrain the unreflecting precipitancy of litigants.
CHAPTER
II. CONSIDERING CONSULTATIONS.
We have
provided that when an appeal is taken to Our Consistory, and the hearing of
the same has been deferred on account of the Emperor being employed with the
dispatch of public business, and the senators cannot be called together for
this reason, the appeal shall not be exposed to risk on this account. For
how can the appellants be to blame when the Emperor is occupied with other
matters? Or who has sufficient authority to compel the sovereign to convoke
the senators and other officials, when he is unwilling to do so?
When
anything of this kind happens, the case shall remain in abeyance until the
Emperor voluntarily calls together the senators and nobles, and allows the
matter to be brought before him, and everything to proceed as is customary.
CHAPTER
III.
CONCERNING
APPEALS IN EGYPT, ASIA, PONTUS, AND ELSEWHERE.
In this,
the third chapter, a matter must be disposed of which was settled in ancient
times, but has recently been neglected. For, formerly, when magistrates of
superior, intermediate, and inferior rank, were appointed, appeals, when
taken, instead of being brought before the superior magistrate, were filed
in the tribunal of the intermediate judges, who, together with their
associates, decided them. In modern times, however, this course is no longer
pursued, for Our judges of superior rank are annoyed by appeals in cases of
trifling importance, and litigants are subjected to great expense where
insignificant matters are involved, so that the value of the entire property
in controversy is not as much as the costs incurred. Therefore We order that
when an appeal is taken in Egypt, or in either Lybia, in a case where an
article is worth ten pounds of gold, it shall not be brought to this royal
city, but before the Augustal Prefect, who shall hear and dispose of it
instead of the Emperor, and that no appeal can be taken after he has
rendered a final decision.
(1) In
like manner, whenever, either in Asia or Pontus, an appeal is taken in an
action where property to the aforesaid amount of ten pounds of gold is
involved, it shall be brought before the Counts, Proconsuls, Prators, or
Governors whom We have especially authorized to hear it. These magistrates
shall take the place of the Emperor, just as the Augustal Prefect does, and
shall hear such suits and decide them, having the fear of God and the law
before their eyes, without the right of further appeal. Cases which have
been in abeyance in the East, because appeals have been taken, and which are
limited to the said value of ten pounds of gold, shall be sent before the
Count of the East, who shall hear and finally dispose of them.
CHAPTER
IV.
APPEALS
FROM MAGISTRATES SHOULD BE BROUGHT BEFORE THOSE OP HIGHER RANK.
It must be
observed that magistrates having the title of spectabiles, or others
invested with similar jurisdiction, cannot have their decisions reviewed by
other judges of the same rank, when appeals are taken, no matter what may be
the amount of the property involved (as appeals must not be brought before
judges of equal authority, but from the decisions of those of inferior
jurisdiction, to others of more exalted rank), but by the Illustrious
Prefect (as has already been stated), who with the distinguished Quaestor in
office at the time, shall decide them with the assistance of their
subordinates, that is to say, the employees of the Imperial Bureau of
Records and of the Praetorian Prefecture. We make this provision in order
that appeals from the Proconsuls or other magistrates who, charged with no
other public duties, have been appointed by the Emperor, may not be brought
indiscriminately before the aforesaid judges without observing the
distinction of rank.
We,
however, desire that appeals from the Governors of provinces and judges
appointed by Us, where the latter are not spectabiles, shall be
restricted to cases where the above-mentioned amount is involved. But where
superior judges have been appointed by Us whose rank is above that of those
referred to, or Proconsuls, or any other magistrates of equal official
dignity who have been commissioned by the Emperor, their appeals, no matter
what the value of the property in dispute may be, shall be brought to this
Imperial City, where competent magistrates will hear and determine them, in
conformity with ancient custom.
Everything
prescribed by the ancient authorities, by former constitutions, or by
Ourself, shall, in all other matters relating to appeals, remain in full
force and effect.
Given at
Constantinople, on the Kalends of July, after the Consulate of
Belisarius.
EPITOME
OF THE PRECEDING CONSTITUTION.
CONCERNING
MAGISTRATES TO WHOM APPEALS SHALL BE
TAKEN WHEN
THE VALUE OP THE PROPERTY INVOLVED
DOES NOT
EXCEED TEN POUNDS OP GOLD.
Not only
the parties litigant themselves, but their attorneys as well as their
defenders, curators, and guardians, can take an appeal within ten days from
the rendition of the judgment. It is not permitted to appeal from the
decision of a Praetorian Prefect.
CHAPTER I.
If the
time established by law should elapse without the appeal having been heard
by the Emperor, the case shall in no way be prejudiced. When an appeal is
taken to the Emperor either from Egypt
or from
either of the Lybias, and the amount of property involved does not exceed
ten pounds of gold, the appeal shall be heard and decided by the Augustal
Prefect; in the East by the Count of the East; and in Pontus and Asia by the
Counts, Proconsuls, Praetors and Governors, if they have been expressly
charged with this duty. All these officials are hereby invested with
imperial authority for this purpose, and no one shall question their
jurisdiction when cases of this kind are brought before him.
CHAPTER
II.
When an
appeal is taken from a Governor, whether the property in controversy is
worth more or less than ten pounds of gold, the Praetorian Prefect, along
with the Qusestor and other officials, shall take cognizance of the same.
TITLE III.
CONCERNING
THE GOVERNOR OP PISIDIA. TWENTY-FOURTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Imperial Praetorian Prefect of the
East.
PREFACE.
We have
thought that the ancient Romans never could have rendered their government,
which arose from such insignificant beginnings, so vast and powerful, added
to their territory (We had almost said) ihe entire ea'rth, and been able to
control and protect it by their domination, if they had not invested the
eminent magistrates, whom they sent into the different provinces, with great
dignity, as well as with military and civil jurisdiction, and had not
selected such as were well qualified and capable of performing their
official duties. They designated these magistrates by the name of
"Praetors," an appellation derived from the fact that they were pre-eminent
and superior to others, not only in the conduct of matters relating to
warfare, but also in the execution of the laws. In consequence of this, the
places in which they resided or publicly dispensed justice were styled
Pretoria, and the greater portion of the Edicts published orally by the
Praetors had the effect of statutes. Many Praetors governed Sicily,
Sardinia, and Spain, while others extended the Empire over land and sea, and
ruled the conquered countries.
Bearing
these things in mind, and recalling with honor the ancient institutions of
the Republic, as well as the dignity of the Roman name, and being aware that
the two magistrates appointed for the administration of regions which have
been the hardest to control up to this time were neither of them perfectly
content with their condition, and that, on this account, in certain of Our
provinces subject to both civil and military jurisdiction, the Governors
were always quarrelling among themselves, and opposing one another, and,
instead of accomplishing
something
beneficial to Our subjects, they, on the other hand, rather oppressed them,
We have thought that it would be preferable to unite the civil and military
jurisdictions into one, and again give the name of Praetor to the magistrate
invested with this authority, so that the same official would have command
of the soldiers in accordance with the title which he formerly enjoyed, and
would also be invested with the execution of the laws, which was originally
one of the functions of the Praetor, and that he would be entitled to the
emoluments of both offices, and have a single court composed of a hundred
subordinates (for this will be sufficient for him) which would be styled the
Praetorian Cohort, and be established by letters issued by Us.
Being thus
invested with great dignity, the Praetor would be terrible to robbers, and
render it impossible for those guilty of injustice to escape. He could
accomplish everything through his extraordinary power, and, as a law
formerly promulgated by Us orders all judges to have clean hands, he must
obey it; and having taken the oath he must govern in accordance with it,
both in his military and civil capacity. If anyone of Our glorious Consuls
should happen to be appointed to the aforesaid office, this would appear to
be an imitation of former times, when Consuls and men of consular rank drew
lots for provinces, as the Praetors are not much inferior to them, since
they have exalted the Roman name little by little, and increased its renown
to such an extent that God has never before conferred such distinction upon
any other Republic or Empire.
We have
investigated the origin of the Pisidians, and have learned from ancient
writers that this people formerly exercised dominion over a x-large portion of
the earth, and now that this province needs a powerful and energetic
magistracy (for it contains a great number of villages, and a x-large
population who are especially seditious wlien it comes to the payment of
taxes), We think it necessary to give to a country inhabited by a dishonest
and blood-thirsty population of this kind, which, on account of its greed
and wolfish voracity, has been called Lycocranitse, a magistrate who
will leave here armed with proper power.
And as
this magistracy should include both military and civil jurisdiction on
account of the danger of revolt, all the military forces in the province
shall be subjected to its authority. All the civil officials shall be called
by and honored with the name of Praetor, for who will not stand in terror of
his name? And who will not respect him, when civil and military jurisdiction
are combined in a single official, when he knows what his duties are, and
that he must obey the laws; provided he is well disposed and wishes to
preserve his life, being aware that, in case he is disobedient, he will
immediately be put to death, and the laws be enforced by arms?
CHAPTER
II.
It
therefore is necessary for anyone who undertakes the duties of this
magistracy (for We always bestow it gratis, and without any payment of money
whatever, in order that the incumbent may, in
every
instance, be free from corruption, and remain satisfied with those
emoluments alone which he received from the public, as Our first law has
also stated), to act with justice and honesty, and bear himself with a
certain degree of severity, but still with kindness towards those subjected
to his authority, as We have previously decreed, and banish from his
province homicide, adultery, the rape of virgins, and, in a word, all other
offences; and punish those who commit them as prescribed by Our law, without
evincing any respect for the malefactors, even though they may be men of
high rank; nor must he submit to those who offer no excuse for their acts,
or only give such as are abominable; but he shall maintain justice in every
instance, and regulate his conduct by Our enactments, rendering judgment in
accordance with them, so that Our subjects may also form their lives and
their rules of conduct in conformity thereto; and he must, above all things,
keep the fear of God and of Us in mind, and never plan anything in
contravention of Our precepts.
We forbid
him to leave his province frequently and come here to annoy Us with
unreasonable communications, but he must hear all cases in the first place
himself, and decide them with a view to the importance of the office to
which We have appointed him, and he must so conduct himself in this respect
that no one will have reason to file charges against him on account of his
administration of the magistracy, being aware that if anyone, after having
applied to him, should not obtain justice, and be compelled to refer the
matter to Us, he will be responsible for the result of the controversy which
We shall subsequently determine, for as We have honored him with an increase
of authority, so, if We find that, in opposition to Our intentions and
wishes, he has abused his administration, We shall inflict suitable
punishment upon him, and in this way We shall serve God as well as assist in
the execution of the laws, whether he has been guilty of dishonesty, or has
acted illegally through the influence of either favor or enmity; for We wish
again to relieve Our subjects of the evils which formerly existed, and,
without being deterred by the greatness of the undertaking, We have hastened
to turn Our attention to this subject.
CHAPTER
III.
This
official must not only perform the duties which have already been enumerated
by Us, but he must see that there is a great abundance of provisions in the
towns, and that no citizen is without subsistence. He must inspect the
public works in the different cities, and not allow them to fall into decay,
but keep all aqueducts, bridges and highways in good repair, and not permit
the collectors of taxes to oppress Our subjects in any way; and We forbid
him to receive any of those orders which, in conformity with a practice that
We do not approve of, are issued by your court for the repair of walls, the
opening of public highways, and innumerable other purposes. He shall not,
under the pretext of orders of this kind, or, for any other reason, permit
anyone to inflict injury upon Our subjects, nor shall he execute any
decisions proceeding from your office, which in any respect may be improper
(for
We have
already prohibited such things), but he alone must assume supervision of all
public works.
If,
however, in accordance with the provisions of Our law, We should address a
pragmatic sanction to your prefecture, the Praetor must himself carry out
what We have ordered to be done, without any other person being permitted to
annoy Our subjects, for while We are rendering Our provinces more and more
flourishing by increasing the number of citizens, We do not wish a multitude
of men to repair to the capital who dare not return to their homes on
account of the iniquity of Governors.
For this
reason We order that Your Excellency shall for the future not hold two
distinct magistracies in Pisidia, but that only one shall exist there under
a Praetor, who shall possess both civil and military jurisdiction and shall
have charge of both public and private civil matters, and be in command of
the soldiers, so that in this way he will enforce his authority by their
aid, and on the other hand, his military jurisdiction will be adorned by the
law. No sedition will hereafter take place in the cities, if for the future
We select for Praetor a man whom We deem worthy of both these offices which
have been combined in one.
CHAPTER
IV.
Therefore
the Treasury will pay the Praetor of Pisidia the ordinary salary which We in
the notice appended to this law order that he shall receive. We wish this
magistrate to bear Our Imperial name, and that he be styled the Justinianian
Praetor. The body of Praetorian officials approved by Our letters (as We
have previously stated) shall be appointed, and shall have charge of all
affairs and persons, both civil and military. This Governor and his
subordinates shall also be responsible for the collection of taxes, and he
shall enjoy all the distinctions and insignia which are customary, that is
to say, the curule chair of silver, and the axe and fasces; he shall
also have among the soldiers an adresponsus, to whom We grant
authority over the soldiers of that department, enjoining him to command
them properly, preserve discipline, and make use of them not only for the
pursuit of thieves, but to retain Our subjects in order and tranquillity.
The
Praetor shall not permit seditions to break out in the cities, or the counts
to appropriate anything belonging to the Treasury, but he shall have
authority over all, without any exception whatever. This magistrate shall be
placed among those that are of intermediate rank, and be classed with such
as are designated spectabiles. Hence he will be invested with all the
attributes formerly possessed by vicegerents and which to-day attach to the
Justinianian Counts of Pacatian Phrygia, and First Galatia, as well as those
of the Count of the East and the Proconsuls; he shall also be a magistrate
of the rank of spectabile, and appeals taken from his decisions shall
be decided here, as is customary in the case of other spectabile
magistrates, by the tribunal of the Most Glorious Praetorian Prefect, with
whom shall be associated in the determination of causes the Most Glorious
Quaestor
of Our
Imperial Palace; for the reason that although this office is invested with a
military character, still, because it will hereafter also possess civil
jurisdiction, the same order which was formerly customary in the case of
magistrates of the rank of spectabile must be observed.
CHAPTER V.
As We have
recently stated in an Imperial Constitution that, where the property in
controversy did not exceed in value the sum of fifty pounds of gold, appeals
should be taken from Governors, and heard and determined in the Imperial
Audience-Chamber, We decree that where an appeal of this kind is taken in
Pisidia alone, from the decision of a judge whom We have appointed, or from
that of one of Our superior magistrates, it shall not be brought before the
Justinianian Count of Pacatian Phrygia (which We have prescribed by former
laws), but before the Praetor himself, and be heard just as it would be in
the Imperial Audience-Chamber (for We also honor the magistrates in this
way) and be permanently decided by him, and not sent to this city, in order
that We may prevent persons who engage in litigation concerning matters of
slight importance from being subjected to inordinate expense.
CHAPTER
VI.
In order
that the subordinates of the Praetor of Pisidia, or persons appointed to
other offices which We have established or shall hereafter establish, may be
informed of the manner in which it is proper for them to govern their
provinces, it has seemed proper to Us not only to give them the distinctive
insignia of their rank with their commissions, but also to prescribe for
them certain rules of official conduct, in accordance with which they may
govern their provinces (which preceding legislators designated "advices to
Governors") so that they might conduct their administration with these
before their eyes, and by means of them Our subjects everywhere be
benefited.
Wherefore
We order that instructions of this kind shall be filed in the Imperial
Laterculus and with their commissions be delivered to the magistrates,
who will take the oaths which We have laid down in Our Constitutions, as
well as observe all the regulations which We have prescribed therein. A
schedule appended by Us to this law states the amount which the Praetor must
pay after his nomination, either to Imperial Laterculus, or to the
Forum of the Most Glorious Prefect, for the commissions of his office; and
also fixes the compensation which the Praetor himself and his assessor shall
receive from the public. Having taken personal cognizance of everything
relating to the consolidation of the magisterial offices in question, the
Praetor must, on his part, exert every effort to deserve Our esteem,
and'appear blameless in Our eyes.
This law
shall be recorded in the Book of Our Constitutions (for We order that it
shall also be included among them), and you will see that it is executed,
and always observed and recognized in the cases to which it has reference.
Three
hundred solidi shall be paid to the Praetor of Pisidia by way of
subsistence, capitation, and indemnity; seventy-two solidi shall be
paid to his assessor; and fifty-two to the members of his court. The Praetor
himself must pay for the commissions of his office the following sums: nine
solidi to the chartularii of the Imperial Bedchamber;
forty-five to the Chief to the Illustrious Tribunes of the Notaries and the
laterculensii; three solidi to his assistant, and sixty to the
Cohort of the Most Glorious Pratorian Prefect for orders and all other
purposes.
TITLE IV.
CONCERNING
THE PRAETOR OF LYCAONIA. TWENTY-FIFTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
When We
consider what writers and historians have stated concerning the origin of
the people of Lycaonia, and call to mind their extraordinary affinity with
the Romans, which afforded such a good reason for their reunion, We thought
that it was but just to give to this magistracy a rank superior to that
which it had hitherto enjoyed. Tradition relates that, in ancient times,
Lycao, who was King of Arcadia in Greece, lived on Roman soil, and that
after having conquered the Enutrians, he, so to speak, founded the Roman
Empire (We have reference to times much more ancient than those of
JEnseas and Romulus), and a colony having been established in these
parts, he seized a x-large portion of Pisidia, and imposed his own name upon
it, calling this region Lycaonia after himself; hence it is but just that
this province should be subjected to the government of one of the
magistrates that the ancient Romans invested with so much honor and
distinction, and that the authority of both the magistrates who governed the
said province at that time (We allude to the civil Governor, as well as to
the one having military jurisdiction) should be combined in a single
official designated by the appellation of Praetor. This title is peculiar to
the Roman government almost by paternal right, and was in use under the
Republic even before that of Consul. For the ancient Romans called their
Emperors Praetors, and at the same time invested them with military command;
they obeyed the laws promulgated by them; and, afterwards, this magistrate,
moderate in the exercise of both jurisdictions, displayed as much resolution
in battle as he did in the enactment of laws, and the preservation of order.
CHAPTER I.
Hence We
are determined to combine these two administrations into one, and We
designate the magistrate who is entrusted with them
by the
name of Praetor, so that the character of a magisterial office of this kind,
to which such an appellation is given, may acquire great respect for the
incumbent, and as he is not invested with a single office (such, for
instance, as that of military or civil jurisdiction), but united both of
them, he will show himself stern and severe when military affairs are
concerned, but lenient and gentle in the administration of civil justice;
and for this reason he will display a more terrible spirit towards
malefactors, but will conduct himself in a more gracious and moderate manner
towards persons who are honorable.
We have
established these regulations not without good reason, and have bestowed the
name of Praetor upon the aforesaid magistrate alone, being induced to do so
on account of the requirements, as well as for the benefit of the province.
For, indeed, this country is inhabited by brave men, and does not in any
respect differ from Isauria; it is, like it, situated in the centre of the
earth, exposed to the rays of the sun, suitable for the pasture of horses,
and supports numerous inhabitants and many horses; in it are many x-large
towns, and it contains a multitude of men suitable for cavalry and for
archers, whose minds are readily inflamed, who are prompt to take up arms,
and are fit subjects for military government, because they are opposed to
having their fortunes solely under the control of civil magistrates, whom
they think should be despised; for bold men are unwilling to obey the law
when it is not rendered formidable by a proper display of force.
These
considerations have impelled Us to appoint but a single magistrate, as We
have previously done among the Pisidians, and to confer upon him the
appellation of Praetor, together with Our name, for We desire that he shall
be styled the Justinianian Praetor of Lycaonia, as is the case with those of
Pisidia and other provinces. We also combine both courts over which civil
and military magistrates formerly presided into one, designating it as the
Praetorian Tribunal; and it shall be established in the accustomed manner by
means'of letters issued from the office of the Imperial Secretary, from
which the Proconsuls received theirs; and We grant to the Praetor, as well
as to his assessor and other subordinateswho are limited to a hundred in
numberthe salaries of the two offices, and fix the amounts thereof in the
notice appended to the present law. Finally, the Praetor shall be entitled
to an odresponsiis, or apocrisiary, whose duty will be to maintain
order among the soldiers, and to this end We direct that he shall have the
command of the other soldiers stationed in said province.
CHAPTER
II.
We shall
send a man to discharge the duties of this office, who is of approved
reputation, and of the same eminent rank from which those Praetors formerly
were selected that adorned the Republic with their labors, who being a
resident of Italy, will soon depart for his seat of government. This man
must always be mindful of the requirements of his office, and, no matter how
he may have obtained it, he must cause himself to be respected by Our
subjects; he must render himself terrible to robbers and other malefactors,
and always conduct himself
with
courage. For there is no doubt that he will discharge his duty with clean
hands whenever he obtains his place gratuitously; and, moreover, the law
recently enacted by Us orders all magistrates therein described to refrain
from corruption (as they are sworn to do), to render judgment according to
Our laws, and, in every instance, to dispense equity and justice to Our
subjects. "It was under circumstances of this kind that the old Romans
adorned their Republic, and obtained the domination of the world. For who is
there who would not at the same time reverence and fear a magistrate of this
kind, regarding him as exercising his functions in a twofold capacity, who
can both readily execute what the law commands, and properly employ military
force where it is violated in any respect?
(1) We
have been induced by the same reasons which existed in the case of the
appointment of a Praetor to the government of Pisidia to give the same title
to the Praetor of Lycaonia. For as he must, under all circumstances, receive
his office without paying anything for it, and, remaining content with those
emoluments alone which are bestowed upon him by the Treasury, in conformity
with the former law promulgated with reference to the duties of Governor,
absolutely abstain from base and avaricious conduct, so also he must show
himself to be sincere and just in the administration of his office, and act
in such a way as to maintain harmony in his province, by treating those
subject to his rule sometimes with firmness and severity, and again with
leniency, as circumstances may demand.
(2) This
magistrate must detest and punish all cases of adultery, homicide, and
especially the rape of virgins, with extreme rigor; he must also punish
other malefactors who are, as it were, afflicted with an incurable disease,
without exception; and he should also endeavor to induce those who are less
guilty to lead better lives. In addition to this, he must show no favor to
anyone who is guilty of dishonorable behavior,' even though he may be rich
or enjoy high rank, for the reason that We have chosen him from among the
latter class is that he may not find it necessary to treat with
consideration anyone but Ourselves, and the laws, in accordance with which
he must dispense justice, and regulate the affairs of Our subjects.
CHAPTER
III.
The
Praetor must not abandon himself to idleness, or be guilty of injustice to
anyone, lest the inhabitants of the province over which he has jurisdiction
may be compelled to leave it, and incessantly annoy Us with their affairs.
He must hear and determine all cases brought before him, and always remember
the honor which We have conferred upon him; he must devote himself
incessantly to the duties of government, in order to obtain Our praise and
avoid being required to render an account of his administration. He may rest
assured that, if any litigant having failed to obtain justice in a case in
his jurisdiction should appeal to Us, We will send him back without giving
him any answer. But We warn him that where any person applies to him without
obtaining redress, and then has recourse to Us, the result of
the
decision which We shall render will make him responsible instead of the
appellant; and as We have increased his authority, if We should ascertain
that he is idle and careless, and does not properly avail himself of the
power with which We have invested him, We shall come to the assistance of
the law by prosecuting him relentlessly; and as he did not respect either
Our instructions, Our laws, or the form and rank of his magistracy, We shall
not show any regard for him, but shall take measures to compel him to
improve his administration; and whether he be guilty of corruption, of
partiality, or of violating Our laws, We shall call him to account for his
acts, in order that it may not be said that in the treatment of Our subjects
We are only influenced by pecuniary interest, or that We are sparing them
for some other reason which may redound to Our own advantage.
CHAPTER
IV.
It is also
necessary for this magistrate to take measures to maintain order in the
towns under his jurisdiction; to prevent seditions from breaking out
therein; to administer justice everywhere; and exercise the greatest
diligence to avoid being too indulgent and lax in the maintenance of
discipline.
(1) Again,
he must not neglect the public works in the cities of his government, that
is to say, the aqueducts, bridges, walls, and highways ; he must keep them
in good condition, or report the expense of the repairs to Us, so that this
may be partly met by the civil revenues, and partly by Our liberality.
(2) He
must not permit Our subjects to be oppressed by collectors sent from here by
officials of high rank, or anything to be extorted from them by persons who
have been given orders which formerly emanated from your throne, and are
injurious to citizens in moderate circumstances; which orders sometimes have
reference to the repair of walls, highways, statues, bridges, and harbors;
or provide for the renovation of public water-courses, and the cleaning of
public places; as well as the demolition of buildings which have been
erected where this ought not to have been done, and other matters of this
kind which are extremely annoying to Our subjects; but the Praetor himself
must discharge this duty, and cause the necessary labor to be performed
without any expense to those under his authority.
If,
however, it should appear to Us that repairs of this description require
special examination, We shall, under such circumstances, avail Ourselves of
a pragmatic sanction addressed to you, by which someone else will be
authorized to do the work. In this way Our subjects will be relieved; Our
cities will flourish; their inhabitants will be greatly increased, and will
not be compelled to flee from their country; and the fear with which they
regard their Governors will no longer induce them to abandon their property.
CHAPTER V.
Therefore
Your Excellency will be aware that hereafter there will be only one
magistrate in Lycaonia, and not two; that all the emolu-
ments
formerly given by the Treasury to the incumbents of both offices will now be
paid to the Praetor and his subordinates, in conformity to the notice
appended to this constitution; and this shall take place in the same manner
as heretofore.
(1) The
collection of public taxes shall be committed to the officials of the
Praetorian Tribunal, as well as to the Praetor himself, to whose authority
they are subject; and he will be entitled to the insignia of both offices,
although the greater portion of these are of a military character. He will
take his seat upon the silver chair, the axe will precede him (for this is
the emblem of consular power), and the fasces also will be borne
solemnly before him; the entire army stationed in the province shall obey
his orders; and he must be careful to suppress brigandage and protect
persons who have suffered from injustice, and maintain peace and concord
among Our subjects.
(2) He
shall not permit the Counts to levy public taxes or to take any part in
their collection. He shall take rank among the spectabiles, even
though he may be promoted to a higher office, for the honor of those who
govern provinces is such that We do not think that the dignity of anyone is
diminished when he is called upon to administer their affairs. Therefore it
is proper for this official to be numbered among the spectabiles on
account of the importance of the place which he holds, in which rank are
also included the Proconsuls, and the Counts of the East, of Galicia, and of
Phrygia.
(3) He
shall hear all legal controversies arising in his province, whether they be
pecuniary, civil, or relating to freedom, and he can delegate his authority
to other magistrates. Appeals from his decisions shall be heard in the same
way as has already been prescribed in the case of spectabile
magistrates, by the Most Glorious Praetorian Prefect and the Most Glorious
Quaestor (as We stated in the beginning) ; the reason for which is that this
office becomes civil by means of the laws to which We desire even military
jurisdiction to be subordinated.
CHAPTER
VI.
In
conformity to the law recently promulgated by Us, when, in a ease where the
value of the property in controversy does not exceed five hundred pounds of
gold, an appeal is taken from the decision of one of the magistrates of
Praetorian jurisdiction, not the Count of Pacatian Phrygia (as We have
previously stated) but the Praetor himself must hear it, even though the
judge whose decision is appealed from may have specially been appointed
either by Us, or by someone of high rank; and it will not be necessary, for
the reasons already stated, for this judge to be spectabile; but the
Praetor shall decide the appeal without (as was formerly the case) it being
possible for recourse to be had to Us, and to prevent Our subjects from
being compelled to incur great expense where the value of the property is
insignificant.
We give
the Praetor information on these matters in order that he may learn properly
to represent Us; We confer upon him not only the
honor of
his office by the commissions (for they are so designated) which it is
customary to give to magistrates of spectabile rank, but We also
communicate to him the Imperial mandates, which the ancient legislators
styled "instructions to Governors." When We drew up these instructions We
directed that they should be filed in Our Imperial Bureau of Records, in
order hereafter to be delivered to the magistrates with their commissions,
for the latter confer the authority, and the former indicate the way in
which it is to be exercised.
The notice
appended to this Our law fixes the amount to be paid by the Praetor for his
commissions, when he is appointed, and the salaries to which he, along with
his assessor and his court, are entitled from the public. If Your Excellency
should ascertain that the Governors of the provinces included in the
jurisdiction of the Praetor of Lycaonia are negligent in rendering an
account of the taxes, you will not remove them, but will notify the
spectabile magistrates, in order that they may reprimand such Governors
as are devoted to idleness, and they themselves see that the taxes are paid
into the Public Treasury.
EPILOGUE.
Therefore
We order that the present law shall be inserted in the Book of Our
Constitutions; it shall carry with it the eternal memory of Our benefits;
and Your Excellency, as soon as you have received it, shall cause it to be
enforced.
The
following schedule of payments is applicable to the office of the Praetor of
Lycaonia. He shall receive by way of subsistence, capitation, and salary,
three hundred solidi; his assessor shall receive seventy-two, and his
attendants fifty-two. On the other hand, the Praetor shall pay for his
commissions nine solidi to the Chief of the Chartularies of the
Imperial Bedchamber; twenty-four to the Chief of the Illustrious Tribunes of
the Notaries, and officials of the Later-cidus, three to the
assistant of the Chief, and sixty to the subordinates of the Most Glorious
Prefects, for orders and other purposes.
TITLE V.
CONCERNING
THE PRAETOR OF THRACE. TWENTY-SIXTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
It is an
admitted fact that when anyone mentions the country of Thrace there
straightway arises in his mind a spirit of courage, and a desire for war and
battle. And, indeed, such a desire is innate in this people, and is, as it
were, an inherited attribute. For this reason We first determined to
establish better conditions in that country, and, after having long
considered the subject, We have finally drawn up
the
present law. We are aware that two vicegerents are stationed at Long Wall,
one of whom is in command of the military (for there are a great number of
soldiers in that neighborhood), and the other has charge of civil matters.
But as one of them performs the duties of Most Glorious Prefect and the
other those of general of the army, they never agree among themselves; and
although the Treasury furnishes them with subsistence and other emoluments
separately, they, nevertheless, encroach upon the jurisdiction of each other
so that controversies incessantly arise between them.
CHAPTER I.
Therefore,
it has appeared advisable to Us to treat Thrace as We have treated other
nations, although the people are not so fierce or so much in need of
military government as those referred to; for We do not desire that two
officials having respectively civil and military jurisdiction should any
longer exist in Thrace, hence We now combine the two offices into one, which
We entrust to a single magistrate of eminent character, who is worthy of
respect, and will not only discharge the civil duties of the place, but will
be careful to preserve proper military discipline, as anyone who performs
the functions of Governor alone is not invested with sufficient authority
for this purpose.
(1) If,
however, the care of this region, the administration of all its affairs, and
the preservation of order, as well as the command of the army require the
service of a good man, and one who cannot only control the soldiers, but
also issue orders in conformity with the laws, what name would be
appropriate for Us to confer upon a place of such importance? How shall We
designate the official appointed to this magistracy? Is it not clear that,
just as the ruler of Pisidia and the supreme magistrate of Lycaonia have
been created and appointed by Us, so also, in this instance, the official
should be called Praetor joined with the name of Our majesty? For if the
ancient Praetor of the Romans occupied the same position under the Republic
as under the Empire, it must be admitted that no title is so applicable to
this magisterial office as that of Praetor, since this dignitary commands
the soldiers, and has not a few towns subject to his jurisdiction, in which
he dispenses justice in accordance with Our laws.
Civil as
well as military affairs require the services of a man of high character in
these places, for in the early days of the Republic soldiers were always
appointed to great offices; they not only commanded the army, but also
governed Our other subjects at the same time, even though the latter were
not enlisted in the army. Finally the invasions of barbarians demanded the
adoption of more stringent measures, and it became advisable for the
administration to be entrusted to a magistrate who could rule in accordance
with Our laws, as there is a great difference between the maintenance and
the disregard of order; and it is evident to everyone that when military
power alone is exercised it exceeds the limits of propriety, and becomes too
bold; while, on the other hand, a purely civil administration,
when not
supported by a military force, will be deficient in authority; but when both
of these forms of government are united in the same ruler, the management of
public affairs becomes more perfect and effective, not only for the
prosecution of war but also for the preservation of peace.
CHAPTER
II.
Hence the
two administrations of this province shall be united, and the official
invested with the government of the same shall be designated the
Justinianian Praetor of Thrace. We grant him the insignia of his rank both
by means of the commissions issued here like those given to spectabile
magistrates, and by Imperial instructions which prescribe the method of
governing the province, which said instructions Our predecessors called
mandates of the sovereign, and were delivered to those who drew the
provinces by lot, for the purpose of informing them of the manner in which
they should discharge the
duties.
The office
of Praetor has always been regarded as one of the highest dignity; it has
increased the greatness of the Roman name among many nations subject to Our
Empire, especially in the West; and it is through the agency of the Praetors
that the Romans have added to their dominions almost the entire North,
South, and a x-large portion
of the
East.
You will
communicate the provisions of this law, having reference to the government
of provinces, and whatever We have also decreed concerning the Praetors of
Pisidia and Lycaonia, to all persons, so that these magistrates may be
appointed gratuitously, and may also, without reward, devote themselves to
the welfare of Our subjects; and there is all the more reason for this, as
the law referred to applies to Our entire Empire, and is well known to
everyone, for it prescribes the oath to be taken by Our magistrates when
they assume their official duties, and by means of it they devote their
souls to God, and promise to govern Our subjects with equity and justice, as
well as to refrain from all corruption, enmity, and partiality.
(1) The
court of the Praetor of Thrace shall be composed of a hundred persons, and
the Praetor shall be invested with the insignia of both military and civil
magistracy. In addition to this, an adre-sponsus shall be assigned to
him who shall have charge of the army stationed in that region, over which
he shall have full command, and which the Praetor shall be authorized to
make use of in every way which he may think will be to the advantage of the
Government.
(2) The
levy of taxes in that region shall be made by the Praetor himself and his
subordinates, and the entire body of the latter shall be given the name of
praetorian, and shall be appointed by letters issued by the Imperial
Secretary's office, whence in former times the members of the vic'eregal
court also received their authority.
CHAPTER
III.
The
Praetor must be careful, in the first place, to keep his hands clean from
the acceptance of either bribes or presents, and afterwards,
in public
as well as private, to show himself to be just in every respect towards Our
subjects, whether they are involved in litigation, or enter into contracts
with one another; and he must take measures to prevent them from engaging in
disputes. He must also employ his soldiers in military exercises, in order
to render them more efficient and active; he must govern the other
inhabitants in accordance with law, to the end that they may become just,
and free from all wickedness and malice, by which they may the more readily
be induced to practice equity, virtue, and courage; and when a military
expedition is undertaken, he shall see that it is despatched as quickly as
possible, and that every cohort is at hand, as the civil officials should
co-operate with the military for the purpose of counter-acting any hostile
operations of the enemy.
(1) Again,
this magistrate must hear and determine all pecuniary, criminal, and other
cases justly and in accordance with Our laws, without evincing any
partiality, and not give any occasion to litigants to annoy Us with their
importunities; for We are unwilling for Our subjects, when oppressed by
their Governors, to be compelled to abandon their provinces in order to have
recourse to Us. If, hereafter, the people of Thrace should appeal to Us for
any reason, We shall carefully ascertain whether they have already brought
their cases before the proper official in their province, and if We
ascertain that this has not been done, We shall send them back with a severe
reprimand. But if, after having made application to the Praetorian Tribunal,
the magistrate has neglected to render judgment, or, if influenced by some
dishonorable motive, he has not decided in accordance with law, We shall
then devote Our attention entirely to him. For as We increased the power of
the Prsetor (that is to say, as We conferred upon him the functions of two
offices) and have placed him in control of such a great multitude of men, if
We should find that he has acted in any unworthy manner, We shall not
overlook the fact, nor shall We impose a moderate penalty upon him; and as
We shall exalt him if he discharges his duty properly, so We shall inflict
the more severe punishment upon him when he does anything contrary to law.
He must show no partiality whatever for anyone, no matter what his rank may
be or what wealth he may possess; and We appoint men of distinction and
authority to places of this kind in order that it may not be necessary to
favor those who desire to make use of their wealth to inflict injury upon
others.
CHAPTER
IV.
The
Praetor of Thrace shall see that the public works do not suffer any damage,
for instance, the harbors, walls, bridges, and highways; but he himself must
provide for all necessary repairs where the civil revenues are sufficient,
and if any greater expenditures are necessary, he must inform Us of the
fact, and accounts must be rendered, just as has already been prescribed by
one of Our laws. Nor do We wish that persons who are ordinarily charged with
the inspection of watercourses, and the repair of gardens, walls, pictures,
and other things of this kind, should be sent from your prefecture (which
indeed We have
already
prohibited) into the province; but the Prsetor himself must ascertain what
should be done, and render an account of the expenditures for repairs, in
accordance with Our Constitution.
(1) But if
We should determine to place another in charge of this office, We shall do
so by means of a pragmatic sanction, which (if it seems advisable) shall be
addressed to your prefecture. For, in order to prevent Our subjects from
incurring too much expense, and because We are aware of the great power of
money, and have made ample provision for the subsistence of Governors, their
courts, and all their attendants, as is customary, We do not desire them to
commit any discreditable acts on account of poverty or for any other similar
reason, but honored with distinguished rank, and being members of the
eminent body of the Senate, they should govern their provinces, having the
glory of God and the memory of Ourselves constantly in mind. If the Prsetor
does not in any respect disobey what We have commanded, he will greatly
increase his reputation.
(2) And,
as the ancient Romans only appointed men of consular rank and Prsetors to
govern provinces, We do not do anything contrary to good morals when We
designate persons for such a purpose who, repressing the yiolence of
collectors of taxes, that, sent from here, seek to oppress Our subjects, can
in this way render themselves useful in case of necessity.
We confer
upon the Prsetor of Thrace power to investigate and prevent things of this
kind, and thus correct these abuses, and his secretary shall inform Us of
their existence, in order that if the Prsetor should be unable to remedy
them, and the case demands it, Our authority may be interposed.
CHAPTER V.
We
admonish magistrates by Imperial mandates, which We communicate to them
along with the insignia of office, to remind them of the oath which they
have taken, as well as of the instructions which We have communicated to
them, so that if they desire to show themselves worth of Our approbation,
they will lead proper lives, and, in accordance with Our laws administer the
offices bestowed upon them. We have conferred authority upon these
magistrates subject to the abovementioned condition, granting them (as has
already been stated) full power to act, and render decisions in pecuniary,
criminal, and all other cases; and appeals should be taken from them to Our
Most Glorious Prefects and Quaestors, who shall decide them in the same way
that they do cases referred to the Imperial Palace.
Where in
this province a case in which a sum less than fifty aurei is involved
is taken up on appeal, and it was originally decided by a judge appointed
either by Us or by the Prsetor (provided the magistrate is not one of the
rank called spectabile), the appeal shall be taken to the Prsetor,
who shall hear it in accordance with the procedure of the Imperial Palace.
For We honor his office in this way, and place him upon the same footing as
the Count of the East, the Proconsuls, and the Counts of Phrygia and
Galatia; and if he is of the above-
mentioned
rank, as the magistrates of these provinces are, he can render judgment in
the same way. Our law does not diminish the importance of the office of
Governor, but the Praetor shall himself be charged with the execution of the
laws in the province; that is to say, he shall exercise the same functions
in the jurisdiction which We have just conferred upon him.
(1) A
notice has also been appended to this law which establishes the sums to be
paid by the Praetor for his commissions, and fixes the salary given him by
the public by way of subsistence. We do not permit him to accept anything
beyond that amount, and he must avoid making any profit, for if We grant
liberal allowances to magistrates, they must indemnify Us for doing so by
consulting the welfare of Our subjects, and always be mindful of the oath
which it is customary for them to take.
We desire
the present law to be recorded in the Book of Constitutions, and after
having received it, you will see that it is perpetually observed hereafter.
The
Praetor of Thrace shall be entitled to three hundred solidi by way of
subsistence, capitation, and salary; his assessor shall have seventy-two
solidi; and his attendants fifty-two; but, on the other hand, the
Praetor shall pay for his commissions the following sums, viz.: to the three
chartularies of the Imperial Bedchamber nine solidi; to the Chief of
the Illustrious Tribunes of the Notaries and the officers of the
Laterculi, twenty-four solidi; to the court of the Most Glorious
Prefect, for orders and other things, forty solidi.
TITLE VI.
CONCERNING THE COUNT OP ISAURIA.
TWENTY-SEVENTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
The
government which Our predecessors established in Isauria is at present in
Our mind, and We remember at the same time that in First Galatia and
Pacatian Phrygia, We united the office of Vicegerent (as it was formerly
called) to the civil magistracy, and honored the official who administers
them with the ancient appellation of Count, because of which one of these
dignitaries bears the title of Count of First Galatia, and the other that of
Count of Pacatian Phrygia, added to the name of Our Majesty.
CHAPTER I.
We make
the same provisions with reference to the Province of Isauria, for We do not
wish that he who in the future may administer this office shall use double
commissions, assume the title of civil magis-
trate and
at the same time be invested with the insignia of military authority, and
bear a double appellation when, in fact, the two places are combined in one;
hence, in order that he may have but a single office, We decree that he
shall possess military jurisdiction, collect the public taxes, govern all
the inhabitants under his control, and preside over only one tribunal which
shall be called that of the Count, and shall receive the letters conferring
his authority from the Bureau of the Imperial Secretaries. He shall, under
all circumstances, obtain the magistracy gratuitously, and shall not give or
pay out any money; and in order that he may be free from corruption, We send
him the law which We have recently promulgated on this subject.
In
addition to the commissions conferring the rank of magistrate which are
delivered to him, We also give him the Imperial precepts, called mandates by
former Emperors, and which have again been introduced by Us into the
government, from which he may understand what is required of him in all
matters both public and private, and in addition to this, what measures to
adopt to prevent the Treasury from being subjected to any unnecessary
expense, and learn in what way he should perform his official functions.
CHAPTER
II.
He is
notified that he is assigned a place among the spectabile
magistrates, and that the Most Glorious Praetorian Prefect, along with Our
Most Glorious Quaestor, will hear any appeals taken in his province, as the
Augustal Prefect, the Proconsul, the three Praetors, whom We have recently
appointed in Pisidia, Lycaonia, and Thrace, as well as the Count of the
East, and the Counts of Pacatian Phrygia, and First Galatia do. When a case
involving property of the value of less than fifty pounds of gold is
hereafter appealed in Isauria the Count himself shall hear it, just as is
done in the Auditorium of the Imperial Palace. For We grant him this
privilege, adding thereby to the dignity attaching to his office.
EPILOGUE.
Your
Excellency will conduct yourself towards the aforesaid magistrate just as
you do toward the other magistrates hereinbefore mentioned.
We append
to this law a notice stating what must be paid out of the Public Treasury to
the Count, his court, and his assessor, and also what he must give in
consideration of receiving his commissions. These officials, who have
recently been appointed by Us, are hereby notified that they must refuse to
receive any money tendered for offices, which is not bestowed by Us either
upon themselves, their assessors, and court attendants; for We have allotted
x-large salaries to the Governors themselves, in order to prevent them from
accepting anything from Our subjects. If you should discover that the
Governors of provinces included in the jurisdiction of the Count of Isauria
are negligent in the collection of taxes, you will not remove them, but you
will notify
the
magistrates to threaten such idle and inefficient officials and exert every
effort to increase their diligence; for it is only by their cooperation that
the government of Isauria can be improved and acquire a greater lustre than
it formerly enjoyed.
The Count
of Isauria shall be entitled to two hundred solidi by way of
subsistence; his assessor to twenty-two; and the attendants of his court to
fifty-two. He must pay the following sums for the delivery of his
commissions, namely, nine solidi to the Chartularies of the Imperial
Bedchamber; twenty-four solidi to the Chief of Tribunes of Notaries,
and the Laterculensii; and forty solidi to the officers of the
court of the Most Glorious Prefect, on account of orders and for all other
purposes.
TITLE VII.
CONCERNING THE GOVERNOR OF THE HELLESPONT.
TWENTY-EIGHTH NEW CONSTITUTION. The Emperor Justinian to John, Praetorian
Prefect.
PREFACE.
It is
certainly not the part of a well-established and powerful government without
good cause to alter and divide what has for a long time been settled and
confirmed, as the strength of an empire does not depend upon a multitude of
words, but upon the faithful and just administration of affairs. We have
ascertained that this rule has been violated with reference to the two
Provinces of Pontus, that is to say, the Hellespont and Polemoniac Pontus;
for they were formerly subject to the authority of a single Governor, while
at present there are two officials, without public necessity requiring it,
or anyone being able to give a good reason for their existence. The proof
that there is no good cause for this is that, up to this time, the two
Provinces of Pontus have only had a single Count for the collection and
expenditure of taxes; and if anyone should undertake to enumerate the
different towns situated in both of them, he would hardly find enough for a
single province. For instance, the Hellespont has eight: Amasia, Ibora,
Euchaita, Zela, Andrapa, ^Egeumwhose climate, that is, its agreeable
location, has caused it to be includedSinopa, and Amisus, ancient
municipalities, as well as Leontopolis, which formerly was numbered among
cities.
Polemoniac
Pontus contains five towns, namely: New Caesarea, Comana, Trapezus, Cerasus
and Polemonium, for Pitius and Sebastopol should rather be included among
forts than cities; and these are the towns included in the two Provinces of
Pontus.
Lazica is
situated near them, in which is the City of Petraeon, which by Our favor, is
entitled to Our name and is styled Justinianian; and also Archa3opolis and
Rhodopolis, both x-large and ancient fortified towns, are among those which We
have received from the Persians;
together
with Scandis, Sarapanis, Murisius, and Lusiris, and if, in addition to
these, any others are included in the country of the Lazi, We are not aware
of the fact.
Next come
the Tzani who, during Our reign, have for the first time been subjected to
Roman rule. This nation has several towns which have recently been built, as
well as others which are in course of construction. Then come the Suani, the
Scymni, the Apsiles, the Abasges, and others, who, with the permission of
God, have either been subjected to Our dominion or included among Our
allies.
CHAPTER I.
But as in
treating this subject, We have been brought to the consideration of
different countries, We now return to the two Provinces of Pontus and the
projected union of the same. We hereby establish a single province composed
of the two Pontuses, which include thirteen cities, and We grant them their
ancient form of government while retaining their modern appellation. For
they are called the Hellespont by everyone, which name was given them by the
Emperor Constantine, in memory of his most honorable mother Helena who
recovered for Us the sacred emblem of Christianity. The ancient name of
Polemon, which the greater number of the rulers of Pontus applied to that
province, shall hereafter be abolished, first, because it was derived from
that of one of the said rulers; second, for the reason that the province
itself contains a city called Polemon; and finally, as it is better to
designate Christian countries by the names of kings than to call them
Polemi, which word conveys the meaning of war or tumult.
CHAPTER
II.
The union
of these thirteen cities into a single province will not have the effect of
depriving either of the two capitals at present in existence (namely Amasia
and New Caesarea) of that title; and the bishop of these cities shall
continue to be consecrated at Constantinople by the prelates charged with
this duty (as has been the custom up to this time), as We make no
innovations so far as the priesthood is concerned; for many institutions of
this kind having reference to bishops exist in every province, some of which
have been established for centuries, and others We Ourselves have recently
authorized. A single magistrate, ordinarily designated Harmostes in
Greek, shall exercise jurisdiction under the title of Governor, but the name
Governor is of high antiquity, and worthy of the greatness of the Romans,
while the term Harmost was applied to a magistrate sent from Laca-demon
with jurisdiction over conquered cities.
CHAPTER
III.
Hence the
official who undertakes this administration shall be called the Justinianian
Governor of the Hellespont, and will assume command of the military forces
stationed in that province. He shall
also have
an adresponsus, to whom all men, no matter to what civil condition
they may belong, shall be subjected, without exemption on account of any
privilege. He shall hear all cases pecuniary as well as criminal, and shall
dispose of such as are insignificant in character, without record or
expense; and, so far as those of greater importance are concerned, they
shall be decided by him, and the proceedings recorded, but no other costs
shall be incurred than those prescribed by Our Constitution.
The said
magistrate shall receive the emoluments granted to the two preceding ones,
which amount to seven hundred and twenty-five aurei; he shall have
only one court, and with it he shall be responsible for the levy of taxes,
for the reason that he is the only one appointed for government in the
province; his assessor shall be paid seventy-two aurei out of the
Public Treasury; and the two preceding courts, which have been combined in
one, shall be entitled to four hundred and forty-seven and one-third
aurei.
CHAPTER
IV.
Moreover,
the official who is discharging these duties shall not despatch deputies to
the cities of his province (for the rules established by Our Imperial
mandates shall be observed), but he himself shall visit the said cities, one
after another, and he shall not be prevented from doing this by any law or
pragmatic sanction previously promulgated, even though a former custom may
have authorized something of this kind. He can establish his residence
wherever he thinks best, either in one of the capitals, or in some other
town, provided the latter is of sufficient importance to justify him in
doing so. He must abstain from all corruption and illicit gain, and conduct
his administration in such a way as not to involve the inhabitants in
unnecessary expense. For neither he himself, nor any of his subordinates,
nor any soldiers of his escort, shall accept anything from taxpayers, or
exact anything gratuitously, and he must not molest Our subjects, or permit
the soldiers who accompany him to do so, for this forms part of the
instructions which We have given.
He must
always be mindful of the oath which he has taken, and that he received the
office without paying for it; and that if he is to prove worthy of an
increased allowance, he must never venture to accept any gift, unless he
expects to be compelled to return it, and be subjected to severe punishment.
Nor shall he permit any of his subordinates, under any pretext, to exact
anything, or accept it if it is offered. If he does not see that the
soldiers under his command are content with the salaries paid them, he will
not escape the effects of Our righteous indignation, and will be forced to
reserve enough from their pay to indemnify any of Our subjects who have
suffered from their impositions.
(1) We
desire these dignitaries of high rank to be invested with great authority,
not only through the number of persons composing their retinues (the Court
of the Governor of the Hellespont shall consist of a hundred officials), but
also because of their personal dis-
tinction
(for We confer the rank of spectabile upon the Governor of the
Hellespont), so that, in case of necessity, We may be enabled to avail
Ourselves of magistrates endowed with formidable power, who may be in a
position to assist Us. What could the Governors of provinces accomplish
under the ancient form of administration, when they had very few attendants,
were invested with but little authority, received but small salaries from
the Public Treasury, and paid out x-large sums of money in order to obtain
their offices? They were obliged to steal, they constantly granted favors
and benefits to their creditors, who had loaned them money to enable them to
purchase their offices, and who constantly threatened them. The result of
this was that Governors compelled Our subjects to sell their property in
order to procure for themselves revenues which were precarious and
dishonestly obtained.
(2) This
unworthy condition of affairs impels Us not only to reject the proceeds of
the sale of public offices, but also to refuse to sanction the enormous
expenses incurred by the payment of salaries to officials; and where any
kind of magistracy was formerly conferred by Our predecessors in
consideration of the payment of money, We shall provide a remedy for the
evil, deliver Our taxpayers from this imposition, and pay out of Our own
Treasury salaries to magistrates who have been appointed to office, and by
so doing give them freedom. It is true that God has been liberal to Us in
this respect, so that We have not only given peace to Africa and to the
nations included therein, but He has also enabled Us to relieve from great
expense and infamy peoples established, so to speak, in the midst of Our
Empire, against whom a new action was instituted rigorously every year; and
who, instead of being subjected to the authority of a single ruler, were, at
frequent intervals, placed under the administration of new magistrates.
We have
thought that the privilege of remedying this abuse has been conferred upon
Us by God, who has placed the Imperial crown upon Our head, and who, for the
common welfare, has invested Us with the purple, through the medium of Our
Father, and, in short, has been more generous to Us in every respect than to
any of Our predecessors.
CHAPTER V.
The
magistrate appointed to this office is hereby notified that he will be
invested with the government of many men and towns; that he should cause
himself to be greatly respected; that the form of his administration from
being consular and correctional has been changed and rendered a great
magistracy; that he must consult the interests of Our subjects; preserve
them from all oppression; govern them without bribery; increase the fiscal
revenues and exert every effort for their preservation. He must avoid
avarice; abstain from accepting gifts; administer justice to citizens in
public as well as in private; visit the cities, and correct any vicious
practices existing there, and do
nothing
for the sake of profit; he must not be animated by the desire of acquiring
either a small or a great reputation, but he must act in such a way as to
acquire one which is good and praiseworthy; he must religiously observe the
oath which he has taken; and, in conclusion, he must endeavor to render
himself acceptable to Us in every respect.
(1) He
shall also take care that no one in Pontus is permitted to place notices
upon the lands or houses of others, because this right is one of the
privileges of the Treasury; and notices of this kind are only placed upon
the palaces belonging to Us, or to Our August Consort. If the Governor
should ascertain that notices have been set up in the name of a third party,
he must tear them down, and prosecute him who is responsible for it. Where,
however, the notice has been affixed by someone claiming to be the owner of
the immovable property, the Governor shall place a public notice upon said
property, after having broken the others on the head of him who affixed
them. But if this was done by an agent having charge of the property of
others, the Governor must break the notice on the head of the latter (as We
have already stated), and also subject him to moderate punishment; in order
that the beneficiary of the illegal act may learn that neither he himself in
person, nor through the agency of others, nor by means of anyone selected
for the purpose of gratifying his avarice, will be permitted to commit any
injustice against Our subjects.
CHAPTER
VI.
In like
manner the distinguished Governor will be required to prosecute thieves; men
who make a practice of committing fraud; ravishers of women; and robbers who
take property, beasts of burden, and other things of this kind by employing
force; and he must preserve intact the rights of those subject to his
authority, in order that it may be evident that We have made a good choice
in giving him his appointment.
Persons
guilty of such offences shall not afterwards be permitted to enter the
province, which will have no reason to regret that We have done away with
the officials formerly sent to suppress violence, and punish thieves, and We
have subjected soldiers to the commands of the Governor in order that, with
their assistance, he may be able to clear his province of all kinds of
criminals.
CHAPTER
VII.
Our wishes
shall be communicated to the Governor in a few words, as he can by reading
the general law (which law We promulgated at the time We established the
rules for magistracies), as well as by familiarizing himself with the
instructions of the Emperors, readily ascertain what must be done; as the
said instructions, when given to him, will explain the way in which he
should discharge his duties. If he discharges them properly, he will not
only show himself to be grateful to Us, but at the same time will devote his
soul to God, and be able to hope for a great reward for his beneficent
administration.
A notice
appended to the present constitution establishes the salaries which the
Governor, his assessor, and his subordinates shall receive from the Public
Treasury; and it also 'fixes the amounts which the Governor will be required
to pay for his commissions. The latter, remembering the extent of Our
generosity towards him and the moderate sum exacted for drawing up his
commissions, should administer his government with justice, and, above all,
with a view to the interests of the great provinces and the multitude of
persons committed to his
care.
CHAPTER
Vill.
We further
state that appeals taken from the decisions of the Governor of the
Hellespont shall, like those from other magistrates, be brought before the
Most Glorious Prefects, and Our Most Glorious Qusestor, and decided just as
would be done in the Imperial Consistory. When appeals are taken in cases
where the amount of property involved is less than five hundred aurei
(even though this be done by delegation) but not from the decision of a
magistrate of spectabile rank; the Governor himself, who is clothed
with high powers, shall hear and determine the same; and shall bear in mind
the increase of dignity with which We have honored him, and his public
conduct should render him irreproachable in the eyes of Our subjects and
Ourself, and before Us, in those of God and the law.
EPILOGUE.
Your
Excellency, after having received this constitution, will deliver to the
Governor the great emoluments which have been granted him; and he, for his
part, impressed with the importance of his office, must endeavor to render
himself worthy of the distinction which We have conferred upon him, by being
careful to observe the provisions of this law.
TITLE Vill.
CONCERNING THE PR^TOR OF PAPHLAGONIA.
TWENTY-NINTH NEW CONSTITUTION. The Emperor Justinian to John, Pra3torian
Prefect.
PREFACE.
The
ancient race of the Paphlagonians was not formerly degraded, inasmuch as it
sent out many colonies, and established itself in Venice in Italy, and by it
Aquileia, thex-large st of the cities of the East, which had many
controversies with kings themselves, was founded.
CHAPTER I.
This
country of Paphlagonia suffered a diminution of territory during the reign
of the Emperor Honorius, and lost certain cities, the
reason for
which is not known. We desire to restore to this province its ancient form
of government, and to administer it in the same way as if it was a city, as
well as to accomplish what We have done in the two Provinces of Pontus, in
order that the official invested with authority who will govern the two
provinces (namely Paphlagonia and Honoriades) may be designated Praetor
(which is a Roman name applicable to the Governors of provinces), and have a
single court of a hundred officials, made up of the members of the two
previous courts combined.
This
magistrate shall collect the public revenues not only from the Paphlagonians,
but also from the inhabitants of Honoriades. He shall also be charged with
the administration of all the cities originally included in each province,
that is to say, in Honoriades, Prusias, Gratia, Hadrianople, Tio,
Claudiopolis, and Heraclea. Some of these, for instance, Prusias, Heraclea
the capital and chief city of the province, and Claudiopolis, were
originally taken from Bithynia, and as this was done, We do not deem it
advisable again to deliver them to the Bithyn-ians, it will not be necessary
to make any change in this respect. Thus the six cities included in
Honoriades shall now form part of Paphlagonia. The Prsetor shall also have
jurisdiction over the six other cities which, from the beginning, have
belonged to this province, namely: Germanicopolis, Gangra, Pompeiopolis,
Dadybros, the heights of Amastridis, and lonopolis, and thus twelve cities
in all will be embraced in the territory of Paphlagonia.
We do not
formulate any regulations with respect to the priesthood, but the
metropolitans will continue to be consecrated as formerly, and receive their
ordination from the patriarchs of this city; and ecclesiastics of inferior
rank shall be ordained by them, and there shall be no dispute on this
account, nor shall any confusion of jurisdiction arise. In consequence of
this, there will be in the future but a single province, which, as in the
case of others, will have several metropolitans.
CHAPTER
II.
The
official invested with the government of the entire province (which shall,
as formerly, be designated Paphlagonia) must visit the different cities, but
is not authorized to send deputies here and there to the towns throughout
the province, even though this may not have been prohibited in former times
by any pragmatic sanction. We forbid this to be done under any
circumstances, as it would be disgraceful for him, after having been
appointed to dispense justice in the province, to entrust this duty to
someone else, in violation of the provisions of this law. He himself shall
have the direction of everything, and shall collect the public taxes as
quickly as possible, and, when doing so, must not exact anything more or
less than is due. He shall see that Our subjects are equitably treated, and,
at the same time, make provisions for any losses which may be sustained by
the Treasury, and he must also prevent the cities from suffering any injury
either in public or private matters.
This
magistrate shall receive the same remuneration formerly paid to both the
others, which amounted to seven hundred and twenty-five aurei; he
shall have an assessor, who will be entitled to seventy-two aurei;
and a single court composed of a hundred men, selected from the two former
ones, to whose members emoluments shall be paid out of the Public Treasury
to the amount of four hundred and seventy and one-third aurei. As he
obtains his place gratuitously, he must also administer it in the same
manner, for We hereby release Our subjects from the control of those who
formerly were accustomed to accept gifts, when appointed to office; the
salary of the Prsetor shall be paid to him by you out of the public taxes of
his province; and We shall not suffer Our subjects to be reduced to
servitude under the pretence of an increase of taxation. Nor shall We allow
the subjects of Our predecessors, whom We have restored to their ancient
freedom after they had been subjugated by the barbarians, and who have
always been under Our government, to be enslaved by anyone else; for what
offering could be more acceptable to God than the liberty of Our subjects,
who have, up to this time, been oppressed by fresh extortions of their
Governors (as far as this can be done) since God has made use of Us to
bestow freedom upon many nations?
What We
have said does not apply to recently appointed magistrates, for they are
sufficiently secure in this respect; but in the future We do not permit
money to be paid to obtain the office of magistrate, nor Our people to be
bought as slaves, and the right to commit injustice again to become the
subject of traffic.
Therefore
Paphlagonia, formerly divided into two provinces (We do not know for. what
reason) shall hereafter only be considered one among the Provinces of
Pontus; the magistrate charged with the administration of the same shall
have (as We have already stated) the title of Justinianian Prsetor of
Paphlagonia, and it shall even be permissible for him to be styled
Strategos, in Greek.
CHAPTER
III.
You will
constantly remind the Praetor of the oath taken by him at his installation,
when he swore to keep his hands pure and free from all corrupt gain, to
increase the revenues of the Treasury by just and honorable means, and to
dispense equity and justice to Our subjects in public as well as in private
matters, whether these have reference to contracts or to judicial
controversies. He shall visit the cities without imposing any burden upon
Our subjects, so that neither he, his assessor, nor any of the persons in
his train, nor any soldiers, court-attendants or slaves, may obtain any
profit, or travel without incurring any expense. For he himself, and all his
escort, must act with propriety, paying their expenses out of the salaries
given them by the public; and the soldiers are notified that if, during
their journeys, instead of being content with their emoluments, they venture
to inflict injury upon Our subjects, cause them any loss, or take anything
from them without compensation, this shall be deducted from their pay, by
way
of
indemnity for the wrong committed; which the Praetor himself must attend to,
and, if he does not do so, he will personally Be required to indemnify Our
subjects.
CHAPTER
IV.
This law,
which We have enacted with reference to the Paphla-gonians, renders their
magistrate more honorable, places him in the rank of spectabiles, and
confers authority not only upon him over the soldiers stationed in his
province (provided he commands them with justice) but also over others; it
does not permit anyone under his jurisdiction to be released from it, even
where he may be authorized to do so by reason of some privilege, or is
charged with the administration of the estates of powerful persons. He
should take special care to prevent any other inscription than those of the
Treasury or Royal Houses to be placed upon the property of others, which is
something which frequently happens in Paphlagonia.
If the
Prsetor should learn of any offence of this kind, he must remove every trace
of the inscription, and place those of the Treasury upon the property of the
offender, after having broken his own over his head, if he is present. Where
he is absent, and the agent in charge of the property is arrested, the
Prsetor shall inflict corporeal punishment upon him, and at the same time
break the inscriptions over his head.
The
Praetor is hereby notified that if he neglects to do what We have ordered,
and We should ascertain that he has allowed inscriptions to be placed upon
other lands than those belonging to the Treasury, and Ourself and Our August
Consort, he will render himself liable to the confiscation of his own
property, for the reason that while invested with great power, he has,
through negligence, permitted acts to be committed which could readily have
been prevented.
CHAPTER V.
We desire
the Prsetor of Paphlagonia to pay great attention to the pursuit, arrest,
and punishment of persons who are guilty of robbery, stealing the property
of others, ravishing women, and other crimes, for all of which offences he
must impose suitable penalties. He must, by all means, prevent injustice,
nor allow men who are honest and peaceable to suffer injury, lest We may be
compelled again to despatch officers charged with suppressing violence,
apprehending thieves, and other duties of this kind, a measure which is
intolerable to Us. We invest this magistrate with such honor and dignity
that the appeals of cases decided in his province shall be brought before
Your Excellency and the Most Glorious Quaestor of Our Imperial Palace, who
shall take cognizance of the same and decide them, just as if they were
brought before the Imperial Audience-Chamber.
The
Praetor himself shall hear and determine all controversies where the value
of the property involved is less than five hundred solidi, which have
been tried in his province before magistrates of inferior rank, even though
the judgments may have been rendered by delegation, whenever such cases
remain in abeyance for the reason
that
appeals have been taken. He shall rank with the other magistrates whom We
have recently created, and as such magistrates have more authority, they
shall also enjoy greater distinction than their predecessors, and will be
able to furnish Us greater assistance whenever this becomes necessary. In
fact all their powers are greater, whether they have been bestowed by Our
predecessors or granted by
Us.
A notice
appended to the present law fixes the salaries to which the Praetor, his
assessor, and the subordinate officials of his court, shall be entitled out
of the Public Treasury, as well as the sums which the Praetor himself shall
be required to pay for his commissions.
(1) As the
manner in which this Praetor shall conduct his government is only concisely
stated here, it will be more explicitly set forth either by the general law
which is applicable to all magistracies, or by the Imperial instructions
which We intend to deliver to him with his commissions, when, in accordance
with Our law, We require him to take the prescribed oath.
EPILOGUE.
After this
constitution has been communicated to You, Your Excellency will deliver to
the Praetor of Paphlagonia the great emoluments to which he is entitled; and
he, impressed with the dignity of his office, and desirous of proving worthy
of the Honor which We have conferred upon him, should exert himself to carry
out the provisions of the present law.
TITLE IX.
CONCERNING THE PROCONSUL OF CAPPADOCIA.
THIRTIETH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
Persons
who have studied history are aware that the people of Cappadocia bear
distinguished names; that they had many transactions with the Romans before
being subjected to their rule; and that their dominions formerly embraced
all of Pontus, and gave birth to famous men who obtained a high reputation
among the Romans. Cappadocia is of great extent and wonderfully fertile, and
found such favor in the eyes of the Emperors that the latter were accustomed
to appoint as Governor of those regions a special magistrate of higher rank
than that of a civil official. This country is extremely populous, and
contains a great city which bears the name of Caesar, one which is very dear
to Us, being that of a ruler who began the acquisition of the empire of the
world which We at present possess, a name held in great veneration by all
the people of the earth, and which We exalt above all the attributes of
Imperial Majesty.
CHAPTER I.
It seems
to Us contrary to all propriety and dignity that Cappadocia hitherto should
have been subject to the jurisdiction of an inferior magistrate, as We have
learned that almost constant seditions have arisen against the government;
that the city is divided into two factions, one of which is styled Tamiacal,
or Fiscal, and relating to the Treasury; and the other Eleutherical, that is
to say, free; and while there is but one community enclosed by the walls,
there are two bodies of persons entertaining different opinions. This gives
occasion for seditions and quarrels, and if the inhabitants experience any
evils it is due to this cause (so We think) and, when it is removed, We
shall restore authority and concord, than which nothing better or more
desirable can exist among men.
(1) With
this end in view, We have established a different form of government, with
other magistrates, as We have already done in the case of the
Pisidians, the Lycaonians, and the Thracians, by the union of both the civil
and military jurisdiction; but, as We desire it to be superior to theirs, We
have added a third. For, in addition to the fact that the magistrate
entrusted with the government of Cappadocia shall supervise the execution of
the laws by the civil officials, and shall have command of the soldiers
stationed in his province, as well as all the other provinces of Pontus,
where Tamiacal lands are to be found, he shall also be invested with
authority over soldiers stationed in those places. For We grant him
jurisdiction over the men attached to Tamiacal lands, as well as over those
forming part of the Comitian Court, who shall all obey him, and in this
manner he shall administer a government of a threefold nature, for he will
have civil and military jurisdiction, as well as control of Tamiacal
property. Thus he will have two courts, Comitian, whose officers will
execute his orders without reference to the Civil Court and that of the
illustrious Governor of the province; these two courts shall be styled
Proconsular, and We desire that each one of them, that is to say, the one
formerly known as Comitian and the one called Civil, although they will have
but one appellation (that is Proconsular) shall each exercise distinct
functions. In this way the Civil Court will have charge of tributary and
civil matters which We are aware from the beginning have always belonged to
it; and the court which formerly was called Comitian will be restricted to
the administration of property belonging to the Empire, and shall make
collections in the manner which We shall presently explain.
CHAPTER
II.
Bearing in
mind the example of former times, and the enormous injury inflicted by
curators and stewards upon Our wretched subjects, We do not desire the names
of these officials to longer exist. For this reason there shall be appointed
for each separate house thirteen of the principal members of the Comitian
Court, who shall be called first and second masters, and shall be personally
liable, and thirteen others who shall be next in authority, and shall, like
the first be assigned to.
each
private house (as already stated) ; and the latter, under the supervision of
the head masters, shall attend to the collection of the revenues, and
preserve for the Treasury the property belonging to the same; it shall be
their duty to correct the indolence of taxpayers, but they must be careful
not to cause the latter any loss, for We warn them that they will be
responsible for anything of this kind, and will give every public receipt at
their own risk.
The first
and second masters and the thirteen others who come next in order must be
careful not to divert the public revenues to any improper purpose; nor shall
they be compelled to pay any personal contribution to the Proconsul in
office at the time on account of their commissions, or to do this under any
other pretext; but each one of the thirteen collectors shall pay fifty
aurei to the thirteen head-masters.
CHAPTER
III.
Collectors
shall not take from peasants, or others from whom collections can be made by
them, any more than has been prescribed by the Edict of Niceta, and they are
forbidden to pretend that the taxpayers are indebted, and to oppress them
under the pretext of compelling them to make payment to stewards, by way of
greeting; or in the observance of some custom; or for any other annoying
purpose; for We desire absolutely to deliver Our subjects from such
exactions, as well as from the unlawful and onerous contributions that they
formerly paid to stewards, and which prevented them from discharging the
obligations which they owed to the public. We hereby annul every pragmatic
sanction, or long-established usage, where any authorizing similar
contributions exists; for by abolishing even the name of these officials, We
destroy at the same time everything which has reference to them, and grant a
special favor to Our subjects. If any collector should dare to take from
tax-payers anything beyond what is authorized by the Edict of Niceta, and
which alone We have permitted them to accept, he shall be deprived of his
office, rank, and property.
CHAPTER
IV.
As it may
happen that among the thirteen collectors (We order that they shall be
appointed to this office in regular gradation), one may be found who is not
qualified for the collection of the revenue, We nevertheless allow him to be
paid his entire salary. But We order that the thirteen principal masters, as
well as those who come directly after them, shall, at their own risk,
appoint an assistant who shall make collections in his stead; because in
this way the collection of taxes may be promoted, and the Treasury will not
suffer any loss through the imbecility of an incompetent official; who,
however, shall not be deprived of his rank, or his time of service; but We
repeat that the appointment of his assistant shall be made on the
responsibility of the thirteen head-masters, and the thirteen other
officials who are immediately subordinated to them.
Collectors
will have reason to thank Us for having released them from the 'excessive
contributions that they were formerly obliged to
make, not
only to the head-masters, but also to the Count in office at the time, and
his attendants. If, however, We have freed them from this species of
imposition, it has been done to prevent them from being guilty of injustice
toward Our tax-payers, and that they may not invent pretexts; for instance,
that of their assuming office, or various others, by which the means of
peasants are exhausted, and that they remain content with what was allotted
to curators by the Edict of Niceta, of illustrious memory, and abstain from
exacting anything beyond this amount.
CHAPTER V.
The
Proconsul shall decide all matters within the jurisdiction of civil,
military, or Tamiacal authority. For We desire to place over Cappadocia a
magistrate invested with greater power than in the other provinces; and as
it was customary among the ancient Romans for the provinces to be
apportioned by lot among the Consuls, or those officials who replaced them
and were called Proconsuls, We desire that the Cappadocians also should
possess a Proconsular Magistracy, an office by which the Romans are
conducting the administration of Africa. We place the government of
Cappadocia in a class so superior to the others that We designate the
official to whom it will be entrusted in the way that We do Our Glorious
Praetorian Prefects. He shall be called in a paternal manner the
Justinianian Proconsul of Cappadocia, and he shall also have- the special
title of Archegetes, that is to say, Principal Magistrate. For it is
not without reason that he should be invested with such extraordinary
dignity, as his power extends to other localities by means of the Tamiacal
possessions; he has civil jurisdiction over persons as well as property;
and, as he, at the same time, commands the military forces, he will, in
every respect, exercise great authority. He shall, however, be required to
conform to custom in the administration of civil affairs, and shall properly
direct the soldiers at his disposal.
(1) The
Proconsul with the head-masters shall attend to the administration of such
Tamiacal property as has been so deteriorated and exposed to the
depredations of others that it is worth almost nothing, for We have been
informed that such great abuses exist in that province that it is extremely
difficult to apply proper remedies. Those who have charge of the estates of
powerful persons (We almost blush to say it) conduct themselves on all
occasions with intolerable insolence; they are accompanied by guards to
prevent the multitude from following them, and they steal with the greatest
impudence. We are surprised that the people of this province have been able
to endure so many injuries.
Again,
every day, a vast number of Cappadocians who have been oppressed by
injustice, among whom are to be found many ecclesiastics, and women, lay
their complaints before Us, while We are occupied in conducting the
government, because no one can be found in their province who is able to
prevent acts of this kind from being committed. Tamiacal possessions are
almost reduced to the condition of private
property;
they are ravaged and torn up; everything belonging to them is removed; and
no one makes any remonstrance because the mouths of those who could do so
are closed with gold.
CHAPTER
VI.
Therefore,
being fully informed of these matters, We have decided to commit the
government of Cappadocia to an official who, possessing triple jurisdiction,
will unite in himself all administrative functions; who shall be invested
with the insignia of civil office; be entitled to use a silver chariot, the
axe, the fasces, and every other mark of Proconsular authority; and shall
also command the soldiers, and collect the income of Tamiacal lands; shall
see tha't the officials appointed for these collections are not guilty of
fraud or negligence, and compel them to deliver to Us everything derived
from this source to which We are entitled, and which should be given either
to Us or to Our August Consort, whether it consists of gold or cloths, for
We wish nothing of this kind to be retained.
(1) These
articles, however, shall not be obtainedas has been the case up to the
present timefrom Our subjects by extortion (for We regard all such measures
as abominable, and wish them to be excluded from Our government) ; but We
order that they shall be acquired by the just and legal means which We have
prescribed in this Our law.
The
Proconsul shall obey these rules, and shall give to Our August Consort fifty
pounds of gold, as has been stated; for We appoint him gratuitously, and
give him his commissions without requiring him to pay for them, nor do We
desire that anyone shall collect anything from him on this account.
(2) We
grant the Proconsul a salary of twenty pounds of gold and his assessor two
pounds; and each body of attendants shall, without any diminution, receive
the same allowance which has, up to the present time, been furnished it by
the public. We decree that the connection which the magistracy of Cappadocia
has had with the Most Glorious Imperial Chamberlain shall be preserved; and
We desire that the latter, as well as the entire corps of Palatines subject
to his orders shall retain their former authority and rank in this province.
But We forbid the Proconsul then in office, and his court, to exact anything
whatsoever, whether it be gold, cloth, or other things, under the pretext of
custom or subsistence; and if the Proconsul should violate this order, he
will not conduct his administration honorably, and will not prevent the ruin
of his province, for which very reason We have placed it under his exclusive
jurisdiction.
CHAPTER
VII.
The
official whom We shall dispatch into Cappadocia to discharge the duties of
the Proconsulate will have general supervision of Tamiacal lands. He must
ascertain whether they consist of meadows, fields capable of tillage,
vineyards, or other property or houses, and if held
by private
individuals, he shall recover them without the latter being permitted to
plead any prescription of time, for to adopt such a measure against the
Treasury is not allowed, and anyone who has taken possession of Tamiacal
land cannot add it to his own estate; hence, where some person is
ascertained to have been induced by avarice to appropriate property of this
kind, he will be much nearer poverty than wealth, because he will be
compelled to return it, and will also be subject to reproach and disgrace.
(1) The
Proconsul shall maintain peace in all the cities, and not permit any
sedition to disturb his administration; he shall diligently and justly
collect the public taxes, and give this matter his entire attention, without
allowing either the Treasury or private persons to sustain any loss. He
shall have the same authority over all men, whether they be soldiers,
secretaries of the Most Glorious Prefect, generals of the army, members of
the Civil Court; whether they are discharging the duties of a Tamiacal
office, or are invested with great or little authority; or, finally, whether
they are included in the body of ecclesiastics. This magistrate shall have
jurisdiction over all persons, and shall make it his special duty to
preserve his reputation unblemished ; he must obey the laws, and, above all
things, render himself acceptable to God; he shall see that the collection
of public taxes is made without loss or delay by the Proconsular officers;
he shall cause the revenues from Tamiacal lands to be paid into his Treasury
by the said officers, and in this respect he will observe the rules
ordinarily laid down by Our Most Glorious Imperial Chamberlain.
The
collectors themselves must not accept a single obolus beyond the
amount given them by the Most Glorious Imperial Chamberlain, nor can they
take anything on the ground of its being authorized by custom, or under any
other pretext, either from the Praetor in office at the time, from those who
draw up the public receipts, from the Proconsul himself, from the members of
his court, from the officials styled Katascevastse, or instructors,
from stewards, or from any other person attached to the service of the
Imperial domain.
The
Proconsul shall have charge of both armies; he shall restrain the satellites
of powerful men; he shall prevent the province from being depopulated and
infested with brigands; and, finally, he shall not, in person, travel over
it as formerly the Counts were accustomed to do. He shall not appoint any
deputies in his stead, but shall be represented by the defenders of the
different places and his own subordinates.
(2) When
any part of the province has need of soldiers, the Proconsul shall direct
those stationed therein to render assistance wherever it may be required;
and they must travel at their own expense, without causing any loss or
damage to Our subjects. The Proconsul shall also travel at his own expense,
no matter where he goes, even when We direct him to repair to some other
province; and the same rule shall apply to his assessor and his escort
composed of Proconsular officers, even though they may have with them slaves
or horses. But as We have previously stated, all the soldiers and persons
residing in the province, as well as those composing the household of the
Pro-
consul,
shall be required to obey his orders, under the penalty of losing their
places and their property, for the Proconsul can deprive them of both, if
they refuse to obey him; and We confer authority upon him to do this in
order to render him more formidable to Our subjects, and increase the
respect with which he should be regarded. For if a soldier, an official of
the Court of the Proconsul, or a member of his household should, while
executing the orders which he has received, cause Our subjects any
lossprovided he is performing his duties on his own responsibilitythe
Proconsul shall deduct enough from his salary to indemnify the person who
has been injured. In conclusion, the Proconsul shall not permit any
officials, sent from this city, to molest Our subjects.
(3) He
shall also see that the public race-course is kept in good condition, for We
except nothing from his jurisdiction, and if anyone despatched from a court
into the province should be guilty of oppression, or exact anything more
than he is entitled to, he must prosecute him.
CHAPTER
Vill.
The
Proconsul shall also take care of the city and of all matters relating to
the public distribution of grain, as well as of the public works; take
measures to have accounts rendered in accordance with Our law; and see that
all revenues, Tamiacal as well as civil, are collected. He shall expel from
the province any persons who are ordinarily charged with the repair of
aqueducts, walls, bridges, highways, and other public works of this kind,
who formerly attended to these matters in accordance with an evil custom. He
shall not permit such persons to execute orders of this description, or to
obtain any profit under this pretext; and when We are convinced that an
inspection of works should be made, and that it is advisable to send to the
Proconsul a pragmatic sanction on this subject, We shall do so, after having
notified Your Highness, in order that the entry into the province to collect
money there may not appear to be easy to anyone. The official who discharges
the duties of this office shall prohibit everything in his jurisdiction
which he finds to be dishonorable. If, in order to do this, it is necessary
to adopt more severe measures, he will communicate the fact to Your
Excellency, as well as to the Most Glorious Imperial Chamberlain and the
other eminent magistrates who have power to act in the matter; and finally
he must have recourse to Us, and We will instruct him in what he has to do.
(1) The
Proconsul shall not, in the province subject to his jurisdiction, affix to
the real property of private individuals any other notices of claims than
those of the Emperor, or of the Imperial domain, that is to say, the
Treasury; he shall confiscate the property of persons who are guilty of this
offence, and cut off their hands in case they are present; but where their
agents have committed this violation of law in the absence of their
principals, he shall punish the former. In addition to this, he shall break
the inscriptions over the heads of those who have either themselves placed
them upon the land, or have done
so by
their agents. He is hereby notified that, if he neglects to punish a crime
of this kind when it is brought to his knowledge, he'will render himself
liable to the confiscation of his own property.
CHAPTER
IX.
This
magistrate must devote all his care and attention to the administration of
justice, and must not (as was formerly the case) suffer rustics to be
oppressed. Nor should the Cappadocians annoy Us any longer by their
supplications and lamentations, for the Proconsul himself will act as their
judge and decide their disputes. For if anyone should come here without
previously stating his grievances at home, We shall send him back with a
reprimand for having besought Our clemency before having applied to the
magistrate of his province. But where injured persons have gone before the
Proconsul, and the latter, steeped in debauchery and abandoned to pleasure,
did not listen to their complaints, permitted them to make their
applications in vain, and obliged them to have recourse to Us, especially if
such persons are women, We, having ascertained the fact that they applied to
him and he did not redress their wrongs, shall then regard his conduct as
suspicious, and think that he has been influenced by the expectation of
gain, or has acted through favor or consideration for certain persons, and
shall interpose Our authority; for as he is invested with the functions of a
threefold magistracy, he shall be punished in a threefold manner, by
justice, by Us, and by the laws.
(1) It is
proper for this official, who is entitled to public respect, to constantly
bear in mind the instructions which We have given him (Our ancestors called
these instructions Imperial Mandates), and always act in conformity to Our
law, displaying equity in his judgments, honesty in his administration of
affairs, and everywhere cultivating justice, than which there is nothing
more powerful or admirable in men, or better adapted to secure the
approbation of God and the Emperor.
A
magistrate of this kind must act in such a way as to merit Our commendation,
and We wish him alone to attend to all the business of his province, and no
one else to take cognizance of cases; for, under these circumstances, it is
not easy for Us to interfere with his decisions and appoint others to act in
Our stead, or to dispatch officials into his province for the purpose of
suppressing violence, or for any other reason whatsoever. For although, up
to this time, officers of this kind have, by virtue of Our orders and the
decrees of magistrates, been commissioned for this purpose, this shall not
be done hereafter, and the Proconsul after receiving the administration of
his entire province must not permit anyone else to have access thereto.
CHAPTER X.
Moreover,
We confer upon this magistrate the rank of spectabile, which is
enjoyed by all Proconsuls; appeals from his decisions shall be heard by Your
Excellency along with the Most Glorious Quaestor of
Our
Imperial Palace, in the form and according to the procedure of
consultations. But when, in Cappadocia, any case where property to the value
of five hundred aurei is involved is suspended by appeal, even though
it may have been determined by a judge appointed by Us, or by some other
magistrate, who, however, is not of spectabUe rank, the Proconsul
himself must hear and decide it, according to the practice of the Imperial
Consistory instead of the Imperial Audience-Chamber. We grant him this
privilege, and thereby invest his magistracy with greater dignity than any
which an official of this kind has hitherto obtained in Cappadocia.
The
Proconsul must be just, a man of high principles, and have nothing before
his eyes but Our service and compliance with the law, being aware that if he
observes strictly what We enjoin upon him, he will hold his office for a
long time, and afterwards deserve promotion to a more important one. But if
he should neglect Our orders, and not treat Ourself and the law with proper
respect, or permit himself to be influenced by powerful persons, he shall
immediately lose the authority with which We have invested him, and be
considered as guilty, and unworthy of Our esteem.
CHAPTER
XI.
This
magistrate must punish with severity the crimes of adultery, the rape of
virgins, fraud committed with the expectation of gain, and homicide, in such
a way as to restrain the majority of persons by the punishment of a few. The
law confers upon him the right to search for criminals with this end in
view; for this is not ordinary humanity, but the highest degree of that
virtue, where many are rendered safe by the castigation of a small number.
If this official should favor anyone accused of crime on account of some
office which he holds, or his civil or sacerdotal rank, or should endeavor
to release him from liability under any other pretext, he is hereby notified
that he will incur Our indignation. For no one can rely upon his own
influence, and set up a defence which has no connection with the crime of
which another is accused, in order to enable the latter to escape the
severity of the law. And where anyone makes a defence of this kind, and the
Proconsul admits it, there is every reason that he should incur the same
penalty as the guilty party, since there is no distinction between the
commission of an offence and a desire to release the offender from the hands
of the law.
(1) A
notice is appended to the present law fixing the emoluments that the
Proconsul and his subordinates shall receive from the public, as well as
what he will be obliged to pay for his commissions, and what will be due to
the household of Our August and Pious Consort. He shall pay the latter, in
consideration of the three jurisdictions entrusted to him, fifty pounds of
gold, the same amount which has been customary up to the present time.
(2) And
(as We have frequently stated) the Proconsul must govern Our subjects
uprightly, as it is for this reason that We have
taken so much pains, performed so much labor, incurred so much expense, and
undertaken such great wars, in consequence of which God has not only granted
Us the enjoyment of peace and the subjugation of the Vandals, the Alani, and
the Moors, as well as enabled Us to recover all Africa and Sicily, but has
also inspired Us with the hope of again uniting to Our dominions the other
countries which the Romans lost by their negligence, after they had extended
the boundaries of their Empire to the shores of both oceans, which countries
We shall now, with Divine aid, hasten to restore to a better condition.
Nor do We hesitate to encounter any difficulties, no matter how great
they may be, in the pursuance of this object; and We shall undergo vigils,
abstinence, and other privations, even beyond what can be endured by human
nature, in order to promote the welfare of Our subjects. The Proconsul must
constantly peruse Our instructions, which We shall give him with the
commissions of his office, as We have previously stated; and' if he complies
with them scrupulously, he will show himself to be entitled to admiration
and in every respect worthy of Our Empire.
EPILOGUE.
When the
provisions of this law have been communicated to Your Excellency, you will
deliver to the Proconsul the emoluments which We have allotted to him. His
authority will be so great that many persons aspiring to the honor and
distinction which We bestow upon him will be anxious to obtain his office.
TITLE X.
CONCERNING
THE DIVISION OP ARMENIA INTO FOUR JURISDICTIONS.
THIRTY-FIRST NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
twice Consul and Patrician.
PREFACE.
While
there are certain matters which, being mingled in confusion are,
nevertheless, susceptible of proper adjustment, there are many others which
though separate are deemed disgraceful, even though this may not actually be
the case; for, being without elegance, they still are not absolutely devoid
of refinement, or are considered disarranged and discomposed, although they
are in reality clear and distinct. As this observation applies to Armenia,
We have thought that this country should be regulated and brought into
harmony, in order that We might the better render its condition more stable,
impart greater strength to its government, and establish better order within
its territory.
CHAPTER I.
Hence We
divide Armenia into four provinces, one of which shall be called Interior,
and shall have for its capital a city which bears Our name, and which
formerly was called Bazanis or Leontopolis; and We honor this province,
which was formerly governed by the magnificent Acatius, with a Proconsulship.
The magistrate appointed shall be of spectabtte rank, and be invested
with all the honors pertaining to his office. For We bestow upon him the
consular robe, as well as other insignia, and include in his jurisdiction
the City of Theodosio-polis, which already belonged to it, Satala, Nicopolis,
Colonea (as it was formerly called), which We have taken from Armenia,
Trapezunte, and Cerasunte, which belonged to what was originally Polemoniac
Pontus, all of which cities were formerly governed partly by an illustrious
provincial Governor, and partly by another magistrate. Thus Interior Armenia
will include seven cities and the territory dependent
upon the same.
(1) We
order Second Armenia to be formed from what was previously called the First,
and that its capital shall be Sebastea. The cities of which this province is
composed are Sebastopol, which it already had; Commana, which belonged
Polemoniac Pontus; Zela, which was taken from the Hellespont, and also Brisa.
This province will therefore include five cities under the jurisdiction of a
Governor whose authority shall not be diminished, and whose rank shall
remain the same.
(2) In the
next place, We form Third Armenia out of the territory of which the Second
was composed, the capital of which is Melitena, a remarkable city situated
in a fertile country possessing an agreeable climate, and not far distant
from the river Euphrates. We have thought proper by the present law to give
this province a magistrate of spectabile rank, who shall be styled
the Justinianian Count, to whom shall be allotted the salary of seven
hundred solidi; seventy-two solidi shall be paid to his
assessor, and three hundred and sixty to the members of his court; and, in
addition, We grant him all the attributes attaching to an office of this
kind. Those who are appointed members of this court shall perform the same
duties as before, and shall be specially charged with the levy of taxes; and
the Court shall bear the name of Comitian, and be invested with all the
privileges which it previously enjoyed. In accordance with this arrangement,
Third Armenia will include the six cities which belonged to Second Armenia;
that is to say, Area, Arabissum, Ariarsathea, Comana (which is also called
Chrusa) and Cucusa, which makes the six cities which the province formerly
had.
(3) We now
constitute Fourth Armenia, which was not originally included in the
province, but was composed of several nations with barbarous names, such as
those of Trophsena, Anzethena, Ophena, Astesena, and Balabithena, which were
governed by satraps (the name of this magistrate, however, is not Roman, and
was not introduced by Our ancestors, but was borrowed from a foreign
Empire). We establish in this province of Fourth Armenia a government which
shall be entrusted to a civil magistrate, to whose
jurisdiction We add the City of the Martyropolitani, and the fortified town
of Cithariza. This government shall belong to the class of ordinary consular
magistracies, and We decree that two of the magistrates having jurisdiction
over the four provinces of Armenia, that is to say, the Proconsul, who will
govern First Armenia, and the Count who will govern Third Armenia, shall be
spectabiles; while the two others, who will be placed in charge of
Second and Fourth Armenia, shall only possess the rank of ordinary
magistrates.
In cases
where the value of the property involved is less than five hundred solidi,
We desire that appeals taken from these provinces, instead of being
brought to this city, shall be sent to the nearest spectabile
magistrate. Hence appeals taken in Second Armenia, of which Sebastea is the
capital, shall be decided by the Proconsul of First Armenia; and those below
the aforesaid value taken in Fourth Armenia shall be heard and determined by
the Count of Third Armenia, who will fix his residence at Melitena.
CHAPTER
II.
These
matters having been in this way attended to by Us, We think it advisable
that a man should be appointed for the government of First Armenia, who, on
account of his rank and the eminence of his services towards Us, may be
worthy of the office. Hence, as We are aware that the most magnificent
Thomas has already exercised authority in Armenia, and besides is an
excellent man who has always served Us faithfully, and is still in Our
service, We intend to promote him to this office, and he shall not merely be
charged with the government of First Armenia, but shall also execute in the
other provinces the orders which We shall communicate to him in Our Imperial
instructions, which will inform him of the way in which he should act with
reference to their administration.
(1) We
desire that, so far as ecclesiastical affairs are concerned, everything
shall (as We have frequently stated) remain in its former condition, and
that no change shall take place either in the law governing archbishops, or
in that regulating ordinations. Ecclesiastics who have already been ordained
shall, as formerly, retain the authority conferred by their ordination, and
the former metropolitans shall retain theirs, for no innovation whatever
shall be made in matters of this kind.
CHAPTER
III.
We have
already declared that the Count of Third Armenia is invested by Us not only
with civil but with military jurisdiction. The soldiers stationed in that
province must obey his orders, and he shall have the power to summon them in
his own name, to make deductions from their pay, and to inflict punishment
upon them when they act improperly; and he must not, under any
circumstances, permit them to injure Our subjects.
When,
however, the soldiers commit any illegal act, he must prosecute them like
any other criminals, and he will have the same control over them as is
conferred upon military commanders. We place under his jurisdiction all the
military forces subject to the Counts of Isauria and Pacatian Phrygia and
the Prsetors of Lycaonia, Pisidia, and Thrace; and, like them, he will have
one court for the despatch of civil business, absolute authority over the
army, and supreme jurisdiction over soldiers as well as all others, just as
if he held but one office.
He must
also take measures to prevent the perpetration of crimes in his province,
and suppress those which come to his knowledge; he shall not be turned aside
from his duty through the influence of any person in his province, whether
he be a civilian, a soldier, or some one attached to the Imperial domain;
but We desire him to maintain Our subjects in a just and perpetual peace,
and see that Our laws are not brought into contempt by the acts of any
persons whomsoever.
EPILOGUE.
Your
Excellency will see that what We have been pleased to decree with reference
to the division of Armenia into .four provinces, and especially that part of
it relating to the Thirdon account of which We have enacted the present
lawis scrupulously observed. The various annual salaries which We have
ordered to be paid to these magistrates shall be given to them, in
accordance with the special instructions communicated to you.
TITLE XL
No ONE
SHALL RETAIN THE LAND OF A FARMER GIVEN BY
WAY OF
SECURITY FOR A LOAN, NOR SHALL CREDITORS
RECEIVE
EXCESSIVE INTEREST FROM FARMERS.
THIRTY-SECOND NEW CONSTITUTION.
The
Emperor Justinian to Agerochius, Most Illustrious Governor of .^Emimons in
Thrace.
An evil
greater than excessive impiety and avarice exists, which We consider
necessary to remedy by a general law, that shall be applicable not only for
the present, but for all time to come. For We have ascertained that certain
persons in the province which you govern have not hesitated, when there was
a scarcity of grain, to lend a small amount of seed to farmers, in order to
obtain possession of their land, the consequence of which is that the
majority of the unfortunate farmers have been obliged to take to flight;
that many have perished from hunger; and that a horrible contagious disease,
not less terrible than the invasion of the barbarians, has been added to
their other misfortunes.
CHAPTER I.
Therefore
We order that, where persons who have lent farmers any quantity of dried
fruit, and have received from them security for their
loans,
they shall return said security without being able to retain the land of the
debtors, under the pretext of such loans, whether the agreement was reduced
to writing or not; that creditors shall only be authorized to take, by way
of interest, the eighth part of a measure annually for each measure
furnished, where dried fruit has been lent; or one siliqua a year for
each aureus, where the loan is of money.
Moreover,
creditors shall, in the future, be content with the said eighth part of a
measure annually for every measure lent, or with one siliqua annually
for every aureus lent, no matter what may be the amount of the loan.
They shall be compelled to return everything which they have taken in
pledge, whether it be land or other property of the debtor, for instance,
cattle, sheep, or slaves.
This
provision of the present law affords everyone an example of humanity and
forbearance, and, at the same time, provides for the necessities of indigent
debtors and the interests of creditors.
EPILOGUE.
Your
Illustrious Highness will take measures to have this constitution carried
into effect, and every creditor is hereby notified that if he dares to do
anything contrary to its provisions, he will be deprived of the right to
recover what he has loaned, and he who has sustained the injury shall be
compensated, either by being released from liability, or by knowing that his
creditor has lost his property.
Given at
Constantinople, on the fifteenth of the Kalends of July, during the
Consulate of Belisarius.
TITLE XII.
CONCERNING THOSE WHO MAKE LOANS TO FARMERS.
THIRTY-THIRD NEW CONSTITUTION.
The
Emperor Justinian to Dominicus, Prastorian Prefect of Illyria.
We have
promulgated a law for the purpose of suppressing the avarice of creditors,
who, taking advantage of the prevailing distress, acquire the lands of
unfortunate farmers, and seize all their property on account of the little
grain which they have furnished them; and this law, at first published in
all the provinces of Thrace, We now communicate to all those of Illyria. We
order that a copy of it shall be attached to the present constitution, in
order that not only private individuals may be certain that its provisions
are applicable not only to them, but also to soldiers who rely upon their
superior influence.
Your
Highness is notified that this law is applicable to the inhabitants of the
provinces, to soldiers, and to all officials without any exception, and We
address it to you in order to warn soldiers who may think that they are not
bound to comply with it, that in case of its violation, they will be
deprived of their offices, reduced to the condition of private citizens, and
subjected to the penalties which We have prescribed by the preceding law.
TITLE
XIII.
No ONE WHO
HAS LENT MONEY TO A FARMER SHALL
RETAIN His
LAND WHICH HAS BEEN GIVEN AS SECURITY,
AND WHAT
RATE OF INTEREST CREDITORS ARE ALLOWED
TO RECEIVE
FROM FARMERS.
THIRTY-FOURTH NEW CONSTITUTION.
The Same
Emperor to Agerochius, Most Illustrious Governor of ^Emimons in Thrace.
We have
considered it advisable to correct a most atrocious and inhuman abuse which
is far worse than any act of impiety or avarice, and administer a remedy
applicable to all persons, not only in this present time of necessity, but
throughout all future ages; for it has come to Our ears that certain
persons, in the province which you govern, being induced by avarice to take
advantage of the public distress, and, having drawn up agreements bearing
interest, by which they loaned a small amount of grain, have seized the
lands of the debtors, and that, for this reason, some farmers have fled and
concealed themselves, others have died of starvation, and pestilence, not
less terrible than a barbarian invasion, has, in consequence of the failure
of the crops, afflicted the people.
CHAPTER I.
Hence We
order that all creditors of this kind, no matter what may be the value of
the articles which they have loaned, or whether they consist of wheat,
barley, or other grain, or dried fruits, shall hereafter be entitled to
receive annual interest on such articles at the rate of the eighth part of a
measure for each measure furnished, and must return to the farmers the lands
which they have taken in pledge, without being, under any circumstances,
permitted to hold them under the pretext of a loan at interest, whether the
obligation has been committed to writing or not.
Where the
creditor has lent money, the debtor shall not be required to pay him any
more interest on the same than one siliqua annually for each
solidus.
We extend
to all Our subjects the benefit of this salutary law, which shall be
observed in every respect now, as well as in the future. Thus, as We have
just said, creditors who have lent wheat, barley, or other grain at
interest, shall receive annually the eighth of a measure for each measure,
or a siliqua for each solidus furnished, according to the
nature of the article in question; and they shall return to their debtors
the lands or other property such as cattle, sheep, and slaves, which they
have taken by way of pledge.
This law
shall apply to all Our subjects, for it is humane and just, it "relieves the
poor, and affords adequate compensation to creditors.
EPILOGUE.
Your
Highness shall hasten to put this law into execution throughout the entire
province subject to your government. Creditors are notified that if they
should violate it in any way, they will lose the right to collect what they
have lent; and debtors will have the consolation of knowing that they are
discharged from liability for their obligations, and that their avaricious
creditors have lost their property.
TITLE XIV.
CONCERNING
THE ASSISTANTS OP THE QUAESTOR. THIRTY-FIFTH NEW CONSTITUTION.
This Novel
Does Not Exist in Greek, and I Have Copied Here the Epitome of the Same
Which I Found in the Novels of Julian.
To the
twenty-six assistants. You ask whether it is permissible to substitute for
the officials called secretaries of the Quaestor experienced men whom the
Quaestor may appoint temporarily, in the presence of the Holy Gospels. The
persons substituted as aforesaid shall pay those whose places they occupy
the sum of a hundred solidi; the officers of these three ranks, that
is to say, those next in order to the employees of the Bureau of Memorials,
and the two other Bureaus, even though they may not be included among the
twenty-six assistants, shall have the same right to substitute others in
their stead. Hence the assistants of the employees most closely connected
with the Imperial Bureaus shall have the right to sell their employments,
provided the amount received is not above a hundred solidi, and the
substitute is approved by the Qusestor.
This
Constitution expressly confers this privilege upon Theodosius, Epictetus,
Quirillus, Sebastian, and Perigenes. If one of the twenty-six assistants
should die, his heir shall, with the consent of the Qusestor, discharge the
duties of his office, provided he pays a hundred solidi. All the
children of the deceased, even though they may not be the heirs of their
father, shall enjoy the same privilege.
Given
during the Consulate of Belisarius.
TITLE XV.
CONCERNING
THE SUCCESSORS OF THOSE WHO RESIDE IN
AFRICA.
THIRTY-SIXTH NEW CONSTITUTION.
(1)
Africans can, during the term of five years, recover any property of which
they have been deprived in person, or which was taken from their fathers,
mothers, grandparents, or their collateral relatives as far as the third
degree, provided this is not barred by legal prescription.
(2) They
shall be required to prove their parentage on both side's.
(3) All
Africans are subject to the Roman laws.
TITLE XVI.
CONCERNING
THE CHURCHES OF AFRICA. THIRTY-SEVENTH NEW CONSTITUTION.
Rules
concerning the Venerated Church, etc. The churches of Africa shall be
entitled to the property of which they were deprived by the Arians, and
shall recover it without being interfered with by anyone, but they must pay
any public or private claims that may
be due.
A heretic
shall not confer the rite of baptism, or discharge the duties of a public
office, and a catechumen shall not circumcise anyone. No heretic shall,
under any circumstances, have a house of worship, or a place of prayer. The
Carthaginian Church shall enjoy all the privileges granted by the Code to
other churches in general. Anyone who takes refuge in a Carthaginian church
shall be immune from arrest, unless he has committed homicide, the rape of a
virgin, or has been guilty of violence towards a Christian. No one shall
take from the churches of Africa any objects which have been donated by
persons in gratitude for their restoration to health. This rule shall be
generally observed with reference to all churches.
TITLE
XVII.
CONCERNING
DECURIONS AND THEIR CHILDREN. THIRTY-EIGHTH NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect of the East.
Those who
governed the Empire before Us thought that it was necessary, as in the case
of this Royal City, to appoint in every town a body of men of noble rank,
and form them into a Senate or Curia, by means of which the public
business could be regularly conducted. This arrangement proved to be
eminently successful, and the order flourished to such an extent that there
are many families of decurions, and on account of their x-large numbers, none
of them found the duties of his office intolerable; for where an employment
is divided among several persons, the burden is hardly felt by those who
sustain it. But when the decurions began to withdraw from the curia,
and found opportunities to be released from its requirements, the curise
were, under innumerable pretexts, reduced in importance; so if they
still preserved any private property, that which was public and common
property was greatly diminished, and there remained only a very small number
of persons to perform the official duties, and the pecuniary resources of
the latter were constantly lessened; the cities, in their turn, were
subjected to loss; the duties of the curia were discharged by
unprincipled men who were styled "avengers," and the curia being thus
deprived of usefulness, the State, in consequence, became afflicted with
abuses and all kinds of injustice.
(1) After
having frequently and diligently considered this subject, We have thought it
advisable to remedy it. And We do so with
a degree
of ardor proportionate to the skill displayed by the decurions in evading
laws justly promulgated, and in defrauding the Treasury. For when they saw
that they were legally compelled to preserve a fourth of their property for
the benefit of the curia,, they began to squander their fortunes to
such an extent that they rendered themselves insolvent; and so far from
leaving the curia that portion of their estates which was prescribed
by law, they only left it their poverty. In order to deprive the curia
of their personal services, they invented the most wicked expedient that
could be imagined, for the decurions refrained from contracting legitimate
marriages, and preferred to remain without children than to render
themselves useful to their families and their curias.
Again, a
law enacted by their agency has existed for a long time, which enabled them
to dispose of their property gratuitously, without being obliged to obtain a
decree for that purpose, and which provided that they could not sell their
property except by virtue of a decree. Hence, in order to dispose of their
property in this way, decurions were compelled to obtain a decree; but they
could give it away as a donation without doing this, and in consequence, the
estates of decurions were distributed among many persons, without their
curise receiving anything. Thus had anyone investigated this subject, he
would have found the curise of Our Empire entirely stripped of both
men and property, or having very few members, and almost no property
whatever.
(2)
Therefore We formerly promulgated the constitutions by which We directed
that sales, simple donations, and every act by which the immovable property
of decurions was transferred should, in pursuance of a decree, be subject to
the observance of certain formalities. Hence as decurions were accustomed to
make donations under false pretenses, We forbade them by a second law to
make any simple donations in favor of any person whomsoever, but We made an
exception of those given in consideration of marriage; the reason for which
was that these are not true donations, but a species of contracts entered
into to secure maintenance for any children which may be born, which is a
matter of special interest to Us, especially where decurions are concerned.
After
having enacted this second law, and ascertained that many frauds were still
being committed, We have promulgated the third, which authorizes the
curia to succeed to three-twelfths of the estate of each decurion,
whether the latter leaves or does not leave any children to take his place;
and which does not permit anyone to bequeath less than that sum to his
curia; to use any artifice for the purpose of fraud or to diminish the
said three-twelfths in any way whatsoever; and whether the son of the
deceased decurion is a member of the same, or whether he is not, the
curia shall still be entitled to this amount.
(3) We did
not even confine Ourselves to this, for We have in addition decreed that
women shall be obliged to give a certain part of their property for their
own appointment, so that, as We have pre-
viously
stated, the curia shall not, for any reason whatsoever, have a fourth
of the property of the decurion, which should be reserved for its benefit,
diminished. We have also forbidden decurions to make many and excessive
gifts, and We do not permit them to be released from the obligations of
their curia, unless to enable them to accept offices of great
importance, for instance, those of the patriciate, consulate, or civil or
military prefecture; and as the law states that prefectures are offices
involving the command of the army, where anyone is administering the affairs
of a prefecture, whether he despatches civil business, or issues commands to
soldiers, he is, by virtue of Our law, exempt from curial requirements, all
other exceptions being annulled. We also directed that honorary
distinctions, such, for instance, as those attached to the prefecture and
the command of the army, shall not release those who obtained them from
curial obligations.
These are
the provisions which We formerly decreed, and now confirm, together with
many others which it will be permissible to disregard. We wish, however,
that the different pragmatic sanctions, by virtue of which We have released
certain persons, by name, from curial duties, shall remain in force; and We
also desire this law to become operative from the day of the eleventh
indiction, recently expired, the time at which We first determined to enact
it.
(4) But,
as We have observed that there are some decurions who are so hostile to
their own country that they prefer to convey their property to strangers,
rather than to leave the fourth part of it to the curia, We have
deemed it necessary by means of this law to increase this amount when
decurions have left no children.
CHAPTER I.
Therefore,
if after the promulgation of this law a decurion should not leave any issue
either male or female, he shall be compelled to bequeath all his estate to
the curia with the exception of one-fourth of the same, of which he
can make any disposition which he may desire, as the curia will take
the place of one or several children; that is to say, the entire city will,
so far as he is concerned, represent the children and heirs of his good
reputation and his immortal memory. When any decurion has no legitimate
children, but only natural ones, he shall be permitted to appoint them as
heirs, subject to the rights of the curia; and, under these
circumstances, their appointment will be equivalent to a donation, without
there being any necessity to have recourse to the ancient laws, and without
the decurion being obliged, during his lifetime, to make a formal donation;
but as soon as his natural children become members of the curia, and
his heirs, they will be entitled to nine-twelfths of the estate of their
father, in conformity to the distribution that he made among them. He will
do still better if he leaves them his entire property. In every instance,
however, he will be obliged to leave them nine-twelfths, and he is hereby
notified that if he bequeaths them less, the amount lacking to make up this
share will be supplied by the law.
The
children will be required to discharge curial functions in order to give
them a right to a share of their father's estate, and if some of them should
be willing to do this, and others refuse, the share of the latter shall
accrue to the former; and even when all the natural children are unwilling
to perform curial duties, the curia will be entitled to nine-twelfths
of the estate, just as if there were no children.
CHAPTER
II.
When a
decurion is silent as to the disposition of his estate, and leaves no
legitimate children, a fourth of it shall go to his heirs at law; and if he
leaves any natural children, who are willing to perform curial functions,
they shall be admitted to the succession, and nine-twelfths of their
father's estate shall go to one or more among them who are willing to assume
the obligations of the curia, whether all, or only a few, consent to
discharge the duties of members of the same.
Where a
decurion has had children by a female slave, and has emancipated them either
during his lifetime or by his will, if he has offered them to the curia,
or if they have manifested a desire to discharge curial functions, and
have been admitted to do so, they shall be entitled to nine-twelfths of
their father's estate, as We have just provided in the case of free natural
children. For where a decurion dies either testate or intestate, We desire
those of his children who become members of his curia to receive
nine-twelfths of his estate, but if he should only manumit his children by a
female slave, without offering them to the curia, and all of them, or
one, or only a few, should be willing to discharge its duties, then
nine-twelfths of his property shall go to the one or more of them who become
members of the curia. But where none of the said natural children is
willing to assume the curial obligations, or should not be offered by their
father for this purpose, in this case, the curia shall be entitled to
the nine-twelfths of the estate.
CHAPTER
III.
But if a
decurion should leave any legitimate children, then in order that the
operation of the law may be perfect, and the curia derive the
greatest benefit possible, it must be determined whether the children are
males or females, or both were included, so far as the obligations to the
curia are concerned. If the deceased left only male children, or male
grandchildren by a predeceased son, he will be required at his death to
divide nine-twelfths of his estate among all of them; and he can make this
distribution in any way that he pleases, provided he does not violate the
law having reference to inofficious testaments (cases of ingratitude being
excepted). For We do not wish to repeal any laws enacted on this subject,
but, on the other hand, We maintain them in their entirety, by directing
that nine-twelfths of the paternal estate shall be divided among the
children who are not ungrateful. In this way each one of them will discharge
the curial duties of his father, who can then only dispose of three-twelfths
of his estate for the benefit of a stranger.
CHAPTER
IV.
Where only
married women, who are the children of a decurion, and are the wives of
other decurions of the same city exist, the testator will be permitted to
divide all his estate among them or only nine-twelfths of the same as he
pleases, always without violating the provisions of the law relating to
intestate successions.
Where some
of the daughters of a decurion are married to decurions, and others to men
who do not occupy this position, the father will be required to leave
nine-twelfths of his estate to those who are the wives of decurions, which
shall be divided among them in the same way that he desired, and the
remainder of his property shall go to those of his daughters who are not the
wives of decurions, or to other heirs; the portion established by law always
being preserved for the former.
When any
of the daughters of the decurion are still unmarried, they shall be heirs to
nine-twelfths of his estate conditionally, until they are actually married
to decurions of the same town. If they refuse to marry decurions, or if
their father requested them to do so and they do not consent, nine-twelfths
of the estate shall go to the curia of the city, and three-twelfths
shall be distributed among them all, as prescribed by law, after the amount
of their dowries has been deducted.
CHAPTER V.
Where
there are children of both sexes, the males shall be entitled to half of the
estate of their father, and the females to the other half, but not in its
entirety, as they will be obliged to share the fourth part of it with their
brothers, who are members of the curia, provided one or more of them
are not the wives of decurions; for, under these circumstances, if the
decurions whom they have married are members of their father's curia,
they will be released from the obligations of giving a fourth of their
father's estate to the curia, as they, through the medium of their
husbands, are considered liable to curial obligations as long as they live.
We have
deemed it necessary to establish these regulations, not because We desire to
deprive decurions of the liberty of disposing of their estates, but to the
end that the curias of towns may not be exposed to a lack of these
officials, or become impoverished by dishonorable means. We have learned
that one of the methods of accomplishing this is for decurions to contract
unlawful marriages with a view to having illegitimate children, and thus
being enabled to leave their estates to strangers, thereby defrauding the
curia out of the share to which it is entitled.
CHAPTER
VI.
We have
ascertained from experience that there are many persons who state, to the
prejudice of the curia, that their mother belongs to the condition of
Treasury employees, or to that of inspectors of highways, or to that of
those entitled to wear purple, or is of some other
privileged
status, seeking thereby to evade what is due to the curia. Hence We
order that no artifice of this kind shall hereafter be practiced against the
public interests. And We desire, by all means, that the children of women
married to a decurion shall themselves belong to the curial condition, even
though that of their mother may belong to any of the classes above
mentioned. For there are comparatively few decurions in Our Empire, while
there are innumerable Treasury officials, inspectors of highways, and
magistrates decorated with the purple; and it is better to increase the
number of decurions, which is very small in certain cities, than to add a
multitude of officials to those who already exist. Hence, if certain persons
alleging the condition of their mother should not attempt, or have already
attempted to withdraw from the curial condition, after the tenth indiction
which has recently expired, any orders emanating from Our court or
elsewhere, which may have authorized this, shall be void, and such persons
shall be reinstated as decurions. Where, however, anyone has been freed from
curial obligations before the expiration of the tenth indiction, We desire
that his release shall be permanent.
EXCEPTION.
We,
however, except from this Constitution Theodosius and his brothers and the
sons of John whose surname is Xescon, although they were born of fathers who
were decurions, and were placed in the class of officials of the Imperial
Treasury before the tenth indiction, and We hereby annul everything that has
been decreed with reference to their liberation. For We do not wish them to
enjoy the benefit of this law, and desire that they remain decurions; that
they discharge the functions of that office; and that they shall not profit
by anything promulgated in their favor either from Our palace or elsewhere.
EPILOGUE.
Therefore
Your Excellency will hasten to obey and cause to be executed the law which
We have just enacted for the benefit of towns and cwriss, and anyone
who presumes to violate this law shall incur a penalty of twenty pounds of
gold.
Given at
Constantinople, on the fifteenth of the Kalends of March, eleventh
indiction, the seventh year after the Consulate of Basilius.
TITLE
XVIII.
CONCERNING
RESTITUTIONS, AND WOMEN WHO HAVE
CHILDREN
AFTER THE ELEVENTH MONTH FROM THE
DEATH OF
THEIR HUSBANDS.
THIRTY-NINTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE. :
The course
and variety of human nature requires attention from time to time, and it
cannot be properly maintained (although its first principles may be
unchangeable) unless what specially interferes with it is removed, and it is
allowed to proceed in tranquillity and peace in conformity to the law.
Considerations of this kind have impelled Us to promulgate the present
Constitution, for We are aware that, for a long time, doubts have existed as
to the transfer of property left under a trust, and when the person charged
with them has consented to the hypothecation of the property, the question
arose whether he had been able to encumber what was liable to transfer, or
only what was his own, a distinction being made between the words used by
the deceased; as the case was held to be different when he directed the
simple transfer of property acquired after the death of the trustee, from
that where he had expressly provided that his entire estate, with the sole
exception of the legitimate fourth, should be delivered.
Hence the
rule was established that the private creditors of the trustee could bring
suit to recover the property left in trust, and could employ several
different means of obtaining possession where the parties were insolvent.
We have
recently remedied this evil by the enactment of a law which forbids the
alienation or encumbrance of property left under a trust, providing that it
shall follow the fortunes of the trustee; that is to say, that it cannot
legally come into the hands of anyone, but shall always pass to him to whom
it ought to be delivered. This law, although somewhat ancient, and
constantly observed in judicial proceedings, confirms what We have said in
the beginning; still time has shown (as almost always happens) that it is
susceptible of amendment, for both men and women who have been injured have
applied to Us for relief.
Among
other instances, where a husband was dead, his wife claimed both her dowry
and a share of the ante-nuptial donation, to which she was entitled by his
death; and, on the other hand, the husband's brother, basing his claim on
the will of the common father, demanded the estate of the deceased, and
seized the woman's dowry, giving a reason for this that his brother had
squandered it, and that there was property forming part of the paternal
estate in the possession of the widow, of which the common father had
ordered delivery to be made to him, in case his brother did not leave any
children. He persisted in claiming the entire estate, and demanded the
execution of the law having reference to such cases; the woman, however, in
her turn, very justly complained that it was inequitable that her brother
should, by means of fraud, become possessed of all her dowry, and alleged
that if she had happened to die first, her husband would have obtained the
ownership of the property, in accordance with the marriage contract; and
that it was not proper that, if her husband died without knowing what he was
obliged to deliver, she should be responsible; and a decision was rendered
upon this point which We believe to be just.
In another
instance, a husband had recourse to Us, stating that the estate of his wife
had been transferred by substitution to her children, and that she had
directed a very small amount to be reserved for herself, and thus he ran
great risk of having his own property rendered liable for the restitution of
the dowry and the dotal profits agreed upon in the contract relating to the
ante-nuptial donation, without his being permitted to retain any of it
whatever.
We have
very properly been moved by these complaints, and considered it more
advisable to amend Our laws than to expose Our subjects to risk, above all
where the marriage state is concerned, which no other condition more
beneficial to mankind exists as it affords them the sole means of
procreation.
CHAPTER I.
WHERE A
MAN APPOINTS ONE OP His CHILDREN OR A STRANGER His HEIR.
For the
reasons above mentioned, We publish the present law, without changing any of
the provisions which We have formerly adopted; and the only change We make
is that when anyone hereafter delivers property which he is charged to
transfer, he can reserve from said property the lawful share of his
children, who, instead of the fourth (for- We have amended this rule, as We
do not approve of such a small amount), shall have the third or half of the
estate, dependent upon their number; but if this legitimate share is not
sufficient to provide for the dowry or ante-nuptial donation of the children
of the trustee, he shall be allowed to reserve from the remainder of the
property subject to delivery under the trust whatever may be necessary (in
accordance with the rank and position of the parties interested), in order
to make up the amount of the dowry or ante-nuptial donation.
We decree
that the property mentioned in the marriage contract shall, by all means, be
exempt from transfer under the trust, and that any property which has been
substituted can be alienated or hypothecated on account of the marriage. And
in case either a husband or wife is charged to deliver the property under
the trust, if it is the husband, he shall be permitted to reserve the
ante-nuptial donation, or the one given in consideration of marriage,
without being obliged to surrender it; and if the wife is the trustee, she
can, in the same way, deduct her dowry; for We prefer what is to the
advantage of all to the special interest of individuals. This is the
privilege which We have granted in favor of the deduction of ante-nuptial
donations. For if exceptions to general hypothecations existed before Our
reign (which certainly was not so advantageous), why should We not authorize
a measure which, in cases involving gain through marriage, is still more
beneficial ?
(1)
Therefore, what We order shall in the future only be available, and
applicable to the delivery of property which takes place after the enactment
of this law, for We do not permit any wrong to be done;
so that
where a woman has a dowry of trifling value, and afterwards learns of the
existence of this law, or where a man has made an antenuptial donation of a
small amount, and either of them desires to increase what he or she has
given for the purpose of evading the said law, and by this means to obtain
what they wish from the property left under a trust, We forbid such a
fraudulent practice, and decree that the acts of persons wishing to make
such an increase shall be invalid so far as any diminution of the trust is
concerned, and that Our law shall remain inviolate for the future. This is
the first chapter of the present law.
CHAPTER
II.
CONCERNING
A WOMAN WHO HAS A CHILD AFTER THE ELEVENTH MONTH.
Three
constitutions promulgated by Our predecessors with reference to women who
marry a second time before the year of mourning has expired, prescribe
penalties for an act of this kind. We have also recently enacted a law with
some amendments, and have touched upon this matter briefly in a certain part
of Our legislation, but a most disgraceful occurrence occasionally takes
place, which We are unwilling shall continue to exist during Our reign, and
We have very properly decided that it must be corrected. The following is an
example of this evil. A woman who had not been chaste during the lifetime of
her husband brought forth a child before her year of mourning had elapsed,
and more than eleven months after his death; under these circumstances it is
not possible to say that the child belonged to the deceased, for conception
does not extend for so protracted a period. And as one of the penalties of
premature marriage is that the wife shall immediately lose both the usufruct
and the ownership of the ante-nuptial donation bestowed upon her by her
husband, the children injured by this extraordinary delivery of their mother
have a right to claim the ante-nuptial donation given to her, and can also
demand that she obtain nothing from the estate of the husband, whose memory
she has been so ready to disgrace.
The woman
answered (but how can We quote her words without blushing?) that she did not
deserve to forfeit the ante-nuptial donation ; that she was well acquainted
with the laws regulating legitimate marriage; that she had never contracted
any other marriage than the first one; and that the child whom she had
brought forth was only the result of her natural inclination to
concupiscence. As there is no doubt that this woman who had abandoned
herself to debauchery merited penalties ten thousand times more severe, she
shall not be exempted from those to which she rendered herself liable; hence
(for We come to the relief of the children of the deceased husband), We
desire her to be subjected to the loss of the ante-nuptial donation, as
legally provided in such cases with reference to women who marry before the
term of mourning has expired. For if this law does not
release
women from responsibility when they contract legitimate marriages, for the
reason that it causes a suspicion to arise that they have hastened to
contract a second marriage because of having been unduly intimate with their
second husbands during the lifetime of those now dead, why should We leave
this woman unpunished, when, in the first instance, there is merely a
conjecture, but in the second unquestioned proof exists, and the offence is
established beyond doubt by this most abominable of all births ?
(1)
Wherefore We decree that if a woman should bring forth a child before the
term of her mourning has expired, so that there can be no doubt that it is
not the issue of the first marriage, she shall, by all means, be deprived of
the ante-nuptial donation (this applies both to the ownership and the
usufruct of the same), and she shall also be subjected to all the other
penalties, just as if she had contracted a legal marriage before the
expiration of the year of mourning. For licentiousness should not enjoy more
advantages than chastity, and the woman must be punished, and suffer the
loss of the donation on account of her debauchery; and We establish this
rule in order that women may not be induced to contract untimely marriages,
or disgrace their former ones by still more wicked behavior.
EPILOGUE.
Your
Highness will, by formal proclamation, communicate to all persons the
matters which it has pleased Us to enact, and which are set forth in this
law.
This
constitution is addressed to John, Most Glorious Praetorian Prefect of the
East, twice Consul and Patrician.
Given at
Constantinople, on the Kalends of January, during the prefecture of
Belisarius.
TITLE XIX.
THE CHURCH
OF THE HOLY RESURRECTION CAN ALIENATE
BUILDINGS
BELONGING TO IT IN THE CITY IN WHICH IT
is
SITUATED.
FORTIETH
NEW CONSTITUTION.
The Same
Emperor to Peter, Most Holy and Blessed Archbishop of Jerusalem.
PREFACE.
A law
prohibiting the alienation of ecclesiastical property has already been
promulgated by Us, which We desire to be observed and confirmed in every
respect. But, as it is proper for Us to make provisions for all churches, We
certainly should not neglect that of the Holy Resurrection, as well as of
the place in which the Creator of the world allowed himself to suffer for
the benefit of the human race. Therefore -We have considered it advisable to
enact the present law,
not for
the purpose of repealing what We have formerly established, but in order to
make a proper and necessary addition to what has already been adopted. For
it is known to all persons that the Church of the Holy Resurrection receives
and nourishes persons who resort to it from the entire world (of whom there
is an immense number), and that enormous and incalculable expenses are
incurred, to defray which its revenues are not sufficient, without a daily
repetition of the miracles of Our Lord and Saviour Jesus Christ, who, with a
very small quantity of bread, fed an innumerable concourse of persons. Hence
it is necessary to take measures to enable this church to obtain sufficient
income to meet the expenses caused by the assemblage of such a vast
multitude of believers.
(1) We
have learned from Eusebius, at present priest and sacristan of the Most Holy
Church of this city, who has just returned from Jerusalem, that he has
greatly increased the income of that Most Holy Church by only employing
means which are honorable and approved by God; and that he has been able, by
the expenditure of three hundred and eighty pounds of gold, to obtain an
income of thirty pounds of gold, more or less; to accomplish which he
carefully collected money and induced the stewards of the holy church to
borrow more; but that as now the creditors desire to be paid, he had devised
another plan to satisfy them, and stated to Us that many persons attracted
to Jerusalem through the desire of visiting the tomb of Our Lord wish to
purchase buildings belonging to the Church with x-large sums of money,
provided they were permitted to enjoy them without any risk, but that the
authorities of the Church of the Holy Resurrection refuse to sell said
buildings on account of their fear of the law which We promulgated with
reference to the alienation of ecclesiastical property, although this would
result in a great benefit to the Holy Church, and that there are persons who
are willing to buy such property only for the term of fifty years.
This
advantage is in fact much greater than can be expressed in words; for if, on
the one hand, the Holy Church has been able, by the expenditure of three
hundred and eighty pounds of gold to acquire property which yields thirty
pounds of income, it will recover (which is something worthy of admiration)
the original price of its investment in about thirteen years; and, on the
other hand, the sale of the buildings referred to will only be for fifty
years; and, besides, the property of the Church of the Resurrection consists
of houses exposed to all manner of accidents, and may suddenly be destroyed
by fire or some other casualty without leaving a trace of their former
existence.
CHAPTER I.
These
things have induced Us to enact the present law, which We have dedicated to
God and the Church of the Resurrection, most holy of all churches, by which
law We decree that former provisions relating to rural, ecclesiastical
property (which We, under no circumstances, permit to be sold) shall
continue to be observed, and We
relax the
rigor of this law only with reference to the alienation of the buildings
above mentioned. For while We published the preceding constitution for the
benefit of the Holy Churches, as We now perceive that it will be
advantageous for the Church of the Holy Resurrection to alienate its
property, We, by the present law, permit this to be done, giving it full
permission and extending every security to both vendor and purchaser,
presuming that the said buildings will subsequently revert to the church,
and that those who buy them will, through their love of God, leave them to
the church at the time of their death. Therefore the Holy Church will be
permitted to dispose of the houses belonging to it, without having reason to
fear the general law which forbids this kind of alienation, as it is subject
to an exception which is more recent, and dispenses with the penalties
imposed by the former constitution.
(1) The
aforesaid church can, from this time forward, alienate its property,
provided it will be to its advantage to do so; and all purchasers of the
same, their heirs and successors, both now and hereafter, need have no
apprehension of being deprived of the property, for the reason that by the
present law they can make a purchase with confidence; for it is not just
that they should suffer molestation on this account, or be liable to any
accusation, damage or loss. Your Excellency undoubtedly may notify members
of the venerable clergy that alienation of their buildings can be made, when
you are satisfied that such an act will be advantageous; that the property
sold is of comparatively trifling value; and what is to be obtained by the
sale is better and more valuable. Thus the total amount of the
purchase-money derived from sales made for fifty years will be available to
pay what the creditors have advanced to enable the income which We have
mentioned to be obtained. For if God, who is the Creator and Master of all
mankind, has, in preference to other cities, granted to Jerusalem the
privilege of His resurrection, We should, as far as possible, in imitation
of God and His infinite miracles, give to the church of this same city
advantages over other cities, and cause it to enjoy the benefit of the
present law, which We enact as a special favor to it, being, above all
things, desirous of promoting its interests.
EPILOGUE.
As soon as
this constitution is communicated by Us, it must be recorded in the Books of
the Laws, and Your Holiness will publish it to all the inhabitants of
Jerusalem. You must also promulgate the provisions which We have decreed for
the benefit of the Holy Church of the Resurrection, venerated by the entire
human race, provisions which We consecrate to God, whose extraordinary
blessings conferred upon Us surpass those of Our predecessors.
This law
is especially addressed to Peter, Most Holy and Blessed Archbishop of
Jerusalem.
Given at
Constantinople, on the fifteenth of the Kalends of June, after the
Consulate of Belisarius.
TITLE XX.
CONCERNING
QUAESTORS, THAT is TO SAY, PREFECTS OF THE ISLANDS.
FORTY-FIRST NEW CONSTITUTION.
This
constitution creates a magnificent magistrate for the army with the title of
Quaestor. For in ancient times there were two magistrates of this kind, of
whom one remained near the sovereign, and the other was placed in command of
the army. The present constitution fixes the amount of the salaries to which
the Quaestor and his staff are entitled, and allows him a body of attendants
resembling that of the Praetorian Prefect; namely, secretaries, custodians
of acts, criers, recorders, torch-bearers, and all other officials of
description. It also prescribes the manner in which the emoluments of
soldiers who accompany the Quaestor to war, and of those who guard the
frontiers, should be distributed. It subjects to his authority five
provinces, that is to say Scythia, Mysia, Caria, all the Cyclades Islands,
and all of Cyprus. It grants him the right to have a tribunal for the
decision of cases, without anyone being permitted to evade his jurisdiction.
It includes, in addition, a list of expenses.
This
Constitution has been promulgated on the Kalends of June, during the
twelfth indiction, after the Consulate of Belisarius.
TITLE XXI.
CONCERNING
THE DEPOSITION OF ANTHIMIUS, SEVERUS, PETER, ZOARAS, AND OTHERS.
FORTY-SECOND NEW CONSTITUTION.
In the
Name of Our Lord Jesus Christ. The Emperor Caesar, Fla-vius, Justinian,
Gothicus, Francicus, Germanicus, Anticus, Alanicus, Vandalicus, Africanus,
Pious, Fortunate, Glorious, Victorious, Triumphant, Ever Augustus, to Mena,
Most Holy and Blessed Archbishop and Universal Patriarch.
PREFACE. .
By means
of the present law, We undertake to dispose of a matter which not
infrequently arises in the administration of public affairs. Whenever an
ecclesiastical sentence has deposed any persons unworthy of the priesthood,
and unfit to preside over the Holy Sees of the Church (such for instance as
Nestorius, Eutyches, Arius, Mace-donius, Eunomius, and others who are not
inferior to them in iniquity) , the government has always sustained the act
of the ecclesiastics. In this manner both divine and human regulations unite
in making decisions of this kind equitable. We are aware that a similar
decree was promulgated against Anthimius, who was deposed from the See of
this Royal City by Agapetus, of glorious memory, Pontiff of the
most Holy
Church of Ancient Rome, for the reason that he, in violation of all the
rules of propriety, as well as in contravention of the sacred canons, had
taken possession of the See, he being condemned by a general sentence of the
Holy Pontiff above mentioned, and afterwards by the Sacred Synod of this
city.
Another
reason for this was, that Anthimius had renounced the true dogmas of the
Church, and spread his own doctrines in many places; had rejected various
forms of purification while pretending adherence to the four Holy Councils,
that is to say, that of the three hundred and eight fathers held at Nicsea,
that of the hundred and fifty who met in this Fortunate City, that of the
two hundred assembled at Ephesus, and that of the six hundred and thirty
venerable Fathers convoked at Chalcedon. He refused to accept the dogmas of
the Church, and rejected Our clemency and the pardon We offered him for his
own safety; he declined to abandon the impious doctrines whose authors were
condemned by the Holy Councils, and he even thought it proper to treat with
contempt those who had sentenced him. From the time when he accepted dogmas
not recognized by the Holy Church, he never returned to those which were
true, although We have afforded him an opportunity for doing so, and have
exerted every effort for the salvation of his soul.
CHAPTER I.
For all
these reasons, and taking into consideration the sentence of deposition
issued against Anthimius by the Holy Synod, on the ground that, without
being authorized by the sacred canons of the Church, he had taken possession
of the sacred Sees of this Imperial City, as well as because he had
renounced the true faith, We have enacted the present law against him. We
hereby forbid him to reside in this Fortunate City or its jurisdiction, or
in any other x-large city whatsoever, ordering him to remain quiet, and to
seek the society of those whom he considers worthy of it, without having any
communication with Our other subjects, or attempting to imbue them with his
prohibited dogmas to their ultimate destruction.
(1) We
also confirm the sentence passed by all the Patriarchal or Pontifical Sees
(with the concurrence of the monks) which anathematized Severus, who, in
disobedience of the sacred decrees of the Church, accepted the See of the
Holy Church of Antioch, and by doing so threw everything into confusion, and
caused a general and abominable war to break out among the Holy Churches.
Our predecessors pronounced the same curse against those who promote
dissensions, while propagating rules and blasphemies at variance with the
true dogmas; and at the same time against any person who adopts the
abominable error of the impious heresiarchs Nestorius and Eutyches. These
doctrines, although they may be considered to some extent antagonistic to
one another, were devised with the same end in view, and were promulgated
for the same purpose, namely, to promote the adoption of the provisions of
Arius and Apollinarius, both of which,
in like
manner, lead to the perdition of the soul, and anyone who accepts either of
them will be equally to blame, and will render himself equally guilty of
crime, no matter to which of these sects he may adhere.
(2)
Therefore Severus shall remain subject to the anathema which the general,
patriarchal, pontifical, and monastic assemblies of Our Empire have justly
fulminated against him; he shall be expelled from the City of Antioch, and
ejected from the See which he occupied the more irregularly, as he seized it
while his predecessor was still living and dwelling among the Holy Churches,
and drove away the ecclesiastics appointed to take his place. As Severus did
not pay any attention to the proceedings taken against him, but, even while
under the general anathema of the Orthodox and Catholic Church, he
distributed throughout Our Empire a great number of blasphemous and
abominable books, We hereby prohibit all Our subjects from having any of the
same in their possession. And as it is not permitted to have possession of
or copy the books of Nestorius (Our predecessors have included in this
prohibition the lectures and the writings of Porphyry against the
Christians) so, in like manner, no Christian shall have in his possession
either the lectures or the writings of Severus, which are considered profane
and contrary to the doctrines of the Catholic Church, and their possessors
shall be required to burn them, if they do not desire to expose themselves
to great risks. We forbid the copying of the books of Severus by any writer,
either on account of the beauty of his chirography or the rapidity of his
execution, and everyone is notified that if he does this, the penalty for
the offence shall be the amputation of his hand, for We do not wish that the
blasphemy contained in these books shall be transmitted to future ages.
(3) We
forbid him to enter this Royal City, or its territory, or any other x-large
town, and direct him to retire to some solitary place, to remain there in
silence, and not attempt to corrupt others, or induce them to be guilty of
blasphemy, or to continue to invent new theories contrary to the true
dogmas, and by this means to constantly excite dissension among the Holy
Churches.
CHAPTER
II.
The
Imperial Authority also confirms the anathema of Peter, Bishop of Apamea,
who also was deposed at the same time as Severus, and for the same reason,
and adopts as its own the decree issued against him. For anyone who has been
placed under a general anathema shall remain subject thereto, and the
sentence of the most holy ecclesiastics passed upon him is hereby ratified.
We do not permit him to reside in this Royal City or its territory, or in
any of the principal cities, but in one of those which has adopted his
error, and which is situated at the greatest distance, and there he must
live in retirement. For it is more beneficial that persons of this kind
should remain concealed than be seen, as when they are unknown they only
injure themselves; but when they publish their dogmas to the world,
they give
occasion for the perdition of many weak persons, which, under no
circumstances, should take place among the Christian flock and the orthodox
people of God, and is not permitted by Imperial authority.
CHAPTER
III.
Zoaras
having also been subjected to anathema by the judgment of the most reverend
bishops (a very light penalty for such serious offences), whose decisions
are always equitable, and having been denounced by them, he will be liable
to the punishment which, as is well known, has been inflicted upon Anthimius,
Severus, and Peter. Hence the government confirms this sentence, which
places him in the number of persons who have been anathematized; denounces
him as schismatic, and expels him from this Royal City and its territory,
absolutely forbidding him to reside in other cities. As the result of this,
Zoaras shall reside and meditate in company with other blasphemers, who have
just been punished and condemned to exile. If, indeed, there is anything
else included in the sentence of deposition and anathema rendered by the
Most Holy Bishops against the persons aforesaid than what We decree, We give
it increased force, extend its time, and ratify it by Our Imperial
Constitution, just as if it had emanated from the government itself.
If any of
those against whom this constitution has been enacted should oppose it, he
is hereby notified that he will be liable both to the penalties prescribed
by the Imperial laws, and to punishment of even greater severity.
(1) We
forbid all persons to attempt to destroy the Catholic Church of God (either
by means of the doctrine of the Nestorian heresy, through the foolish
doctrine of Eutyches, or the blasphemy of Severuswhich embraces rules
similar to theirsor the tenets of others who follow them), to excite
sedition among the most holy churches, or enter into any discussion
concerning the true faith; but We direct them to keep silence on these
subjects, and not call others together with a view to their conversion, or
receive them if they come to them voluntarily; or presume to baptize them in
their sect, or to defile the Holy Communion by administering it to others;
or to explain forbidden doctrines either in this Imperial City or elsewhere;
and if anyone should be guilty of such conduct he shall run the risk of
punishment.
(2) We
forbid all Our subjects to entertain persons who have been anathematized;
the latter shall be expelled from cities where they have caused trouble, and
all persons are notified that under Our Divine Constitution houses where
heresy has been preached shall be taken away from the owners of the same,
and adjudged to the Holy Churches. And also where fields are used for this
purpose, they shall also be taken, it being entirely just that the Holy
Churches should acquire property which is used for the destruction of souls.
(3) We
establish these provisions for the common tranquillity of the Holy Churches,
in compliance with the dogmas of the Holy Fathers,
in order
that the entire priesthood may hereafter suffer no disturbance. By the
establishment of tranquillity, Our government will hereafter remain
undisturbed, and We shall enjoy the peace which Our Lord Jesus Christ,
Member of the Holy Trinity, and only Son of God, grants those who are
considered worthy to adore and glorify Him.
EPILOGUE.
Your
Holiness will observe this law, and will communicate it by means of special
letters to the most Holy Metropolitans subject to his authority, who, in
their turn, shall take measures to communicate it to the most Holy Churches
under their jurisdiction, in order that everyone may be familiar with the
sacerdotal decrees ratified by the government.
Divine
Subscription. May God the Holy and Religious Father preserve you for many
years.
Given at
Constantinople, on the eighth of the Ides of August, after the
Consulate of Belisarius.
TITLE
XXII.
CONCERNING
THE WAREHOUSES OR SHOPS OF THE CITY OP CONSTANTINOPLE, OP WHICH ELEVEN
HUNDRED ARE SET APART FOE THE PURPOSE OF DEFRAYING THE EXPENSES OF FUNERALS
CONDUCTED IN THE PRINCIPAL HOLY CHURCH, ALL THE OTHERS, No MATTER TO WHOM
THEY BELONG, SHALL ONLY BE SUBJECT TO ORDINARY
CHARGES.
FORTY-THIRD NEW CONSTITUTION.
In the
Name of Our Lord Jesus Christ Our God. The Emperor Csesar, Flavius,
Justinian, Alemanicus, Gothicus, Francicus, German-icus, Anticus, Alanicus,
Vandalicus, Africanus, Pious, Fortunate, Glorious, Victor, Triumpher, and
Ever to be Honored Augustus, to Longinus, Urban Prefect.
PREFACE.
Our
subjects are Our constant care, whether they are alive or dead; hence We
have provided by laws relating to funeral ceremonies that the obsequies of
deceased persons shall not be too expensive for their relatives. And as
Constantine, of Divine memory, the founder of this Our City, and the Most
Pious Prince Anastasius, prescribed the number of pallbearers or deans, and
fixed at eleven hundred the number of shops to be set apart to provide for
this expense, and forbade this number ever to be increased, We, desiring
that the number of pallbearers to be selected from each quarter shall be
preserved, according to the regulations of Anastasius, of Divine memory,
direct that what has previously been established shall remain in full force.
But for
the reason that the inhabitants of the said quarters of this city, who,
above all others, are the objects of Our solicitude, have applied to Us,
stating that they are reduced to extreme necessity; and because the
Principal Church is entitled to the income of eleven hundred shops, which
has been voluntarily granted to it free of all taxes, for the purpose of
defraying the expenses of the people of the city, and that, as the result of
this transfer to the Holy Church, the said shops have been released from all
other impositions; and that, while these shops are not the only ones
destined for the sale of different kinds of merchandise which are exempt
from public contribution, but there are many others which also enjoy this
privilege, for instance, those set apart for other holy churches for the
maintenance of places of entertainment for travellers, and for monasteries,
and other religious foundations; which, at first taken away from heretics,
have subsequently come into the possession of ecclesiastics of the orthodox
faith and of royal houses, magistrates, senators, distinguished men, or
officers of the Imperial Bedchamber, are also exempt from taxation ; and
that the proprietors of these shops, taking advantage of this privilege,
cause loss to the government; and hence there are so many exemptions from
taxation that there are very few people who pay any taxes, and the result is
that where formerly assessments were increased threefold and fourfold, they
are now increased tenfold; although the Divine Prince Anastasius only
included in his list of exemptions the eleven hundred shops set apart to
defray the funeral expenses incurred by the Holy Church, We have considered
it advisable to communicate these complaints to Our nobles, and above all to
the Archbishop of this Most Fortunate City, in order that they may assemble
for the purpose of ascertaining what property is exempt from taxation, and
inform Us on the subject.
We have
been pleased to address this law, by which We confirm the rules promulgated
by the Most Pious Prince, Anastasius, to you.
CHAPTER I.
Hence We
order that the eleven hundred shops charged with defraying the funeral
expenses incurred by the Holy Principal Church, as well as to provide it
with deans or pallbearers shall, by all means, be maintained intact and free
from any other burden; and that no other church but this shall be entitled
to demand any deans, whether the said church belongs to heretics or not.
What We have already determined shall also be valid, namely, that eight
hundred shops shall be set apart to provide pallbearers for the service of
the Principal Church, and that three hundred shall pay their share in money,
the disposal of which has already been made by Our pragmatic sanction. Any
shops which may be destroyed shall be rebuilt in the manner prescribed by
the orders of Anastasius of pious memory. The said eleven hundred shops
devoted to the service of the Principal Holy Church shall continue to be
free and exempt from every species of taxation; nor shall they, or the
quarters which furnish them, be compelled to pay tribute, suffer any loss,
or recognize any other authority.
(1) The
other shops of the fourteen quarters of this city, whether they belong to
some holy church, to houses destined for the entertainment of travellers, to
monasteries, orphan-asylums, hospitals, or any other establishments of this
kind, such as those of magistrates performing public functions of trifling
importance, to senators, to nobles of high rank, to Imperial Chamberlains,
and to officers enrolled in the army; all these shops, We declare, shall,
through the prefects of their quarter, pay the taxes imposed upon them, and
shall discharge all other duties which it is proper for each one to assume
in its own quarter. No one can, in order to be released, plead any
privileges or offer any other excuse, for We do not permit charges imposed
upon some to be a burden upon others, nor tolerate the harshness of
proposing to frequently increase contributions (which We are informed is
done) more than fourfold, fivefold, and even tenfold, especially when We are
so diligently exerting Ourselves to prevent anyone from being subjected to
new impositions. By a new imposition is meant not only one which is created
for the first time, but an addition to one that has already been
established. All persons should be treated alike; and this Imperial
Pragmatic Sanction (which it is permitted to style a law) shall be of
general application, so that everyone may know in what way he may be free
from annoyance. For each citizen will the more readily bear his burdens, if
he perceives that no one else is exempt except the eleven hundred shops set
apart for the provision of funeral expenses in the Holy Principal Church, a
regulation which is common and advantageous to all men.
(2) But if
anyone should attempt to give an excuse in order to release himself from the
payment of contributions, or to prevent them from being collected from his
tenants or clients; or to escape liability for the performance of any
military, civil, ecclesiastical, or any other contribution, he shall be
absolutely deprived of the ownership of his shop, the title to which shall
vest in the entire quarter. Under these circumstances, persons will be more
careful, and will not attempt to do what is prohibited.
Moreover,
if the contributions are equally divided, the amount which each one is
obliged to furnish will be very small, and its collection will involve but
little trouble, and this will be accomplished more easily as it will be paid
by several persons. And, indeed, is it not exceedingly absurd for men who
labor with their own hands, and women who nurse the children of others in
order to obtain the necessaries of life, alone to have been oppressed with
high taxes up to the present time, especially when they belong to the
poorest class of society? This abuse is of infinite extent, nor can it be
limited in any way.
(3) We
prohibit all these things, and promulgate this Imperial Pragmatic Sanction,
threatening all of Our subjects with the penalty of losing their property,
if, when residing in certain quarters, they interfere with the collection of
ordinary taxes which have been established from the beginning, or attempt to
convert them into private revenues. Everyone shall have the right to enjoy
any income to which
he is
entitled, but must see that his shops or warehouses pay the ordinary
contributions imposed upon them. For as every private individual should have
an eye to his own interest, there is much more reason for Us to come to the
relief of this Great and Royal City, which is tottering and almost ready to
fall, since We can only provide for the public welfare by releasing persons
from burdens to which they should not be subjected, and which, up to the
present time, they have been compelled to bear.
EPILOGUE.
Your
Excellency, as well as the subordinates attached to Your office, shall, now
and hereafter, cause the provisions of this law, which it has pleased Us to
enact, to be carried into effect.
TITLE
XXIII.
CONCERNING
NOTARIES WHO ARE REQUIRED TO PLACE PROTOCOLS AT THE BEGINNING OP PUBLIC
DOCUMENTS.
FORTY-FOURTH NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We have
recently learned of a controversy which has given occasion to the enactment
of this law. An instrument, of which a woman was said to be the author, but
which was not written in her own hand (for she could not write), but had
been copied by a notary, who had added the woman's signature to it. The
instrument also indicated that witnesses had been present. Doubt, however,
arose as to the credit which should be given to it, the woman declaring that
she had not consented to certain clauses included therein; and the judge
having jurisdiction of the case attempted to ascertain the truth by means of
the notary, who, having been called into court, answered that he recognized
the handwriting, but was ignorant of what the parties agreed to, because the
document had been dictated to one of his clerks, and he had not been present
when it was completed. Then the clerk, having been summoned, appeared in
court, and also stated that he had not written the instrument in the first
place, but had only been present at its execution, and that he to whom it
had been dictated could not be found; hence the judge being unable to
ascertain the truth by means of witnesses, the whole matter was left in
uncertainty, which has induced Us to make an investigation, and publish a
decree for the regulation of similar cases.
CHAPTER I.
We also
deem it proper to come to the relief of Our subjects, and enact a law for
the general welfare of all, by which it is proposed to
compel
notaries by all means to be present at the execution of legal instruments,
and, unless this is done, such instruments shall not be considered complete,
in order that the said notaries may be familiar with, and take part in the
transaction, and when they are interrogated by judges, may be aware of what
has taken place, and give proper replies, especially where the parties to
the instrument are ignorant of letters, under which circumstances it is very
easy for them to deny what actually happened.
(1)
Therefore, with a view to preventing such occurrences, We have drawn up the
present law, and desire it to be explicitly observed by notaries both in
this Most Fortunate City and in the provinces; and they are hereby notified
that if one of these should violate it in any respect, he will certainly be
deprived of his office; and the person who is directed by him to see to the
execution of the document, and was present, shall be substituted for him,
and shall hereafter exercise the functions of the office, just as his
superior did in the first place, by way of punishment for having neglected
to discharge his duty, and for not having acted in compliance with the
wishes of the parties interested. We impose this penalty upon notaries, in
order that such officials may become more just and circumspect, and may not,
for the sake of their own pleasure and convenience, cause annoyance to
others.
(2)
Therefore, if a notary should prove himself to be unworthy of holding his
office, he shall be deprived of it, and his place shall be taken by another;
but the chief of the body of notaries shall not be prejudiced in any way
(even if he himself is not a notary), nor shall he be deprived of any
emoluments, as the punishment shall be strictly confined to him who failed
to perform his duty, and who shall lose his place; for the offences of
notaries do not affect the rights of their official superiors.
(3)
Notaries shall not excuse themselves from being present at the execution of
instruments by alleging as a pretext illness or their occupation with other
affairs, for if anything of this kind should occur, they will be permitted
to call the contracting parties before them, and have the business attended
to, as such cases rarely happen; and it is not proper for private business
to prevent public officials from attending to matters of general importance,
as there is nothing so absolutely certain among men that it cannot (even
though it may be perfectly just) still give rise to some doubt. The fees of
notaries shall not be diminished on account of this law, as they have many
opportunities to draw up contracts, and, besides, it is much better to do a
few things carefully than many in a negligent manner.
(4)
Therefore, in order that this law may not appear to notaries to be too
severe, We, being aware of the failings of human nature, have provided
reasonable rules for them, and on account of the probability of doubt
arising under such circumstances, do hereby grant them permission to appoint
substitutes (a matter which shall formally be published by the Illustrious
Master of the Census of this Most Fortunate City), and We authorize the said
substitutes to be present
at the
execution of the instruments aforesaid; but no other notary shall either be
appointed in the beginning, or be present at the transaction, except the one
indicated, and his substitute, who is duly authorized and designated for
this purpose.
If this
law should be violated and someone else be appointed, the notary who has
been duly empowered by Us in the first place shall be liable to the penalty;
but the instruments shall not be rendered void, because of their usefulness
to the contracting parties.
We desire
that, for the future, notaries shall, through the fear of punishment, obey
this law and strictly observe everything which has been prescribed by Us.
CHAPTER
II.
NOTARIES
SHALL WRITE THE INSTRUMENT UPON THE
SAME SHEET
WHICH CONTAINS THE PROTOCOL, THE
DATE, AND
THE NAME OP THE CONSUL.
We also
add to the present law that notaries shall not draw up instruments on any
other sheet than the one (called the protocol) which bears at the head the
title of Our Most Glorious Count of the Imperialx-large sses, and the date of
the execution of the document, and whatever else it is customary to write
there, and notaries must not abridge the protocol, but leave it as it was
inserted; for We are aware that many forgeries have been, and are now being
committed in instruments of this kind, and that some of the latter have
protocols which do not belong to them, but to other documents, the result of
which is to render them void; hence the whole of the instrument must be
written on the same sheet, as We have previously stated.
Therefore,
whatever has been decreed by Us with reference to the nature of such
documents, and the abridgement or substitution of protocols, We desire to be
observed only in this Most Fortunate City, where there is always a multitude
of contracting parties, and a great supply of blank paper, and it is easy to
be present and have transactions conducted in a legal way, and not afford
any opportunity for the commission of forgery, for which crime those will
render themselves liable who presume to act in any other way except that
prescribed by law.
EPILOGUE.
Your
Highness will hasten to carry into effect the rules which it has pleased Us
to promulgate by means of this law.
Given at
Constantinople, on the nineteenth of the Kalends of September, during
the second year after the Consulate of Belisarius.
TITLE
XXIV.
NEITHER
JEWS, SAMARITANS, NOR HERETICS SHALL BE RELEASED FROM CURIAL OBLIGATIONS ON
ACCOUNT OF THEIR RELIGION, BUT THEY SHALL PERFORM CURIAL FUNCTIONS WITHOUT
ENJOYING CURIAL PRIVILEGES, AND THOSE WHO ARE LIABLE TO THESE OBLIGATIONS
SHALL BE PERMITTED TO GIVE TESTIMONY AGAINST ORTHODOX CHRISTIANS AS WELL AS
IN FAVOR OF THE ORTHODOX GOVERNMENT.
FORTY-FIFTH NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
Your
Highness has informed Us that Jews, Samaritans, Montan-ists, and other men
deserving of contempt, for whom the light of the immaculate faith has never
shone, who remain in darkness and have never experienced in their minds the
benefit of the true sacraments, are included among decurions; and because We
hold heretics in horror, they think, for this reason, that they are exempt
from curial obligations, and refuse to perform the duties incumbent upon
them. We, however, are surprised that one of your wisdom and shrewdness
should have accepted their excuses, and did not at once hasten to punish
them, for if certain individuals think that, because of some extreme
absurdity, they are entitled to the enjoyment of certain privileges which We
have reserved only for persons of the highest distinction, who is there
among Our subjects who will not hereafter manifest extreme insolence and
folly? Wherefore, let such men continue to perform curial as well as
official duties, as was formerly decreed, whether they complain or not; and
no religion or civil condition shall render them exempt (for nothing is
mentioned on this point in either the ancient or modern law), but they shall
not enjoy the honor attaching to the office of decurion, or the privileges
granted to persons of this kind, for instance, freedom from corporeal
punishment, exemption from removal to other provinces, and numerous others.
But where
anything is stated with reference to decurions which does not confer any
privilege, it shall also apply to these, and they shall be liable to
personal and pecuniary charges, and no law shall exempt them therefrom; they
shall enjoy no honors, but must remain in the baseness of their condition to
which they are devoted.
These are
the provisions which We have enacted on this subject.
CHAPTER I.
You have
also mentioned another matter which is worthy of inquiry. We have forbidden
heretics to testify whenever orthodox persons are engaged in litigation with
one another, and We have permitted
them by
Our Constitution, whenever they have any legal controversies with one
another, or either the plaintiff or the defendant is an heretic, he can
testify, because they are litigants; and they can give testimony for an
orthodox person against a heretic, but not against one who is orthodox; and,
in conclusion, We have prescribed that the evidence of such persons is not
admissible when orthodox believers are engaged in legal disputes with one
another.
You have
stated to Us that when orthodox persons desire to be released from curial
obligations, the testimony of their relatives and others familiar with their
condition may be received. As the law rejects the evidence of heretics when
offered against orthodox Christians, the judges hesitate to permit it under
such circumstances. We, however, think that this apprehension is unfounded,
for as such persons are permitted to testify in behalf of orthodox believers
(for the law does not forbid them to do this), then, where decurions desire
to be released from their public obligations, and call heretics to testify
in their behalf, why should not this be permitted? In this instance the
orthodox government which God has especially entrusted to Our administration
is one of the litigants, those, however, who give evidence for the
government, in reality testify for orthodox persons. Our conclusion is just,
it is consistent with the orthodox faith, and is based upon the hatred which
We entertain for all heresies.
EPILOGUE.
As soon as
Your Highness is informed of Our wishes, being aware of what is beneficial
to Our government, and, above all, remembering that We have been careful to
prescribe by the present constitution what is advantageous to the public
welfare, will see that it is observed.
Given at
Constantinople, on the fifteenth of the Kalends of September, after
the Consulate of Belisarius.
AUTHENTIC
OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
FIFTH
COLLECTION.
TITLE I.
CONCERNING
THE ALIENATION OF ECCLESIASTICAL LANDS, AND THEIR RELEASE WHEN PLEDGED.
FORTY-SIXTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
We have
devoted all Our attention to the laws, and We are daily exerting Ourselves
for the welfare of Our subjects, by removing whatever is redundant and
superfluous, and substituting therefor what is excellent and praiseworthy.
For We have formerly often corrected the diffuseness of the laws, and, by
restricting their application, introduced equity in subsequent times. We
have very recently published a constitution having reference to all holy
churches, monasteries, and other religious houses, forbidding them to make
alienations of any immovable property; for We have seen that great confusion
prevailed in consequence of this; that ecclesiastical possessions were,
little by little, being acquired by strangers, without the payment of
sufficient money, and without any urgent necessity existing for the sale of
such property; and yet ten thousand frauds were constantly being committed
against the laws already in force. Thus, by forbidding alienations, We
render the means of committing fraud impossible.
It was
only after this that the greater portion of the lands belonging to the
Church became of any benefit to the owners, for no one dared to acquire
them. Still, a matter difficult of solution has arisen, that is to say,
ancient debts as well as others recently contracted, and, above all, fiscal
claims, have imposed upon religious houses the necessity of selling their
lands; they are forced to take this step because they have no personal
property, and if their heads are unable to alienate their lands, they will
have no means of discharging their obligations.
These
conditions have already induced Us to give permission to churches to
surrender their possessions in payment to their creditors, after observing
the usual formalities. But as this power was not expressly granted by Our
former Constitution, and when the creditor was not a private individual, but
the Public Treasury and the Church had no money, and it was impossible for
the former to accept real property in payment, We have deemed it advisable
to make some concessions, and to a certain extent relaxing the strictness of
the law, permit alienations of this kind to take place.
CHAPTER I.
Hence We
order that if any of the holy churches or other religious houses should
incur fiscal obligations, and not have the means to meet them, all the
clergy including the Bishop of the City and the Metropolitan shall be
assembled, and the matter shall be examined by them, and if there should not
appear to be any other way to pay the debt, except by the alienation of
immovable property, permission to do this may be obtained by virtue of a
decree issued by the Governor of the province authorizing the disposal of
real property sufficient to discharge the indebtedness; and those who
acquire said property shall, themselves, become liable for the payment of
the obligation, and shall satisfy the Treasury, which must give them a
receipt for the same. In this way, they will have ample security, and need
not entertain any apprehensions on account of the preceding law; the
receipts of payments made to the Treasury shall be filed and recorded by the
purchasers in the Bureau of Registry, if they desire to be fully released
from all liability toward the holy churches for what they have paid in their
behalf, in order that the taxes may be settled, and everything be done in
accordance with Our law.
No one
shall feign the existence of a fiscal debt for the purpose of obtaining the
alienation of real property belonging to the Church; and, with a view to
preventing all fraud of this kind, We desire that the decree of the
Governor, who intervenes in this matter to establish the existence of such
an obligation, shall state the time when it became due, the reason for it
not having previously been paid in money, and why the necessity for such
alienation exists; for in this way the truth will be absolutely established.
We desire
all these formalities to take place in the presence of the Holy Gospels, and
that the bishops, clerks, and all others concerned in the alienation shall
remember that God will know what is being done by them, and if they are
guilty of any deceit or fraud through desire of gain, they will, while
living and dead, be punished in their souls.
CHAPTER
II.
Where,
however, a private individual is the creditor of the Church, he can receive
immovable property by way of payment, a decree must always be rendered under
such circumstances, and the property of the debtor shall be transferred to
the creditor for the amount of his claim. But where the debt is due to the
Treasury, and an alienation of immovable property is made, this shall be
done in accordance with the previous rules, and no formality, nor any
consideration for the public welfare shall be neglected.
CHAPTER
III.
The
present regulations shall not, however, be applicable to the Most Holy
Principal Church of this Most Fortunate City, its territory, or the chapels
subject to its authority; but the law already formulated
with
reference to ecclesiastical alienations shall remain in full force, so far
as they are concerned. If, however, the Most Holy Principal Church has any
monasteries under its jurisdiction, We also release them from the provisions
of the present constitution, which We enact solely for the exterior
provinces in which a scarcity of money exists, which prevents the holy
churches from paying their debts in cash.
EPILOGUE.
As soon as
Your Highness becomes acquainted with what We have just decreed, you will
require these rules relating to the alienation of ecclesiastical property to
be scrupulously observed.
Given at
Constantinople, on the fourteenth of the Kalends of September, during
the second year after the Consulate of Belisarius.
TITLE II.
THE NAME
OF THE EMPEROR SHALL BE PLACED AT THE
HEAD OP
ALL PUBLIC DOCUMENTS, AND THE DATE SHALL
BE WRITTEN
PLAINLY IN LATIN CHARACTERS.
FORTY-SEVENTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect, Twice Consul
and Patrician.
PREFACE.
Documents
and contracts in which the dates are given are the ones to which the
greatest credit shall attach. The same rule applies to those in which the
name of the Emperor appears. For the consuls, the indictions, and the dates
mentioned in public documents indicate the time when they were executed, as
well as the signification applicable to them. We have no intention of
suppressing anything of this kind; but, on the other hand, We desire to make
additions to it, so that the course of time may be designated more
explicitly and perfectly therein. For whoever studies the events of past
ages, and the ancient history of the government, will learn of JSneas the
King of Troy, Prince of the Republic, from whom We are said to descend; and
if he turns his attention to the second epoch, when the Roman name attained
great lustre among mankind, he will ascertain that Romulus and Numa founded
the government and constructed the city, and that the latter regulated and
adorned it with laws.
If he
should consider the third epoch, namely, that of the Empire, he would read
of the Great Caesar and the Pious Augustus, and would find that the
government which now is so powerful was rendered immortal by the acts of
these sovereigns. It would, however, be absurd for the name of the Emperor
to be placed at the head of all contracts, judicial decisions, and,
generally speaking, all of those in which any mention of the date is made.
Wherefore
We order that all those officials employed in drawing up documents or
decisions, no matter where this may be, and that the notaries who, in
compliance with certain rules, draw up various instruments in this great
city, or in other parts of the Empire, over which God has given Us the right
to preside, shall begin as follows: "The year of the reign of the Most Holy
and August Emperor," and, afterwards insert the name of the Consul for that
year, and then the indiction, month, and day; in order that the date may be
entirely preserved by the mention of the reigning sovereign and the order of
the consulate, and the other formalities be observed, as is customary, and
when this has been done no changes should be made.
(1) Where,
however, the inhabitants of the East, or any other nations, are accustomed
to state in their public documents the date of the foundation of their
cities, We do not prohibit them from doing so, but We desire that the year
of the reign shall first be written, and that (as We have already said) the
name of the Consul, the indiction, the month and the day when the
transaction took place, and was committed to writing shall follow, and that
afterwards the year of the foundation of the city shall be inserted; for We
do not abolish any of these former customs, but merely add the Imperial
designation. From the date of the preceding indiction, documents shall be
begun in the name of God, for instance: "The eleventh year of the reign of
the Most Holy Emperor Justinian, the second year after the Consulate of that
most illustrious man, Flavius Belisarius, on the .... day of the Kalends
of ........"
Thus in
all public documents, the year of the Empire, that of Our reignso far as
God may be pleased to prolong itand, in the future, the names of succeeding
Emperors, will be mentioned. This is perfectly clear, because at present the
eleventh year of Our reign is written; but from the beginning of next April,
the day upon which God invested Us with the government of the Empire, the
twelfth year shall be stated; and so on, as long as God may permit Us to
reign, so that this name may survive the laws, and the mention of the latter
may remain immortal, while the commemoration of the Empire shall be
introduced in all transactions for all time.
CHAPTER
II. DATES WRITTEN IN LATIN SHALL BE PLAIN AND LEGIBLE.
We also
add that those who insert the date in judicial decisions, and who now use
for that purpose ancient and uncertain characters, shall hereafter, in every
judicial decision, be obliged to write after the ancient characters, others
which are familiar to all, and can be easily read; and which will
intelligibly indicate the date of the documents, and not embarrass those who
wish to know it, and compel them to seek someone who is able to understand
the characters which have been used.
When,
however, the body of these documents which follows the date written in
characters that cannot easily be deciphered is in the Greek language, the
date shall be inserted in Greek letters underneath just as where all the
document is in Latin, the date also shall be in that language. When letters
which are easily read are employed in this way, their meaning will readily
be intelligible, and all persons who are not absolutely ignorant of Latin
will be able to understand them.
EPILOGUE.
Your
Highness will cause the regulations which We have been pleased to lay down
in this Imperial Law to be published in this great city and in all the
provinces subject thereto, in order that no one may presume to reckon the
time in a different manner, or to do anything else in violation of what We
have recently decreed.
Given at
Constantinople, on the Kalends, during the eleventh year of the reign
of Justinian, ever Augustus, and the second year after the Consulate of
Belisarius.
TITLE III.
CONCERNING
THE OATH TAKEN BY A DYING PERSON AS TO WHAT His ESTATE CONSISTS OP.
FORTY-EIGHTH NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We have
always had the intention of preserving inviolate the dispositions of dying
persons unless they were contrary to law, and opposed to the rules which it
prescribes. We are informed that when a testator makes a will, by which, in
disposing of his estate in favor of his heirs, he swears to what it is
composed of, and some of the said heirs refuse to believe the declaration of
the deceased (in which they are guilty of injustice, for when acting as
heirs of the testator they thereby agree to what he does), and do not wish
to confirm what he has stated under oath, and refuse to accept it,
notwithstanding Our laws consider an heir and the person who has transferred
the estate to him as a single person, as no one can oppose himself, or
consider what he has sworn to as not true, he cannot deny his own
statements.
CHAPTER I.
Therefore
We order that if anyone should make a list of his property either with his
own hand, or through the agency of someone else, but signed by him; or
should mention in his will the amount of his estate whether some of his
heirs are present and others absent, or whether all of them are present, We
hereby forbid the said heirs to contradict the statement, and one to accuse
the others of having con-
cealed
property which was not mentioned by the deceased. Where, however, the dying
person has made oath that he has nothing more than he says he has, the
heirs, whether they be children or strangers, must accept the statement. We
do not wish them to hesitate, to abuse their co-heirs, or, in order to prove
their allegations, to demand that the slaves of the deceased be tortured, or
to take other measures and make other investigations of this kind, which
will lead only to controversy; for if nothing more should be found among the
property of the estate than what the testator declared under oath it was
composed of, the conclusion will be reached that he desired this amount
alone to go to his heirs.
(1) We
desire that the declarations of the deceased as to his property shall be
conclusive with reference to the heirs, who are desirous of ascertaining
what the estate consists of, but it shall not be conclusive so far as
creditors are concerned, because it has been prescribed by Our laws that
whatever anyone may say or write for his own advantage will be of no benefit
to him, nor will prejudice his creditors to any extent, and they shall be
permitted to investigate everything in any way that they choose; but the
heirs must remain content with the statements of the testator.
The
penalty imposed upon the heirs shall be that any one of them who makes a
contest on account of the property left to him cannot enjoy it at all, for
he will be required to agree to all the dispositions of the testator, or not
to accept any of them; and the result of this will be that he must consent
to all that the deceased said, and contradict him in nothing if he wishes to
enjoy his share of the estate.
These
provisions shall be valid for all time hereafter, and be applicable not only
to cases which have not yet been brought, but also to such as have been
terminated by a judicial decision or compromised in an amicable manner.
EPILOGUE.
Your
Eminence, after having learned what it has pleased Us to enact by this
Imperial law, will formally communicate it to all Our subjects by a special
proclamation.
Given at
Constantinople, on the fifteenth of the Kalends of September, during
the second year after the Consulate of Belisarius.
TITLE IV.
CONCERNING
THOSE WHO APPEAL; AND WHEN A COMPARISON OP THE HANDWRITING OP PERSONS CAN BE
MADE, AND CONCERNING THE OATH TO BE TAKEN TO OBTAIN DELAY, AS WELL AS THE
OATH OF CALUMNY.
FORTY-NINTH NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
Human
affairs are changeable, and what can not remain the same will never be
characterized by stability, and constantly introduces confusion into
legislation, and perplexity into matters which seem to have been justly and
permanently disposed of; and those things whose observance has been
carefully provided for, for the most part, subject to the disturbing
influence of various contingencies. For We remember that We recently
corrected certain abuses which affected appeals in an evil and fraudulent
manner, for the appellants were content merely to appeal, and furnish
security to appear in court, and then after having taken the first steps
against the other party, or having contradicted his allegations (for this is
perfectly indifferent), they abandoned the case, so that the victory
obtained by the other party was unavailable, as he could neither enjoy the
advantage of the judgment, as execution was suspended by filing the appeal,
and it could not be heard on account of the absence of the appellant.
(1) We
have already provided for the correction of this abuse by allowing the
appellant, whether he made the application in person or by an attorney, a
year in which to proceed and obtain judgment, and not leave the matter in
abeyance. If, after this time, he, through indulgence, by an order of court,
or for any other good reason should cause further delay, and have the
decision of the appeal prolonged for another year, We have decreed that when
the litigation was not ended after this second postponement, the first
decision in favor of the other party shall be affirmed.
(2) A
great many litigants have applied to Us, alleging that after having notified
appellants that they wish to have the case tried and disposed of, they have
been unable to obtain a hearing from the magistrates on account of, for
instance, a press of business. Others have alleged that violent storms or
contrary winds have not permitted them to travel by sea to their provinces;
and that they have been prevented by extreme poverty from making the journey
by land; or, indeed, because, residing on an island, they could not travel
in any other way than by sea, and that, for these reasons, they were not
able to proceed with the case during the second year; others have stated as
an excuse the severity of the weather, and others again have pleaded a
dangerous illness. We have been justly influenced by all these excuses, and,
without desiring to violate the present law, We intend as far as possible to
come to the relief of those who are injured by such unfortunate occurrences.
CHAPTER I.
A CASE TAKEN UP ON APPEAL SHALL BE TERMINATED AT
THE END OF
THE SECOND YEAR.
What then
was there to do, unless enact another law which might afford relief ? We
direct that the provisions of the preceding law shall (as We have previously
stated) in every respect, remain in force. If, however, through some
inevitable accident, the litigant who took an appeal does not appear when a
certain day, which was final, has been
assigned
to hear it, and the expiration of the two years was approaching, We direct
that the first decision shall, under certain circumstances, be confirmed; as
was provided in Our former law, to which We now make certain additions. For
as We have come to the relief of defendants on appeal, by granting them
delay in opposition to those who, after having a time appointed for a
hearing, are still unwilling to proceed with the case, or abandon it during
the argument, We desire to modify to a slight extent the right which We have
granted them while taking into consideration what is proper. For We direct
that if the party who has obtained the first decision in his favor should,
in case the appellant does not appear, wish this decision to be confirmed,
not under any convenient pretext, or through lapse of time, but actually and
definitely, let him give notice of his intention, and seek out the
appellant, and whether he finds him or not, he can take measures in the
meantime, and if all the two years but one month have expired, and it is
decided that he is right, the first decision shall be affirmed; for if it is
not founded in justice, judgment should be rendered against him, even though
the appellant who appointed a fixed day for the case to be heard may not
have appeared.
We add
that whether the defendant gains or loses the case taken up on appeal, the
appellant who did not appear, shall be liable for all the costs incurred
since the appeal was taken; for if the defendant should gain the case, for
the very reason that he is successful, it is only proper that his costs
should be paid. If, on the contrary, he should lose it, and the appellant
should gain it without having put in an appearance, it is still no more than
right that he should pay the costs, as he did not appear; but he will enjoy
the benefit of the decision on appeal, for which he should thank God and the
present law, which treats him with justice and only makes him liable for the
costs, for the payment of which his absence and not the said law is
responsible. But where neither of the parties to the action, that is to say,
the defendant or the appellant who has appointed the day for the hearing,
appears, the first decision in favor of the defendant shall remain in full
force.
In
addition to this, We ratify the provisions of all other laws having
reference to delays, and other matters of this kind, for in enacting the
present constitution, especially against litigants who, after having
themselves appointed a certain day, do not appear, We do not repeal or
change anything in former laws having reference to the postponement of
appeals, all of which We confirm by this constitution.
(1) It is
also advisable to determine whether appellees who have already obtained a
decision affirming the prior judgment shall enjoy the benefit of it; for We
do not intend to take any steps with reference to matters which have already
been decided. If, however, there are cases on appeal which are still
pending, and the term of two years has almost but not entirely expired, and
the first decision has not been ratified by a judgment, such cases shall be
decided as above set forth, and the defendants on appeal shall enjoy the
benefit of them if they should be affirmed.
CHAPTER
II.
COMPARISONS OF HANDWRITING SHALL ONLY BE MADE IN THE CASE OF PUBLIC
DOCUMENTS, AND IN THE CASE OF PRIVATE INSTRUMENTS WHERE THE ADVERSE PARTY
CAN USE
THEM FOR His OWN ADVANTAGE.
We have
decided that the following addition should be made to the present law. We
have, sometime since, drawn up a constitution forbidding the comparison of
handwriting in the case of private instruments, and only authorizing this to
be done with public documents; but experience has convinced Us that this law
should be amended, and, as this is the case, We are going to proceed in
accordance with the custom observed by litigants. For it frequently happens
that the plaintiff produces an instrument in someone's handwriting by which
he can establish either the title to property, or the proof of his
allegations; and the defendant produces other instruments written in the
same hand, by means of which he desires to contradict what has been offered
by his antagonist, and then the plaintiff avails himself of the law which,
while authorizing the comparison of the handwriting of public documents, on
the other hand, prohibits that of private ones.
(1) We
order that if anything of this kind should occur, and someone should desire
an examination to be made of any documents presented by his adversary, this
proceeding shall not be considered improper. For the plaintiff cannot
discredit the document upon which he depends to establish his title, and
which he has produced; and he should not prevent its comparison with one in
other handwriting, even though the latter be that of a private individual.
Nor should he contradict himself, and deny the statements which he has
already made.
(2) Where,
however, a document taken from the public archives is produced, for
instance, a receipt issued by the Bureau of the Most Glorious Prefecture
(for a question of this kind has been suggested), as an instrument of this
description is based upon public evidence, We decree that it can be admitted
in a comparison of handwriting. For, as We entertain hatred for the crime of
forgery, We order that the experts charged with the comparison of the
handwriting of public documents shall be sworn before any private
instruments are placed in their hands for this purpose. Wherefore this law,
as well as the present modification of the same, shall remain in full force,
and the experts aforesaid shall by all means be sworn.
CHAPTER
III.
CONCERNING
THE UNION OF THE OATH TAKEN TO OBTAIN DELAY WITH THE OATH OF CALUMNY.
Therefore
in order to preserve honor among litigants, We direct that they should make
oath at the beginning of the suit, that is to say, that the plaintiffs shall
swear that they are not proceeding for the purpose of causing annoyance, and
the defendants that they believe the plaintiffs to have been satisfied, and
are not actuated with the
desire of
encouraging strife; and We render this law applicable to all persons,
without any exception whatsoever.
We also
add that if anyone should demand proof of the statements of the plaintiff,
or the acknowledgment of any of his documents, instruments, or letters, he
must first swear that this is not done for the sake of delay. For there are
many persons who, on account of trifling injury (and this is especially the
case where noble women are concerned, or the proof of documents is called
for, or for some other reason), have recourse to this oath, so that it is
frequently taken in one and the same transaction.
(1) Hence,
in order to remedy this evil, and being unwilling that the oath should be
exacted repeatedly in the same action, We order that both parties, the
plaintiff, when he takes the oath of calumny, and the defendant, when he
swears that he has ground to dispute the claim, shall add that during the
entire course of the proceedings, no matter what evidence he may demand from
his adversary, he will not do this to cause delay, but only in order to
establish the truth, and when he thinks it is necessary that the said
evidence should be produced by him.
Where
either party takes this oath, his opponent can, by no means, exact another
from him, even though proof may frequently be demanded ; but the testimony
shall be given, and no one will be required to be sworn several times, and,
generally speaking, an oath of this kind can only be taken once.
EPILOGUE.
Your
Highness will cause what has been enacted by Us and published by means of
this Imperial law to be brought to the attention of all persons, by means of
direct edicts, so that everyone may be aware of what We have decreed.
Given at
Constantinople, on the fifteenth of the Kalends of September, after
the Consulate of Belisarius.
TITLE V.
CONSTITUTION ADDRESSED TO BONUS, QU.ESTOR OF THE ARMY, PRESCRIBING BY WHOM
APPEALS TAKEN FROM FIVE PROVINCES, NAMELY CARIA, CYPRUS, THE CYCLADES
ISLANDS, MYSIA, AND SCYTHIA, SHALL BE HEARD AND DETERMINED.
FIFTIETH
NEW CONSTITUTION.
The
Emperor Justinian to Bonus, Most Glorious Quaestor of the Army.
PREFACE.
We are
aware that We have previously promulgated an Imperial Constitution by which
We entrusted to Your Glory the five provinces
of Caria,
Cyprus, and the island surrounding them, Mysia, and Scythia, for the purpose
of being subjected to your administration. In this constitution We add that
appeals taken in these provinces instead of being brought, as heretofore,
before Our Most Glorious Prefects, shall be brought before yourself. Many
persons from Caria, Rhodes, and Cyprus have applied to Us, making complaint,
and stating that they are frequently obliged during the winter to resort to
Scythia and Mysia, where you reside, for the purpose of prosecuting appeals,
many of which involve very small sums of money, and that they are compelled
to cross wide seas, and regions infested with barbarians; and for this
reason We have determined to address this law to Your Glory; so that any
appeals taken from Scythia and Mysia, as they are in your vicinity, may be
heard by you, but any from elsewhere, that is to say, from Caria, and the
aforesaid islands, and Cyprusprovided they were formerly brought before Our
Most Glorious Prefect and, by virtue of Our Imperial order were within the
jurisdiction of the Prefectural magistracyand you should be in this royal
city, shall be brought before and decided by you and the Most Glorious
Quaestor of Our Imperial Palace, in the Imperial Audience-Chamber, as the
law regulating appeals directs.
(1) If,
however, you should continue to reside in Scythia and Mysia, appeals from
the three other provinces shall be heard by the magistrate who takes your
place in this Fortunate City, and shall be disposed of by him and Our Most
Glorious Quaestor, in their regular order, as We do not desire litigants to
be subjected to inconvenience for too long a time; however, as We have
enacted this law on their account, their cases shall be determined by the
two magistrates whom We have just mentioned, the proceedings shall be
conducted with greater diligence, and the decisions shall acquire still
greater authority.
(2) But if
you appoint a judge in the above-mentioned provinces, the magistrate who
takes your place in this Fortunate City shall have cognizance of appeals
taken from the decisions of the former, and shall determine them conjointly
with the Most Glorious Prefect; for if a case taken up on appeal should be
begun before you, while you are here (which is likely to occur), and
afterwards you should change your residence on account of judicial expenses,
this appeal shall be disposed of without delay by the magistrate who takes
your place, in the same way as if you yourself had decided it. When,
however, in the first place, the appeal is taken from any of the provinces,
instead of being brought before the Most Glorious Prefects, or some other
tribunal, We do not, in this instance, change the ancient practice in any
respect.
EPILOGUE.
Your Glory
will hasten to render effective the matters which We have decided upon, and
promulgated by means of this Imperial law, which you will cause to be
observed forever hereafter.
Given at
Constantinople, on the fifteenth of the Kalends of September, during
the eleventh year of Our Lord the Emperor Justinian, after the Consulate of
Belisarius.
TITLE VI.
WHERE
PROSTITUTES FURNISH SURETIES, OR TAKE AN OATH TO CONTINUE TO PURSUE THEIR
EVIL LIFE, THEY CAN VIOLATE THEIR CONTRACTS WITHOUT ANY RISK TO
THEMSELVES.
FIFTY-FIRST NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We know
that We have already published a law prohibiting sureties from being
required of women kept in houses of prostitution to insure their remaining
and pursuing their infamous calling. This law does not afford any
opportunity for repentance to persons who exact such security, but it even
threatens them with severe punishment, and it also provides that the
sureties shall not be responsible, and that there is no necessity for them
to represent the women for whom they have become bound. But We have
ascertained that, at the present time, a cruel and intolerable fraud has
been committed against chastity, which is something greatly revered by Us;
for, as We have forbidden sureties to be taken, a much more abominable
method has been devised, and those who profit by the vile profession of
prostitutes compel them to swear that they will never abandon their base and
wicked life; and these wretched women, influenced in this way, think that
they are acting honorably if they remain, and they keep their oaths to the
destruction of their chastity, when they should be aware that such
transgressions are more agreeable to God than the observance of such oaths.
For if anyone has, at the instigation of another, sworn, for instance, to
kill, to commit adultery, or to commit any other unlawful act, this oath
need not be observed, as it is base and unlawful, and leads to perdition.
Therefore, even though a woman may have taken such an oath, she shall be
permitted to violate it, and to live chastely without danger of prosecution
for perjury (if, indeed, the penalty applies to a case of this kind), for it
is more acceptable to God that punishment should be inflicted upon him who
required the oath to be taken.
CHAPTER I.
Wherefore
We impose the penalty of ten pounds of gold upon anyone who presumes to
exact and receive an oath of this kind, as soon as it is tendered. We order
that this sum shall be collected by the Governor of the province, and given
to the unfortunate woman to
assist her
in leading a virtuous life. Governors are hereby notified that if they
should be negligent in this respect, they themselves will be required to pay
it at the end of their administration; and that their heirs and successors,
as well as their estates, will be liable for it, because they have neglected
to perform a meritorious act.
(1) If,
however, the Governor of the province should himself exact such an oath, he
shall be compelled to pay the said fine of ten pounds of gold; and if there
is a military magistrate in the province it shall be his duty to collect it,
and, as We have already stated, it shall be given to the woman. But where
there is no military magistrate, the money shall be collected by the
metropolitan bishop of the province, who shall refer the case to Us, if it
becomes necessary; or the matter shall be attended to by the superior
magistrate of the adjoining province.
Anyone who
commits an act of this kind in any place, whether he be a magistrate or a
private individual, shall be punished as above stated, and shall pay the
amount to the woman without which she cannot live in chastity, and she shall
not be considered to have perjured herself.
EPILOGUE.
Your
Highness will, by suitable proclamations, communicate to all persons what we
have pleased to enact by the present law, in order that the subjects of Our
Empire may be aware of Our zeal for the preservation of chastity.
Given on
the Kalends of September, during the eleventh year of the reign of
the Emperor Justinian, and the second year after the Consulate of
Belisarius.
TITLE VII.
PLEDGES
SHALL NOT BE MADE FOR THE BENEFIT OF THIRD PERSONS. DONATIONS MADE BY
PRINCES TO PRIVATE PERSONS Do NOT REQUIRE TO BE RECORDED, ANY MORE THAN
DONATIONS BY PRIVATE PERSONS TO THE
EMPERORS.
FIFTY-SECOND NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Many laws
formerly enacted, and especially those which have been promulgated by Us,
have a horror of dishonorable pledges, and the odious seizures to which they
have given rise; but We are not ignorant of the reasons for such abuses, and
that, when prohibited by so many laws, they still take place in the Empire,
with even more regularity than if the laws had made them necessary.
CHAPTER I.
CONCERNING PLEDGE.
On this
account We order that, under no circumstances, shall a pledge be taken in
Our Government, or in the markets (for We have learned that this is most
frequently done there), nor in the country, nor in cities, nor in villages,
nor be required of citizens, villagers, or farmers anywhere, or at any time
whatsoever; but We direct that anyone who presumes to take from another gold
or other property to indemnify himself for what is owing to him by a third
party shall be compelled to return quadruple the amount to him who has
suffered the wrong, and he shall be deprived of the right of action which he
has against his true debtor. For it is not reasonable that one person should
be a debtor, and the claim be collected from another; or that anyone should
be molested on account of a third party, in the same manner as if a trespass
or some similar injury had been perpetrated upon the latter; or that a
person belonging to the same village should be maltreated, sustain injury,
suffer violence, be subjected to malicious prosecution without any lawful
cause, or be liable to a corporeal penalty because of someone else.
Governors of provinces are hereby notified that if they do not prevent such
abuses, or permit seizures of such pledged property to be made in the
provinces within their jurisdiction, nothing will prevent them from being
punished by Us.
CHAPTER
II.
DONATIONS
MADE BY PRIVATE PERSONS TO THE EMPEROR Do NOT REQUIRE TO BE RECORDED.
We have
also deemed it proper to make the following addition to this law. As
donations made by the government do not require to be recorded, but have
sufficient force of themselves; so, also, those made by private persons to
the Emperors (unless they are actually drawn up as public documents by
notaries, bear the signatures of witnesses, and are executed with the other
formalities required in the case of donations) do not need to be recorded,
no matter what their value may be. For it is of no consequence that the
government does not, so far as private individuals are concerned, enjoy the
same advantages which it enables them to enjoy.
This
inequality results from the innovation which the Constitution of Zeno, of
pious memory, introduced, which provided that Imperial donations do not
require to be recorded. But, as this law appears to Us to be imperfect, and
We wish to amend it, We decree that the rule shall apply to both parties,
that is to say, neither donations made by the Emperors to private
individuals, nor those made by private persons to the Emperors, need to be
recorded; so that justice, which is derived from equality, may be observed
in cases of this kind.
EPILOGUE.
Your
Excellency will see that what is contained in this Our Imperial Constitution
is formally communicated to all persons by means of the proper
proclamations.
Given on
the fifteenth of the Kalends of September, during the eleventh year
of the reign of Our Lord the Emperor Justinian, and the second after the
Consulate of Belisarius.
TITLE Vill.
CONCERNING
DEFENDANTS SUMMONED AND BROUGHT INTO COURT; AND CONCERNING THE DELAY OF
TWENTY DAYS GRANTED TO THOSE NOTIFIED TO APPEAR ; AND CONCERNING THOSE WHO
FURNISH JURATORY SECURITY AND WHO DISAPPEAR BEFORE JOINDER OF ISSUE TAKES
PLACE ; AND CONCERNING HYPOTHECATIONS WHICH ARE STYLED EX-CASU, AND WHAT
PERSONS HAVE THIS RIGHT, AND UNDER WHAT CIRCUMSTANCES THEY CAN AVAIL
THEMSELVES OF IT. CONCERNING WIVES WHO ARE UNENDOWED, AND ARE ENTITLED TO A
FOURTH OF THE ESTATES OF THEIR HUSBANDS, WHO, ON THE OTHER HAND, ARE ALSO
ENTITLED TO A FOURTH OF THE ESTATES OF THEIR WIVES, WHEN EITHER OF THE
SURVIVORS Is POOR.
FIFTY-THIRD NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Many
persons have had recourse to Us, for the reason that they have been summoned
by others, or taken into different provinces by virtue of an order issued by
Us, or in obedience to judicial decrees, and by this have been caused much
suffering; thus plaintiffs summon others, or exact security from them to
appear within a certain time before a designated judge, while they
themselves, remaining in the province, subject the former to great expense
on account of the journeys which they are required to make.
CHAPTER I.
CONCERNING
DEFENDANTS WHO ARE SUMMONED FROM ONE PROVINCE TO ANOTHER.
Our
compassion having been excited, We decree that when anything of this kind
takes place, and the time appointed by the plaintiff for the execution of
the bond, or the appearance has expired, and the defendant comes into court,
but the plaintiff does not, and fails to appear within ten days after the
arrival of the defendant in the province, the latter can then go before the
judge and inform him of
this fact,
and be summarily discharged; and after the defendant has been sworn as to
the amount of the expense which he has incurred on account of his journey
and his residence in a strange place, judgment shall be rendered against the
plaintiff who has brought suit to no purpose. And as it is not customary for
citations to be served, or appearances to take place unless the plaintiffs
produce sureties responsible up to a certain sum, by which they become bound
to prosecute the case and obtain decisions in their favor, the said amount
shall, by all means, be collected from them, and given to him who has been
subjected to this unnecessary annoyance.
If,
however, the latter should swear that his expense was greater than the
amount for which the plaintiff furnished security (although the sum which
the laws call taxatio shall be prescribed by the judge), this can
also be collected in addition, in order that persons may know that they
cannot make a jest of the lives of others, but must select judges in the
province of the latter, and proceed against their adversaries where they
reside.
CHAPTER
II.
CONCERNING
THE BOND TO BE FURNISHED BY THOSE WHO
SUMMON
DEFENDANTS TO APPEAR OUTSIDE OF THEIR
OWN
PROVINCE.
We are
aware that security usually is given in this place by plaintiffs to those
against whom they bring suit, but, as this rule is evaded when they are
called into other provinces, We order that if the judge or the Most Glorious
Quaestor appointed by Our Imperial letters should direct anything of this
kind to be done, no one can be summoned from another province before the
plaintiff produces a surety in court to guarantee that, if he does not
prosecute the case, or if, after having done so, he should be unsuccessful
he will pay him the amount fixed by the judge in accordance with the
distance which he is obliged to travel.
We decree
that everything shall be done which We have prescribed with reference to the
appearance of the defendant; the sum fixed by the court shall be collected
from the sureties, and given to the defendant; the oath of the latter shall
be taken to establish the amount of the costs; and if he swears that he has
expended ax-large r sum than that mentioned in the bond he shall receive it,
in order that Our legislation may seem to be perfect in every respect.
CHAPTER
III.
THE TERM
OF TWENTY DAYS SHALL BE GRANTED TO THE DEFENDANT AFTER SERVICE HAS BEEN MADE
UPON HIM.
At
present, persons make a practice of violating the beneficial rule
established in ancient times of using the clemency of Our laws, by making it
the ground of vexatious litigation, as formerly, a person notified to appear
in court was allowed ten days for deliberation, in which he could examine
the case, and perhaps settle the claim and be
released
from liability; and, after the said ten days, he could accept service by
indorsing the summons and then give security in court. Certain persons,
however, being aware that Our laws do not, after issue has been joined,
permit the judge to be rejected and another to be demanded, act fraudulently
in this matter, with the connivance of court officers; and as soon as a
citation is granted they bring the defendant into court without filing a
complaint, or any bond, and compel him to join issue and defend himself,
although he is not informed of the facts; so that, when issue has once been
joined, he can not be permitted either to reject the judge, or demand
another, if the one appointed should be liable to suspicion. In this way
plaintiffs accomplish whatever they wish, and after having craftily obtained
control of the defendant, they do with him whatever they please.
(1)
Therefore We order that when a summons is served upon anyone, the cause of
action shall be specifically communicated to him; and that he shall, in
accordance with the ancient legislation, not only be entitled to the term of
ten days to put in his appearance, but this term shall be doubled, that is
to say, it shall consist of twenty days; and if he chooses, he shall have
the right to reject the judge and demand another, or acknowledge the debt,
or be released by his adversary from the suit in an amicable way; and that
he shall not, either for the sake of annoyance, or by fraud, be compelled to
have his case heard by a judge who may be liable to suspicion, or otherwise
unacceptable to him, or more frequently by one who entertains dislike to
him; but the party who brings the action shall not be entitled to any delay
in order to deliberate with reference to the joinder of issue for which the
defendant appears.
(2) The
complaint having been received, only personal security shall be furnished by
the defendant; and, the fees having been paid in accordance with Our
Constitution, the defendant shall sign the paper which is called the answer;
he must state the time when the complaint was served upon him, in order that
no fraud may be committed in this respect, and, when the trial begins, the
judge shall ask the defendant to show whether the twenty days allowed for
deliberation have elapsed, the defendant must tell the truth, which shall
also be established by the date and the signature to the complaint, and if
the defendant says that if the said term of twenty days has elapsed, the
trial shall then proceed. The defendant shall, during this time, be
permitted to file objections to the judge, and demand that another be
appointed; or he can, with the plaintiff, select another or even amicably
agree to one; and, during this interval, the rights of the defendant shall
not, in any way, be prejudiced, nor shall any execution be issued, or served
by the officers of justice; and the defendant shall furnish a judicial bond
which the judge will approve, and be entitled to twenty days for
deliberation.
If these
rules should not be observed, all the steps taken by the plaintiff will be
void, even though the case may have already been begun; still, after joinder
of issue, he will be permitted again to institute proceedings after the
expiration of another twenty days, just as if joinder of issue had never
taken place.
CHAPTER
IV. CONCERNING JURATORY SECURITY.
We do not
permit a defendant, after having once rejected a judge and accepted another,
to reject the second one. For while We protect the interests of the
defendant, We are, by all means, opposed to adopting any measures against
the plaintiff by countenancing further delay; but if the defendant should
swear that he will come into court, and, before joinder of issue has taken
place disappears from this great city, the plaintiff shall, even before
joinder of issue, be permitted to go before the judge who has been appointed
to hear the case, and notify him of the disappearance of the defendant. The
aforesaid judge, if he is the Governor of the province, shall direct the
defendant to be considered guilty of perjury, and, so to speak, to have
accused himself of this offence by having become a fugitive. Where, however,
the judge is not the Governor of the province, but was appointed by some
magistrate, either by virtue of a pragmatic sanction, or an Imperial order,
or even if he had been appointed by some other public official, the
plaintiff can have recourse to the magistrate who made the appointment, in
order that he may exercise his authority to compel the appearance of the
defendant, lest the case of the plaintiff may be fruitless, as the judge
cannot do anything, for the reason that joinder of issue has not yet taken
place, and the defendant, who has treated the law as well as his oath with
contempt, has left the plaintiff without any opportunity to obtain lawful
relief.
(1)
Therefore, to prevent the case from remaining in abeyance, because of the
defendant remaining concealed and his appearance being delayed, the judge
shall ascertain, as far as he is able, to what place the defendant is said
to have gone, and shall fix a time for his appearance; and if he does not
come within that time (provided the judge is convinced that the
nonappearance of the defendant is not due to the act of the plaintiff), then
he shall hear the case, and put the plaintiff in possession of the property
of the defendant to the amount of the debt, as stated; and, when he has been
placed in possession, he shall hold the said property as security for the
claim, and if the defendant should afterwards appear, he can recover his
property after having previously indemnified the plaintiff for all expenses
incurred, and when the property has been returned to him, he must furnish a
surety, and the case shall proceed.
CHAPTER V.
CONCERNING
HYPOTHECATIONS CALLED Ex-CAsu MILI-
TIARUM,
AND WHAT PERSONS SHALL BE ENTITLED TO
THIS
RIGHT, AND WHEN THEY CAN EXERCISE IT.
It is
extremely advisable to regulate what follows by means of a general law, on
account of the doubt attaching to the questions involved. For it was at
first uncertain whether offices could be subjected
to
hypothecation, or whether they were exempt, but this doubt was removed by a
law, and it is now settled that some offices can either be sold or
encumbered. We have examined the opinions entertained by Our ancestors on
this subject, and have come to the conclusion that, in former times, offices
could not be hypothecated, but that they were subject to certain claims
which no longer exist. The Emperors, moved by compassion toward creditors
who constantly applied to them for redress, by degrees granted them the
right of hypothecation, when the offices were public, and they did not
receive any other compensation except that derived from Imperial
munificence.
(1) Hence
We order that hypothecations which are designated ex-easu shall not
indiscriminately be granted to all persons, unless a creditor has lent money
for the purpose of purchasing the office; but where there are any children,
or a surviving wife of the deceased, We give them preference over all the
creditors, and by virtue of Our Imperial order We grant them the privilege
of taking an hypothecation on the office of the deceased, not, however, as
part of his estate, but as a concession of Imperial liberality. We establish
this rule in order to furnish a deserved consolation to those who leave an
estate, as well as to those who have none.
Where,
however, the deceased left neither wife nor children, nor any creditor who
lent him money to enable him to obtain his office, under such circumstances
We grant other creditors the right; for We do not desire it to be said that
We have done something that is not humane, and that We have enacted a law
for any other purpose than to perform an act which is pious and acceptable
to God. The privileges which have been bestowed upon the Silentarii
shall remain in full force.
CHAPTER
.VI.
CONCERNING
A POOR WOMAN WHO Is UNENDOWED.
As every
law enacted by Us is based upon clemency, and We see that when men married
to women who have brought no dowry die, the children alone are legally
called to the succession of their father's estates, while their widows, even
though they may remain in the condition of lawful wives, for the reason that
they have not brought any dowry, and no ante-nuptial donation has been given
them, can obtain nothing from the estates of their deceased husbands, and
are compelled to live in the greatest poverty, We wish to provide for their
maintenance by enabling them to succeed to them, and be called to share
their estates conjointly with the children. But as We have already enacted a
law which provides that when a husband divorces his wife, whom he married
without any dowry, she shall receive the fourth of his estate, just as in
the present instance, whether there are few or many children, the wife shall
be entitled to the fourth of the property of the deceased, if, however, a
husband has left a legacy to his wife and this legacy amounts to less than a
fourth of his estate, this amount shall be made up out of the same. Hence,
as We come to the relief of women who have not been endowed or divorced by
their
husbands, so We assist them where they have constantly lived with them, and
We grant them the same privilege.
Again,
everything that We have stated in the present law with reference to the
fourth to which a poor woman is entitled shall equally apply to a husband,
for like the former one, We make this law applicable to both.
(1) But if
the woman has property of her own in the house of her husband, or situated
elsewhere, she will have the right to retain said property, and it shall
not, under any circumstances, be subject to hypothecation for the benefit of
the creditors of her husband; unless he is the heir of his wife to the
amount established by the present law.
(2) We
enact these provisions as applicable in cases where either of the two
married persons has not brought either a dowry or an antenuptial donation,
and the survivor is poor, or the deceased was rich. For if the survivor has
property elsewhere, it would be unjust when, having neither brought any
dowry nor ante-nuptial donation, he or she should oppress the children by
sharing the estate with them; and as another of Our laws provides that a
wife who does not bring any dowry cannot, by means of an ante-nuptial
donation, acquire any property from her husband, We desire that this rule
shall continue to remain in force, establishing, however, an exception to it
where a husband has bequeathed a legacy, or some other share of his estate
to his wife; for We by no means wish to prevent this, in order that the laws
may, in every respect, be consistent with one another, and that the poverty
of one spouse may be compensated by the wealth of the other.
EPILOGUE.
Your
Highness will hasten to cause this law, which it has pleased Us to enact, to
be observed and carried into effect by everyone; and this you will do by
means of a general proclamation issued from your office, in order that what
We have decreed may everywhere be obeyed.
Given on
the tenth of the Kalends of October, during the eleventh year of the
reign of Our Lord the Emperor Justinian, and the second after the Consulate
of Belisarius.
TITLE IX.
THE
CONSTITUTION WHICH DECLARES THE ISSUE OF A SERF AND A FREE WOMAN TO BE FREE
SHALL BE OF No ADVANTAGE TO CHILDREN BORN BEFORE THE PROMULGATION OF THIS
CONSTITUTION, BUT ONLY TO THOSE WHO ARE BORN SUBSEQUENTLY. RELIGIOUS HOUSES,
WITH THE EXCEPTION OF THE PRINCIPAL CHURCH, SHALL NOT BE PERMITTED TO
EXCHANGE IMMOVABLE ECCLESIASTICAL PROPERTY WITH ONE ANOTHER, EVEN WHEN
AUTHORIZED To Do So BY A FORMER DECREE.
FIFTY-FOURTH NEW CONSTITUTION.
The
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
Questions
have been raised by certain persons who think that they have found some
obscurity in one of Our Constitutions, where, in fact no obscurity exists;
for, as We are deeply attached to freedom, this constitution, at variance
with the ancient principle providing that children born of a serf and a free
woman shall follow the condition of their father, establishes a contrary
rule, and states that in order to determine the civil condition of a child,
the condition of its mother should be taken into consideration. This
beneficent law of Ours is unwilling that the child born of a free mother
shall be a slave, as We stated in it that whether serfs were already married
to free women when it was enacted, or whether they were united to them
afterwards, the issue of such marriages would be free. Certain persons have
ventured to interpret this so foolishly and in such a subtle manner as to
hold that children born before the law was published, even though they were
old at the time, are just as free as if they had been born after its
enactment, and not long previously. They base this opinion upon the
assumption that We certainly intended that where serfs were already married
to free women, and children were born to them after the enactment of the
present law, or even if they were not yet married, and contracted marriage
subsequently, the children born afterwards would be free by virtue of the
law.
CHAPTER I.
A CHILD
BORN OF A SERF AND A FREE WOMAN SHALL
BE FREE.
Therefore,
in order that no artifice may prevail, or any fraud be committed, and the
use of subtle interpretations for the purpose of injuring possessors of
property may no longer be allowed, We hereby decree that all children born
of free mothers after the publication of this law shall be released from the
condition of serf, and that the other ancient legislation on this subject
shall remain in full force.
CHAPTER
II.
THE
STEWARDS OF RELIGIOUS HOUSES ARE AUTHORIZED
TO MAKE
EXCHANGES OF PROPERTY BELONGING TO SAID
HOUSES,
WITH THE EXCEPTION OF THAT OF THE CHURCH
OF
CONSTANTINOPLE.
We have
recently drawn up a law for the purpose of remedying abuses relating to the
alienation of ecclesiastical property, and We desire, where any public debt
exists, to enable them to dispose of it, if they observe all the formalities
prescribed by law. When, however, there is any private indebtedness,
immovable property can be given by way of payment, provided no law
prohibiting alienations of this kind is violated by doing so; and We add
that, where the case is urgent, and it is advantageous to religious houses
to give or receive such
property,
one church may transfer it to another, or one hospital to another, or one
house for the entertainment of travellers to another; for We authorize such
an exchange to be made between one religious house and another founded for a
different purpose, such as a church and an asylum for poor invalids, a
monastery and another religious house, etc.
By the
terms of the present law We grant authority to the heads of these
monasteries to make exchanges of this kind, and We hereby establish the
validity of such exchanges; thus the government shall not be the only one
(as was provided by the former law) entitled to the privilege of exchanging
immovable property with churches. Religious houses, dedicated to God, the
common King of all mankind, can also do this, but the interposition of a
decree as well as the taking of an oath shall be absolutely necessary; the
reason for the exchange shall be investigated by the metropolitan bishop of
the diocese, and if it is actually proved under oath that the exchange will
be advantageous to both parties, it shall be confirmed and rendered valid,
and there will be no need of a pragmatic sanction, or any special order for
that purpose.
Those who
make exchanges of this kind will have the judgment of Omnipotent God to
fear, if any fraud for which they are responsible should be committed, or
any collusion take place on their part, and they should consider the benefit
of one of the parties rather than that of the other; for terrible
maledictions in addition to those which We at present prescribe are
denounced against persons guilty of offences of this kind, when the said
stewards fail to comply with any of the requisite formalities, and are
afterwards proved to have done this with evil intent, and where this is the
case the transaction shall be void.
(1) We
except the Holy Principal Church from the operation of this law, just as was
done by the previous constitution; and We desire that it shall continue to
be included in the former prohibition concerning alienations, as this has
been considered to be proper by the ecclesiastical authorities having it
under their control.
EPILOGUE.
Your
Eminence will communicate these matters which have appeared to Us to be good
and proper, and which are set forth in the present law, to all the provinces
under your jurisdiction; in order that they may be formally promulgated by
means of suitable proclamations.
Given at
Constantinople, on the fifteenth of the Kalends of September, during
the eleventh year of Our Lord the Emperor Justinian, and the second after
the Consulate of Belisarius.
TITLE X.
CONCERNING
THE PROHIBITION OF FRAUDULENTLY EXCHANGING ECCLESIASTICAL PROPERTY FOR THAT
OP THE EMPEROR, IN ORDER BY So DOING TO TRANSFER IT TO OTHER PERSONS, FOR
SUCH EXCHANGES SHALL ONLY BE MADE WITH THE IMPERIAL HOUSE. ALSO CONCERNING
THE AUTHORITY GRANTED TO CHURCHES TO MAKE PERPETUAL EMPHYTEUTIC CONTRACTS
WITH EACH OTHER, WHEN A DECREE HAS BEEN OBTAINED FOR THAT PURPOSE, THE
PRINCIPAL CHURCH OF THIS CITY EXCEPTED, WITH THE UNDERSTANDING THAT THE
EMPHYTEUSIS SHALL NOT BE TRANSFERRED TO A PRIVATE PERSON.
FIFTY-FIFTH NEW CONSTITUTION. The Emperor Justinian to Menna, Archbishop of
Constantinople.
PREFACE.
We have
already enacted a law prohibiting the alienation of ecclesiastical property,
and which allows the most holy churches, as well as the Most Holy Principal
Church of this Fortunate City, to make exchanges when the Empire desires to
obtain anything from a religious house, and We have subsequently promulgated
another law by which We have excepted the Most Holy Principal Church, but
authorized certain alienations which are set forth in the said law. But, for
the reason that We have ascertained that certain persons have evaded what is
provided in a chapter of Our first Constitution, which treats of exchanges
made between the government and the most holy religious houses, and as the
said persons ask Us to Ourselves acquire property from the Most Holy Church,
in order to transfer it to them, and many with the intention of evading the
Imperial Constitution aforesaid have presented petitions to Us for this
purpose, We desire that whatever We have prescribed up to this time shall be
valid, and that none of the transactions which have been made by Us with the
Most Holy Church, or with others that have received anything from Us by
virtue of such contracts, shall be abrogated.
CHAPTER I.
We decree
that, hereafter, no person shall be permitted to do anything of this kind,
but that only those exchanges shall be valid which have been made between
the government and the Church; in order that the property transferred may
always remain in possession of the Empire, and not be conveyed to any
private individual, nor that the title to said property shall pass to such
persons through the medium of the government. If anything of this kind
should occur, We grant permission to the most reverend stewards to seize the
property and restore it to the Most Holy Church, just as if no such transfer
had been made to the government in the first place.
This law
shall, from this day, remain forever in force, and all exchanges which (as
We have stated) have been made through the medium of the government after
the enactment of the first law shall be confirmed, for the reason that said
transactions have already been perfected. Now, however, certain persons,
taking advantage of these former examples for the purpose of annoying Us,
and defrauding the Most Holy Principal Church of this Most Fortunate City,
desire to obtain possession of property in this way, which We are unwilling
should be done at any time. If, however, such an exchange should take place,
it will be void, and the property in question shall be recovered by the Most
Holy Principal Church, and held in perpetuity, and no prescription of long
time can be pleaded against it.
CHAPTER
II.
CHURCHES
SHALL BE PERMITTED To MAKE PERPETUAL EMPHYTEUTICAL CONTRACTS WITH ONE
ANOTHER.
We hereby
decree that all provisions enacted with reference to emphyteutical rights,
so far as the Most Holy Principal Church or all other religious houses are
concerned, shall remain in full force; but churches and religious houses,
with the exception of the Most Holy Principal Church, shall be permitted to
make perpetual emphyteutical contracts with one another, provided a decree
authorizing this has been previously obtained, as We are not willing that
this right should be enjoyed by a private individual.
EPILOGUE.
Therefore
Your Holiness will observe these matters which have been ordered by Us, and
communicate them to those who occupy Metropolitan Sees in Your jurisdiction,
so that they may become familiar with what We have been pleased to enact,
and will not venture to evade any provisions of these laws; for if they
should either do this themselves, or permit others to do so, they will
become liable to the judgment of Heaven, as well as to severe penalties.
Given at
Constantinople, on the third of the Nones of November, during the
eleventh year of the reign of Our Lord the Emperor Justinian, and the second
after the Consulate of Belisarius.
TITLE XI.
THE
CONTRIBUTIONS ORDINARILY MADE BY MEMBERS OF THE CLERGY AT THEIR ORDINATION
SHALL CONTINUE To BE PAID IN THE PRINCIPAL CHURCH, BUT NOT IN OTHER
CHURCHES.
FIFTY-SIXTH NEW CONSTITUTION.
The
Emperor Justinian to Menna, Archbishop of the Royal City of Constantinople.
PREFACE.
As We
intend to make many additions to Our laws, We have thought it proper to
address this constitution to Your Holiness. The clerks ordained by Your
Reverence in the most holy churches (from which, however, the Most Holy
Principal Church is excepted) are subjected to the most cruel exactions of
all, for We have ascertained from frequent complaints made to Us on the
subject that they are not permitted to receive their churches before they
pay into them certain sums of money by way of contributions.
CHAPTER I.
Therefore
We order that Your Holiness shall diligently inquire whether it is customary
for those who are ordained in the Most Holy Principal Church to contribute
in this manner, and if it is, they shall continue to do so, for We do not
change anything where payments are made in this way in the Most Holy
Principal Church. But, so far as all other churches are concerned, no
ecclesiastic shall collect anything whatever from a member of the clergy
under the pretext of admission fees. If an act of this kind should be
committed, the culprit shall be expelled from the priesthood, and he whom he
imposed upon shall obtain his place, for this shall be the reward of his
avarice, and the defenders of the Most Holy Principal Church must obey what
We have prescribed, under the penalty of ten pounds of gold, if they fail to
comply with the provisions of this law, and they shall perform all their
functions gratuitously, for We do not wish clerical services to be subject
to sale, or be done for reward, but honorably and without compensation. In
this way ecclesiastical duties, not being purchasable, will be more worthily
discharged.
EPILOGUE.
Therefore
Your Holiness, together with those who may subsequently occupy Pontifical
Sees, will hasten to carry into effect the matters promulgated by Us in this
law.
Given at
Constantinople, on the third of the Kalends of November, during the
eleventh year of Our Lord the Emperor Justinian, and the second after the
Consulate of Belisarius.
TITLE XII.
THE
SALARIES OF ECCLESIASTICS WHO ABANDON THEIR CHARGES SHALL BE GIVEN TO THOSE
WHO ARE SUBRO-GATED TO THEM. THE FORMER SHALL NOT BE REINSTATED EVEN IF THEY
So DESIRE, AND IF ANYONE WHO HAS BUILT A CHURCH, OR PAID THE SALARIES OF
ECCLESIASTICS IN THE SERVICE OF ONE SHOULD WISH TO APPOINT OTHERS, HE CANNOT
Do So WITHOUT THE APPROVAL OF THE MOST HOLY PATRIARCH.
FIFTY-SEVENTH NEW CONSTITUTION.
The
Emperor Justinian to Menna, Most Holy Archbishop of this Royal City, and
Universal Patriarch of Its Territory.
PREFACE.
Many
members of the clergy who have been in the service of religious houses, or
have been appointed by persons who have paid their salaries, frequently
abandon the establishments to which they are attached for reasons known to
them alone.
CHAPTER I.
CONCERNING
ECCLESIASTICS WHO SHOULD BE SUBRO-GATED TO MEMBERS OP THE CLERGY WHO HAVE
ABANDONED THEIR CHURCHES.
Hence, in
order that there may be no interruption to religious service, We decree that
other members of the clergy shall be subro-gated by the bishops to those who
have deserted their charges, and shall be entitled to their salaries. For We
do not wish that the revenues paid to the most holy churches by their
founders for the maintenance of ecclesiastics, who have abandoned them,
should, under any pretext whatever, be a source of profit to certain
individuals; but the emoluments which were provided from the beginning shall
always be given, and the holy ministrations of the church shall not be
suspended on this account; nor shall the former incumbents be reinstated and
those who have been substituted for them be expelled, after having been
appointed by the Most Holy Patriarch or the provincial bishops. Those who
have incurred this expense shall not be required to pay double, that is, pay
the substitutes as well as those who desire to be reinstated, and if the
latter should return they shall not be received. Their emoluments shall be
given to those who have been appointed after their departure, nor shall any
ecclesiastics already in the service of the church profit by their
accession, and the salaries of the clerks as well as the expenses of the
church shall be entirely furnished by the founders. The heirs and successors
of the latter are hereby notified that if, after the promulgation of this
law, they should perpetrate any fraud with reference to this matter, a
certain portion of their property will be assigned to Our Imperial domain,
to provide for the payment of the above-mentioned obligations.
CHAPTER
II.
FOUNDERS
OP CHURCHES SHALL NOT BE PERMITTED TO
ACTUALLY
APPOINT ECCLESIASTICS FOR SAID CHURCHES,
BUT MERELY
TO PRESENT THEM FOR APPOINTMENT.
We decree
what follows for the honor and advantage of Your See. When anyone who has
founded a church, or made provision for its expenses, desires to appoint
ecclesiastics, he will have no assurance that those whom he, on his own
authority, presents to Your Reverence for ordination, will be admitted, but
Your Holiness must examine them, and those who, according to your opinion or
that of him who occupies the Pontifical See, appear competent and worthy of
the
service of
God, shall be ordained. In this way the holiness of God will not be profaned
(which is recommended by the Holy Scriptures), but will remain intact,
ineffable, and awe-inspiring, and everything relating to it will be treated
with reverence and in a way acceptable
to God.
EPILOGUE.
We order
Your Holiness to cause what it has pleased Us to insert in this Imperial law
to be perpetually observed, you being well aware that We are not less
solicitous for the welfare of the holy churches than for the salvation of
your soul.
Given at
Constantinople, on the Nones of November, during the eleventh year of
Our Lord the Emperor Justinian, and the third after the Consulate of
Belisarius.
TITLE
XIII.
SACRED
MYSTERIES SHALL NOT BE CELEBRATED IN PRIVATE HOUSES.
FIFTY-EIGHTH NEW CONSTITUTION.
The
Emperor Justinian to Menna, Archbishop of the Royal City of Constantinople.
PREFACE.
It has
been provided by former laws that sacred mysteries shall, under no
circumstances, be celebrated in private houses, but that the belief in and
the worship of God shall be professed in public, in accordance with the
custom which has been handed down to Us with regard to the observance of
religious ceremonies; and We, by this present law, do provide that what We
wish shall be strictly complied with. For We forbid the inhabitants of this
great city, as well as all others in Our Empire, to have any kind of chapels
in their houses, or to celebrate sacred mysteries there, and to do nothing
which may be opposed to Catholic and Apostolic tradition.
Where,
however, any person desires to have an oratory in his residence without the
celebration of the sacred mysteries, We hereby authorize him to do so. There
is no objection to anyone having a private place for prayer, as in holy
places, provided he abstains from doing anything else there. Where anyone
wishes to invite members of the clergy to come for the purpose of conducting
religious services, this can be done where they belong to the Most Holy
Principal Church and the holy houses subject to its jurisdiction, if this is
authorized and approved by the Most Holy Archbishop; and in the provinces
any priests who are sent for this purpose must be approved by the bishop. No
innovation is made by the present law with reference to any rights enjoyed
by Your See, either here or in the provinces, so far as ordinations and
government are concerned, and all its privileges shall be preserved now and
for all time.
We order
Your Glory to cause the law which We have enacted to be obeyed, and to
communicate the same to all Our subjects by special letters, in order that
it may be effective in every respect. We give the same order to the Most
Glorious Prefect of this Fortunate City, and to the Most Holy Archbishop and
Universal Patriarch, in order that these provisions may be forever observed
by both the civil and ecclesiastical authority.
The owners
of houses are hereby notified that if they do not obey these rules they will
incur the anger of the Emperor, and that the buildings in which anything of
this kind takes place will become public, and be confiscated to Our Imperial
Treasury. Persons who have chapels in their houses are also notified that
if, after the term of three months from the promulgation of this law has
expired, they do not cease celebrating the sacred mysteries there, and
comply with its provisions, they will be liable to the aforesaid penalty;
but We wish them to act sincerely, and not with dissimulation, for We are
greatly attached to the truth.
We command
Your Highness to see that this law is executed, and to permit nothing to be
done in violation of its provisions; and you are hereby notified that if,
after any breach of the said law has been communicated to you, you or your
successors do not immediately take measures to suppress it, you will be
liable to a fine of fifty pounds of gold, and your subordinates will incur
the same penalty, because they permitted a matter to which We attach much
importance, that is to say, the unity of the Most Holy Church, to be
interfered with, and allowed what has been publicly prohibited by Us to be
secretly done, and suffered Our authority to be despised; and they will also
run the risk of losing their offices, and, in addition to this, the house in
which anything of this kind takes place shall become public property, and be
confiscated to the Imperial Treasury.
EPILOGUE.
This law
has been addressed by Us to the Most Holy Patriarch of this Fortunate City,
in order that he may provide for its execution. We desire that it be
rendered inviolate for all time, by both sacerdotal and judicial authority.
Given at
Constantinople, on the third of the Nones of November, during the
eleventh year of the reign of Our Lord the Emperor Justinian, after the
Consulate of Belisarius.
TITLE XIV.
CONCERNING
THE FUNERAL EXPENSES OF DECEASED PERSONS.
FIFTY-NINTH NEW CONSTITUTION.
The Same
Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
It is
necessary for each of the good works of which We are the author to be begun
with the favor of God, or if corruption should find its way into the
beneficial laws of Our predecessors, this must be remedied by Us, and they
be placed in their former condition, in order that We may always endeavor,
either by enactments or amendments, to participate in measures advantageous
to the public welfare. Hence We think that matters connected with the
funerals of deceased persons require correction, and that provision should
be made for all 'contingencies so that no one shall be subjected to the
double embar-rassment of losing his property, and, at the same time, of
suffering personal injury. But as what Constantine, of pious memory, after
due deliberation, decreed, and Anastasius, of pious memory, subsequently
confirmed by making additions to the revenues set apart for funeral
expenses, seemed about to fall into disuse, We are compelled to restore it,
taking every precaution and proper means to do so, with a view to rendering
it permanent. For Constantine, of pious memory, set apart nine hundred and
eighty warehouses in the different quarters "of this Most Fortunate City for
this purpose after having exempted them from taxes, the income from which
was payable to the Most Holy Principal Church. Anastasius, of pious memory,
not only increased the number of said warehouses by a hundred and fifty, but
also, by two pragmatic sanctions, apportioned a certain revenue to be
employed by the reverend stewards, to be paid to persons who conducted
funeral
ceremonies.
Many
individuals, however, have applied to Us, stating that matters were not as
they should be, and that funerals were not conducted gratuitously, but
enormous sums of money were extorted; and it has been ascertained that much
property has been taken from mourners against their consent, and that even
those who were unable to do so were called upon to contribute; hence We have
determined that all these abuses should be remedied.
CHAPTER I.
Therefore,
in the first place, as the number of warehouses originally set apart has
been greatly diminished, We restore them all to the Most Holy Principal
Church, addressing for this purpose a pragmatic sanction to the Urban
Prefect; in order that he, along with his subordinates, may place eleven
hundred warehouses at the disposal of the defenders and most holy stewards
of the said church. Eight hundred of these warehouses shall be charged with
furnishing pallbearers to the defenders, and the remaining three hundred
with paying the stewards the revenues allotted to the Most Holy Church by
Anastasius, of pious memory. No payment, however, small as it may be, can be
exacted for conducting funerals, as the stewards have the revenue from three
hundred warehouses for the purpose of paying the deans and other persons
employed the monthly salary which is due to them; and the defenders have
under their control the income
of eight
hundred warehouses to furnish pallbearers, and provide what is necessary for
the funerals of deceased persons, in order that all the expenses of those
who mourn their loss may be defrayed.
CHAPTER
II.
Therefore
it is necessary for the aforesaid eleven hundred warehouses to be preserved
for the use of the reverend stewards and defenders, without any diminution
of their revenues, as well as to remain exempt from taxation; and if any
accident should happen, or any change in their arrangement or destination
should take place, this must be effected by the Most Glorious Prefect of
this Fortunate City, in order that the stewards charged with the
administration of property to defray the expenses of burial, having at their
disposal the revenue of three hundred warehouses free of taxes, and the
defenders, having control of eight hundred of these warehouses, the Most
Holy Church may defray the funeral expenses of deceased persons.
As We have
already stated, the said stewards shall, in addition to the revenue of the
three hundred warehouses aforesaid, use for this purpose the property which
they have petitioned Us to enable them to acquire, with this end in view.
Therefore, for the reason that among the eleven hundred warehouses situated
in this Fortunate City, there are many in a ruinous condition, We direct
that they shall immediately be repaired, in order that the entire number may
remain undiminished, and without taxation; and that they shall continue to
be divided between the stewards and the defenders, as We have just stated;
so that there may be not less than eight hundred deans furnished to the
defenders by eight hundred warehouses; and that, so far as the other three
hundred warehouses allotted to the stewards are concerned, the latter shall
be permitted to obtain from them three hundred deans or less, or to collect
from all or some of the said three hundred warehouses an income in money
which the said stewards have not obtained up to this time, and which We
Ourselves have informed them they must expend in the funerals of deceased
persons, distributing it in the same way as the income from other property,
among the deans, hermits, canons, and acolytes, as We shall prescribe
hereafter. For the said stewards, having informed Us that in the future it
will be impossible to collect the same revenues as heretofore, We have very
properly given them an increase of three hundred warehouses, in order that
the revenues which have heretofore regularly been paid to those who conduct
funerals may be available hereafter, that is to say, four hundred solidi
shall be divided every month among the deans, acolytes, ascetics, and
canons, in accordance with the custom observed up to this time; the deans
shall be entitled to one hundred and eighty-two solidi, the ascetics
to ninety-one solidi, the acolytes to ninety-one solidi, and
the canons to thirty-five solidi a month, which sums shall be paid
semi-annually to those who have been in the habit of receiving them.
CHAPTER
III.
The
stewards shall be required to pay the share due to the most reverend
ascetics, in accordance with the amount which We have just established
through the agency of Eugene, Deacon, and Superior of the Hospital of
Samson, of holy memory, which has been founded by Us; and through the agency
of those who, after him, are the heads of similar houses already mentioned,
for the reason that the ascetics employed at funerals are subject to the
control of the temporal heads of these venerated establishments. Thus, as
the stewards pay to the acolytes and most reverend canons the money to which
they are entitled through the medium of those who at present exercise
authority over them, and to whom their interests are committed, these
officials shall distribute the money among the ascetics, canons, and
acolytes subject to their authority. But if the stewards should be in
default in paying the said officials, and if six months should have elapsed,
and the second half year should have begun without anything having yet been
paid, then the entire amount due shall, after the expiration of the first
six months, be collected from them with interest at four per cent. The Most
Holy Archbishop and Patriarch of the Principal Church of this city shall be
charged with the execution of this provision.
CHAPTER
IV.
If,
however, an entire year should elapse, and the stewards should not pay
anything to the most reverend women, or to the aforesaid deans, the Most
Holy Patriarch shall be permitted to collect from them not only the amount
due with the interest previously mentioned, but also to compel them to pay
whatever has been decreed; and (if he should wish to do so) to deprive them
of the administration of the property, and force them to surrender it in
good condition. The Most Blessed Archbishop and Universal Patriarch, to
whose authority the members of the clergy and everything relating to the
Principal Church are subject, shall exercise the greatest care with
reference to all these matters.
(1) Where
these things have once been accomplished, nothing shall be accepted by way
of compensation for watching a corpse; and that everything may be plainly
understood on this point, We direct that an assisterium shall be
assigned gratuitously to every bier, which shall consist of ascetics or
canons preceded by not less than eight women, who, chanting, shall precede
the bier, and three acolytes, who shall be entitled to nothing whatever for
their services. If, however, any of the heirs of the deceased should
voluntarily, and without compulsion by anyone, desire to have two
assisteria, or even more, he can employ them at his own expense; and in
order that We may not leave this matter in doubt, We desire that those who
perform this duty shall consist of the same number of canons and acolytes
which We have already prescribed, that is, that there shall not be less than
eight ascetics or canons, and three acolytes in each assisterium.
CHAPTER V.
When the
funeral ceremonies take place within the new walls of this Fortunate City,
there shall be paid to the ascetics or canons, in excess of the number which
ought to accompany the body gratuitously, the third part of a solidus,
which they must not divide with the acolytes. Where three acolytes, in
excess of the three who are required to give their services gratuitously,
are employed, they shall remain content with three siliquse, and
where there are six, they must be satisfied with six siliquse, and so
on, according to the number.
It is
certain that if the distance which the funeral procession is compelled to
traverse is very long, and more pallbearers are necessary to carry the bier,
then the ossisterio, which are in excess of the one gratuitously
furnished will be entitled to something more by way of compensation for this
increased labor.
This rule
which We have just established is only applicable to funerals conducted
within the space enclosed by the new walls and the Passage of Justinian, as,
in this case, the distance will not be very great, and much time and trouble
will not be required to reach the sepulchre. Where the funeral ceremonies
are celebrated outside of the new walls of this Fortunate City, or in some
other place beyond the Passage above referred to, half of a solidus
shall be paid to the ascetics or canons, which they must not divide with the
acolytes, and the latter in each assisterium shall receive four
siliquse, to be divided among them (as We have already stated) ; but
there must always be one assisterium,, which, along with three
acolytes, shall gratuitously follow the bier which has been furnished. This
assisterium, composed of eight ascetics and three acolytes, shall, as
previously mentioned, receive absolutely nothing for their services, nor
shall they exact any compensation for tapers, or under any other pretext
whatsoever.
CHAPTER
VI.
We have
established all these rules for persons who are not sufficiently liberal or
ostentatious to demand the two x-large biers deposited in the venerated Hall
of Vases; We mean the biers of Studius, of glorious memory, and of Stephen,
of magnificent memory. If anyone should desire to have these, as several men
are required to carry them and great care must be exercised when they are
used, We do not include these biers with the ones already mentioned, and
since those who desire to use them for the purpose of making a display must
pay the pallbearers, ascetics, and canons a certain sum for their use, We
decree that this shall not exceed ten solidi for the said two biers
of Studius and Stephen. And so far as the gilded bier deposited in the Most
Holy Church is concerned, a solidus shall be paid for each
pallbearer, which makes four in all; and the ascetics, canons, and acolytes
shall receive double the amount which We have previously allotted them.
Again, the assisterium, or canons who precede the other biers
gratuitously, shall be entitled to the same as the others, and the acolytes
shall also receive twice the sum which We have
already
prescribed, when the bier used for the funeral ceremonies is one of the
three that We have just mentioned; for if the defenders are compelled to
furnish pallbearers and biers out of the revenues of the eight hundred
warehouses which We have placed at their disposal, they shall not be
required to incur other expenses, and the stewards shall not be obliged, on
account of the revenue which has been allotted to them by Anastasius, of
Divine memory, to pay out of the income from the three hundred warehouses
set apart for their use any other persons than those employed in funerals,
in accordance with the general rule which We have established. In this way
nothing will remain unprovided for; those who desire burials to take place
with moderate expense will enjoy the benefit of this arrangement; and others
who are given to pomp and display will not be put to great expense, but will
be liberal, and at the same time practice moderation.
CHAPTER
VII.
This is
what We have decreed with reference to warehouses and their revenues, and
funeral ceremonies, whether the latter are conducted gratuitously, or at the
expense of the relatives of the deceased. We charge not only the Most
Glorious Prefect of this City and his subordinates, but especially Your
Highness and those subject to your jurisdiction, to see that the number of
these warehouses is never diminished. We also impose a fine of fifty pounds
of gold upon your office if any one of your attendants should fail to obey
this rule, and double that sum upon those who may hereafter occupy your
place; for We desire that the number of eleven hundred warehouses shall
never be decreased, and that the division which We have established shall
always be maintained. But if Your Highness, or your successor, should
ascertain that the number of warehouses is not complete, you or he must take
pains to make it so. The warehouses shall be free from all burdens of any
kind, and shall not be interfered with either by Your Highness or by anyone
else, in order that there may be no occasion to exact any contributions for
the funeral expenses of anyone whomsoever, in contravention of what We have
decreed. We make no distinction between deceased persons, whether they be
rich or poor, unless, as We have already stated, one of the three biers with
reference to which We have formulated appropriate regulations should be
selected.
We desire
that this Imperial pragmatic sanction shall be strictly observed, and that,
in accordance with what We have prescribed, it shall remain unchanged and
immortal, and be obeyed by all persons, as long as there are men upon the
earth; that the name of Christian shall be great and praised among them, and
its renown daily increased by the efforts of Divine Providence. The Most
Holy Patriarch of this Most Fortunate City will himself, before all other
persons, see that this law is observed; he will make use of his pontifical
authority to prevent it from being violated; and will not permit this to be
done by any person of sacerdotal or judicial condition; and We, as the
representative of the government, fixing Our eyes upon God, pray that, as
the Eternal Master of all rulers, He may vigilantly provide for the
execution of this law. For the maintenance of pious institutions concerns
the living as well as the dead, and, above all, involves the salvation of
those entrusted with the cares of government; and it is also important that
the efforts of preceding legislators should not be rendered void by the
negligence of their successors.
And, just
as We have decreed that the eleven hundred warehouses allotted to the
service of the Principal Church shall be preserved intact in number, and
free from all taxes, so We order that all other warehouses shall be liable
to taxation, and that none of them shall be absolutely exempt from it,
whether the said warehouse belongs to a religious church, a hospital, a
hermitage, a monastery, or any such establishment whatsoever, or even to Our
Imperial House, or to a great or wealthy man. We also desire that all
warehouses shall be equally liable to the payment of taxes, and that none of
them can exempt itself, or be released from liability from the share which
it owes, so as to impose the entire burden of taxation upon a small number
of warehouses, which are not able to sustain it.
EPILOGUE.
Therefore
after Your Highness has received your office and appointed the members of
Your court, you will see that what it has pleased Us to enact by this
Imperial pragmatic sanction is perpetually observed.
Given at
Constantinople, on the third of the Nones of November, during the
eleventh year of the reign of Our Lord the Emperor Justinian, and the second
after the Consulate of Belisarius.
TITLE XV.
NEITHER
THE BODY OF THE DECEASED NOR His FUNERAL CEREMONIES SHALL SUFFER INJURY AT
THE HANDS OF His CREDITORS. COUNCILLORS SHALL NOT TAKE COGNIZANCE OF CASES
IN THE ABSENCE OF JUDGES.
SIXTIETH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Persons
who make comparisons of different cases are not easily mistaken if they
carefully examine the truth; for it is probable that those are in error who,
in considering the multitude of laws promulgated by Us on every subject, do
not take into consideration the necessity which compels Us to publish new
enactments, with a view
to
providing for cases which have not been foreseen by laws already enforced,
an instance of which has recently occurred. A certain man who alleged that
he was the creditor of another, being aware that his debtor was about to
die, collected a number of officials and several slaves, and with them
invaded the chamber of the man who was at the point of death. The latter,
being alarmed, began to cry out, until overcome by the violence of his
sufferings, he gave up the ghost; and then the creditor, on his own
responsibility, affixed his seals to the property of the deceased, although
there was no magistrate present, and he did not observe any legal or civil
formality; and not only did not retire, but was not ashamed to abuse the
deceased, and at first insisted that no funeral should take place.
Afterwards, when the funeral procession had begun to remove the corpse from
the house, he refused to permit the bier to be carried in public, stating
that this should not be done unless payment of his debt was made, or until a
surety had been furnished, and that only under such circumstances would he
allow the body of the deceased to be placed in the grave. While We have
already laid down suitable rules with reference to a case of this kind, We
still think it is necessary to remedy the abuse by means of a law of general
application, in order to prevent such an act from being repeated, and always
remaining without proper legislation.
CHAPTER I.
CONCERNING
CREDITORS WHO THREATEN THEIR DECEASED DEBTORS (AFTER JULIANUS).
Therefore
We decree that if anyone, while a person who he thinks is indebted to him is
still living, should enter his house and annoy him or members of his family,
for instance, his wife, his children, or any of the members of his
household, and presume, on his own authority, to place his seals on the
property of the person who is ill, without having previously obtained a
decree, and observing the ordinary legal formalities, he shall, after the
death of him who he alleges is indebted to him, be absolutely deprived of
all rights of action against him, whether they are well founded or not; and
an amount equal to that which he says is due to him shall be collected from
him, and paid to the heirs of the deceased. He shall also suffer the loss of
the third part of his property (a penalty which the philosophical Emperor
Marcus inserted in his laws), and be branded with infamy; for he who does
not blush to injure human nature deserves to be deprived of money,
reputation, and everything else.
(1) If,
after the death of a debtor, his creditor should interfere with the funeral
ceremonies in such a way as to prevent them from taking place, a law which
was promulgated by Our Father imposes a penalty upon him, but a still more
severe one will be imposed upon him by Our laws, for We decree that he shall
be subjected to the punishment that the present law inflicts upon creditors
who abuse dying debtors in the manner which We have mentioned. The Most
Glorious
Prefect of this Fortunate City, who is charged with the suppression of
crime, shall pay special attention to the prevention of what is treated of
in this law, and the Most Glorious Praetorian Prefect, as well as the Most
Glorious Master of the Imperial Offices, will see that it is enforced; for
it is necessary that the right to prevent and punish wrongs against nature
should be granted to all magistrates.
What We
now order shall be applicable not only to this Most Fortunate City, but also
to all the provinces, the government of which has been entrusted to Us by
God from the beginning, or which He has added to Our Empire, or which he may
subsequently add, as one of Our predecessors has already stated. All
provincial magistrates, both military and civil, are charged with the
execution of this law, and a fine of thirty pounds of gold shall be imposed
upon the magistrates of Constantinople and their offices, and one of five
pounds of gold shall be imposed upon provincial judges, if they fail to
perform their duties in this respect, or disregard any notices of the
violation of this law either in this city, or in any of the provinces.
CHAPTER
II.
NEITHER
COUNCILLORS NOR ASSESSORS SHALL TAKE COGNIZANCE OF CASES IN THE ABSENCE OF
MAGISTRATES.
We have
decided that (in conformity with the Constitution of Leo, of pious memory,
as well as with that which We Ourselves have promulgated) it is proper not
to permit the councillors of judges to hear by themselves any cases brought
before magistrates charged with judicial duties or before judges who have
been appointed by Us. For it is much better and preferable for proceedings
to be instituted before the proper officials themselves, in the presence of
the parties interested, as the witnesses produced will be more influenced by
fear; and the case will be tried with the same decorum as it would be before
ordinary judges, who differ in no respect from councillors. But as the
magistrates always appointed by Us may be occupied with the execution of Our
orders, or with other matters, and not be able to hear cases themselves, it
is absolutely necessary, under the circumstances, to enact a law applicable
to existing conditions.
(1)
Therefore We order that suits shall be brought before the magistrates
themselves, who have either superior or inferior jurisdiction, and when this
is once done, the action may proceed before councillors; but when final
judgment is to be rendered, it cannot take place without the presence of the
magistrates, and the latter, with the dignity befitting their office which
We have for a long time charged them to display, and in the presence of the
Holy Scriptures, shall hear the report of all the proceedings, and decide
the case, and receive the appeals, without any delay, if anyone should
appeal under circumstances permitted by the law. We desire that the judges
of appeal shall, by all means, hear cases entirely by themselves, and that
no one
shall presume to do otherwise; for if anything of this kind should happen,
the magistrates themselves will be liable to a penalty of twenty pounds of
gold, and the councillors, who have ventured to hear the case alone, if they
are advocates, shall be expelled from the association of advocates, and if
they are not, shall be deprived of their offices (if they have any) and
punished by a fine of ten pounds of gold. For those who treat with contempt
the Constitution of Leo, of pious memory, in addition to the one which We
have long since promulgated, as well as the present law, cannot expect to
escape punishment for their wrongful act.
The Most
Glorious Count of Our Imperial Domain shall be charged with the execution of
this law, and shall collect the fine and turn it over to the Treasury,
whenever any violation occurs; for he is well aware that he will be liable
to the Treasury for the said fine out of his own property if he does not
take measures for the observance of this constitution.
(2) What
We have decreed has reference to magistrates whose duty it is to see to the
execution of Our orders, and they have a good excuse not to hear cases by
themselves. But so far as other magistrates are concerned, who, having no
regular employment, hear cases by virtue of Our orders, whether in this Most
Fortunate City or in others, if they should be guilty of anything of this
kind, We impose still more severe penalties upon them, when they do what We
have forbidden, and those who are subject to their authority as councillors
take cognizance of cases; for unless proceedings are conducted before these
magistrates from the beginning to the end of the action, and they hear it
conjointly with their councillors, We threaten them with the loss of office
and a penalty of twenty pounds of gold, and their councillors shall be
expelled from the city in which they have violated Our law, and be disgraced
in other respects.
EPILOGUE.
Therefore
Your Eminence will communicate to all persons the matters which We have been
pleased to enact by this Imperial law, and you will do this by the
publication of formal edicts throughout the provinces, in the usual manner,
in order that no one may be ignorant of what We have ordered. The Most
Glorious Urban Prefect is charged with said publication in this Most
Fortunate City.
Given at
Constantinople, on the Kalends of December, during the eleventh year
of the reign of Our Lord the Emperor Justinian, and the second after the
Consulate of Belisarius.
TITLE XVI.
IMMOVABLE
PROPERTY OF WHICH ANTE-NUPTIAL DONATIONS ARE COMPOSED SHALL NEITHER BE
HYPOTHECATED NOR ALIENATED IN ANY WAY BY THE HUSBAND EVEN WITH THE CONSENT
OP His WIFE, UNLESS HE HAS SUFFICIENT PROPERTY TO AFTERWARDS SATISFY HER
CLAIM ; AND THE SAME RULE SHALL ALSO APPLY TO DOWRIES.
SIXTY-FIRST NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
A pitiable
case having been brought to Our notice, We, having corrected it in the
proper manner, desire to remedy abuses of this kind by means of a general
law, as We are accustomed to do.
CHAPTER I.
IMMOVABLE
PROPERTY COMPOSING AN ANTE-NUPTIAL
DONATION
CAN UNDER No CIRCUMSTANCES BE EITHER
HYPOTHECATED OR ALIENATED.
We order
that if anyone should agree to give an ante-nuptial donation, or one in
consideration of marriage (for We have decided that the latter name is
preferable), whether he does this himself, or someone else agrees to give
it, for instance, the father, the mother, other relatives, or even
strangers, and the said donation consists of immovable property, We
expressly prohibit the husband from either encumbering it, or disposing of
it in any way whatever thereafter, for it is not proper to alienate anything
which has been once bound by the ties of nuptial generosity; and the wife,
if she should happen to obtain this advantage, and the property was not
found in the possession of her husband because it had been alienated or
hypothecated to a third party, who perhaps was a powerful person, would find
it difficult, or perhaps entirely impossible to recover it, and she would be
reduced to the necessity of bringing an action for that purpose, when she
should be protected by the law itself.
(1)
Wherefore, this constitution shall be observed; and anyone who hereafter
makes a contract of this description is hereby notified that whether he
purchases the property, or has it encumbered to himself, he will reap no
benefit whatever from doing so; and whatever has been reduced to writing or
agreed upon verbally shall be considered as not having taken place, in order
that the advantage to which the wife was entitled may not be interfered
with. For those judges who, after the dissolution of the marriage, formerly
granted to wives an action in rem to recover the immovable property
of which an ante-nuptial donation was composed, do not appear to Us to have
acted unreasonably, as We consider this practice to be praiseworthy,
but
hereafter judges must not longer observe it. We do not wish creditors to
make use of crafty methods to induce wives to consent for immovable property
composing ante-nuptial donations to be hypothecated to them, and thus to be
deprived of their rights; for the consent of the wife either to
hypothecation, sale, or alienation of such property shall be of no benefit
whatever to the person who obtains it; and as We have stated with regard to
women becoming sureties, it is necessary for its validity that, after the
lapse of two years, a new declaration in writing, confirmatory of the first,
be made by her, and then the transaction which has already taken place shall
be
ratified.
(2) If the
wife should consent to the encumbrance of the property, as in the case where
she becomes surety, she shall be entirely exempt from all liability, unless
(as We have just stated) she gives her consent a second time. For deception
is often practiced to obtain consent in the first place, and a wife readily
deceived by the representations of her husband may be negligent of her own
rights, while after some time has elapsed, she can reflect upon the matter,
and perhaps become more cautious.
(3) Still,
We do not make this statement without any reservation, for We do not subject
the wife to the risk of losing the immovable property of which the donation
is composed, on account of her second consent; provided her husband has
other property out of which it is possible for her to be indemnified for
either the personal or real property of which the ante-nuptial donation is
composed, and which is in the hands of a third party by virtue of some
alienation or encumbrance; but, on the other hand, if there is no other in
his hands, We do not permit the wife to sustain any loss; for even though
she may consent a second time, or several times, to the hypothecation of the
property of the ante-nuptial donation, her right to it shall still remain
secure, and the alienation will not be valid; unless, We repeat, there is
sufficient property remaining in the hands of the husband to make up the
amount of the ante-nuptial donation.
We
establish this rule not only for the purpose of protecting the interests of
wives, but even more to safeguard the rights of husbands, as, in a great
number of instances, the property composing the ante-nuptial donation is set
apart for the benefit of the common children, and reverts to the husband,
thus becoming part of his estate; and in this way the law is advantageous to
both husband and wife. The rule is still more applicable to dowries, where
any property belonging to them is either alienated or hypothecated; but
provisions relating to dowries have already been sufficiently described and
explained.
(4) Nor do
We, in any respect, neglect the rights of third parties who make such
contracts; for as We desire the alienation of property to which wives are
entitled to be held not to have taken place, or to have been committed to
writing, so We also desire the transfer of the property of husbands, when
obtained by anyone through alienation or hypothecation, to be considered
void.
We
preserve the rights of women unimpaired, so far as the immovable property
composing ante-nuptial donations and the other property of their husbands is
concerned; and the privileges which We have already granted shall remain in
full force, even in the case of the woman herself if she should institute
legal proceedings, for We have never previously granted any privileges of
this kind to anyone else, nor do We at present do so.
EPILOGUE.
Your
Eminence will communicate to all persons the matters which it has pleased Us
to insert in this Imperial law, by availing yourself of edicts published in
the customary manner, in order that no one may be ignorant of what has been
ordered by Us; and the Most Glorious Urban Prefect will see that this is
done in this Most Fortunate City.
TITLE
XVII.
CONCERNING
CONSULTATIONS. SIXTY-SECOND NEW CONSTITUTION.
Concerning
the Order of Senators (as inscribed in certain books) or concerning
consultations (according to the new manuscripts of Contius) or as Antonius
Augustinus, in his work on the Florentine Code, states concerning Senators.
The
Epitome of this novel has been partly taken from that of Halo-ander, and
partly from that of Julianus collected by Antonius Contius, for in
scrimgerus nothing exists but the title.
This novel
was published in the Latin language, the opinion of Julianus and Haloander
being that it had no preface.
This
constitution orders that appeals for consultations shall not only be argued
before magistrates, but before all the senators, to enable the entire Senate
to hear and determine the matter, even though each senator may keep silent,
and not openly give his opinion; for consent is held to be indicated by
silence. Therefore senators will hear cases on appeal in the presence of the
Holy Gospels, and the decision of that body shall be referred to the
Emperor, in order to be confirmed by Imperial sanction.
(1) The
Senate shall meet in the hippodrome.
(2) The
Urban Prefect shall take precedence of all other officers, that is to say,
he shall be seated before them. After the Prefect, the other Patricians
shall take their places, and the Consuls, and those who are decorated with
the Consular insignia, shall be seated in accordance with the Consular rank
and prerogatives, in such a way that the ordinary Consuls will be placed
before the honorary ones. Next after them shall be seated the Prefects, the
Generals of the army, and Illustrious persons, all of whom shall have the
right to give their opinions in the Senate. Those magistrates who, on
account of the offices which they occupy, are honored with the rank of
senator, shall be seated with them; even after they have retired from
office. Illus-
trious men
shall be permitted to receive the commissions of patrician, although they
may not have formerly been either Consuls or Prefects. The modification of
the rule on this point shall not only be applicable to the future, but also
to the past.
(3) It is
certain that senators shall be required to give the third part of their fees
upon their accession to office, and all other contributions which it has
been customary to give in consideration of any promotion whatever shall
remain without alteration.
Those who
violate the present constitution shall be punished with a fine of fifty
pounds of gold, and this penalty shall not only be imposed upon the actual
violators of it, but also upon those who permit
this to be
done.
Given at
Constantinople, after the second Consulate of Belisarius, and following the
edition of Haloander, during the month of January, the second year after the
Consulate of Belisarius.
TITLE
XVIII.
CONCERNING
NOTICE OF A NEW WORK WHICH OBSTRUCTS THE VIEW OF THE SEA.
SIXTY-THIRD NEW CONSTITUTION. The Emperor Justinian to Longinus, Prefect of
This City.
PREFACE.
We think
that it is just to forbid and correct an abuse which has been introduced
into this Royal City, and relates to the construction of edifices. The
Constitution of Zeno, of pious memory, provides that houses shall be
separated from each other by a certain space, and We also have ordered
something of this kind. The result of this is, that in this Royal City a
rule has been established prohibiting anything that may obstruct the view of
the sea from being erected at a distance of a hundred feet from it, which is
extremely acceptable to all. This rule, however, is evaded by means of a
very ingenious expedient. Certain persons, leaving a space of a hundred feet
or more, erect buildings without any other purpose than to use them as a
kind of screen, and when, on their own authority, they have shut off the
view of the sea, as they no longer violate the law which provides that the
distance of a hundred feet shall be observed, they build without any
interference; and, having obtained what they desire, they demolish the first
building which they have fraudulently erected, and thus having evaded the
law, they construct other houses for occupancy. We desire that nothing of
this kind shall take place in the future.
CHAPTER I.
But if
anyone should wish to plan and execute a fraudulent act of this kind, he
shall not do so merely as a pretext, but if he has made a beginning, he must
actually construct the entire edifice, at
the
prescribed distance (that is to say a hundred feet) just as if it was really
necessary and indispensable to him; and he shall not build walls merely for
the annoyance of his neighbor, and for the purpose of deceiving him, and
depriving him of the view of the sea. For as We naturally entertain a
dislike for those who appropriate the property of others by force, and think
that they deserve punishment, We are also of the opinion that anyone who
attempts to deprive another of a view of the sea does not exhibit less
malice; therefore, if persons are bold enough to rob others of property of
little value, thereby incurring the penalty of quadruple damages through the
actio vi bonorum raptorum brought against them, why should it not be
necessary for anyone who forcibly deprives his neighbor of the view of the
sea to be liable to even a more severe penalty? Hence We decree that such a
person shall be liable to a fine of ten pounds of gold, to be paid into the
Treasury of the theatres (which is under the supervision of Your Highness),
in order that a wicked neighbor may not escape and make a jest of the law,
as not being subject to its provisions.
EPILOGUE.
Therefore
Your Highness will hasten to cause to be executed in this Most Fortunate
City the matters which it has pleased Us to promulgate by means of this
Imperial law, and see that the latter is hereafter always obeyed; as the
penalty of ten pounds of gold which it provides shall be imposed not only
upon those who violate it, but also upon the officials who permit this to be
done.
Given at
Constantinople, on the seventh of the Ides of March, during the
eleventh year of the reign of Our Lord the Emperor Justinian, and the
Consulate of John.
TITLE XIX.
CONCERNING
THE GARDENERS OP THE CITY OF CONSTANTINOPLE.
SIXTY-FOURTH NEW CONSTITUTION. Interpreted by Antonius Contius.
The Same
Emperor to Longinus, Most Glorious Prefect of This Fortunate Royal City.
PREFACE.
Many
accusations have for a long time been brought before Us from every quarter
against the gardeners of this Fortunate City, and its environs, and no one
seems to be free from their malice. What they are accused of is as follows.
CHAPTER I.
It is said
that the appraisers of values (or experts) belonging to the Association of
Gardeners are frequently guilty of grave irregularities. For when the owner
of a garden transfers it to a gardener
in
consideration of the payment of rent, the value of nothing more than the
plants and vegetables existing therein is estimated, and this is always done
for the benefit of the gardener or lessee. At the expiration of the lease,
however, when the garden is returned, the said appraisers make a very
careful appraisement of what it contains, so that they increase its actual
value six times and often much more, for example, when it contains plants
and vegetables which are worth fifty aurei, they estimate their value
at three hundred, and sometimes above that sum. They frequently do not
confine themselves to this exaggeration of value, but, alleging that the
lessee has manured the land and that it is greatly improved thereby, they
raise its value as much as they can, and they also increase it by the
estimation of the value of plants and treesalthough when the lessee
obtained the gardens from the owners no such expense was taken into
consideration_even if the gardener stated generally in the lease that he
would keep up the number of growing trees, and plant new ones; and if the
same appraiser should, a short time afterwards, be employed in estimating
the value of the same property, he will be guilty of such dishonesty that if
the unfortunate owner is not careful, when his property is returned to him
and he has leased it to another gardener, the latter will subject him to a
loss of a third or a fourth of the appraisement, and he will thus be exposed
to the cupidity of the new gardener, and run the risk of losing the
ownership of his garden, and of being deprived of what belongs to him.
He is also
subject to a still greater injustice, for if, after this, the owner
increases the second gardener's rent, the latter, at the termination of his
lease, will make the entire amountx-large r, just as if this was the result of
his own exertions, while, in fact, the land was not augmented in value
through his care, because in the beginning the appraisement was made too low
by reason of the imprudence and negligence of the proprietor. This abuse
appears to Us to be characterized by surpassing malice and audacity, and We
desire that it be repressed by Your Excellency, who will observe this Our
law, and see that gardeners return the gardens in the same condition in
which they received them.
Whenever a
garden contains plants and vegetables, an estimate should be made of their
value, and one should also be made of the same when it is returned; and the
gardener shall only be entitled to the actual excess over and above the
first appraisement. But where there are no plants or vegetables, and the
gardener receives the land absolutely without any crop, whether any manure
has been placed upon it or not, it should be returned in the same condition,
and, both when it is leased and given up, the lessee shall return it just as
he received it, without the owner of the same being subjected to any loss.
The
appraisement shall not be made by gardeners alone, but by officials called
summarii, who are experts in matters of this kind, and who shall give
their opinion upon the Holy Gospels. For We do not wish owners to be
deprived of their possessions on account of the malice and greed of lessees.
Therefore
you will explain these things to the gardeners when called together, and
will not permit any fraud to be committed against the owners, but see that
the latter are, under all circumstances, kept free from damage and loss. For
We wish the reciprocal relations of owners and gardeners to be the same, for
which reason We have established absolute equality in these matters, in
order that neither party may sustain any injury.
CHAPTER
II.
When
anyone rents land which is thorny and neglected, and cultivates it, he shall
be rewarded for his labor, and receive the true value of the vegetables
which may be found there at his departure; and he must terminate his lease
without any controversy, and without any display of avarice or deceit on his
part.
We desire
that, by means of this Imperial pragmatic sanction the execution of which
is entrusted to Your ExcellencyWe may, in the future, remain without
annoyance from complaints of this description, and that such cares may not
distract Our attention from other things connected with the government of
the Empire. For there is no part of the administration of either great or
small importance which does not demand Our attention; We perceive everything
with Our mind and Our eyes, and We do not desire anything to remain
neglected, confused, or ambiguous.
You will
impose a fine of five pounds of gold upon any person who may hereafter
commit an act of this kind, or allow it to be committed.
Given at
Constantinople, during the Consulate of John.
TITLE XX.
LANDS,
HOUSES, OK VINEYARDS WHICH HAVE BEEN LEFT TO THE MOST HOLY CHURCH OP MYSIA
FOR THE REDEMPTION OF CAPTIVES OR THE MAINTENANCE OF THE POOR MAY BE
ALIENATED IN ACCORDANCE WITH THE DISTINCTION SET FORTH IN THIS LAW.
SIXTY-FIFTH NEW CONSTITUTION.
This
Novel, with the exception of the title, is entirely lacking in Scrimgerus.
It was first written in Latin. The Greek Epitome is in Haloander, the Latin
in Julianus.
PREFACE.
We are
aware that We have formerly promulgated a law upon this subject. But this
constitution is local, and has been enacted with reference to the Church of
Mysia. It orders that if anyone should give or bequeath any immovable
property to this church, the revenue from which is certain, and should add
that it shall be applied to the relief of the poor (and Haloander adds also
to the redemption of captives),
the said
legacy, inheritance, or donation shall, under no circumstances, be
alienated.
Where,
however, the income from it is uncertain, and the building or vineyard which
has been left is quite a distance from the city in which the church to which
the said legacy or donation was made is situated, it shall then be
permissible to sell the property. If the house or the land should be either
within the city, or outside its walls, and the testator desired it to be
sold and the purchase-money used for the redemption of captives, or the
support of the poor, then the sale can take place in accordance with his
will. Such a disposition is perfectly valid. If anyone, after having been
sued, should not appear, he shall be condemned as having a bad case, where
he has first been summoned, brought into court, and lawfully called, and
does not obey
the
notice.
Published
during the month of April, during the fourteenth year of the reign of
Justinian, and the Consulate of John.
TITLE XXI.
NEW
CONSTITUTIONS SHALL BECOME OPERATIVE Two MONTHS AFTER THEY HAVE BEEN
RECORDED. INDULGENCE Is SHOWN TO TESTATORS WHO HAVE NOT LITERALLY COMPLIED
WITH THE PROVISIONS OF CONSTITUTIONS RELATING TO WILLS, WHERE THEY HAVE LEFT
LESS THAN A FOURTH OF THEIR ESTATES TO THEIR CHILDREN, AND HAVE NOT AFFIXED
THEIR SIGNATURES, OR MENTIONED THE NAME OF THE HEIR.
SIXTY-SIXTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Events
which constantly occur afford Us the occasion of enacting laws, for many
additions have been made by Us to the Constitutions which We have drawn up
with reference to successions, (for instance, "it is necessary for a
testator to write the name of the heir with his own hand; of how many
twelfths the Falcidian portion must consist which parents leave to their
children, where they are three, four or more in number"), and many wills run
the risk of being considered void if their provisions are not complied with.
But as statutes, although enacted, are not known in the provinces, or,
perhaps, have not yet been published in this city, or communicated to
anyone, We have deemed it necessary to correct this by means of a brief law.
CHAPTER I.
Therefore
We decree that Our Constitutions relating to wills shall become operative
from the date of their publication. We also decree that they shall be
applicable in the provinces from the moment that they have been promulgated
by the metropolitan, or immediately afterwards, in order that (as has
previously been stated) men who make wills may not appear to have acted in
disobedience to the law. And in order that this may be more clear, We hereby
order that where a law of this kind is drawn up on this subject, it shall
become operative everywhere within two months after having been recorded,
either in this Most Fortunate City, or in the provinces, as this term is
sufficient to make it known to all persons after it has been placed upon
record, so that the notaries may become familiar with its contents, and that
Our subjects, being informed of its provisions, may comply with them. In
this way no one will have any good reason for not obeying Our law. We do not
wish the wills of deceased persons to be disregarded, and, indeed, We use
every effort to cause them to be observed. For why should We blame those who
are ignorant of the enactment of Our Constitution, where testators have died
only a short time after the law was made, and when, as yet, its existence
was not known to them, and for this reason they did not write the names of
their heirs with their own hands, or left only three, instead of
four-twelfths of their estates to their children; and whether a law has or
has not yet been enacted, but has not yet been published, is it not on this
account justly ignored?
(1)
Therefore, although up to this time an ancient constitution existed, which
was included in the Code of Constitutions bearing Our name, and provides
that the name of the heir shall be written in the hand of the testator
himself, still many persons have made wills in violation of this provision
simply because they were not aware of it. Information of these omissions
has, hitherto, frequently been communicated to Us, but We have always been
indulgent to those who were at fault, as it happened that the laws which
were violated had not yet been published. We have issued Imperial pragmatic
sanctions with reference to this matter, granting those who ask for it
proper relief.
And in
order to be no longer annoyed, and compelled every day to promulgate
pragmatic sanctions on this subject, We hereby decree (as already stated)
that the ancient law included in the Justinianian Code shall become
operative in this city from the date of its record, and in the provinces
from the time it was despatched to, and published in, each capital or other
city. For, Our Code having been sent to every part of the Empire, after the
expiration of a considerable time its contents cannot legally be ignored.
(2) We
desire that the other Novel which is included among the number of the
constitutions issued after the Code, and which sets forth what should be
left to children, shall take effect in this Most Fortunate City, and in the
provinces, two months after it has been
recorded,
as We have already stated. We have made two uniform copies of this Novel,
one of which is written in Greek, on account of the x-large number of persons
to which this language is familiar; and the other is in Latin, which is
better adapted to the proceedings of the government; and the said law is
dated on the Kalends of March, but was not recorded at that time, but
was, on the Kalends of April, addressed to Solomon, Most Glorious
Praetorian Prefect of Africa.
(3) For
the reason that the copy written in Greek was not immediately published, and
was not addressed in this city to its Most Glorious Pratorian Prefects, or
recorded by them until the month of May, We direct that the legislation
which it introduces with reference to the share to be left children by will
may be observed in this city after the Kalends of May, to which time
We add two months; and in the provinces, We also add two months more from
the date of its publication, after it has been recorded.
If it has
not yet been despatched to all the provinces, this shall be done
immediately, together with the other constitutions which have not yet been
sent, and those which, with the aid of God, We may hereafter promulgate, in
order that Our Constitutions may now and hereafter become known in all
metropolitan cities. As soon as the Governors of provinces receive them,
they must despatch them to all cities within their jurisdiction, so that,
for the future, no one may have an opportunity to allege ignorance of their
existence.
(4)
Therefore wills previously executed shall be entitled to just indulgence;
the testamentary dispositions of deceased persons shall be carried out as
they desire them to be, even though they have recently been made, and
testators did not, in accordance with the provisions of the present law,
write the names of their heirs with their own hands, or did not mention them
in the presence of witnesses, or did not leave more than three-twelfths of
their estates to their children. For (as We have previously stated) We do
not desire the testamentary dispositions of deceased persons to be
disregarded, but We absolutely confirm them; so that if wills have been
executed shortly after the enactment of the law, and when it was not yet
promulgated, even though surviving testators may have made no change in
them, they shall still be valid, just like those which have been executed in
the beginning in compliance with already existing laws; and they shall have
full effect, and shall not be contested on the ground that the testators did
not change them during their lifetime. For We are not Our own masters, and
have not always time to make a final disposition of our property, for
frequently men are attacked by death, and are deprived of the power of
testation. Wherefore We think that testamentary dispositions which have been
regularly made in the first place, and not subsequently changed, should not
be rewritten, or considered void, but that the wishes of testators should
always be considered valid, and remain unaltered; as, indeed, it would be
absurd for what had been properly done in the first place to be afterwards
changed,' when a new law had not yet been published.
(5)
Therefore, in short, it may be said that (where anything of this kind
happens) the children shall receive the three-twelfths left to them by the
wills of their fathers, whether this has been done before or after the
enactment of the law, but previous to its communication to the magistrate.
If it was added in the will that the lawful share due to the children was
left to them in accordance with the laws then in force, the children shall
take it in conformity to the ancient laws; so that if anything should be
lacking to the three-twelfths to which they are entitled, this shall be
supplied in compliance with the said law, but they shall not obtain
four-twelfths of the estate, for the law providing for this was, at that
time, not yet known.
EPILOGUE.
Therefore
Your Eminence will, by means of suitable proclamations, communicate the
matters which it has pleased Us to enact by means of this law to all the
inhabitants of this great city and its suburbs; in order that what We have
authorized for the public welfare may become clear to everyone.
Given at
Constantinople, on the Kalends of March, during the eleventh year of
the reign of Justinian, and the Consulate of John.
TITLE
XXII.
No ONE
SHALL BUILD HOUSES OP WORSHIP WITHOUT THE CONSENT OF THE BISHOP. ANYONE WHO
DOES So MUST FIRST PROVIDE SUFFICIENT REVENUE FOR THE MAINTENANCE AND REPAIR
OF THE CHURCH WHICH HE BUILDS. BISHOPS SHALL NOT ABANDON THEIR CHURCHES.
CONCERNING THE ALIENATION OF IMMOVABLE ECCLESIASTICAL PROPERTY.
SIXTY-SEVENTH NEW CONSTITUTION.
The Same
Emperor Justinian to Menna, Most Holy and Blessed Archbishop of
Constantinople, and Patriarch of Its Entire Jurisdiction.
PREFACE.
Although
We have included matters having reference to the most holy churches in
numerous laws, We still have need of another to dispose of difficulties
which have arisen, and provide for emergencies. For many persons build
churches in order to perpetuate their names, and not with a view to utility,
and they do not take care to furnish sufficient means for their expenses,
their lights, and the maintenance of those charged with Divine service, but
after the churches are constructed they leave them to be either destroyed,
or entirely deprived of the ministrations of the clergy.
VO
CHAPTER I.
Therefore
We order, before all things, that no one shall be allowed to build a
monastery, a church, or an oratory, before the bishop of the diocese has
previously offered prayer on the site, erected a cross, conducted a public
procession, and consecrated the ground with the knowledge of all persons.
For there are many individuals who, while pretending to build houses of
worship, contribute to the weakness of others, and become not the founders
of orthodox churches, but of dens for the practice of unlawful religious
rites.
CHAPTER
II.
PERSONS
WHO BUILD CHURCHES MUST PREVIOUSLY PROVIDE THE REVENUES FOR THEIR
MAINTENANCE, THEIR
CONSECRATION, AND THEIR PRESERVATION.
We decree
that no new church shall hereafter be constructed before having recourse to
the bishop, and determining the amount requisite for lighting, for the holy
service, and for keeping the building in good condition, as well as for the
maintenance of those who have charge of it; and if the amount given appears
to be sufficient, the preliminary donation shall be made, and the church
erected. Where, however, the person desiring to do this does not offer
sufficient funds for the purpose, and wishes to be styled the founder of the
church, and has the ambition to accomplish something of this kind (for there
are many churches in this Royal City as well as in the provinces which,
instead of being properly maintained, run the risk of being ruined by age,
or which are of very small dimensions, and badly provided for owing to the
negligence of the clergy assigned to them), the proposed founder shall, with
the consent of the bishop and the orthodox clergy, be permitted to rebuild
one of these churches, which shall bear his name as the founder of a
religious house; but nothing shall be expended by him out of his own
property by way of endowment, as the revenues already set apart for this
purpose shall continue to be paid by those who previously furnished them.
CHAPTER
III.
CONCERNING
THE BISHOPS WHO Do NOT RESIDE IN THEIR OWN CHURCHES. AFTER THE EPITOME OF
JULIANUS.
In
accordance with the law already enacted by Us, We decree that bishops shall
stay in their churches; shall not abandon them; shall not sojourn for a long
time in this city, and compel stewards to send them the money for their
expenses, and the Holy Church to furnish it; and this the bishops themselves
shall not tolerate. Hence We order that the law already promulgated by Us
shall continue to remain in full force. For if a bishop should absent
himself from his church for a longer period than that which is prescribed,
his expenses shall not
be sent to
him from the provinces, but the money shall be used for pious purposes, and
for the benefit of the Most Holy Church. Thus a bishop who may come to this
city will not be supported by his church; and if he remains absent for too
long a time, what We have previously decreed with reference to this matter
shall be observed.
CHAPTER
IV.
CONCERNING
THE ALIENATION OF IMMOVABLE ECCLESIASTICAL PROPERTY.
As We have
already provided that if anyone should make an alienation of immovable
ecclesiastical property in the provinces, this must be done after a decree
has been issued, which should take place in the presence of both the bishop
of the city and the clergy of his diocese, as well as in that of the
metropolitan bishop; and, moreover, We direct that if the Most Holy
Metropolitan Bishop should sell any immovable ecclesiastical property, even
where the most holy stewards of his church consent to the sale, two bishops
selected by the metropolitan from the synod under his jurisdiction shall be
present at the time, and in addition to this, all the formalities previously
prescribed shall be strictly observed.
The
metropolitan bishop and his synod shall then be considered to have made the
sale, and as he, by his presence, confers sufficient power upon the prelate
under his jurisdiction, so the representation of the synod by the two
bishops aforesaid shall be held to have confirmed the sale made by the
metropolitan, which sale shall, in this way, be witnessed by the synod.
EPILOGUE.
Your
Holiness will, by means of suitable letters, cause this Our law to be
communicated to the other Most Holy Patriarchs and metropolitans under Your
jurisdiction, who must, in their turn, notify the bishops subject to their
authority, so that no one may be unaware of what has been decreed by Us.
Given at
Constantinople, on the Kalends of May, during the twelfth year of Our
Lord the Emperor Justinian, and the Consulate of John.
TITLE
XXIII.
THE
CONSTITUTION OF THE MOST HOLY EMPEROR CONCERNING THE SUCCESSION TO PROPERTY
OBTAINED BY MARRIAGE, WHICH TREATS OF WHAT ARE CALLED AP^E-DLE, THAT Is TO
SAY, THE ESTATES OF DECEASED CHILDREN. IT SHALL BECOME OPERATIVE IN CASES
WHICH MAY ARISE AFTER ITS PROMULGATION, BUT THE CONSTITUTION OF LEO SHALL BE
APPLICABLE TO THOSE WHICH HAVE ALREADY OCCURRED.
SIXTY-EIGHTH NEW CONSTITUTION. Interpreted by Antonius Contius.
PREFACE.
We are
aware that a Constitution of Leo, of pious memory, has been enacted with
reference to persons who contract second marriages, whether they be men or
women, by whose provisions the nuptial property of the first marriage is
carefully preserved for the issue of the same, and stipulates that the
parent shall only be entitled to the usufruct of it; but the said
constitution, while reserving the ownership of the property for the
children, directs that if all the children or grandchildren should die
without leaving any survivor, through whom the parent who has married a
second time may be deprived of said property, then the ownership of it shall
be reunited with the usufruct of which the parent already has the enjoyment.
CHAPTER I.
We have
recently amended this constitution by enacting other provisions, being
desirous that the heirs of deceased children or grandchildren, whether they
be relatives or strangers, shall receive some benefit from their
appointment, and acquire, by the right of ownership, whatever would be
obtained by the surviving parents because of the death of the children, in
accordance with the terms of the agreement where there are no survivors; but
that the residue shall go to the heirs of the deceased children or
grandchildren, without any change being made by Us with reference to the
usufruct.
(1) We
wish this constitution to take effect now and for all time, except Where the
children have died before it was promulgated. For when the property obtained
by marriage has, through the death of the children, entirely come into the
hands of the parent who has married a second time, and this occurred before
the law was enacted by Us, the latter will have no force, and will only
become operative in cases to which the Constitution of Leo is applicable.
Hence parents who have married a second time will, under such circumstances,
solely be entitled to what they would have acquired by the death of their
children or grandchildren; but if any property should have passed into the
hands of a third party, they can recover it under the law which applies to
owners. Thus, by briefly recapitulating these laws, We resolve any doubts to
which they may have given rise, in order that We may no longer be annoyed
with such matters; and, returning to the subject by a general law, We
dispose of all difficulties; desiring the legislation which preceded that
introduced by Us to remain applicable to such preceding cases as are
entitled to its benefit.
EPILOGUE.
Your
Excellency will take measures to have this law communicated to all persons
by means of suitable proclamations and notices.
Given on
the eighth of the Kalends of June, during the twelfth year of the
reign of Justinian, and the Consulate of John.
TITLE
XXIV.
ALL
PERSONS SHALL OBEY THE PROVINCIAL JUDGES IN BOTH CRIMINAL AND PECUNIARY
CASES, AND PROCEEDINGS SHALL BE CONDUCTED BEFORE THEM WITHOUT ANY EXCEPTION
BASED UPON PRIVILEGE, AND PROVINCIALS SHALL NOT BE SUED HERE UNLESS THIS Is
AUTHORIZED BY AN IMPERIAL PRAGMATIC SANCTION.
SIXTY-NINTH NEW CONSTITUTION. The Emperor Justinian to the People of
Constantinople.
PREFACE.
One of the
most perfect of all human virtues is that which dispenses equity, and is
designated justice, for no other virtue, when accompanied with this, is
worthy of the name; therefore We do not praise fortitude, which is not
united with justice, and although the Roman language calls virtue courage in
battle, if justice is excluded from it, it becomes a vice, and is productive
of no good.
As we have
ascertained that justice is treated with contempt in Our provinces, We have
deemed it necessary to re-establish it in a proper condition, by means of a
law which will be acceptable to God. For very many persons availing
themselves either of Imperial letters, special privileges, pragmatic
sanctions, or orders issued by magistrates, employ their time causing
annoyance, and while continuing to dwell in the provinces, make a pretense
of instituting litigation elsewhere. How can any man, no matter where he may
suffer damage or lose part of his property, conduct a lawsuit involving
boundaries, possession, hypothecation of his land, or on any other right
whatsoever, in a strange place, and produce evidence to substantiate his
allegations? Persons who do this only exert their power; they think that
they act without injustice; they believe that they are invested with some
kind of perpetual authority; and they do not take into account the thousand
or ten thousand examples in which We see robust children born to feeble and
impotent parents, and those who are rich spring from others who are
indigent; and, in almost all ages, We have seen weak children born to
powerful parents, and poor ones derive their origin from those who are
wealthy. The injustice of parents is thus punished in their offspring, and
those who commit crime do not reflect that, in making use of their authority
for this purpose, they prejudice their posterity, for the power which they
enjoy is not always transmitted to their descendants.
CHAPTER I.
After
having considered all these matters, We have thought it necessary to enact
the present law; and We hereby order all magistrates subject to Our
authority in the provinces, and who are distributed throughout the Empire,
which looks upon both the rising and the setting sun, and extends from north
to south, to see that each
person is
tried in the province where he has committed a crime, or is a defendant in a
civil or criminal action having reference to the boundaries or the ownership
of land, the possession or hypothecation of property, or any other matter
whatsoever (for provisions have been made in an inconsistent and irregular
manner on this subject by preceding legislators, which We have already taken
into consideration) in order that no one may attempt to conduct litigation
outside
of his
province.
(1)
Whether the question at issue relates to a serious or a trifling offence, or
involves merely the validity of a contract, the citations as well as the
petition, when there is need of one, shall be issued and filed in the
province, and the trial of the case shall also take place there, to render
the production of evidence more easy, no matter whether the illegal act is
of great or little moment; for when the defendant has no good ground for
defence in cases of small importance, he tries to transfer the proceedings
to another province, in order to answer the petition of the plaintiff there,
and have the latter summoned, who, being absent, and perhaps out of the
province, cannot conveniently appear, either on account of the power of his
adversary, or because of his own infirmities. And, indeed, is there anything
more oppressive than for a private individual who is injured by the theft of
an ox, a horse, or some other beast of burden, or an animal forming part of
a flock, or (to descend to small things) of a domestic fowl, to be compelled
to plead, not in the place where the theft was perpetrated, but in another
province where proof of his allegations will be required of him, and he must
adopt the alternative either of being subjected to much greater expense than
the value of the property which was taken from him amounts to, or be reduced
to poverty ? A multitude of such persons complain to Us every day, and We
are frequently annoyed in this manner on account of matters which are
insignificant by crowds of unfortunates of both sexes who, called from their
homes, come to this Most Fortunate City, many of whom are greatly afflicted
and reduced to beggary, and some of whom die here.
CHAPTER
II. CONCERNING DEFENDANTS WHO APPEAR.
Therefore,
where both the plaintiff and defendant reside in the same province, the case
shall not be transferred to another nor to this Fortunate City by virtue of
any pragmatic sanction or order, but shall be decided in the said province.
Where one of the parties is present and the other absent, and the one who is
present has suffered damage from one of the household of the former, he who
has committed the injustice (whether he be a curator, a lessee, or some
other person representing the absent party) shall, by all means, be sued;
and shall be permitted to notify the absent party, and be granted time to do
so, in proportion to the distance from the province, and in accordance with
the general law formerly enacted with reference to continuances.
(1) Where,
however, the absent party is in a neighboring province, distant only one or
two days' journey, the term of four months shall be granted him, and six
months if he is farther away; and if he is in Palestine, in Egypt, or in any
other distant province, the term of eight months will be sufficient. When he
is in one of the Western or Northern provinces, or in Lybia, he shall then
be entitled to nine months, in accordance with the provisions of former
legislators; so that if he has confidence in the person who notifies him, he
can entrust him with the conduct of the defence. If, however, he should not
have confidence in him, he can employ someone else to accept service, and
execute any judgment which may be rendered, when the case is either of great
or small importance, and no appeal is taken.
Where the
agent or lessee has given notice to the absent owner, and the latter permits
the prescribed time to elapse without doing anything, then the said agent or
lessee upon whom service was made will have the right to defend the case, as
the representative of the absent party, and the judge shall compel him to
appear before his tribunal, even involuntarily; he must hear the case in his
presence, and render judgment against him if he seems to deserve it; and, if
there is ground for doing so, he shall also condemn the absent party who,
despite his notification, was not willing to attend to the matter in the
province. If the said agent or lessee is wealthy, his property will be
subject to execution; but if it is not sufficient to satisfy the judgment,
the remainder shall be paid by taking the property of the absent person in
execution at the instance of him who has obtained judgment in his favor.
CHAPTER
III. CONCERNING DEFENDANTS WHO ARE ABSENT.
When,
however, he who is directed to represent the principal party in the action,
or who is compelled to appear for him, does not do so, he shall be duly
called, and if he fails to answer, the absent party shall be condemned under
the rule styled peremptory, that is to say, applicable to one who has
abandoned the case, for he who is contumacious is considered to be absent.
If, on the other hand, the defendant should appear, or should send anyone to
represent him, and the plaintiff does not come, then the defendant shall be
discharged, and the court shall compel the false accuser to pay all the
expenses incurred. In this way men will become more reasonable, they will
cease to commit crime, and they will no longer think that the power of
wealth can prevail over justice.
(1) We are
well aware that what We decree may perhaps be insufficient perfectly to
remedy the abuse which We have endeavored to correct, as judges are
accustomed to favor powerful persons rather than those who come from the
provinces to have their cases heard. Still, We know that many instances of
injustice can be prevented by similar legislation, and that it will provide
remedies for much that We are not able to effect. For We do not appoint
magistrates to office
without
compelling them to take oath to judge all men with equity, and to keep
themselves pure from corruption. And I do not think that after this
constitution any further legislation will be necessary, if magistrates
decide with justice and with due regard to the law and
their
oath.
CHAPTER
IV.
CONCERNING
THE ABOLITION OF THE PRESCRIPTION OF THE PLACE.
No person
who avails himself of any special privilege, of his power, or of a pragmatic
sanction, shall be authorized to remove anyone who has committed violence
from the jurisdiction of the judges of his province, unless he has
previously obtained from Us an Imperial pragmatic sanction based on the
public welfare, and which states that the defendant shall be notified to
appear here, or, at least, that the plaintiff shall not notify him under the
law, as when an appeal is involved; although We have, to a great extent,
made provision for such matters by appointing many superior judges in the
provinces, in order that when cases are not of much importance, appeals may
be brought before them rather than in this great city.
(1) In
enacting this law, We shall render it still more just by not permitting
anyone to avail himself of any privilege against it, even though the
privilege may have been granted to one of the most holy churches, to a
sacred hospital, or other religious establishments, or even to one of the
Imperial houses, to the Imperial domain, or to special sacred rites, which
deservedly occupy the first place after the honor due to what belongs to the
Most High; or to a judge, or other person in authority, or to anyone subject
to Our orders. Everyone must obey this law and subject himself to the
approval of justice; he shall honor and observe it in every respect, and not
only consider it individually, but also with reference to his posterity;
remembering that almost nothing remains stable in Nature, which is always
inconstant, and introduces many changes which are neither easy to foresee,
nor possible to provide for; and that only God, and after him the Emperor,
is able to exercise control over these things.
(2) If,
however, anyone should make use of any Imperial authority, whether contained
in pragmatic sanctions or communicated in other ways, permitting him to take
his case before another magistrate, it shall be entirely void; judges will
render themselves liable to a severe penalty if they receive it, and do not
only think of what has been done but also of what ought to be done; for if,
after the enactment of this law, a pragmatic sanction authorizing the
transfer of a case should be obtained by one of Our subjects, or be employed
by any person to whom We may have previously granted it, and among whom We
include (as has already been stated) churches, holy monasteries, religious
houses, the sacred rites of private persons, and the Imperial patrimony, it
shall be absolutely void. This law shall be applicable everywhere, and
provides expressly for the future as well as for the past.
(3)
Therefore you, Our subjects, the government of whom God has entrusted to Our
ancestors and to Us, are hereby informed that We are enacting this
legislation in order to render you secure in every respect, and that you may
hereafter not longer be fatigued by long journeys, or weep on account of the
oppression of the great, or apply to Us to correct abuses; but that each of
you, seeing that a penalty is immediately imposed for any loss or injury
which you may sustain, may praise the Great and Good God who has induced Us
to enact such a just and beneficial law. This penalty shall be imposed upon
those who violate it, and judges who suffer this to be done shall lose their
offices, and be fined ten pounds of gold.
EPILOGUE.
Therefore,
as soon as Our Most Glorious Imperial Praetorian Prefects appointed
throughout the extent of the entire Roman Empire receive notice of this law,
they will publish it in all the departments of their government, that is in
Italy, Libya, the Islands, the East, and Illyria; in order that all persons
may know how greatly We have their interests at heart. We dedicate this law
to God who has inspired Us to accomplish such great things, and who will
recompense Us for having enacted this constitution for the security of Our
subjects. It shall also be communicated to Our citizens of Constantinople.
Given at
Constantinople, on the Kalends of June, during the twelfth year of
the reign of Justinian, and the Consulate of John.
TITLE XXV.
THE
ORDINARY URBAN PREFECTURES AND THE Two PRAETORIAN PREFECTURES AT PRESENT IN
EXISTENCE SHALL HAVE AUTHORITY TO GRANT RELEASES FROM CURIAL REQUIREMENTS,
BUT HONORARY PREFECTURES SHALL NOT POSSESS THIS POWER.
SEVENTIETH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Many
legislative provisions which were formerly enforced are at present
neglected, and not readily observed by the government, nor are they any
longer considered laws, or regarded as forming any part of legislation. We
are aware that there was formerly a species of prefecture which was
designated honorary, and was conferred by commissions granted by the
government, which was so called because it only bestowed honor upon those to
whom it was given, and did not
release
them from curial obligations unless they actually discharged official
duties; and, so far as the most glorious generals of the army are concerned,
We know that none of them is released from the requirements of the curial
condition unless he performs the functions of his office (the laws state
that the command of soldiers is a prefecture, and that the simple
commissions granted to officers only confer rank, without releasing them
from liability), thus with regard to the prefectures, in order that anyone
may be released from his condition, it is necessary for him to be appointed
to actively exercise the duties of his office.
CHAPTER I.
Therefore
We renew the law relating to this subject, and decree that whenever it seems
proper for the government to honor a de-curion, and enable him to be
released from the obligations of his status, and it grants him a commission
of administration, it prepares him to occupy the Urban Prefecture of either
Ancient or Modern Rome, or one of the Praetorian Tribunals of the East or
West, as well as Lybia and Illyria, all of which God has subjected to Our
dominion; and that by this means he may enjoy freedom, as those who are
raised to such eminence have a right to ride in chariots, hear the
proclamations of public criers, occupy the chairs of judges, and in this way
be released from the requirements of their order.
When,
however, the government only wishes them to be invested with the dignity of
the office, commissions to this effect shall be issued and given to them;
and the Imperial generosity shall only cause the person who is thus
distinguished to be regarded as a member of the great curia,, but not
released from the duties of the provincial one, nor have his name erased
from the tablet; but he shall continue in his former condition, and only
enjoy the honor of the position, and must render thanks to God as well as to
the government which has caused him to be promoted to a post of greater
tranquillity and distinction. This shall be considered an act of Imperial
munificence which does not affect the rights of the public, deprive the
decurion of his condition, or release him from the duties to which he is
accustomed ; and he who is worthy of it shall receive this honor as an
addition to that of his former status, and will be entitled to greater
eminence, but will only take precedence of other decurions.
EPILOGUE.
Your
Highness will hasten to cause what We have been pleased to enact to be
observed, being aware that We do not diminish the privileges of decurions,
but, on the other hand, render the office more honorable; in order that the
cities may learn from your proclamations what the government has decreed.
Given at
Constantinople, on the Kalends of July, during the twelfth year of
the reign of Justinian, and the Consulate of John.
TITLE
XXVI.
ILLUSTRIOUS PERSONS AND THOSE WHO ARE OP HIGH RANK MUST UNDER ALL
CIRCUMSTANCES BE REPRESENTED BY ATTORNEYS IN PECUNIARY CASES, AND IN THOSE
RELATING TO CRIMINAL INJURY. THOSE WHO ARE KNOWN AS CLARISSIMI SHALL BE
PERMITTED TO APPEAR IN PECUNIARY CASES EITHER IN THEIR OWN PROPER PERSON OR
BY ATTORNEYS.
SEVENTY-FIRST NEW CONSTITUTION.
The Same
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Certain
laws enacted with reference to the honor attaching to offices are excellent
in their way; still, as their application, instead of increasing the
distinction of officials, is injurious to them, We deem it proper to correct
this by means of a brief law.
Some
constitutions forbid persons of the rank of clarissimi to personally
appear in court, and order them to do so by an attorney. This provision was
enacted in ancient times to maintain the honor of persons of eminence; but
We see that many individuals who have been invested with the rank of
clarissimi, for instance, counts, tribunes, and other dignitaries of
this kind, are men of very moderate means, and that their resources are far
from being sufficient to employ attorneys and meet the expenses incurred by
doing so.
CHAPTER I.
Therefore
We order that the following provisions shall be observed with reference to
the most magnificent persons of illustrious rank, namely: that they shall,
by all means, have pecuniary cases in which they are interested as well as
others relating to criminal injuries tried by their attorneys, in accordance
with the privilege previously conferred upon them. We decree this in order
that they may not be compelled to be seated with the magistrates, when the
latter decide their cases, or to stand before them as litigants, which would
be equally improper; for then either litigants who are persons of rank will
sustain injury, or judicial dignity will not be maintained. But, with the
exception of the most magnificent illustres, We desire that all those
who wish to do so can either appoint attorneys, or conduct their own cases
in person, without molestation or rendering themselves liable to any loss or
penalty.
EPILOGUE.
Your
Eminence will, in the customary manner, communicate to all persons the
matters which We have seen proper to enact by this Imperial law.
Given at
Constantinople, on the day before the Nones of June, during the
twelfth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of John.
AUTHENTIC
OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SIXTH
COLLECTION.
TITLE I.
THOSE To
WHOM THE PROPERTY OF MINORS HAS BEEN HYPOTHECATED, OR WHO ARE THEMSELVES
INDEBTED TO MINORS, SHALL NOT HAVE THEM UNDER THEIR CONTROL. CURATORS SHALL
UNDER No CIRCUMSTANCES ACCEPT ASSIGNMENTS AGAINST THOSE WHOSE AFFAIRS THEY
ARE ADMINISTERING, OR WITH WHOSE CURATORSHIP THEY ARE INVESTED. THESE
PROVISIONS SHALL BE GENERALLY APPLICABLE TO EVERY SPECIES OF CURATORSHIP,
AND TO ALL PERSONS To WHOM THE LAWS GRANT CURATORS. CONCERNING THE
ADMINISTRATION OF SUMS OF MONEY BELONGING TO THOSE WHOSE BUSINESS is
TRANSACTED BY CURATORS, AND UNDER WHAT CIRCUMSTANCES THEY SHOULD BE PLACED
ON DEPOSIT OR LOANED, AND WHAT SHOULD BE DONE WITH THE INCOME FROM SAID SUMS
OF MONEY.
SEVENTY-SECOND NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
The
legislator of a government should direct his attention everywhere, should
see that everything is properly conducted, and that nothing is neglected.
Documents affecting the rights of minors, or which relate to the care of
their property, should be specially taken into consideration by those to
whom permission has been given by God to enact laws; We mean by this him who
is invested with sovereignty.
We have
heard of many cases in which transfers have been made by curators against
the interests of minors, where they had arrived at puberty, where they were
under that age, and where they had not yet attained their majority; and the
result of this was that the curators became the owners of their property,
either by accepting claims against them, which perhaps were fraudulent; or
by obtaining transfers of extremely fragile articles at a very low price, or
by concealing receipts for the property of minors, and of negotiating
transfers of objects under many and various pretexts. For what will a man
who has once been guilty of dishonesty not contrive in order to appropriate
the property of minors?
CHAPTER I.
WHO CANNOT
BE EITHER THE GUARDIANS OR CURATORS OF MINORS OR YOUTHS.
We desire
to correct all these things by means of the law, and especially to prevent
anyone who has a claim against a minor or his property from obtaining the
curatorship of the same, or accepting it, even if called to do so by law.
For who is there who would not act in his own behalf if he had control of
the minor, and was the actual custodian of the property of his adversary?
Hence We order that if it is perfectly clear that he who is given charge of
his property is indebted to the minor, he shall not be his curator, lest he
may steal the evidence of an obligation, or destroy other proofs of claims
belonging to the minor, and the care of the property of the latter be
productive of loss. We provide for this by a most beneficial law, and decree
that none of those persons to whom the property of the deceased, or of the
minor himself, is known to be encumbered, shall be invested with the
curatorship, or shall be authorized to administer it.
CHAPTER
II.
A CURATOR
SHALL BE ADDED TO A GUARDIAN WHEN THE
LATTER HAS
BECOME EITHER THE DEBTOR OR CREDITOR
OF His
WARD.
Where,
however, anyone who is administering a curatorship subsequently becomes the
creditor of a minor, for instance, through the acceptance of an estate to
which the minor is indebted, or under some other circumstances of this kind,
as he will no longer be considered faithful to the interests of the minor,
or youth, so far as the curator-ship is concerned, another guardian or
curator shall be joined with him (which We have found that the laws in most
cases prescribe), that he may see that nothing is done to prejudice either
the youth, or his property, and that no injury is committed against either
by him to whom he is indebted. The curator shall discharge this duty, and at
the time of his appointment must swear to do so; and if he should disregard
his oath, he will be liable to the penalty resulting from his treacherous
conduct.
CHAPTER
III.
No ONE
SHALL BE RELEASED FROM THE DUTIES OF
GUARDIANSHIP OR CURATORSHIP UNDER THE PRETEXT
OF A DEBT,
UNLESS HE CAN PROVE IT.
In order
that all men may not be afforded a pretext for their release from the duties
of guardianship and curatorship, by merely stating that they are the debtors
or creditors of minors, We decree that if anyone should allege that he has a
claim against the minor or his property, or that the parents of the minor
are indebted to him, he
must prove
this before the magistrate who appointed him curator within the time granted
for denial, and shall then be discharged; or, if he cannot prove it, he must
swear on the Holy Gospels that he believes he is actually a creditor of the
minor; and after he has done this, We are unwilling for him to be charged
with either the guardianship or curatorship, or allowed to have anything to
do with the property, in order that We may not give the minor an enemy
instead of a curator.
CHAPTER
IV.
WHERE A
GUARDIAN OR CURATOR, WHO Is EITHER THE
DEBTOR OR
CREDITOR OF A MINOR, DOES NOT MENTION
THIS IN
THE BEGINNING.
Where
anyone, in the beginning, conceals the fact that he is the creditor of a
minor, and is appointed his curator, he is hereby notified that he will be
deprived of every right of action, even though it be genuine, against the
said minor, for the reason that he purposely attempted to evade the present
law to his own advantage. And if anyone should conceal the fact that he is
indebted to the minor, he also is . notified that the penalty incurred by
him will be that he shall not be permitted to avail himself of any credits,
or other payments on his debt, which he may, perhaps, have fraudulently made
during his administration.
CHAPTER V.
CURATORS
SHALL NOT ACCEPT TRANSFERS OF ANY KIND CONTRARY TO THE INTERESTS OF MINORS.
If anyone
who (as has already been stated) has been appointed a curator should
afterwards attempt to obtain the property of the minor, and accept a
transfer of the same to himself by donation, sale, or any other means; he is
informed that such a transfer will be absolutely void, whether it has been
made directly to himself, or through the intervention of a third party, and
that it will be just as invalid as if it had never been made at all. For it
is perfectly evident that if a curator attempts to acquire the property of
the minor, he will be considered as only having done so for his own benefit,
and for the destruction of his soul.
(1) This
rule not only applies to curators, whom We forbid to accept transfers of
property of this kind during their administration, but We also prohibit them
from accepting them even after its termination, lest the curator,
remembering that he cannot acquire the property while he is administering
the curatorship, may conceal the transaction which took place while he was
in office; and, a short time after his curatorship has ended, produce the
evidence of the transfer which he fraudulently caused to be made to himself,
just as if he had received it when he was no longer curator, and thus
deceitfully made arrangements for this purpose. For We decree that such a
transfer
shall be
void, and that no right of action assigned against the interest of the
person with whose affairs the curator has previously been charged can
legally be made use of; that the transfer shall be regarded as not having
taken place; and that the former minor shall have the benefit of the profit
resulting from the right of action which has been assigned, even though this
assignment may have been made for good and sufficient reasons.
We also
forbid that the right of action shall revert to the person who has assigned
it, as would be the case if nothing had been done contrary to law; but that
this right shall be extinguished on account of the violation of Our
Constitution, and the minor shall be entitled to the property for the
recovery of which suit was brought. For, if We did not impose this penalty,
it would be easy to commit fraud; as the curator, by returning the property
transferred to him who made the assignment of the same, would receive it
again through the medium of him who assigned it, and by a fraudulent act of
this kind would evade the law.
We order
that these provisions shall be applicable to all curators whom the laws
entrust with the administration of the property of spendthrifts, or insane
and demented persons, even though other provisions may have been enacted on
this subject, and unforeseen cases may arise.
CHAPTER
VI.
CONSIDERING THE CARE OF MONEY BELONGING TO WARDS
OR MINORS.
But as We
see that curators who have the fear of God before their eyes hesitate to
accept the office (while many others are anxieus to do so for the reason
that they wickedly desire to convert the property of the minors to their own
use, which is something greatly coveted by and acceptable to them), and as
their duties are especially distasteful to them because of the necessity of
collecting interest, We order that curators shall not be required by Our
laws to lend the money of minors at interest, but that they shall carefully
deposit it and see to its preservation. For it is more advantageous for
minors to have their money kept safely than to run the risk of losing it
through the desire for interest; or to subject the curator to liability if
he uses the money in trade, or lends it at interest, and the debtor becomes
insolvent. When, however, the curator desires to lend the money on his own
responsibility, for instance, taking pledges or other security which is
considered of undoubted value, he shall be granted the term of two months
during which he will not be liable to account for interest, which the laws
call a "postponement," but he is notified that a loan of this kind will be
at his own risk.
CHAPTER
VII.
If the
income of him who is under curatorship is only sufficient for his
maintenance, the curator shall spend the whole of it, and if it is more than
sufficient for that purpose, he must deposit the surplus.
If the
property of him who is under the control of the curator consists of
movables, the curator will only be required to lend a sufficient amount to
meet the expenses of the minor or his business, and must deposit the
remainder. He will, however, be allowed to search for something that will
return a certain income, which may be subject to moderate public taxes; and
if he finds a suitable vendor, and the property is productive, We authorize
him to purchase it for the minor; but he is notified that if he neglects to
observe any of these provisions the sale will be at his own risk.
CHAPTER
Vill.
Where,
however, the property of the minor consists of money, and the interest of
the same is barely enough to support him and his family, then We are
necessarily impelled to authorize curators who have the fear of God before
their eyes to manage this money just as if it belonged to them. For We
desire that when a decree entrusting a curatorship to anyone is issued, the
appointee shall swear on the Holy Gospels that he will use every means to
promote the welfare of the minor; that he will not fail to render an
account; that he will not violate the law; that he will furnish a bond to
insure the honesty of the administration, and that he will always consider
himself bound by the remembrance of his oath.
We enact
the present law to provide for the security of those who have need of
curators, and if We should subsequently think of any other salutary measure,
We shall not hesitate to include it in this law, in order that We may act as
a father to those who We think cannot assist themselves.
EPILOGUE.
Your
Eminence will, by means of suitable edicts, communicate the matters which We
have deemed advisable to include in this law to all persons throughout the
provinces within your jurisdiction in order that no one may be ignorant of
what has been decreed by Us for the benefit of Our subjects.
Given at
Constantinople, on the Kalends of June, during the seventh year of
the reign of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE II.
CONCERNING
THE SECURITY AND RELIABILITY OF INSTRUMENTS, AND IN THE FIRST PLACE
CONCERNING DEPOSITS,
LOANS, AND
OTHER PRIVATE TRANSACTIONS WHICH TAKE PLACE EITHER WITH OR WITHOUT WITNESSES
; AND CONCERNING INSTRUMENTS PUBLICLY EXECUTED, AND THE COMPARISON OP THE
HANDWRITING OF INSTRUMENTS EXECUTED BY ILLITERATE PERSONS, OR THOSE OF
SLIGHT EDUCATION ; CONCERNING VERBAL CONTRACTS AND THOSE IN WHICH AMOUNTS UP
TO A POUND OF GOLD ARE INVOLVED; AND CONCERNING AGREEMENTS MADE IN THE
FIELDS ; CONCERNING THE APPLICATION OF THIS LAW TO DOCUMENTS AND CONTRACTS
THAT ARE TO BECOME OPERATIVE AT SOME FUTURE TIME.
SEVENTY-THIRD NEW CONSTITUTION.
The Same
Emperor to John, Most Glorious Praetorian Prefect of the East, Twice Consul
and Patrician.
PREFACE.
We
remember certain laws which We have enacted, which provide that the
genuineness of documents shall be established by comparison of handwriting,
and We are aware that certain Emperors, influenced by the constantly
increasing fraudulent efforts of persons who are in the habit of altering
documents, have forbidden such changes to be made. We are, however, of the
opinion that forgers generally confine themselves to the imitation of
writing, for the reason that forgery is nothing else but an imitation of the
truth.
We have,
during Our reign, discovered innumerable forgeries in many cases which have
been brought to Our knowledge, one of which, that originated in Armenia, has
been investigated in Our presence. In this instance an exchange was made,
and the instrument evidencing it was decided to be forged, but as the
witnesses who had been present when it was executed and had signed it were
found, and acknowledged it, the document was held to be genuine; but this
was an unusual occurrence, as the writing was decided to be false, and the
answers of the true witnesses coincided with the truth, so that the document
was only considered worthy of confidence on account of these statements
which were, to some extent, held to be reliable. We are, however, aware that
the comparison of handwriting must be very carefully made, since age very
often causes dissimilarity in handwriting, for that of a young man who is
strong and robust does not resemble that of one who is old, whose hand
trembles and who often writes with feebleness; and, indeed, We can say that
the change of pen and ink removes entirely the resemblance of handwriting;
nor can We find words to express how many new cases nature causes to arise
which furnish Us occasion for the enactment of laws.
(1)
Therefore as God rules the Empire of Heaven, in order that he may afford
good solutions to perplexing questions, and interpret the laws in accordance
with the variety of nature, We have thought it is proper to draw up this
statute, and render it generally applicable to Our subjects, whom God has
originally entrusted to Our care, and to whom he is always making additions,
from time to time. And, as certain doubts have arisen with reference to
deposits evidenced by written instruments, and We have ascertained that
controversies have arisen in consequence, it becomes necessary for Us to
provide for all these matters, and therefore We are going to begin with the
contract of deposit.
CHAPTER I.
CONSIDERING THE SECURITY OF AND THE CONFIDENCE TO
BE REPOSED
IN WRITTEN INSTRUMENTS; AND, IN THE
FIRST
PLACE, CONCERNING DEPOSITS, AND IN WHAT WAY
THEY CAN
BE MADE WITH SAFETY.
Hence when
anyone desires to make a deposit with safety, he will not confine himself
solely to the written contract of him who receives the deposit (which is
also legally required, for when anyone does not acknowledge the instrument
to be in his handwriting, the matter becomes extremely complicated, and he
who makes the denial will be compelled to furnish other writing; and when
this appears to resemble that of the instrument in question, only partially,
but not entirely, then the matter is inconclusive, so far as the writing is
concerned), but the person who makes the deposit shall, as soon as possible,
call witnesses who must be honorable and deserving of confidence, and not
less than three in number, in order that he may not solely rely upon the
written instrument, and his examination of the same, and to enable the
judges to have the assistance of witnesses; for We admit testimony of this
kind, where the witnesses state that he who made the instrument signed it in
their presence and they acknowledged it. If We should find that there are
less than three witnesses worthy of credit, We do not forbid the instrument
from being declared genuine, as We do not enact this law for the purpose of
abridging evidence, but with a view to rendering it more reliable.
CHAPTER
II.
IN WHAT
WAY AN INSTRUMENT EVIDENCING A LOAN OR
A DEPOSIT
CAN BE DRAWN UP WITHOUT THE PRESENCE
OF A
NOTARY.
If anyone
should draw up an instrument evidencing a loan or any other contract
whatsoever, without desiring to have it become public, this instrument, as
We have just stated with reference to a deposit, will not, of itself, be
considered worthy of credit, unless it was executed in the presence of at
least three witnesses, who attest its genuineness by their own signatures,
or who prove that the instrument
was
written in their presence, for it will become worthy of confidence in either
of these instances; and if the examination of handwriting is not absolutely
rejected, it will not be sufficient alone, and must be confirmed by the
testimony of the witnesses.
CHAPTER
III.
WHERE A
DISCREPANCY EXISTS BETWEEN THE CONTENTS
OP A
WRITTEN INSTRUMENT AND THE STATEMENTS OP
THE
WITNESSES.
But if
anything resembling what has taken place in Armenia should happen, and the
comparison of handwriting should prove one thing, and the evidence of
witnesses another, We have then thought that the sworn oral testimony is
more trustworthy than the written instrument by itself. Still, the wisdom
and conscientiousness of the judge should, under such circumstances, induce
him to decide in favor of what appears to be better entitled to credence,
and We have come to the conclusion that the genuineness of documents should
be established in this manner.
CHAPTER
IV.
CONCERNING
INSTRUMENTS EXECUTED WITHOUT SECURITY.
When,
however, anyone who makes a deposit lends money, or contracts in any other
way, is satisfied with the written instrument alone of the other party to
the transaction, he is hereby notified that the said instrument, by itself,
will not be worthy of any confidence whatever, unless, in accordance with
Our law, its genuineness is confirmed by the presence of the witnesses
before whom it was executed; or by the last resort in such a case, that is
to say, by the sanction of an oath.
We do not,
however, under such circumstances, declare the instrument to be void; and We
only require these formalities to be observed for the reason that We are
apprehensive of forgeries and imitations, and do not trust to mere written
instruments. Nor do We desire by this rule to deprive persons of their
confidence in others with whom they have contracted in this way, but We make
this provision in order to avoid perfidy and artifice, as much as possible,
and in every way that We can.
CHAPTER V.
How
NOTARIES SHOULD DRAW UP INSTRUMENTS THAT WILL BE SECURE.
Whenever
public documents are concerned, although the requisite number of notaries
may be at hand, it must be stated in writing before the completion of said
documents (as has already been set forth), that they were executed in the
presence of witnesses.
CHAPTER
VI.
CONCERNING
THE COMPARISON OF NOTES.
Whenever
judges find any notes inserted in documents, they must examine them, and
attempt to read them. For We have learned that there are many documents
which, for the reasons already mentioned, are proved with difficulty by
comparison with other written instruments.
CHAPTER
VII.
CONCERNING
THE COMPARISON OP HANDWRITING.
But where
all the witnesses are absent, or there is any reason to doubt the
genuineness of their signatures, or if the notary who drew up the document
is no longer living (that is if it was executed in public), or cannot
himself appear as a witness, or is not in the city, then it will be
absolutely necessary to subject the handwriting of those who have signed the
document to comparison; and it is proper to do this as soon as possible (for
We by no means forbid such comparisons), and proceed with extreme care, and
if the judge should think that one should be made, he must first tender the
following oath to the plaintiff, namely: "That none of his allegations have
been prompted by malice; that he has not acted fraudulently in having a
comparison of handwriting made; and that he will act in such a way that
nothing whatever may remain concealed; and that no subterfuge of any
description will, under any circumstances, be employed."
(1)
Whenever documents are to be proved, and a notary is present, he shall give
his evidence under oath, but if he himself did not draw up the document in
question, but this was done by one of his clerks, the latter shall appear
and testify, if he is willing, and it is possible for him to do so; and
nothing shall excuse him from coming, unless it is, for instance, a severe
illness, or some other unavoidable accident to which mankind is liable.
When a
banker has an instrument of this kind, he himself shall be present, in order
that three witnesses, and not one alone, may testify concerning it. But if
no banker should be interested in the document, and a notary has written it
all himself, or caused this to be done, and signed it, and neither he nor
his clerk is living, or cannot be present, then the notary shall swear to
the fact that he drew up the said document, and there will be no ground for
a comparison of handwriting. In this way documents will obtain credibility,
and the oral testimony of the notary given under oath will be conclusive.
(2) If the
notary should be dead, the document shall be proved by comparing its writing
with that of others. But when the clerk who drew up the document is living,
as well as the banker who is interested in it, they must appear if they are
not absent, and the genuineness of the document shall be established by a
comparison of notes and the statements of witnesses. Where, however, none of
these persons are alive, then a comparison of handwriting should be made;
still, this
will not
be sufficient for the purpose, as other specimens of the writing of the
contracting parties and witnesses must be examined, so that the document may
be proved not only by the comparison of the body of the same with those of
others, but also with different specimens of the writing of the witnesses
and contracting parties.
(3) But
when the genuineness of documents cannot be established in any other way
than by their comparison, the rule observed up to this time shall remain in
force. He who offers a document for comparison shall be solemnly sworn, and
in order that the greatest confidence may be assured, he who demands a
comparison shall make oath that, as no other method is available, he has
recourse to a comparison of instruments; and that he does not do this
through malice, or with any intention of concealing the truth. The
contracting parties can be released from all the formalities which We have
just enumerated if, in the first place, both of them consented to have the
instruments recorded, and have made them public by filing them in the Bureau
of Registry, so as to prevent any suspicion of bad faith, corruption, or
falsification from attaching thereto; for it is for the purpose of
suppressing every kind of fraud that We promulgate the present law.
Everything that We have previously ordered with reference to handwriting in
private instruments shall remain in full force; and We also confirm what has
been established with respect to illiterate persons, as this has already
been subjected to a sufficient judicial examination.
CHAPTER
Vill.
IN WHAT
WAY PERSONS IGNORANT OF LETTERS CAN SAFELY MAKE CONTRACTS.
It is
necessary, in the case of persons who are ignorant of letters, for
witnesses, and by all means for notaries, to be present in those places
where there are any; and it is indispensable that the witnesses should be
known to the contracting parties, and that other persons should write for
such as are entirely illiterate, or have very little education, or state
that the instruments were drawn up in their presence, and that they were
acquainted with said illiterate persons; and in this way the legality of
such instruments shall be established and proved; for there ought not to be
less than five witnesses present, including the person who drew up the
instrument entirely, or merely affixed the signature as directed by the
illiterate contracting party, who was unable to write. In this way nothing
will be omitted to insure the validity of documents.
CHAPTER
IX.
CONCERNING
CONTRACTS ENTERED INTO WITHOUT WRITING.
We have
made these provisions with reference to written instruments, but when anyone
desires to make a contract without committing it to writing, it is clear
that he must establish its genuineness
either
through witnesses, or by oath; and the plaintiff shall produce the
witnesses, and the defendant take the oath, or tender it to the plaintiff,
as the judge may decide.
But in
order that nothing may be unprovided for, it is advisable to add to the law
that these provisions need not be observed in a case of contracts involving
property to the amount of only one pound of gold, but the agreement will be
valid as entered into between the contracting parties, in order that men may
not be subjected to great expense where articles of trifling value are
concerned.
We desire
that all these rules shall be observed in cities, for in the country (where
there is much simplicity, and comparatively few persons who know how to
write are available as witnesses), whatever has been valid up to this time
is hereby confirmed, and We have also made the same provision with reference
to wills, to which We are accustomed to pay special attention. Hence this
law shall only be valid so far as any instruments and contracts which may
hereafter be entered into are concerned; for why should any disposition be
made regarding what has already taken place?
The
multitude of legal disputes which have arisen have necessitated the
enactment of this law, which has been promulgated by Us to prevent men from
daily contending with one another, and, by means of the legislative
formalities, to remove every cause of altercation.
EPILOGUE.
Wherefore
it is proper for Your Eminence, as soon as you receive this law, to
communicate it to all persons both here and in the provinces ; and We have
addressed it to the other Most Glorious Prefects in the West in Lybia, and
in the North (We mean Illyria) so that what We have decreed for the purpose
of preventing controversies among Our subjects will become known throughout
the entire Empire.
Given at
Constantinople, on the day before the Nones of June, during the
twelfth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of John.
TITLE III.
IN WHAT
WAY NATURAL CHILDREN MAY BECOME LEGITIMATED AND INDEPENDENT, IN ADDITION TO
THE METHODS PRESCRIBED BY FORMER CONSTITUTIONS.
SEVENTY-FOURTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Prastorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
It has
very properly been stated by Our predecessors, and above all by the most
learned Julianus, that no law or decree of the Senate has ever been
promulgated by the Roman government which, from the
beginning,
has been sufficient to provide for all cases; but that laws have need of
much correction in order to be adapted to the inconstancy and perversities
of Nature. Hence We have published various enactments concerning natural
children upon whom legitimacy has been bestowed. But when We consider the
character of each individual case, We find that there is always something
lacking to what has already been provided, and We desire to supply this by
means of the present law. For where anyone, induced by pure affection, has
formed an union with a woman and has children by her, and after their birth,
enters into a nuptial contract with her, and then begets legitimate
children, those previously born do not continue to be illegitimate, but are
included among those who are legitimate, for the reason that chance has
caused them to be born such.
This law,
however, has undergone an amendment, for certain persons claimed that when
the second children, born after the dotal contract was executed, die, those
born previously obtained no advantage through them; which difficulty We have
removed by also giving the first children the right of legitimacy, even when
the second are longer living; and (for the reason that this point also was
ambiguous) We have added that even if no children were born after the dotal
contract was entered into, those previously born should, nevertheless, be
included among the legitimate offspring, because their father desired it.
(1) But
another similar instance occurred; that is, where natural children were born
of an union of this kind, and their father wished them to be legitimated in
the manner introduced by Us, that is to say, by the execution of a nuptial
contract, but, while he was deliberating on this subject the woman died, and
the rule established by Our Constitution was not applicable, for she with
whom the nuptial contract should be entered into was no longer living, and
hence the natural children remained such, notwithstanding the wish of their
father.
Another
case of the same description arose among persons with whom We are not
acquainted; for a certain man, having begotten children illegitimately, to
whom he was deeply attached, desired to have them legitimated in accordance
with law, but their mother did not bear a good reputation, and he did not
think that she who had committed an injury upon herself was worthy of
obtaining a lawful name, which statement is sufficient for the purpose.
This is
another way in which children can be made to suffer; in the first instance,
on account of the death of their mother, and in the second, because of her
misconduct.
(2) A
third instance has also come to Our knowledge. A father desired to render
his children legitimate, and made arrangements to do what We have prescribed
with reference to dowries; but the children, being aware that their mother
might unexpectedly acquire certain property (through a certain rich
relative, although she was not a lawful wife), were guilty of wicked and
deceitful conduct, for they concealed their mother, so as to make it
impossible for their father to legitimate them, and if their mother should
die, that they might be able to enjoy the usufruct of her property, a
privilege which the law
grants to
a father. We enact the present constitution for the purpose of preventing
fraudulent acts of this kind.
CHAPTER I.
CONCERNING
VARIOUS WAYS OF LEGITIMATING NATURAL
CHILDREN,
AND CONCERNING LEGITIMATION BY MARRIAGE
OR WHERE
MARRIAGE is CONTRACTED WITH THE MOTHER
OP NATURAL
CHILDREN BY THEIR FATHER.
Where
anyone has no legitimate children, but only natural ones, and desires to
render them legitimate, and the mother of said children is dead; or if
living, she has been guilty of bad behavior; or if she does not appear, or
some law forbids the father from marrying her; We authorize him to confer
upon his natural children the right of legitimacy in a new way which We now
propose; provided he has no surviving lawful offspring. For as Our
predecessors devised a certain method of bestowing upon freedmen the
privilege of free birth, and of liberating them from their condition by
giving them the right to wear gold rings, and restoring them to the
condition of Nature, which, in the beginning, did not distinguish a slave
from a freeman, but created the entire human race free, so We introduce a
new method of legitimation, and a father is authorized to make use of it,
just as he is entitled to do with reference to the different ways which We
have prescribed, even though some other similar instance may arise, for the
innovations of Nature are innumerable, as We have already stated.
Therefore
a father who has no lawful issue shall be permitted to restore his children
to a natural condition and original free birth, in order to render them
legitimate for the future, and to have them under his control; for in the
beginning (before there were any written laws), when Nature alone was
supreme, and no distinction existed between a natural and a legitimate
child, the progeny of Our first parents were legitimate as soon as they were
born. And as, so far as children are concerned, Nature renders them all
free, and because slavery was derived from warfare, so Nature has only
produced legitimate offspring, and it is the tendency to concupiscence which
has mingled natural offspring with them. Therefore as the origin of all
children is attributable to certain passions, it is necessary for a remedy
to be found for both classes; that is, for the condition of servitude
introduced by Our predecessors, and for this condition which We have herein
provided for.
CHAPTER
II. CONCERNING LEGITIMATION BY WILL.
Therefore
if the mother of children is left in her former condition, and she actually
appears to have been guilty of misconduct (for otherwise We do not permit
this to be done in cases of this kind), and if any fraud has been practiced,
or she is not living, or remains concealed, or anything else happens which
may prevent her from appearing and entering into a nuptial contract, the
father shall be permitted
to provide
for his children, and petition the Emperor for this purpose, giving the
reasons why he desires to have them restored to their natural condition and
original free birth, and become legitimated, so as to remain under his
control, and in no respect differ from children lawfully begotten. Hence We
desire that children shall enjoy a solace of this kind, and that they may
not be able to defraud their father, and, by concealing their mother, reject
the right of legitimacy.
This is
one expedient which We have adopted for the benefit of those who have no
lawful issue, as well as to provide for the excesses and perversities of
Nature, thereby both granting relief to such as have no legitimate
offspring, and correcting these eccentricities by this short and effective
remedy.
(1) Where,
however, a father who has only natural children does not apply to the
Emperor on account of some fortuitous event, and, dying under one of the
aforesaid circumstances, states in his will that he desires his children to
be his lawful heirs, his wish shall be complied with; but his children must,
nevertheless, present a petition to the Emperor after their father's death,
stating everything that has taken place; and they shall also produce the
will, under the terms of which they were appointed heirs; and they will then
receive from the Emperor what their father desired them to obtain; so that
what takes place shall, at one and the same time, be the gift of both their
parent and their sovereign, that is to say, of Nature and law; and We
establish this rule without the annulment of any former method of
legitimation.
In cases
in which these former methods are not available on account of the existence
of legitimate children, and natural children are subsequently born, or where
natural children are born in the first place, We add that the right of
legitimacy shall, by no means, be acquired by them, unless this is done by
virtue of Our Constitutions which have introduced the method of legitimation
through dotal instruments.
CHAPTER
III.
CONCERNING
LEGITIMATION BY ADOPTION.
We are
well aware that the form of adoption introduced in ancient times by Our
Imperial predecessors, for.the purpose of legitimating natural children, was
not considered contrary to nature; but Our Father, of pious memory, has
criticized it as such, in one of his constitutions, and We desire that what
he decreed in this respect shall remain in full force, as he had the
greatest regard for chastity, and it is not well for anything which has once
properly been excluded to be restored in the administration of the Empire.
CHAPTER
IV.
WHO CANNOT
CONTRACT MARRIAGE WITHOUT THE EXECUTION OF DOTAL INSTRUMENTS (JULIANUS No.
243).
We think
that the following provisions are preferable to what has previously been
enacted on the subject, and have decided their adop-
tion to be
advisable, after much experience with many cases; and, indeed, the numerous
and incessant lawsuits which have been brought to Our notice have induced Us
to enact this law. For, as it has been set forth in ancient constitutions,
and also established by Us, that marriages celebrated without dotal
agreements and prompted by affection alone, are valid and durable, but as
the country is already full of fraudulent contracts (for witnesses are
constantly introduced who, incurring no risk, testify that a man has called
a woman with whom he is living his wife, and that she has also alluded to
him as her husband, and by means of such statements marriages are presumed,
which in reality have never taken place), it now becomes Our duty to provide
for these cases in accordance with natural law. For We have learned,
although We are lovers of chastitya virtue which We recommend to Our
subjectsthat there is nothing more powerful than the passion of love, and
that it is a part of perfect philosophy to restrain it, and to foresee and
moderate the natural impetuosity of passion, in order that those who are
subject to its influence may resist the importunities of those to whom they
are attached, and not yield to their blandishments; and the legislators who
have preceded Us have been so thoroughly acquainted with such affections of
the mind that they have even prohibited donations to be made during the
existence of marriage, for fear that, having been conquered by the
overwhelming power of concupiscence, married persons may secretly and by
degrees deprive themselves of their property. Hence We think that it is
proper to regulate these matters by means of a chaste law.
(1)
Therefore We forbid persons who are occupying high positions, no matter what
they may beand this applies to Ourselves, as well as to senators and
persons of illustrious rankto marry without any dotal contract. We also
desire that a dowry and an ante-nuptial donation shall, by all means, be
stipulated for, whenever marriages of persons of this description take
place, as well as everything that is proper and becoming under such
circumstances.
But so far
as others who occupy places of less importance and discharge honorable
duties, or are members of respectable professions are concerned, if they
should desire to lawfully marry women without entering into ante-nuptial
contracts, they shall not do so indiscriminately, without security, and
without proof; but they must repair to some house of worship, and declare
their intention to the defender of the Most Holy Church, who, in the
presence of three or four most reverend ecclesiastics, must draw up a
statement in which shall be set forth that, during a certain indiction,
month, day of the month, and year of Our reign, under Such-and-Such a
Consul, So-and-So and So-and-So appeared before him in such-and-such a place
of worship, and were united with one another. If both the parties interested
approve of this attestation, whether they both appear or only one, they
shall subscribe the above-mentioned statement, along with the defender of
the holy church, and the three other ecclesiastics, or more of the latter if
it is desired, but never less than three.
(2) Where,
however, the parties interested do not agree to this statement, the defender
of the church shall, nevertheless, deposit it,
bearing
its aforesaid signature, among the archives of the most holy church (that
is, where the sacred vessels are kept), in order that the proof of this
transaction may be manifest to all, and the parties may not be considered as
having been united by marital affection in any other way; and that the
marriage may be established by documentary evidence; and when these
formalities have been complied with, the marriage and the issue of the same
shall be legitimate.
We do not,
however, order that this rule shall be observed when no dotal contract or
ante-nuptial donation is made, for We enact the present law for the reason
that We consider a marriage which can be only proved by witnesses as
suspicious.
(3) Anyone
who is of abject condition, is the owner of little or no property, and is
hardly able to obtain the necessaries of life, shall have permission to
marry without making any contract. Nor do We investigate closely the
marriages of farmers, or soldiers in military service whom the law styles
caligati (that is to say, of low and obscure rank), who are ignorant of
civil formalities for the reason that they are only occupied in agricultural
pursuits, or devote themselves exclusively to the operations of war; and
this is justly worthy of praise; for as persons of abject condition,
soldiers in active service, and farmers, are authorized to contract marriage
with one another without a written contract, so the children born of
marriages of this kind are legitimate.
CHAPTER V.
WHERE
ANYONE SWEARS UPON THE HOLY GOSPELS THAT HE WILL MAKE A WOMAN WHO is IN His
OWN HOUSE
His WIFE.
Among the
petitioners who frequently apply to Us We have heard the complaints of many
women, who say that men who profess love for them take them into their
houses, swearing upon the Holy Gospels or in the churches that they will
eventually marry them; and that these men, after having lived with them for
a long time, and had children by them, as soon as they are tired of them,
drive them out of their houses without their children, hence We have deemed
it proper to provide that if a woman can prove by lawful evidence that a man
has taken her into his house with the promise of marrying her, and making
her the mother of legitimate children, he shall not be permitted to eject
her without observing the formalities of law; but, on the other hand, that
she shall be his lawful wife, and his children shall also be legitimate; and
if she has received no dowry, she shall enjoy the benefit of Our
Constitution, and be entitled to the fourth of her husband's estate whether
he discards her or dies before she does.
We make no
distinction whether he expels her by serving notice of repudiation or not,
for it is improbable that anyone who denies a marriage would serve notice of
repudiation; but where the husband drives his wife away without any reason,
this shall be a good ground for an accusation against him; and she can,
under such circumstances,
serve
notice of repudiation upon him, and exact from him the fourth of his
property, if she can prove that she has been his wife, even though, relying
upon his oath, she may not have stipulated for a dowry. For when a woman is
unable to furnish a dowry in the first place, what else can she do than to
provide one for herself?
(1) The
issue of such a union will be legitimate, even against the consent of the
father. For he who has been instrumental in having the marriage take place,
and has begotten children in order that the woman may become the mother of
lawful offspring, cannot reject these children as being illegitimate; nor
when, after the death of his wife, or her repudiation, he contracts another
marriage, can he render only the issue of this marriage legitimate, and
exclude that of the first one, of whom he is also the father, God having
been the witness of the first, and the law of the second.
This
constitution has been promulgated by Us to provide for the security of those
who contract such marriages, and where any children are born of them, they
shall have the protection of the laws enacted for the benefit of those who
are legitimate.
CHAPTER
VI.
WHO ARE
LEGITIMATE CHILDREN, WHO ARE NATURAL
CHILDREN,
AND WHO BELONG TO NEITHER CLASS, THAT
is TO SAY,
ARE THE ISSUE OP A PROHIBITED UNION.
If any
violation of this law should take place, the issue of the marriage
contracted under such circumstances will be natural children, and will be
entitled to the shares of their father's estate which they have been granted
by Us, whether by virtue of a will or in case of intestacy. Children,
however, born of unions which are odious to Us, and which We have
prohibited, shall not be called natural, nor be allowed to participate in
Our clemency, and their parents shall be punished by knowing that their
offspring cannot obtain anything on account of the indulgence of their
wicked concupiscence.
EPILOGUE.
Your
Highness will, by suitable proclamations, communicate to all persons the
matters having reference to the relief of mankind and the assistance of
Nature, which We have been pleased to include in this law; so that Our
subjects may learn from it the way in which the affairs to which it relates
should be conducted, and reflect upon Our foresight in this respect, for by
its enactment We have made every provision for their welfare.
Given at
Constantinople, on the Nones of June, during the fifteenth year of
Our Lord the Emperor Justinian, and the Consulate of John.
TITLE IV.
CONCERNING
APPEALS TAKEN IN SICILY. SEVENTY-FIFTH NEW CONSTITUTION.
The
quaestor shall hear and determine appeals taken in Sicily, and shall confirm
by decrees the defenders and municipal magistrates who may be elected in
this part of Our dominions.
EPITOME
OF THE SAME NOVEL, FROM JULIANUS. CONCERNING APPEALS TAKEN IN SICILY.
We order
that appeals taken from the decisions of a Praetor, general, or any other
magistrate in Sicily, shall be brought in this royal city before the
quaestor; and We desire that the latter shall hear the causes of appeal,
render the decision, and refer it to Us, in order that it may be affirmed.
If any other civil matter should arise, such, for instance, as the
confirmation of a defender, or the decree of a municipal magistrate of a
Sicilian city, application must also be made to the quaestor, and the
confirmation shall be made by him, for he is invested with Our full
authority.
TITLE V.
THIS
CONSTITUTION INTERPRETS A PREVIOUS ONE WHICH TREATS OP THOSE WHO ENTER
MONASTERIES AND THEIR PROPERTY, AND FROM WHAT DATE THE AFORESAID
CONSTITUTION SHALL BECOME OPERATIVE.
SEVENTY-SIXTH NEW CONSTITUTION.
The Same
Emperor to John, Most Glorious Praetorian Prefect of the East, Twice Consul
and Patrician.
PREFACE.
A case has
arisen which We think justifies Us in making a suitable interpretation of a
previous law, as well as an addition to its provisions; for We have learned
that a woman having had a child by a lawful marriage desired to leave the
world and retire to a monastery, and, by so doing, greatly benefit the nuns
who were resident therein. But as a constitution enacted by Us states that
persons of either sex, who betake themselves to monasteries, can dispose of
their property as they please before entering them, but cannot do so
afterwards, as they are no longer owners of said property, and as We have
also ordered that persons of this kind, when they enter a monastic
institution, shall devote their bodies, souls, and fortunes to these
establishments, and when they leave them their property shall remain in the
monastery,
and as Our preceding Constitution was promulgated a considerable time after
the entrance of the said women into the monastery, she, fearing that
opposition would be made to the transfer of her property to her son, asked
that the legislation on this subject should be interpreted, and that this
should be made clear by Our law, in order that, so far as her succession was
concerned, neither she nor her son should sustain any injury on account of
the enactment of the said constitution.
CHAPTER I.
Therefore
We order that if anyone of either sex has lived in a monastery before the
promulgation of Our preceding Constitution, or if he or she is living there
at present, and has any children, he or she shall not be compelled to leave
his or her fortune to the monastery, hence in this instance the woman can
transmit it either wholly or in part to her son or daughter, or dispose of
it otherwise as she pleases (for a subsequent law cannot injuriously affect
those who have entered a monastery before its promulgation, or cause them to
forfeit privileges which have previously been granted them) ; this
constitution, however, is only designed for the purpose of interpreting the
former one, without annulling any portion of it. For it is not possible for
anyone to be compelled to dispose of his property before entering a
monastery; for if the woman entered the monastery before such a law was
enacted, how could the legal order be inverted, and it be required of those
who had previously entered a religious house to do things which were not yet
known, and which have subsequently been changed by the publication of Our
Constitution?
It is then
proper to consider everything at the proper time, and only to examine
whether what has been done after the law was passed is in accordance with
its provisions; for when anything occurs before a law is enacted, it should
neither be altered nor hypercritically examined, but should be preserved in
its original form.
(1) Hence
this law is promulgated for the useful interpretation of Our former
Constitution, so that the latter may become operative after its adoption,
and may only apply to such men and women as have entered the monastic life
subsequent to its enactment. We do not captiously scrutinize what has taken
place before its promulgation, as men and women who had previously entered
monasteries, or were residing in them at the time, were permitted to dispose
of their property in any way they chose, especially if they had living
children.
EPILOGUE.
Your
Eminence will, by means of suitable proclamations, hasten to formally
communicate to all persons what We have pleased to enact by this Imperial
law.
Given on
the Ides of October, during the twelfth year of Our Lord the Emperor
Justinian, and the Consulate of John.
TITLE VI.
MEN SHALL
NOT COMMIT THE CRIME AGAINST NATURE,
NOR SWEAR
BY GOD'S HEAD, OR ANYTHING OP THIS KIND,
NOR SHALL
THEY BLASPHEME GOD.
SEVENTH-SEVENTH NEW CONSTITUTION. The Emperor Justinian to the People of
Constantinople.
PREFACE.
We think
that it is clear to all men of good judgment that Our principal solicitude
and prayer is, that those who have been entrusted to Us by God may live
properly, and obtain Divine favor. And as God does not desire the perdition
of men, but their conversion and salvation, and as He receives those who,
having committed sin, have repented, We invite all Our subjects to fear God
and invoke His clemency, for We know that all those who love the Lord and
are deserving of His pity do this.
CHAPTER I.
Therefore,
as certain persons, instigated by the devil, devote themselves to the most
reprehensible vices, and commit crimes contrary to nature, We hereby enjoin
them to fear God and the judgment to come, to avoid diabolical and illicit
sensuality of this kind;1 in order that, through such acts, they
may not incur the just anger of God, and bring about the destruction of
cities along with their inhabitants; for We learn from the Holy Scriptures
that both cities as well as men have perished because of wicked acts of this
kind.
(1) And
as, in addition to those who commit these offences which We have mentioned,
there are others who utter blasphemous words, and swear by the sacraments of
God, and provoke Him to anger, We enjoin them to abstain from these and
other impious speeches, and not swear by the head of God, or use other
language of this kind. For if blasphemy when uttered against men is not left
unpunished, there is much more reason that those who blaspheme God himself
should be deserving of chastisement. Therefore We order all men to avoid
such offences, to have the fear of God in their hearts, and to imitate the
example of those who live in piety; for as crimes of this description cause
famine, earthquake, and pestilence, it is on this account, and in order that
men may not lose their souls, that We admonish them to abstain from the
perpetration of the illegal acts above mentioned. But if, after Our warning
has been given, anyone should continue to commit these offences, he will in
the first place render himself unworthy of the mercy of God, and will
afterwards be subjected to the penalties imposed by the laws.
(2) We
order the Most Glorious Prefect of this Royal City to arrest any persons who
persist in committing the aforesaid crimes, after the publication of Our
warning; in order that this city and the State may not be injured by the
contempt of such persons and their impious acts, and inflict upon them the
punishment of death. If, after the publication of this law, any magistrates
should become aware of such offences, and not take measures to punish them,
they shall be condemned by God. And even if the Most Glorious Prefect
himself should find any persons doing anything of this kind, and not punish
them in accordance with Our laws, he will, in the first place, be subjected
to the judgment of God, and afterwards sustain the weight of Our
indignation.1
1
This was considered by the Romans as well as by modern legislators as one of
the most odious and reprehensible of crimes. "Peccata contra naturam sunt
gravissvma."ED.
1
The Canon Law treated the crime of blasphemy, which it denned as the
uttering of curses and insults against God, Christ, the Virgin Mary, or the
Saints: "Quicunque Deo palam, sen publice maledixerit, contumeliosisque
ac obsccenis verbis Dominum nostrum lesum Christum, vel gloriosam Virginem
Mariam eius Genitricem expresse blasphemauerit," with great severity.
Ecclesiastics were temporarily or permanently deprived of their livings, and
rendered incapable of reinstatement. Members of the laity were heavily
fined, and might be imprisoned for life, or sentenced to the galleys.
Sometimes they were compelled to stand for an entire day before the
principal door of the church wearing a paper mitre, mitra in/amis, as
a token of disgrace. Secular judges who were remiss in prosecuting offenders
rendered themselves liable to the same penalties. (Corpus Juris Canonici
VII, Deer et V, Vill.)
Every
hierarchy has naturally legislated against blasphemy as being an attack upon
the foundation of its authority. It was a capital offence among the Hebrews:
"And he that blasphemeth the name of the Lord, he shall surely be put to
death, and all the congregation shall certainly stone him; as well the
stranger, as he that is born in the land, when he blasphemeth the name of
the Lord, shall be put to death." (Leviticus XXIV, 16.)
The old
Castilian Codes in this, as in many other instances, regulated the
punishment in accordance with the rank and wealth of the culprit. A nobleman
forfeited the use of his land for a year for the first offence, for two
years for the second, and for all time for the third. Similar penalties were
imposed upon vassals. Citizens were heavily fined and banished. Those
belonging to the lowest order of the people were scourged, branded on the
lips, or condemned to have their tongues amputated. "E si fuere otro ome
de los menores que non ayan nada, por la prvmera vez denle cinquenta agates,
por la segunda senalenle con fierro caliente en los begos, que sea fecho a
semejanca de B. E. por la tercera vegada quo lo faga, cortenle la lengua."
(Las Siete Partidas VII, XXVIII, II.)
Blasphemy
was an indictable offence at Common Law, punishable by fine and
imprisonment; "as Christianity is part of the laws of England." The first
prosecution for it was instituted in 1617, during the reign of James I,
before justices of the peace; but the case was dismissed, after reference to
the Attorney General, for want of jurisdiction. (Vide Archbold,
Criminal Procedure II, Page 209.) In England, the publication of heretical
doctrines was long considered as inferentially blasphemous, and the writings
of their advocates as libels. Political considerations were always more or
less involved in those accusations, as the king was the head of the Church,
and the promulgation of false religious dogmas was considered a blow at his
supremacy. The penalty, while often severe, was not always as drastic as
might seem justifiable under such circumstances. As late as 1812, a man
convicted of blasphemy was sentenced by Lord Ellenborough to stand in the
pillory for two hours every month, during eighteen months.
The
offence is described by a leading English authority as follows: "A wilful
intention to pervert; insult, and mislead others by means of contumelious
abuse applied to sacred subjects, or by wilful misrepresentations and artful
sophistry
TITLE VII.
FREEDMEN
SHALL NOT HEREAFTER REQUIRE A GOLD RING TO BE RESTORED TO THEIR ORIGINAL
NATURAL CONDITION OF LIBERTY. CONCERNING THE EXECUTION OF DOTAL INSTRUMENTS
WITH REFERENCE TO FREEDWOMEN. SUCH A MARRIAGE AND THE CHILDREN BORN FROM IT
SHALL BE LEGITIMATE, AND IF THE WIFE WAS ORIGINALLY A FEMALE SLAVE, SHE
SHALL BECOME FREE WHEN THE DOTAL INSTRUMENT is DRAWN UP, AND HER MARRIAGE
SHALL BE LEGAL, AND THE ISSUE OF IT LEGITIMATE.
SEVENTY-EIGHTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Among the
most extraordinary benefits which Almighty God has conferred upon Us We
think should be classed the impulse We have to add to Our laws that the
freedom of slaves (when they are released from their former condition by
their masters) shall in every respect be pure, unqualified, and perfect; and
for this reason We have already removed the stigma attaching to dedititii;
have excluded the freedom of the Latins as imperfect; have shown
repetitions to be superfluous; and We detest both the Lex Junia and
the Larginian Decree of the
calculated
to mislead the ignorant and unwary, is the criterion and test of guilt." (Starkie
on Libel, Page 593.) This is the basis of the American doctrine that the
feelings of the hearers must be respected. The penalty is excommunication
and imprisonment for not more than six months.
Scotch law
punished the blasphemer capitally, if he remained recalcitrant. "Blasphemy,
Railers against God, or any of the Persons of the blessed Trinity, shall be
likewise punishable by death, if they obstinately continue therein."
(Mackenzie, The Laws and Customes of Scotland in Matters Criminal III, V.)
The penalties now are mere imprisonment or fine, or both, at the discretion
of the court. The offence includes atheism. (Vide Erskine, Principles
of the Laws of Scotland IV, IV, 7.)
Blasphemy,
concisely defined by Kent as "maliciously reviling God or religion," has a
more limited application in the United States than elsewhere, in general.
"The weight of authority is that blasphemy is only indictable when uttered
in such a way as to insult the religious convictions of those at whom it is
aimed. The gist of the offense is the insult to the religious sense of
individuals, irrespective of the truth of those religious views or the
extent of their prevalence." (Wharton, A Treatise on Criminal Law, Page
2121.)
The German
Code prescribes a term of imprisonment, not exceeding three years, upon
anyone convicted of blasphemy. (Strafgesetzbuch fur das Deutsche Reich,
Art. 166.) The penalty in Austria is imprisonment for from one to ten
years (Allgemeines Strafgesetz, Art. 123) ; in Spain, it is for one
year, a month and twenty-one days, to a year and two months, and a fine of
from 250 to 2500 pesetas (Codigo Penal de Espana, Art. 240) ; in
Italy, the penalty is detention for not more than one year, and a fine of
100 to 3000 lire (Codice Penale del Regna d'ltalia, Art. 141); in
Denmark, it is imprisonment for one month, and, where aggravating
circumstances exist, a fine in addition (Almendelig Straffelov, Sec.
156).ED.
Senate, as
the latter was originally introduced to no purpose, and was afterwards very
properly repealed.
We have
desired that the mere bestowal of the right of Roman citizenship should
confer freedom without considering either the reason for it, the place where
it was granted, the age of the person enfranchised, or anything else
whatever connected with the same. And as We always endeavor to improve the
condition of Our subjects, We have thought it desirable to increase the most
admirable enactments of Our predecessors by means of certain additions.
CHAPTER I.
CONCERNING
THE RIGHT TO WEAR A GOLD RING GRANTED TO ALL FREEDMEN IN GENERAL.
Therefore
We order that if anyone, when manumitting a male or female slave, should
declare him or her to be a Roman citizen (and, indeed, he is not allowed to
do otherwise), he is hereby notified that, in accordance with the terms of
this law, the person who received freedom shall at once, and ever
afterwards, have the right to wear a gold ring, and be classed as originally
freeborn; that he shall not be required to petition the Emperor for this
purpose, or to observe any other formality, but all these things will result
from his grant of freedom; and this Our law shall become operative from the
present day. We do not criticize any previous enactment on this subject, but
ratify all preceding laws, and direct that they shall remain in force, and
order that the present provisions may hereafter be observed.
CHAPTER
II.
CONCERNING
THE REVERENCE AND RESPECT WHICH
SHOULD BE
MANIFESTED BY FREEDMEN To THEIR
PATRONS,
ETC.
We add
that this law does not in any way encroach upon the rights of patrons, but
We preserve them with reference to all kinds of persons, unless he who
conferred liberty upon his freedman also granted him these rights, either
under the terms of a trust, or at the time when he manumitted him; for if he
made such a concession in his favor, the freedman will, for this reason, be
absolutely released from the claims of patronage. Those who deserve freedom
will therefore enjoy all these privileges, but they will, even after the
enactment of this Our Constitution, be compelled to show every mark of
respect and reverence enjoined by Our laws upon him who has honored them in
this manner.
Moreover,
freedmen must not lay violent hands upon their patrons, or plot against
them, or commit any act whatever to their injury; and if they do, they shall
be restored to their former condition, and again be reduced to slavery, in
accordance with the laws promulgated on this subject. For if We have
absolutely permitted no one whom-
soever,
even though he may have been born free, to display ingratitude towards a
donor, but in the laws which We formerly promulgated, as well as in those
daily enacted by Us, have declared gifts bestowed under such circumstances
to be void, why should We suffer an emancipator, who bears to his freedman
almost the relation of a father, to be subjected to any ill treatment on his
part, or to any rude or indecent abuse, or to suffer great loss? If, then, a
patron should be able to prove by lawful evidence that either he or his
children have been injured in this manner by his freedman, We restore the
latter to his former condition, as soon as this has been established. For in
this way We restrain all freedmen from indulging in the use of opprobrious
names, or vilification, and maintain justice and equity everywhere; thereby
accomplishing what is proper for a legislator to do, as well as what is
acceptable to God, the freedman, and the former master. (1) Wherefore both
freedmen and freeborn personswhether the right to wear a gold ring was
conferred upon them expressly when they were manumitted, or whether they
have obtained this privilege in consequence of the enactment of this
lawmust conduct themselves just as if they were originally freeborn, and
honor those who manumitted them as they ought to do, and not subsequently
render themselves liable to be deprived of their liberty, as guilty of want
of affection and gratitude, and condemned by law. For if they entertain
sincere and unalloyed reverence and attachment for those who liberated them
and their children from slavery, they will always remain freeborn, and will
never again be reduced to their former condition.
CHAPTER
III. WHERE A PATRON DESIRES TO MARRY A FREEDWOMAN.
Where
anyone invested with any dignity whatsoever desires to marry a freedwoman,
and make her his lawful wife, he must draw up a marriage contract with her.
We add this sole requirement after manumission, and any children previously
born, as well as those born after the dotal contracts have been executed,
will be free, freeborn, and proper heirs; they will be the successors of
their father, and, by the demand of gold rings, they will be released from
the condition of their birth; for We make no distinction between matrimonial
unions of this kind and those of other freeborn persons. The freedom of the
mother, in addition to the nuptial contract, will show that the offspring of
the marriage is free, freeborn, and entitled to succeed to the estate of the
father.
CHAPTER
IV. WHERE ANYONE HAS CHILDREN BY His FEMALE SLAVE.
Children
born under such circumstances are so absolutely free that, where anyone has
issue by a female slave, and desires to manumit her and enter into a dotal
contract with her, the right of freedom, as well as that of proper heirs and
children, will be conferred from the very moment when the marriage contract
has been executed. And it
is not
necessary for freedom expressly to be granted to the children, nor that they
be manumitted, either with their mother, or afterwards, or previously, for
We grant them their liberty solely by reason of the execution of the
marriage contract. For what greater indication of the freedom of his
children can a father exhibit than to show that his wife is free, and his
lawful spouse, and that he has entered into a marriage contract with her?
If a
soldier, when bequeathing a legacy to one of his slaves, is held to have
given him his freedom by the sole fact of this bequest, how much more reason
is there that a father who has made a nuptial contract should not also, by
this act alone, have rendered his children free, and his lawful successors?
For there is no one who will think that a man who has rendered the mother of
his children legitimate would desire to exhibit such a conclusive proof of
licentiousness as to leave the children whom he has had by her in servitude.
(1) We
direct that these rules shall apply both to emancipators and to persons who
receive their liberty, for if We do not preserve for emancipators the rights
which they formerly enjoyed, We shall perhaps render men more reluctant to
bestow it. We are using every effort to encourage and confirm grants of
freedom, and the increase of such acts in Our Empire, for the desire of this
has prompted Us to undertake great wars in Lybia, and in the West, the
object of which has been the maintenance of the true religion of God and the
liberty of Our subjects.
CHAPTER V.
REASON FOR
THE . ENACTMENT OF THIS CONSTITUTION.
In the
enactment of this constitution We do not introduce anything new, but follow
Our distinguished predecessors, the Emperors. For as Antoninus, surnamed
Pius (from whom this title has descended to Our times), having been
petitioned by each of his subjects, and afterwards by those designated
strangers, to give them the right of citizenship by making them freeborn
Romans, conferred this privilege upon all his subjects; and after
Constantine, the Founder of this Most Holy City, Theodosius the Younger,
also bestowed upon all his subjects the right of free birth, as he had been
requested to do, so also, as the right to wear a gold ring, and restoration
to the original condition of freedom which We formerly granted to everyone
who requested it afforded occasion for injury and excessive formality, and,
besides, since those who bestowed freedom required to be authorized to do
so, We now grant it equally to all Our subjects, by the terms of this law.
We restore to their original freeborn status all persons who are worthy of
the privilege, not separately, indeed, but We render freeborn all those who,
in the future, may deserve freedom from their masters, by conferring this
great and universal benefit upon Our subjects.
EPILOGUE.
As soon as
Your Highness is informed of this law, which We have been pleased to enact
through love for Our subjects, you will publish
it here
and in the provinces, by means of special proclamations, in order that Our
people may be aware of Our special regard for all their interests, and of
the provision We make for their welfare.
This law
shall be effective in every case which may hereafter arise, for We do not
pay any attention to what has passed.
Given at
Constantinople, on the fifteenth of the Kalends of February, during
the fifteenth year of the reign of Our Emperor Justinian, and the Consulate
of Ario.
TITLE Vill.
BEFORE
WHOM THE CASES OF MONKS AND ASCETICS SHALL BE TRIED.
SEVENTY-NINTH NEW CONSTITUTION.
The
Emperor Justinian to Menna, Archbishop of Constantinople, and Universal
Patriarch.
PREFACE.
Being
aware of an abuse which exists in this Royal City We have thought it proper
to correct it by a general law, which We make applicable to this Most
Fortunate City, as well as to all the provinces of Our Empire. Certain
persons, desiring to corrupt the purity of the orthodox faith, bring suit
before civil judges whenever they have any controversies with monks or
hermits, and these judges despatch executive officers, who venture to
penetrate into holy places, remove monks by force, annoy the inmates of
monasteries, ascetics, and even nuns who have entirely withdrawn from the
world; and, in consequence of this, great injury and confusion are caused in
religious establishments.
CHAPTER I.
WHERE
ANYONE ATTEMPTS TO SUMMON A MONK OR AN ECCLESIASTIC TO COURT.
Therefore
We decree that when anyone is engaged in litigation with a venerated
ecclesiastic, a holy virgin, or nun actually resident in a monastery, he
must notify the reverend Bishop of the City. The ecclesiastic with whom he
has the controversy shall be sent for, and must appear, and state his ground
of defence, as decorously as possible, by means of an abbot, a responsal, or
any other person whomsoever; and the bishop shall hear and examine the case
with all due sacerdotal dignity, and absolutely without the assistance of
civil judges, for the bishops of every city are qualified to decide
honorably and sacerdotally, in accordance with Our laws and the rules of the
Church, when legal proceedings are instituted against monks. For in this way
those who think that they have good cause to proceed shall obtain justice,
and the respect due to sacred things shall remain intact and inviolate.
CHAPTER
II.
CONCERNING
THE ENFORCEMENT AND OBSERVANCE OF THIS CONSTITUTION AND THE DETERMINATION OF
THE LEGAL CONTROVERSIES IN WHICH MONKS ARE CONCERNED.
Litigation
in which monks are involved shall be speedily disposed of. This law is of
general application, and its enforcement shall be committed to the Most
Glorious Prefects having jurisdiction in all dioceses, namely: those of
Illyria, Italy, the entire West and those of both Romes, as well as by the
Most Glorious Praetors of the People, and the magistrates of the provinces,
with their subordinates; and it shall not be evaded in any way but must be
observed unchanged for the honor of the most reverend monks.
As soon as
Your Holiness is informed of its enactment, you will cause it to be obeyed
in this Most Fortunate City and its environs, and, by means of suitable
letters, will communicate it to the metropolitans of the cities (from whom
you yourself have received ordination), and the latter will notify all the
bishops subject to their jurisdiction; so that, by means of few notices,
this law may be transmitted to every portion of Our dominions. We direct
that all lawsuits in which monks are interested shall be quickly terminated,
in order that their minds may not be occupied by the cares of litigation,
but may be speedily freed from them, and they be enabled to resume their
sacred duties.
CHAPTER
III. CONCERNING THOSE WHO VIOLATE THIS CONSTITUTION.
Those who
do anything contrary to these provisions are hereby notified that when a
judge has presumed to render such a decision, he shall be deprived of his
office, as having been guilty of an insult to Divinity, and shall, with his
subordinates, be fined ten pounds of gold, to be paid into Our Imperial
Treasury; and if any executive officers should attempt to serve an illegal
notice, they shall be prevented from doing so, shall be detained in the
places called decaneta, be subjected to suitable punishment, and not
be permitted hereafter to perform their official functions.
EPILOGUE.
This law
shall be applicable where anyone has a case against a most reverend monk,
virgin, or nun residing in any venerated monastery. We have already enacted
laws concerning members of the clergy stating the manner in which they may
be sued, and these We desire to remain valid and unaltered under all
circumstances.
A copy of
this constitution has been addressed to John, Illustrious Praetorian Prefect
of the East, twice Consul and Patrician; and another to Basilides, Most
Glorious Master of the Imperial Offices; and still another to Longinus, Most
Glorious Urban Prefect.
Given at
Constantinople, on the sixth of the Ides of March, during the
fifteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Ario.
TITLE IX.
CONCERNING QUAESTORS.
EIGHTIETH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect, Twice Consul
and Patrician.
PREFACE.
We
constantly, with the aid of God, make every provision to preserve from
injury the subjects whom He, in His clemency, has placed under Our care.
Therefore We enact laws that will enable them to have absolute justice, and
hasten to re-establish whatever may have fallen into desuetude. Moreover, We
have found certain administrations entrusted with suppressing what is not
honorable, and punishing offences of inferior importance, and these duties
are discharged by the Praetors of the People in this Most Fortunate Capital,
whose great experience in affairs has acquired for them the approval of all
the inhabitants of this Our Royal City. The benefits resulting from their
administration have induced Us to consider it as worthy of the law and
judicial office to investigate any other matters which are in need of
correction. We have found that the provinces are being deprived of their
inhabitants by degrees; and that, on the other hand, this great city is
becoming much more populous on account of the arrival of vast crowds of
different kinds of men, and above all of farmers, who abandon their towns
and crops to come here.
CHAPTER I.
CONCERNING THOSE WHO COME TO CONSTANTINOPLE.
These
matters have induced Us to enact the present law, and to create an office
which is, to a certain extent, an innovation, for We do not hesitate to make
an allowance from the Public Treasury for the benefit of the person who will
occupy it; to assign to him a sufficient number of officials; and to render
him responsible for his negligence. We give this official the name of
Quaestor, the one by which he was originally designated (We mean in former
times), when they called those who perform such duties Ereunades. We
desire those appointed to this office to be animated by the fear of God, of
Us, and of the law, to seek out all persons who resort to this great city,
no matter in what province they reside, or whether they be men, women,
clerks, monks, nuns, advocates of foreign cities, or to whatever other civil
status they may belong; and that the said magistrates shall ascertain who
they are, and from what place, and for what reason they come here.
We also
decree that if any of these persons are farmers, the Quaestor shall send
them before the magistrates having jurisdiction over them, and the latter
must threaten them, and promptly deliver them from the litigation on account
of which they have visited this city, and send them back to their homes
immediately after their cases have been properly disposed of.
CHAPTER
II. CONCERNING FARMERS.
If
cultivators of the soil, who are under the control of masters and are useful
to them, should come to this Royal City, the Quaestor shall cause their
masters to speedily decide the cases on account of which they have come
here, and send them back as soon as they have obtained justice. Where,
however, the said cultivators of the soil are here on account of some
controversy with their own master and conduct their case against him, and
there is a multitude of them, the Quaestor shall immediately send the
greater number back to their province, and only allow two or three to
remain, who, in conformity with the rule relating to litigants, shall
conduct the proceedings; and he shall urge the magistrate having charge of
the case to dispose of it as quickly as possible, in order that the time of
their stay may not be prolonged, for their presence here is superfluous, and
the cessation of their agricultural duties is injurious to their masters.
CHAPTER
III.
But if it
is not a multitude of farmers, but other persons, or even individual
litigants, who have brought suit against one another, who are sojourning in
this city, the Quaestor shall not remain idle, but shall use every effort to
prevail upon judges to hasten to release these persons from their
contentions, and when freed from their lawsuits, send them back to live in
their own towns and provinces. If, however, when the magistrate has
appointed judges to hear a case or the masters of the said farmers have been
appointed judges by Us, in order that the said litigants may have their
cases decided, and the judges or masters defer doing this, and do not
speedily release them from the litigation in which they are involved, then
the Quaestor himself, who has been appointed by Us, shall call the
litigants, or those who demand something from their masters before him, and
examine whether their claims are meritorious or not, and quickly dispose of
the matters on account of which they have repaired to this great city, and
send them back to their country, and to the places from whence they came;
nor shall any question of privilege or contest of jurisdiction be available
under such circumstances.
CHAPTER
IV.
But where
any persons who are not involved in litigation have come to this city to
obtain a livelihood, and improve their condition,
or if, for
the reason they have not sufficient property to enable them to accomplish
what they desire, they should commit crime, the Quaestor shall examine their
physical condition, and ascertain whether they are in good health and able
to work; and if they are slaves, he shall learn to whom they belong, and
shall, even if they are unwilling, cause them to be restored to their
masters; but if they are free, he must return them to the cities or
provinces in which they were born.
CHAPTER V.
CONCERNING STURDY BEGGARS.
When the
persons in question belong to this neighborhood, and, being strong in body,
do not lead a proper life, the Quaestor shall not permit them to be a burden
to the community, but shall see that they are promptly turned over to the
officials having charge of the public works, that is, to the directors of
the bankers, of the posts, of the public gardens, or to other different
bodies of trades or manufactures, in which they can at the same time work,
be supported, and change an idle life for one that is preferable.
(1) If any
such persons should refuse to work in the factories to which they are
assigned, the Quaestor shall drive them out of this Royal City. We direct
that this shall be done for the sake of being indulgent to them, in order
that idleness may not induce them to commit illegal acts, and the laws not
subject them to punishment, and that they may not render themselves liable
to be brought before Our judges. Still, We order that persons of either sex,
who are not sound in body, or are seriously ill, shall not be molested in
Our city, but, on the other hand, that they shall be cared for in an humane
manner.
Moreover,
the Quaestor shall ask each one of those who resort to this city what reason
has induced him to do so; so that, this being ascertained, he will be able
to make a proper disposition of them, and that those who are lazy may not
remain here, but, after having finished their business, they may return to
their own provinces.
CHAPTER
VI. CONCERNING FEES.
If any
inhabitant of this Royal City, or even a stranger, should accuse certain
persons of having caused him loss and injury, by means of what are called
sportulss, and he alleges that the said persons have in this way evaded
Our laws, or have served notice on him without an order of court, the
Quaestor shall diligently seek the individuals who have committed this
offence, and, no matter what may be their rank or office, or to what
employment they may have been assigned, he shall, at once, cause them to be
arrested, and after they have been convicted by proper evidence, he shall
subject them to the punishment prescribed by Our laws. No judge can
interfere to protect them, and the Quaestor must use as much diligence in
preventing those from
being
injured who have suffered injustice, by causing what has been taken from
them illegally to be returned, as well as in collecting the fines prescribed
by Our Constitution, and of seeing that they are paid, where We have decided
that this should be done.
CHAPTER
VII. CONCERNING FORGERY.
In
addition to this, when anyone brings a complaint of forgery, or what is
called false writing, the Quaestor shall, under all circumstances, make an
investigation; shall cause those who are accused of the crime to be
arrested; and shall punish them in accordance with the evidence; for We
authorize him to hear and determine such cases. But where anyone injured in
this manner has, in conformity with the terms of the present law, applied to
the Quaestor and not obtained justice, and he is, in consequence, compelled
to accuse him to Us, or to the government, the Quaestor is hereby notified
that he will personally be responsible for the property claimed by the
injured party whom he neglected to treat with equity, and that he will, in
addition, incur Our righteous indignation, because he had the presumption to
disobey Our orders.
CHAPTER
Vill.
CONCERNING
THE SALARIES OP THE QUAESTOR AND His SUBORDINATES.
The
official appointed to this office shall always take the greatest pains to
avoid corruption, and see that the attendants of his court are not
avaricious, and ready to accept disgraceful gifts; and he must take measures
to see that they act honestly and liberally, and if he should find that in
the discharge of their duties they have committed any unlawful act of this
kind, he must punish them, and in this way exhibit his firmness and his
integrity.
We allow
ten pounds of gold to the Quaestor for his expenes; a hundred solidi
to his counsellor; and three hundred and thirty solidi, by way of
salaries, to his attendants. We order that a list of these different
salaries shall be appended to the present law; and We desire that the
Quaestor, his counsellor, and his officers, being satisfied with the
allowance made to them by the Treasury, shall refrain from accepting
anything else. In this way they will show their respect to God and to Us at
the same time, by enjoying the advantages of Our foresight, discharging the
duties of an administration of celestial origin, and deciding cases readily
and in accordance with law.
CHAPTER
IX. CONCERNING MAGISTRATES AND GOVERNORS.
We grant
authority to the Quaestor to resist magistrates when necessary, to report
their acts to Us, and to do what he considers
proper
under the circumstances; in order that, not being accused of weakness or
want of resolution, he may appear worthy of the judgment which We have
formed concerning him. We also give him permission to despatch public
letters to the governors of provinces, notifying them to compel persons who
have come here without legal process to return to their own country where
they have been sent away by him; or to enable the said persons to receive
the lawful aid to which they are entitled.
Where,
however, persons who have been relieved of litigation, and have returned to
their province, again repair to this Most Fortunate City, the Quaestor shall
inflict suitable punishment upon them, and forcibly send them back once
more. In this way Our distant cities will remain inhabited, and the capital
be relieved of the confusion now existing therein.
If the
Quaestor should deem it advisable to station certain of his officers in that
portion of the territory of this city, which is situated beyond the sea, in
order to be informed of the movements of those who come from a distance, and
to return to the provinces persons who are journeying thither, he can do so,
having in view whatever is for the public welfare.
CHAPTER X.
We decree
all these matters with the intention of benefiting Our subjects, and to
prevent them from abandoning their provinces and coming here to ruin
themselves and die, after having been deprived of their property, as well as
forfeiting the right to be buried with their fathers; hence preceding
legislators, and those who founded the government, carefully provided for
this contingency. In those days measures were taken to prevent idleness; the
magistrates kept accounts of all foreigners; and Our enactments on this
subject are not new or thoughtlessly promulgated, but, on the other hand,
they are of ancient origin; although it is true that sometimes, through
culpable negligence, they were not enforced, and would have run the risk of
being gradually forgotten and entirely destroyed if We, knowing them to be
useful and advantageous, had not again introduced them into the government.
For, as We wish the Quaestor to be incorruptible, and his subordinates to
accept nothing beyond the salaries which We assign to them, We order that
they shall be entirely exempt from pecuniary obligations; that they shall
pay nothing for their commissions, their emoluments, or anything else,
either to Our Imperial Palace or to the Court of Your Highness; and that
they shall not, either now or in the future, contribute anything on account
of any commissions or allowances of any kind, or for any emoluments allotted
to them; but We desire that whatever is bestowed by Our liberality shall be
given absolutely and without any restriction; for he who is appointed to
this office should act in such a way as to benefit the entire community.
EPILOGUE.
Therefore,
as soon as Your Highness is informed of what it has pleased Us to enact, you
will hasten to carry it into effect, and will approve of Our foresight,
because We have introduced a new office, and have constantly in view the
welfare of Our subjects.
Given at
Constantinople, on the seventh of the Ides of May, during the twelfth
year of the reign of Our Lord the Emperor Justinian, and the Consulate of
Ario.
TITLE X.
CONCERNING
EMANCIPATION. A CONSTITUTION WHICH RELEASES FROM PATERNAL CONTROL A SON WHO
is INVESTED WITH OFFICE AND THE EPISCOPACY.
EIGHTY-FIRST NEW CONSTITUTION. The Emperor Justinian to the Holy Senate of
this Royal City.
PREFACE.
We
constantly reflect upon what can contribute to the welfare and the adornment
of the government which God has confided to Us. Therefore We have recently
drawn up a law with reference to Our Most Glorious Patricians, which
declares them to be free from paternal control when office is bestowed upon
them; for We have no thought that it was becoming for those whom We raise to
the dignity of Our Senators to be subjected to the authority of others.
Moreover, if the act of emancipation was formerly accomplished by means of
what were called legal actions, children were released from the ties of
paternal control through abuse and blows, how much more reason is there for
the most honorable offices bestowed by the government, the highest authority
of all, to deliver them from such restrictions?
Having at
present the most indulgent and favorable opinion of the Glorious Consuls,
whose names always follow that of the Emperor, as well as for those who are
only honored by consular commissions, and for magistrates who can release
citizens from curial requirements, for instance, the prefect, and generals
of the army (only having reference, however, to such magistrates as are in
active service), We hereby decree that every similar charge or office
obtained by any persons whomsoever, where such charge or office releases
persons from obligations vto the curia, shall also
liberate those who are under the control of their fathers or grandfathers.
For if We have provided that when a slave is worthy of an office, and his
master is aware of the fact, or he is invested with any dignity whatsoever,
he shall immediately be freed from the power of the latter, and be restored
to the condition of free birth, would it not be unjust for a son who has
rendered himself worthy of a position of this kind not also to be released
from paternal authority?
CHAPTER I.
Therefore,
in providing this most honorable law, We direct that when ordinary consuls
are under paternal control, they shall become independent from the very
moment in which their offices are conferred upon them; and that where
persons who, while under the control of their fathers, are honored by the
government by the bestowal of consular letters, these letters shall also be
the means of rendering them free.
We desire
that the same rule shall apply to Our Most Glorious Praetorian Prefects,
whom We may appoint in all dioceses, as well as to those whom We may promote
to the Prefecture of the two Roman Capitals, or to any other military
magistracy whatsoever; for We consider it unworthy of Our laws and of Our
age for a magistrate who has jurisdiction over such a x-large number of
persons, and has so many officials under His command, not to be included in
the number of those who enjoy complete independence.
(1)
Generally speaking, however, as has already been stated, We decree that
every office or magistracy which has authority to free anyone from curial
obligations can also liberate those who are the recipients of public honors
from the power of others, and make their fathers appear even more noble.
Where persons honored with offices of this kind throughout the Empire are
under the control of their fathers, and We do not release them from their
authority, they should petition the Emperor for this purpose; and whether
the said persons now enjoy the honors or dignities which We have previously
enumerated, or whether this may take place hereafter, they shall acquire the
right of independence; the father shall give a peculium to the son,
and leave him to the exercise of his own judgment, and shall furnish him
with means to creditably administer the public employment conferred upon him
by the government, and justify the opinion he entertains of him. By doing
this the father will deserve great praise, and the distinction obtained by
his son will be a source of rejoicing to him.
CHAPTER
II.
PERSONS
WHO ARE RELEASED FROM PATERNAL CONTROL
BY REASON
OF THEIR OFFICE SHALL RETAIN THEIR LEGAL
RIGHTS
UNIMPAIRED.
We provide
by this law that the same results shall not be accomplished which are
effected by emancipation, but We confer a certain privilege with reference
to the exercise of such powers. For We do not wish him who becomes his own
master to lose any of his lawful rights, but that he shall always belong to
his own family, and be entitled to the legal share of his father's estate
which can be claimed by children, and also, that the rights of nature shall
be preserved. The children of fathers who have been invested with office
shall come under the control of the latter after the death of their
grandfather, just as if their fathers had become their own masters by the
death of their
fathers,
and not in accordance with the present law. And it is only proper that
officials should, after the death of their own fathers, have their children
subjected to their authority, in order that they may not forfeit any of the
privileges conferred by the Government, and because it is just that the
benefits bestowed upon men by God, or the Emperor_who comes immediately
after himshould remain unaltered, and free from every kind of artifice or
restriction.
CHAPTER
III.
A SON
SHALL BE RELEASED FROM PATERNAL CONTROL BY THE BISHOP.
It is
clear that no one is ignorant that bishops become their own masters by the
mere fact of their consecration; for how can the spiritual fathers of all
persons be under the control of others? Hence it is expedient that they
should enjoy an honor of this kind, as well as the benefit of this Our
legislation.
EPILOGUE.
Therefore,
0 Venerable Fathers, We desire that the provisions which We have enacted for
the promotion of your reverence and dignity shall forever shine in Our
Republic, as an example of the generosity which We have manifested towards
Our Senators, Consuls, and
Bishops.
Given at
Constantinople, on the fifteenth of the Kalends of April, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE XI.
CONCERNING
JUDGES, AND THE FACT THAT No ONE CAN BE SELECTED A JUDGE WHEN AN OATH is
TAKEN TO ABIDE BY His DECISION. JUDGES SHALL RECEIVE ALL APPEALS AND THEY
SHALL NOT STOP IN THE MIDST OF THE TRIAL OF A CASE IN OBEDIENCE TO A
PRAGMATIC SANCTION DIRECTING THEM How TO DECIDE.
EIGHTY-SECOND NEW CONSTITUTION.
The Same
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
A law was
enacted by Zeno, of pious memory, with reference to magistrates, which
introduced many alterations in subsequent times; but this law has almost
entirely fallen into disuse, for those who were appointed ordinary judges
are all dead, and most of the decisions ren-
dered by
them on points of law are no longer cited, as they have not sufficient merit
to deserve preservation, and this having been ascertained, practice has
produced other rules.
Therefore
We, being aware that the entire order of judges is in confusion, have deemed
it necessary, by means of this law, to determine how proper procedure may be
restored. For We have not considered it necessary to preserve the names of
certain judges, and especially of those who are ignorant of law, and without
any experience in the trial of cases. Assessors are present with Our
magistrates for the purpose of explaining the laws, and assisting them in
their duties, for the reason that many of these magistrates are often absent
on account of their being required to preside in Our court, and their
presence is supplied by the assessors. But when judges do not hold other
offices, and have no duties to discharge in Our court, and are unable to
distinguish what is equitable, they dishonor the judicial office; and would
it not be extremely injurious to the government not to entrust the disposal
of litigation to those who themselves ought to know what to do, but permit
them to seek for others from whom they may be able to learn what they
themselves should be familiar with in rendering judgment? These things have,
with good reason, induced Us to enact the present law, as We consider the
interests of Our subjects, and desire that legal controversies in which they
are interested should readily be heard, and ended without delay.
CHAPTER I.
CONCERNING JUDGES SELECTED BY JUSTINIAN.
Hence We
have absolutely done away with the ancient order established by the
Constitution of Zeno, of pious memory, which was applicable to certain
judges in every Praetorian jurisdiction. We have determined to choose for
the judicial office persons of good repute, who shall have jurisdiction of
all cases, and, with this end in view, We hereby appoint as judges Anatolius,
a distinguished man, who for a long time has practiced as an advocate, and
who is now one of the Advocates of the Treasury; Flavianus, who is also an
advocate of the Treasury; Alexander, Stephen, and Menna, most eloquent
advocates and ordinary judges of your tribunal; and another Alexander, whom
We have known as an ordinary judge attached to the court of the Most
Glorious Praetor and Master of the Imperial Offices, and two other advocates
of your bar, Victor and Theodore of Quizicum. These are the judges whom We
have selected from among the advocates.
(1) But as
it is proper that the Superior Judges should be exalted in rank through
their experience in numerous cases, and by long exercise of important
magisterial duties, We have noted among the Most Glorious Patricians, Plato,
who long occupied the office of Urban Prefect, and has been appointed to
this prefecture for a second term; and also the Most Glorious Victor, who
has been Governor of Great Greece, as well as of the noble city of
Alexandria, has discharged the
duties of
the Urban Prefecture of the city, and is thoroughly learned in the law; and
Foca, already numbered among Our judges, a man worthy of all praise, who
knows how to control himself, and, in addition to this, is well versed in
the law. With these We also include the Most Magnificent Marcellus, whose
observation of the rules of justice and attachment to Us has excited Our
admiration; for We know that these are the qualities of a magistrate which
are demanded by almost all who apply to Us, and that he makes use of the
services of a counsellor of renown to enable him to decide cases in
conformity with the laws; that is, the eminent Appio, Advocate of the
Treasury, who bears an excellent reputation not only among others, but also
with Us.
CHAPTER
II.
ONLY
JUDGES APPOINTED BY THIS LAW SHALL BE PERMITTED TO DELEGATE CASES.
We desire
judges appointed by Us to take rank after Our own magistrates, and We shall
delegate to them such matters as We may think proper. If, however, one of
Our judges should desire to delegate cases, he must assign them to the
ordinary judges, but to no one else; unless he has submitted certain special
points to his councillors for consideration, and then he shall render a
decision with reference to the entire matter.
CHAPTER
III.
CONCERNING
THE ORDER AND THE TIME IN WHICH JUDGES SHALL SIT.
Ordinary
judges shall sit continually, they shall hold court in the Royal Basilica
and in the various halls where they at present preside, they shall hear
cases in the morning, in the middle of the day, and in the evening, and
shall take cognizance not only of matters which may be brought before them
subsequent to the enactment of this law, but also of any other proceedings
instituted under former rules, before other magistrates, and with which We
have now entrusted them with jurisdiction.
CHAPTER
IV. CONCERNING APPEALS.
It must be
observed that where appeals are taken from decisions rendered' by ordinary
judges, or by the Most Eminent Magistrates, and the hearing of said appeals
is delegated by Us in accordance with the value of the property involved, or
in conformity to the usual practice, this assignment shall be to other
magistrates, under the rules laid down by the Imperial Constitution. But
where any of Our Most Glorious Magistrates delegate cases for decision to
the judges whom We have just mentioned, appeals from said cases shall be
returned to them, and be disposed of by them in their prescribed order.
CHAPTER V.
CONCERNING THE JURISDICTION OF ORDINARY JUDGES.
All
ordinary judges shall hear and determine cases by annotation, where the
value of the property involved does not exceed three hundred solidi.
Thus actions will be more promptly decided, and litigants will be freed from
circuitous jurisdiction and protracted delay. It is, however, evident that
although these judges may hear cases by annotation, they must still render
written decisions which will set forth their opinions, appeals from which
will be forbidden to no one, unless a party may desire to appeal for the
third time in succession, or has been judged contumacious; for under these
circumstances he cannot proceed.
CHAPTER
VI.
PARTIES
SHALL BE ENTITLED TO THE TERM OF Two
MONTHS IN
WHICH TO FILE AN APPEAL, BUT AFTER THE
LAPSE OF
THAT TIME No CORRECTION OF A DECISION
CAN BE
MADE.
We desire
that in this great city, appeals from ordinary judges shall be taken within
two months, which term is final, and after it has expired, what the laws
call the correction of a decision can no longer be made.
CHAPTER
VII.
THE
SCHEDULE OF FEES INTRODUCED BY THE LAW OF JUSTINIAN SHALL BE PRESERVED.
No one
shall venture to disobey what We have decreed with reference to the fees and
costs of litigation, but all magistrates must remain content with what is
given them; and in case they violate the law, they will have reason to
apprehend the punishment prescribed by Our Imperial Constitutions.
(1) There
are certain officers whose number, dependent upon the nature of their
employment, has remained fixed up to the present time. Thus, each judge is
entitled to two clerks, and two bailiffs, and nox-large r number can be
assigned to him. These officers should be wealthy and persons of good
reputation, in order that they may not be tempted to commit crime, or act
dishonorably for the purpose of gain. In the selection of executive officers
attendants, and clerks employed by judges, the latter shall be held strictly
responsible, and if they commit any offence the magistrate will be liable,
and must indemnify persons who have been subjected to any injury on their
part. When a judge ascertains that some illicit act has been committed by
one of his officers, he shall expel him from his court, and appoint another
for whom he will be equally responsible, as We have previously stated.
CHAPTER
Vill.
ANOTHER
JUDGE SHALL BE APPOINTED BY THE EMPEROR TO TAKE THE PLACE OF ONE WHO HAS
BEEN REMOVED.
Where any
one of the most glorious or most eloquent judges has been removed from
office for any cause or reason whatsoever, his place shall not be supplied
by anyone but the Emperor, by whom he will be charged with the hearing of
cases.
CHAPTER
IX.
ORDINARY
JUDGES SHALL BE ENTITLED TO Two AUREI AT THE BEGINNING OF A CASE AND Two AT
THE END.
On account
of the work performed without compensation by Our ordinary judges, We decree
that in every case tried before them even if they have been appointed to
hear it by the Emperorthey shall receive two aurei from each party
to the suit at its beginning, and also two at its end. We, however, desire
(as Our predecessors also provided) that they shall be satisfied with this
amount, and We preserve in their entirety the rights granted to certain
persons concerning the diminution of the expense of litigation; for what We
now decree only applies to cases where the amount involved exceeds the value
of a hundred aurei. For We do not intend that judges shall collect
anything in cases where the amount is less than this; for if they should
receive compensation in actions where very little is at stake, success would
result in considerable loss to the victorious party.
We do not,
however, limit Ourselves to this, but We also provide for these magistrates
out of Our own Treasury, hence We assign to each ordinary judge two pounds
of gold, which he shall receive from the office of Your Highness; and We
wish him to remain satisfied with this sum and not allow justice to be
purchased, but absolutely to despise money. On this account We have
preferred to remunerate them out of the Treasury, so that each judge, being
content with Our liberality towards him, and with the four aurei
which he will receive for every case, may keep his hands pure towards God,
Ourself, and the Law, always bearing in mind the rules prescribed by former
legislators on this subject.
CHAPTER X.
, THE JUDGE MUST EXAMINE THE BILLS OF COSTS.
Judges
must, by all means, examine the bills of costs. And, for the reason that
this regulation has been very properly established by Zeno, of pious memory,
We have not disdained to include it in this Our present law. Hence, what has
been decreed by this Emperor shall remain in full force, and We only add
that if the judge should tender to the successful party the oath having
reference to the costs, that is to say the amount that he has expended on
account of the lawsuit
(which the
laws call taxatio), he to whom the oath is tendered shall take it,
and the judge shall not be authorized to fix a smaller sum than that which
was sworn to, or to exhibit more indulgence than the law prescribes under
such circumstances. If, however, a judge should conclude that the costs
ought to be taxed in accordance with the nature of the suit, he must state
this in his decision.
All other
matters relating to appeals, as well as to the rejection of judges, where
the contents of appeals have not been filed promptly and as required, but
this has taken place after twenty days have elapsed, and anything else that
We have decreed with reference to this subject shall, as We have previously
stated, remain in full force.
CHAPTER
XI.
ARBITERS
SHALL BE CHOSEN BY COMMON CONSENT AND NOT UNDER OATH.
Numerous
questions are addressed to Us by persons who have selected judges absolutely
ignorant of the law, and wholly destitute of experience, and the said
persons swear without the slightest hesitation that they are content with
the arbiters whom they have agreed upon, while no one else has the slightest
confidence in them, and they finally take the oath to abide by their
decision, although the arbiters whom they have chosen are neither acquainted
with what is just, nor understand how to decide it. And as such persons,
after they find that they have been injured, desire their cases to be heard
a second time, thereby being unmindful of what they swore to, this matter
seems to Us worthy of correction.
(1) And
because that We have learned from experience that this is not an advisable
course to pursue, We decree that hereafter no arbiter shall be appointed and
decide any case, by virtue of the oath taken by the parties to the action to
abide by his decision, in order to prevent men from being compelled to
perjure themselves on account of the ignorance of their judges; but those
who choose an arbiter or arbiters shall do so with a penalty, so that the
parties may be responsible to one another, and be obliged either to accept
the award, or pay a fine, if one of them should wish to appeal; for then the
one who is dissatisfied with the judgment will be authorized to appear
before another court.
Those of
Our judges to whom an appeal is taken under such circumstances shall begin
proceedings by exacting the penalty, which they shall collect from those who
have rendered themselves liable, and pay it over to the persons entitled to
it. If the litigants who chose arbiters should not observe this rule, do not
stipulate for the payment of any penaty, and consider the surety of the oath
as sufficient, they are notified that as they have designedly acted in this
way, the penalty of perjury shall be inflicted upon them by God. Where,
however, they suffer from the ignorance of their arbiter, their oath will in
no wise prejudice them, for, in this instance, We do not wish the penalty
for perjury to be inflicted upon anyone, nor do We permit litigants
to be any
longer injured by the ignorance of arbiters through the respect due to an
oath.
Everything
which has been provided by ancient legislation, and all that We Ourselves
have enacted concerning judges appointed by common consent, or with
reference to arbiters, without the oath of the parties being necessary,
shall remain in full force, and shall by no means be repealed by this Our
law.
CHAPTER
XII.
CONCERNING
APPEALS AND THE REQUIREMENT IMPOSED UPON MAGISTRATES TO RECEIVE THEM.
We order
Our judges, by all means, to receive appeals. No one shall be authorized to
reject an appeal, with the exception of Your Eminence, to whom from the
beginning this privilege is conceded, Your tribunal being a court of last
resort.
CHAPTER
XIII. CONCERNING DIFFERENT LETTERS ADDRESSED TO JUDGES.
Every
judge or magistrate invested with judicial authority shall observe the laws,
and render judgment in conformity to them; even if, in the meantime, he
should have received an order, an Imperial notice, or a pragmatic sanction
from Us directing him to decide in a different manner, for We desire that
what Our laws prescribe shall be observed. Where a case is taken up on
appeal, the judge shall receive it and shall, by all means, entertain the
appeal, and shall not be excused from deciding it in any instance where the
parties have the right to appeal, but he must come to the relief of all. In
this way he who finds himself injured by a decision can have it corrected
either by the appellate judges, or by Ourselves, if the appeal is referred
to Us.
CHAPTER
XIV.
CONCERNING
REFERENCES.
If the
judges who hear a case should think any point to be ambiguous, We grant them
permission to communicate it to Us, and consult Us and in this way be
informed of whatever is necessary, and be enabled to explain what should be
done, so that just and reasonable decisions may be rendered by them.
EPILOGUE.
Therefore
Your Eminence will publish here in the Imperial Basilica, and in the other
parts of Our Royal City, the provisions which it has pleased Us to enact for
the welfare of Our subjects, in order that they may become known to all
persons, and that they may learn that We are using every effort to be useful
to them, as well as to treat them with equity.
Given
during the Consulate of Ario.
MEMBERS OF
THE CLERGY SHALL FIRST BE SUED BEFORE THEIR OWN BISHOPS AND AFTERWARDS
BEFORE CIVIL
JUDGES.
EIGHTY-THIRD NEW CONSTITUTION.
The Same
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Having
enacted many Imperial Laws concerning bishops and other orders of the
clergy, as well as with reference to different members of the priesthood,
and having lately published a constitution by which We have provided that
monks shall be sued only before the bishops under whose supervision their
monasteries are placed, We have requested Menna, Archbishop of this Most
Fortunate City, and Universal Patriarch, to grant the following privilege to
the most reverend members of the clergy; namely, that if any person should
bring an action for money against one of them, he must first apply to the
archbishop having jurisdiction over the ecclesiastic, who shall direct the
latter to appear before him, and a verbal decision shall be rendered; and
when this has been done, the said ecclesiastic shall not be subjected to
further annoyance or be brought before a civil tribunal, or be obliged to
desist from the performance of his ministerial duties; but the case shall be
determined without any expense, and a written decision shall not be
rendered, unless the litigants desire and demand it, and the parties shall
be released from the necessity of making arguments.
(1) When,
however, on account of the nature of the case or for any other reason, it is
not possible for the bishop to decide it, then permission shall be granted
to appear before the civil judges, and all the privileges which the Imperial
Constitutions confer upon the most reverend members of the clergy shall be
maintained, the case shall be heard, an examination made, and judgment
rendered. In this way the case will become familiar to the illustrious
judges who can decide it.quickly and magnanimously, with due regard for Our
Constitutions and laws; and, under these circumstances, there will be no
reason for members of the clergy not to manifest the respect which they owe
to their superiors, for they must appease God and observe sacerdotal
propriety; nor shall they be detained before the tribunals by their
controversies, or subjected to the annoyances which litigants are usually
compelled to undergo.
(2) Where,
however, ecclesiastics are sued in criminal cases, or even in civil ones,
this shall be done before competent judges, and in the provinces either
before their Governors or magistrates. The proceedings shall not be
protracted for a period longer than two months after they have been begun,
for We desire them to be concluded as rapidly as possible. It is perfectly
clear that if the Governor of the
province
should find the defendant guilty, and decide that he ought to be punished,
the ecclesiastic must first be stripped of his sacerdotal office by the
bishop, and then be placed in the hands of the law.
CHAPTER I.
When an
offence committed by an ecclesiastic requires sacerdotal castigation and
fine, the bishop shall take cognizance of it without the assistance of the
illustrious provincial judges, as We do not desire civil magistrates to hear
cases of this kind under any circumstances, for they must be tried
ecclesiastically, and the souls of the delinquents punished by means of an
ecclesiastical fine, in accordance with the sacred and divine rules which
even Our laws have not disdained to follow. Where, however, any actions have
already been begun, they shall be tried according to the preceding practice,
and be promptly disposed of. All the provisions which We have heretofore
enacted, whether with reference to the most holy churches, or the bishops,
clergy, or monks, shall remain in full force.
EPILOGUE.
Therefore
Your Eminence will, by means of suitable proclamations, communicate to all
persons the matters that We have seen fit to include in this Imperial law,
which shall be perpetually observed.
Given at
Constantinople, on the fifteenth of the Kalends of April, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Apio.
TITLE
XIII. CONCERNING FULL AND HALF BROTHERS.
EIGHTY-FOURTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Nature,
everywhere inclined to the production of numerous innovations (this prelude
has often been employed in legislation, but will be constantly repeated
until the points to which it gives rise are finally settled), has induced Us
to enact many laws. The ancient authorities deriving their opinions from the
ancient law have discussed direct and collateral successions, which opinions
have come down to Us; We have corrected a great many of these, and at
present a question of the same kind has been proposed to Us for solution.
(1) A
certain man married a wife and had children by her, and she having died, he
married another, by whom children were also born to him, who were related on
the father's side, but not on the mother's; then the man contracted a third
marriage, by which he also had issue, and, after his death, his widow
married a second husband
by whom
she had children, who, instead of being related by blood on the father's
side, were only related through the mother to those born to the first
husband; and it happened that after the death of the mother, a brother born
of the third marriage died childless, and intestate, leaving several
brothers, some of whom were related on the father's side, others on the
mother's side, and others again on both sides. This is, to some extent, a
new case produced by Nature. We shall, under such circumstances, be
permitted to provide for others, which may originate through different
marriages, either by the death of the husband or that of the wife, or as the
result of some other legal separation. The question to be solved is, whether
all the brothers who are related on the father's or mother's, or on both
sides, should be called to the succession of the deceased brother.
CHAPTER I.
Therefore,
after having examined all the ancient laws which We have compiled, as well
as those which We Ourself have enacted on this subject, We have not found
that this question was raised; hence it is proper to settle it by means of a
law, and to consider which one of the brothers was related to the deceased
by the rights of cognation, which We have, in certain instances, assimilated
to legal rights, for the reason that others were joined to him by these same
legal ties; and formerly, when some brothers were related to the deceased
through the father, and others through the mother, and still others were
assisted both by Nature and by law because they were the issue of the same
fathers and the same mothers, and the mark of full brothers shown upon them
from every side; a brother of this kind desired to release from litigation
persons entertaining a doubt as to the law, he made a will, and having thus
manifested his wishes, those whom he appointed his heirs would be called to
the inheritance. But as in this instance, the brother in question either was
unwilling or unable to do this (for innumerable anxieties and sudden deaths
are the common lot of mankind), the present law will settle the point.
(1) It
therefore provides that brothers related on the side of both father and
mother are more entitled to the succession of the deceased than those who
are related on the side of only one of their parents; and the singular
variety of the operations of Nature does not permit Us to hesitate, but We
consider this conclusion to be just, and decree that it shall prevail; as it
gives the preference to full brothers, and does not suffer others, whose
title is inferior, to be placed on the same footing with them.
(2) Many
reasons have impelled Us to adopt this opinion. In the first place, one of
Our laws provides that if a son should die without leaving any children, and
any maternal property should be included in his estate, which was not
acquired by his father through a nuptial contract or in any other way, the
brothers who are the issue of the same marriage shall be called to the
inheritance; and after them, others born of a preceding marriage; and next,
the father; which shows that Our legislation has, for a long time, approved
of such a
disposition. For if, during the life of the father, the brothers related
through both their parents take precedence of their father, and children who
are the issue of another marriage, the result is that, although the father
may no longer be living, but only the brothers survive, those who are
related on both sides will be preferred to the brothers who are only related
to the deceased through a single parent. Hence it is proper that what has
long since been settled with reference to maternal property, or that derived
from a nuptial contract and which was not acquired by the father, should
remain in force, and be observed, even with respect to the other property of
the deceased, and this has been decreed by Us.
Therefore
in this instance the law shall not be altered, and, as in the case stated,
there are three marriages, the unusual condition originating in Nature will
offer no impediment, even if anyone should suggest that there were only two
marriages, and that some of the brothers were related on the mother's side,
and others related on both sides; or where the objection was made that there
were more than three marriages. This constitution shall be applicable to all
cases of this kind where there are several kinds of brothers; and We decree
that those who are related to the deceased on both sides shall exclude those
who are only related to him on one.
CHAPTER
II.
Where,
however, this is not the case, but another arises where a brother, when
dying, leaves brothers only on his mother's, or on his father's side, in
this instance, the question must be decided by former laws which have
treated of their successions. This law is not only applicable to this case,
which has given rise to the question, but also to all others which may occur
hereafter. Where, however, there are other cases which have already been
disposed of either by a judicial decision or a compromise, they shall be
finally terminated, and the relief granted by this constitution will be of
no advantage to them.
EPILOGUE.
Your
Eminence will, by means of suitable letters, hasten to communicate to all
persons the matters which We have seen fit to include in this Imperial
Constitution, and see that they are observed for all time.
Given at
Constantinople, on the fifteenth of the Kalends of June, during the
fifteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Ario.
TITLE XIV.
CONCERNING
ARMS.
EIGHTY-FIFTH NEW CONSTITUTION.
The
Emperor Justinian to Basilides, Most Glorious Master of the Imperial
Offices.
PREFACE.
Always
invoking the aid of Omnipotent God and Our Saviour Jesus Christ, We exert
every effort to preserve from all injury and calumny the subjects whose
government God has entrusted to Us, and to prohibit the wars which men
privately conduct against one another; for, by means of these wars, they
cause much reciprocal suffering and are exposed to the double penalty of
mutual injury, as well as of undergoing the punishment prescribed by the
laws.
CHAPTER I.
Therefore,
desiring to prevent men from killing each other, We have thought it proper
to decree that no private person shall engage in the manufacture of weapons,
and that only those shall be authorized to do so who are employed in the
public arsenals, or are called armorers ; and also that manufacturers of
arms should not sell them to any private individual.
Nor do We
permit any persons who, styled deputati, are enrolled in the army for
the purpose of caring for the arms and are paid out of the Treasury, to
manufacture or sell them to anyone whomsoever; but We desire that they shall
only have charge of the arms of soldiers, in accordance with the duties
assigned to them. If, however, they should manufacture any new weapons,
these shall be taken from them, and either deposited in Our Imperial arsenal
or in the armory.
CHAPTER
II.
We also
desire that those who are called battistarii, and whom We have
stationed in different cities, and authorized to manufacture weapons, shall
only repair and place in good condition those belonging to the government,
which are deposited in the public arsenals of each town. Where any workmen
have manufactured arms they must surrender them to the baMistarii, to
be placed with those belonging to the public, but they must by no means sell
them to anyone else. The bal-listarii shall, at the risk of the
municipal magistrates of the cities to whom they are subject, observe what
We have decreed, and the responsibility for this, as well as for the
preservation of the public arsenals, shall attach to these magistrates; and
where any of the workmen called deputati, or armorers, have been
detected in selling weapons, the local magistrates shall subject them to
punishment; shall deprive the purchasers of these weapons without refunding
the price paid for them; and shall claim them for the benefit of the public.
CHAPTER
III.
Therefore,
God directing Our thoughts, We decree by the present law that no private
individual, or anyone else whosoever shall, in any province or city of Our
Empire, have the right to make or sell arms, or deal in them in any way, but
only such as are authorized to manufacture them can do so, and deposit them
in Our armory.
We order
that this rule shall be obeyed by Your Highness, as well as by those who may
succeed you in office, and We appoint five of the chief chartularies subject
to your authority in the Bureau of Armorers, who are skillful and of good
repute, who shall be charged on their own responsibility to seek men who are
manufacturing arms in this Most Fortunate City, and in the other towns of
Our Empire, in order to prevent private persons, or anyone else whomsoever,
from doing so, with the exception of workmen employed by the armory; and in
order that, if they should find, anywhere in any place, private individuals
who are rash enough to make any weapons, they may seize them and deposit
them in the Arsenal of the Treasury. But if among private workmen the said
chartularies should discover any persons who are thoroughly skilled in their
trade, they shall employ them in the manufacture of arms, if the workmen are
willing, and shall inscribe their names upon the list of armorers, and
notify Us of this fact, in order that the said workmen may be assigned by an
Imperial Rescript to the Public Arsenal, for the purpose of manufacturing
arms, and receive remuneration from the Treasury. If the aforesaid persons
scrupulously comply with what We have ordered, private individuals residing
in towns, or peasants who are living in the country, will not be permitted
to make use of arms against one another, thereby endangering their lives;
men will cease to commit homicide; work on public buildings will not be
suspended; and the fear of death will no longer compel the cultivators of
the soil to resort to flight.
(1)
Therefore those selected from the above-mentioned Bureau of Armorers, who
are directed by Your Highness to prevent private persons from making
weapons, shall be sworn by the local magistrates, their subordinates, the
defenders of towns, and decurions, that they will allow nothing which We
have forbidden to take place in the future, and that they will comply with
the provisions of the present law, for the said magistrates will be liable
to a pecuniary penalty, as well as a corporeal one, if they should violate
it.
We order
that, if the judge of the great City of Alexandria should fail to observe
these provisions, he shall be liable to a fine of twenty pounds of gold, and
shall be deprived of his office. His court shall also incur a similar
penalty, as well as be subjected to capital punishment. So far as the
magistrates of other provinces are concerned, they, together with their
courts, shall incur a fine of ten pounds of gold and the loss of their
offices. The defenders of municipal magistrates of cities shall pay a fine
of three pounds of gold, and run the risk of being put to death if, after
having learned of violations of this law; they permit them to remain
concealed instead of punishing them, or notifying magistrates who can do so.
CHAPTER
IV.
But in
order that what has been forbidden by Us to private persons and all others
may become clear, We have taken pains to enumerate in this law the different
kinds of weapons whose manufacture is forbidden. Therefore We prohibit
private individuals from either
making or
buying bows, arrows, double-edged swords, ordinary swords, weapons usually
called hunting knives, those styled zabes, breast-plates, javelins,
lances and spears of every shape whatever, arms called by the Isaurians
monocopia, others called sitinnes, or missiles, shields, and
helmets; for We do not permit anything of this kind to be manufactured,
except by those who are appointed for that purpose in Our arsenals, and only
small knives which no one uses in fighting shall be allowed to be made and
sold by private persons.
Your
Highness will publish this general law in this Royal City, as well as in the
other cities of Our Empire, in order that all persons, being aware of the
provisions which We have been pleased to enact, may observe them.
CHAPTER V.
We notify
the chartularies who have been appointed from the aforesaid Bureau of
Armorers personally to see that this law is obeyed, for their negligence
will not only expose them to pecuniary penalties, but they will also be
subjected to corporeal punishment, as well as be deprived of their offices;
for We shall not permit them to longer remain in the Bureau of Armorers, but
will appoint others in their stead.
EPILOGUE.
Your
Highness, and those who may hereafter succeed you, will hasten to cause what
it has pleased Us to enact by the present law to be carried into execution;
for unless you take measures for the observance of what is so advantageous
to the public welfare, you will have reason to fear the effects of Our
indignation.
TITLE XV.
THE
DIFFERENT JUDGES SHALL BE COMPELLED BY THE BISHOPS TO HEAR THE ALLEGATIONS
OF THOSE WHO APPLY TO THEM, AND WHEN ANY SUSPICION OF A JUDGE Is ENTERTAINED
THE BISHOP OF THE CITY SHALL HEAR THE CASE WITH HIM ; AND CONCERNING OTHER
PRECAUTIONS WHICH THE BISHOP MUST BY ALL MEANS TAKE.
EIGHTY-SIXTH NEW CONSTITUTION. Edict of the Emperor Justinian.
PREFACE.
God having
placed Us over the Empire of the Romans, We are exceedingly desirous to
govern the subjects whom He has entrusted to Our care as well as We can; and
so to act that they may be delivered from all difficulties, injuries, and
anxieties, as well as to prevent them from being compelled to leave their
country, and suffer inconvenience in foreign lands on account of litigation.
CHAPTER I.
Hence We
have deemed it advisable to address the present edict to all Our subjects,
and to make it clear to the inhabitants of all cities and villages. We
decree that when any private person has a controversy, with another, either
with reference to a pecuniary claim or to the deprivation or seizure of
movable or immovable property, or of such which can move itself, or where a
criminal matter is involved, the said private person must first apply to the
illustrious Governor of the province, and ask him to examine the matter in
dispute, in accordance with Our laws, and see that both parties obtain
justice; but if, after having applied to the Governor, he should not obtain
justice, We direct that he can then have recourse to his most holy bishop,
who must instruct the illustrious judge of the province to hear the
complainant, and dispose of his case in conformity to Our laws, and not
reduce him to the necessity of travelling to a great distance from his
country.
If,
however, after the Most Holy Archbishop has notified the judge to decide the
case of the litigants equitably, and he does not proceed or does not treat
the litigants with justice, We order the most holy bishop to give letters in
Our name to the party who has been treated with injustice, which letters
must state that the judge whose duty it is to hear the plaintiff and decide
between him and the defendant in the case has neglected to do so. Being then
informed of this failure of justice, We will impose a penalty upon the
provincial judge who, having been applied to by the plaintiff, and notified
to proceed with the case by the Most Holy Archbishop, did not dispose of the
matter in controversy.
CHAPTER
II.
If,
however, any of Our subjects should entertain any suspicions with reference
to the judge, We order the Most Holy Archbishop to hear the case with him,
so that both of them may, by means of an amicable agreement, resolve any
doubts which have arisen, whether this be done by annotation or
conditionally; provided the parties are treated with equity, and the
decision is based upon justice and law, and Our subjects are not compelled,
for any reason of this kind, to depart from their own countries.
CHAPTER
III.
Where any
private individual, thinking that he has a right of action against someone
else, does not apply to the illustrious judge of the province, or appear
before the Most Holy Archbishop of the city, but comes here without letters
from the archbishop, he is hereby notified that he will be liable to the
same punishment to which the judge would be subjected if, after having been
applied to by him, he had not taken measures to render justice.
We have
considered it Our duty to make these provisions for the welfare of the
inhabitants of towns and villages, in order to prevent private individuals
from leaving their provinces to endure hardships
in foreign
lands, as well as lose their property. For We appoint judges gratuitously,
and order them to take an oath, so that they may, in accordance with Our
laws, dispense justice to everyone who applies to them for this purpose.
CHAPTER
IV.
Where,
however, any one of Our subjects sustains injury at the hands of the
Governor of the province, We order him to have recourse to the most holy
bishop of the city, and the latter to decide between the said illustrious
Governor of the province and the person who is alleged to have been injured
by him. If the most holy bishop should legally and justly decide against the
judge, the latter must, by all means, satisfy the litigant who has
complained of him. But if the judge should refuse to do this, and the
controversy should be referred to Us, and We should find that the judge,
after having been regularly and legally notified by the most holy bishop,
did not comply with the decision rendered against him, We direct that he
shall be punished with death, because while it was his duty to relieve the
oppressed, he himself is found to have been guilty of oppression.
CHAPTER V.
We decree
that the court, which is under the control of the Governor and the executive
officers of his jurisdiction, shall permit litigants to depart without
accepting from them anything more than is provided by Our laws. If they do
not observe this rule, We order them to be subjected to punishment.
CHAPTER
VI.
If,
however, We should ascertain that any most holy bishop has, through favor to
someone, failed to render justice, We direct that the prescribed castigation
should be inflicted upon him; in order that bishops actuated by the fear of
God may use every effort to decide justly, and prevent men who do not obtain
justice from leaving their cities and provinces, and repairing to other
places.
CHAPTER
VII.
In cities
where there are no judges, We order those who have cases to apply to the
defender, and We direct him to decide between them; but when the parties
litigant desire the defender to hear a case along with the most holy bishop,
We decree that this shall be done.
CHAPTER
Vill.
We forbid
monks, clerks, and bishops to come to this city without letters from their
most holy patriarch. If, however, they should do so, they are notified that
they will render themselves unworthy of remaining in their order.
CHAPTER
IX.
Where the
subordinate of a magistrate or a prefect, no matter what his rank may be,
accepts fees in excess of those prescribed by
Our
Imperial Constitution, We order that the judge of the province shall, in
accordance with Our law by all means, be responsible, and that he shall
inflict punishment upon the person who has presumed to do this. If the judge
himself should not punish him, We grant permission to the most holy bishop
of every city to notify Us of what has occurred, and inform Us of the office
or dignity of the person who has been disobedient; in order that We may
render the judge responsible for contemptuously permitting Our orders to be
disobeyed, and that We may take measures to punish him.
TITLE XVI.
CONCERNING
DONATIONS MORTIS CAUSA MADE BY DECURIONS.
EIGHTY-SEVENTH NEW CONSTITUTION. Interpreted by Antonius Contius.
PREFACE.
We desire,
by all means, that the frauds of decurions shall not in any way result in
loss to the government, and that their schemes shall be frustrated by law.
For We have ascertained that, after having deprived decurions of the power
to make donations, and forbidden them to give possession of movable
property, or to leave by will more than three-twelfths of their estates, and
directed them to preserve nine-twelfths of the same for their curias,
they are constantly committing fraud in violation of law.
We, being
aware that the ancient legislators entertained a doubt whether a donation
mortis causa was really a gift or a legacy, some of them considering it
to be one thing, and some another, have adopted the general opinion of the
most eminent jurists by deciding without hesitation that such a donation is
a legacy, and has no need of being recorded, and that the donor is at
liberty to restrict it in any way that he chooses, and even to renounce his
right of revocation, and insert in a donation mortis causa whatever
he may think propera rule laid down by Julianus, which We Ourselves have
inserted in the Thirty-ninth Book of Our Digest, for We have condensed in a
small compass whatever it has pleased the ancients and Ourself to formulate.
Therefore decurions, knowing this, have attempted to make donations
mortis causa, and to insert therein the clause having reference to the
power of revocation; and thus have given to their donations another object
more in conformity with their purposes, in order to render their donations
irrevocable, and in this way diminish their estates.
CHAPTER I.
But while
We have already provided by law that decurions shall be deprived of every
means of diminishing the nine-twelfths of their
estates
through bequeathing them by will, or alienating them by making donations,
still, in order that We may be able more effectively to prevent the
commission of fraud, We now decree that none of them shall be permitted to
alienate anything whatever by a donation mortis causa; and We only
authorize them to bestow property as an antenuptial donation for the benefit
of their own children, or to grant it by way of dowry, as provided by Our
Constitution, or to give it to their daughters on the occasion of their
marriage, for it is certain that they cannot otherwise dispose of their
immovable property; but, on the contrary, such property must always remain
in their possession, and be liable to curial obligations, and they are only
permitted to sell it, and this must be done in accordance with the terms of
Our New Constitution.
Other
donations mortis causa shall, however, retain all their force, and
men who are not decurions can make them in favor of any persons whom they
may select, and are authorized to impose any conditions, and revoke the
donation (if they should desire to do so), for everything concerning the
conditions imposed upon a donation mortis causa shall be complied
with, and all such donations shall remain firm and stable, as We have
decreed in the first place, and now ratify by law; for at present We only
interpret them, and confirm them with reference to all other persons, with
the sole exception of decurions, as has already been stated; and We are
induced to make this provision on account of Our solicitude for and interest
in the welfare of the Empire.
EPILOGUE.
Your Glory
will take pains to cause the rules which We have been pleased to enact and
which are set forth in this law to be observed, and you must be the first to
provide for what is beneficial to the government.
TITLE
XVII.
CONCERNING
DEPOSITS, NOTICES TO TENANTS, AND THE SUSPENSION OP THE PUBLIC DISTRIBUTION
OF PROVISIONS.
EIGHTY-EIGHTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
We have
recently heard and determined a lawsuit (for We sit most frequently in
public in the Empire) with reference to which a question arose which We
immediately disposed of, and having learned that numerous points of the same
description are constantly presenting themselves, We have deemed it proper
to provide for them by means of a common and general law.
CHAPTER I.
If anyone
should receive from another gold or any other property deposited on certain
conditions, and these conditions are afterwards complied with, the
depositary will be compelled* to return the gold or other property entrusted
to him; and no one not interested in the deposit shall have the right to
seize the property or prevent its restitution; and while many other
privileges have, in cases of deposit, been granted by preceding legislators,
as well as by Ourself, anyone who opposes the return of the deposit shall no
longer be permitted to annoy the owner of the property, as he who has
possession is the one to be sued, and obtain justice and the benefit of the
law; and the third party, who opposes restitution, shall not be allowed to
subject to serious loss him who was notified not to return the deposit, for
the latter will not be obliged to request the depositor to defend the case,
or be responsible for the result, nor can he conduct it conjointly with the
depositor; and if the depositary should do anything of this kind (for We do
not entirely limit Ourselves to prohibiting such offences, as Our duty is
rather to inspire transgressors with just apprehension), and the property or
money deposited should be lost, and this loss should be proved, or the third
party referred to should cause any other accidental damage whatsoever, he
will be liable for it; and he will, besides, through the mere fact of his
opposition to the restitution of the deposit, be compelled to pay interest
at the rate of four per cent on the money deposited, whether the deposit
consists of gold or other property.
We
establish this rule in order that the fear of being punished for their
perversity may prevent men from committing wrong in cases of deposit.
CHAPTER
II.
CONCERNING
THOSE WHO OPPOSE THE PUBLIC DISTRIBUTION OP PROVISIONS OR THE PAYMENT OF
RENT.
We have
taken legal steps to provide for everything having reference to mandates.
For We see that it frequently happens, and especially in this Royal City,
that certain persons wishing to interfere with the public distribution of
provisions seize the tickets issued for this purpose in the hands of the
Prefect of Subsistence, and thus those who are only supported in this manner
are deprived of the necessaries of life.
But an
abuse more grave and embarrassing still exists, for many persons owning
houses in this Most Fortunate City, who do not live in them,1 but
expect to receive rent for the same, are annoyed by notices given their
tenants directing them not to pay it. The tenants comply with these notices,
but some of them, through poverty, use the money composing their rent to
purchase food; and others, for the reason that they are exiles from this
great city, fail to send the rent upon which their landlords are, perhaps,
wholly dependent for their subsistence, which same thing takes place in the
public distribution of provisions, as We have already stated.
(1) We
grant no one permission to serve notices of this kind, and if any person
should commit such an act, his perversity shall not go unpunished; for he is
informed that he will be responsible for the cessation of the distribution
of bread, or the payment of rent, from the very moment when he notified the
tenants or the distributers of provisions, or from the time that the said
distribution was suspended, for We do not wish any of these things to occur.
If anyone should give notice that such distributions or payments must not
take place, We order that he shall be liable for any loss sustained by the
owner of the property, as well as for interest at the rate of four per cent
on the money or articles, on account of which the loss resulted.
No one can
prohibit the distribution of provisions, the payment of rent, or the return
of deposits, for it is not easy for every person to furnish a surety, and it
is provided by Our laws that no interdiction shall be valid unless security
is furnished at the time of the notice.
Therefore
We desire that the present law shall be observed from this day and for all
time, to promote the security of Our subjects, and that it may be an eternal
source of support to the government, which We have constantly had in mind
during its formulation and enactment.
EPILOGUE.
Your
Eminence will hasten to carry into effect, and have perpetually observed,
what We have been pleased to promulgate by means of this Imperial Law.
AUTHENTIC
OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SEVENTH
COLLECTION.
TITLE I.
IN WHAT
WAY NATURAL CHILDREN BECOME LEGITIMATE, AND CONCERNING THEIR SUCCESSION TO
THEIR FATHERS EITHER UNDER THE TERMS OF A WILL OR IN CASE OF
INTESTACY.
EIGHTY-NINTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
In former
times, the attention of Roman legislation was not directed to natural
children, nor was any humanity manifested towards
them, but
their name was considered to a certain extent foreign to the Republic; but
during the reign of Constantine, of pious memory, they were mentioned in the
Books of Constitutions. Then the Emperors, proceeding by degrees to a
greater exhibition of indulgence and clemency, promulgated laws with
reference to them; some permitted them to be given and left property by
their fathers; others devised the method by which, being removed from their
condition of natural children, they became legitimate, and heirs to the
estates of their parents. This legislation was gradually extended until it
included grandchildren, and as these laws have been observed in Our time as
well as under the reign of the Emperors who have immediately preceded Us,
they have been interpreted in many different ways. We have had the double
privilege of conducting many persons from slavery to freedom, and of raising
natural children to the rank of those who are legitimate; for neither
vengeance nor interdiction should render them objects of contempt, but what
is necessary should be attended to, what is evil should be avoided, and in
every instance what is best should be accomplished. Therefore, for the
reason that in the Code of Constitutions which We have compiled from the
entire legislation of former Emperors, certain provisions have been made
with reference to natural children, and others, since inserted in the Book
of Institutes which We have drawn up, have been decided to be complete; and
as We Ourselves have adopted many rules with reference to this subject, some
of which have been embodied in former laws, and others promulgated
subsequently, in order that this legislation may not be dispersed, We have
thought it proper to combine it all in one Constitution, which may be
sufficient to maintain the rights of all natural children, and to correct
and establish whatever relates to them.
CHAPTER I.
CONCERNING NATURAL CHILDREN.
It is
clear that there are some men who are at once free and legitimate; others
who do not enjoy freedom at first, but afterwards have it conferred upon
them, and in this way from being slaves become free, and from being natural
children become legitimate; others again, by the very fact that they are
natural children, are entitled to certain successions; and still others do
not deserve to be called natural, but are considered to be unworthy of this
name. Hence it is necessary for Us to promulgate a constitution, in order
that no one may be ignorant of the legal position of natural children; and,
in beginning this law, ,We shall state in what ways natural children become
legitimate (for We have found numerous methods by which this can be done),
what their rights of succession are, how harshly ancient legislation has
treated them, and how humanely We have acted with reference to this matter.
Nor shall We neglect those who, as We have previously remarked, are unworthy
of the appellation of natural children. For in the first place, before any
laws had yet been enacted, Nature, in sanctioning the procreation of
children, treated them just
as if they
were free and freeborn. The children of Our first parents were originally
all free and legitimate from their birth, but wars and legal controversies,
as well as licentiousness and concupiscence, brought about a different
condition of affairs. For slavery was a consequence of war, and loss of
chastity was the cause of natural children; but the law, again taking
cognizance of faults of this kind, bestowed freedom upon slaves, treating
the subject at great length, and introducing ten thousand methods of
liberating them, while the Imperial Constitutions have opened different ways
for legitimation to those who were not legally begotten.
We do not
promulgate this decree with the intention that it shall be temporary, nor do
We desire the rights of Our subjects to be neglected by its provisions.
(1) Men
leave lawful successors through the marriages which they contract, either
with or without dotal instruments; even when they are united with their
wives in such a way that they have, from the beginning, such an affection as
proceeds from lawful wedlock. We, being well aware that this sometimes gives
rise to litigation, do decree by this law that proof of legitimate marriage
shall take place in compliance with the prescribed forms, when the parties
concerned are of high rank; and in another way when they are of an inferior
social condition; and We also decree what privileges shall be granted to the
people hereafter with reference to this subject. Therefore, where marriage
has taken place, successions from this very fact are certain, and when the
children are legitimate, the law immediately introduces certain degrees of
succession, treating these at great length. This, then, is the right of
legitimacy. When this condition does not exist, but the child is free,
although it may not be the issue of lawful marriage, or was even born in
slavery, if it is worthy of freedom, it, nevertheless, remains natural; and
under such circumstances various methods are employed to render it
legitimate, which We shall hereafter enumerate, as well as establish others.
CHAPTER
II.
CONCERNING
THE FIRST METHOD OF LEGITIMATION, THAT Is TO SAY, BY AN OFFER MADE TO THE
CURIA.
The first
method of obtaining the right of legitimacy, and which is extremely
advantageous to municipalities, is the one which Theodosius, of pious and
recent memory, introduced. For it was decreed by him that one can offer any
or all of his natural children to the curia, or marry his daughters
to decurions; but as this method was not prescribed by ordinary legislation,
but became established in different ways through obligations to the
curia, and by means of successions, as well as on account of the
necessity of ascertaining the right of children to inherit, whose heirs they
are, and, again, who are to inherit from them, We think that in drawing up
the first chapter of legislation on this subject, it is only just to treat
of other methods of legitimating children, which are very easy to explain.
(1)
Therefore, where anyone is the father of natural children, whether he
himself be a decurion, or free from duties to the curia, or whether
he has other children who are legitimate, or only natural ones, he shall be
permitted to offer all his natural children or only some of them to the
curia, even though the said children may have been invested with a
distinguished office; provided, however, that this office is not one which
will release men from curial obligations. But where the father, while still
in his lifetime, offers his son to the curia (for this method has
been employed in the case of Philocalus, a natural son, and a decurion
through his father, in the City of the Bos-terni), as is stated in the
constitution enacted by Leo, of pious memory; or where anyone has been
proclaimed a decurion by his father in this way; or where a father offers
his son by having his name inscribed in the Bureau of Public Documents; or
where at the time of his death he inserted in his will that his son must
become a decurion, and he afterwards attached his signature to the
instrument, his son will immediately become legitimate, and will no longer
be subject to the disabilities attaching to natural children.
Such
children will also become legitimate and decurions if, after the death of
their father, who left no lawful issue, they should offer themselves to the
curia. Hence the father, although he may have legitimate children,
can offer his natural children to the curia, but a natural
child cannot do this himself except when there is no legitimate offspring
living.
We also
include in this law whatever has reference to offers to the curia, a
subject which has previously been treated by Us in a desultory manner, for
We do not merely provide for an offer to the curial status, as it is
necessary to introduce methods which are perfectly clear, by means of which
children may be offered as aforesaid.
(2)
Therefore, anyone born in any town whatsoever, whether he be a decurion, or
free from this condition, shall be permitted to offer his natural son to the
place of his nativity. But where he is not a citizen, but was born in the
country, or in some village, the son can be offered by his father to the
city, or he can offer himself to the curia of the town to which the
said country or village is tributary. It is, however, evident that if the
father, grandfather, or any other relative in the ascending line has free
children and desires to offer them to the curia, he can do so; but
where the child wishes to offer himself, We do not permit this, unless he
has no other legitimate brothers. If, however, any one of those desiring to
offer their natural children to the curia was born in this Capital,
or in ancient Rome, We permit him to make the offer in whichever metropolis
he may select; and he must observe these rules everi with regard to his
daughters, and shall be required to marry them to decurions who are either
residents of the city where he was born, or of that to which the country or
the village which is his birthplace pays tribute; or, where the father is at
the same time free and a Roman or Byzantine citizen, he must marry his
daughters to decurions of any other city, provided it is a metropolis.
Such is
the solicitude which We evince for decurions, and this method of
legitimation is pleasing for the reason that We grant exclusively to a
father who has only natural children (even though he may have them by a
slave) the power of making them free, and of offering them to the curia,
as has just been stated.
We direct
this law to become operative to such an extent that if his father should not
make the offer, but the son should become free, he can offer himself to the
curia, even though he may not be the legitimate offspring of his
father.
CHAPTER
III. CONCERNING THE SUCCESSION OF DECURIONS.
And as
various provisions have been enacted with reference to the succession of
persons of this description, it does not seem absurd to Us to determine
their hereditary rights, as We have already stated. Hence if a natural child
should become a decurion by means of this method (that is to say, through
being offered to the curia), he will become the heir of his father
both by will and in case of intestacy; he will not differ in any respect
from legitimate children; and he will be entitled to property through a
donation of his father; still, he will not have a right to more than the
smallest share of any of those children who have always been legitimate.
When children have once been offered to the curia, they are
immediately raised to the rank of legitimate offspring, but We do not permit
them to reject the estate of their father, or refuse to accept a donation
made to them and which they are empowered to receive, nor to renounce their
status. Therefore they will continue to be decurions, and, as We have
previously stated, will be entitled to the share which has been either left
or given to them.
(1) If,
however, the children have, from the beginning, rejected the offer to the
curia, preferring to remain free but natural children rather than to
become more powerful and decurions, and if it should afterwards be
ascertained that they either possess, or have alienated all or a portion of
the property which has been given or bequeathed to them, they shall, even
against their will, be strictly required to fulfill their curial
obligations; otherwise We must consider them as fraudulently evading Our
legislation by attempting to appropriate to their own use the property
acquired through the offer to the curia, and as refusing to comply
with the conditions by means of which they have obtained this advantage.
We decree
that these rules shall be applicable not only to males offered to the
curia, but also to females who marry decurions, for it makes no
difference whether a father complies with curial obligations through the
instrumentality of his male children, or through that of his sons-in-law,
and that he desires, by means of the issue of the latter, to add others to
the number of the former decurions.
CHAPTER
IV.
We decree
that a son rendered legitimate in this manner shall be such only so far as
his father is concerned, and shall not legally be connected with his
father's relatives (We mean by this those to whom the father is born, his
collateral relatives, and his descendants), for We make the said son a
cognate by means of a legal fiction. We direct that where a natural son is
offered to the curia, he becomes the legitimate heir of his father
alone; but We do not intend that this right shall apply to either the
ascendants, descendants, agnates, or cognates of his father, or that he
shall to any extent share in their estates. We, however, grant him an
equitable privilege, for as he does not succeed to his father's relatives,
the latter, on the other hand, can lay no claim to his succession, unless he
may have appointed them heirs, or has been appointed by them, for those who
are offered to the curia only become legitimate so far as their
father is concerned, and are considered cognates.
CHAPTER V.
Therefore
provision should be made for those who, having been rendered legitimate,
become successors. If any person of this kind should have children or
grandchildren who are the offspring of lawful wives, and they have been
regularly created decurions, they will by all means succeed to his estate;
for what is more legal than that a son should be called to the succession of
his own father? If, however, he should have children who are not decurions,
then the legal share of his estate will pass to the Treasury and the
curia, and the remainder, no matter how much it may be, will go to the
children who are not decurions. But where the deceased does not leave any
offspring whatever, and dies intestate, the curia and the Treasury
will be entitled to three-fourths of his estate, as We have long since
decreed, and the heirs called by law shall receive the other fourth; or if
the deceased made a will, the said fourth shall be acquired by the
testamentary heirs. When the law has once accepted a decurion, and his name
has been inscribed in the registry of the curia, it grants him rights
of inheritance and every other succession or advantage. But where anyone who
is a relative or a stranger happens to be appointed heir, and desires to
apply to the government and to offer himself to the curia, he shall
be permitted to do so. He will then be entitled to the share of the property
allotted to the curia, and he will become a successor to the status
as well as to the duties of a decurion, provided the municipality consents.
CHAPTER
VI.
Where,
however, a decurion has no legitimate children but only natural ones, he
shall be permitted to appoint them heirs by bestowing upon them the honor of
the curia. The appointment shall take the place of every offer, and
shall not require compliance with ancient laws, or any offering, as long as
the parents are living; and by the very fact of the appointment of natural
children, when they are free,
they at
once become decurions and heirs, and will be entitled to three-fourths of
the property of their father, in accordance with the distribution which the
latter may have made among them; but if their father wishes to leave them
his entire estate, it will be better for him to do so; still, under all
circumstances, he must leave them nine-twelfths, being well aware that if he
should leave them any less than this, the deficiency will be made up by the
law out of his estate, and then if the children are willing they shall
become decurions: but if some of them desire to become decurions, and others
refuse, the shares of the latter will accrue to the others.
Where,
however, all of them refuse, the curia shall be entitled to the
entire nine-twelfths of the estate, just as if there were no living
children. But if the father should die intestate, without leaving lawful
issue, then the legal share of the estate shall pass to the heirs at law,
and if any or all the natural children desire to do so, they can offer
themselves to the curia, and nine-twelfths of the estate will pass to
him or them who become decurions. Where, however, the children were the
issue of a female slave, and their father either manumitted them during his
lifetime, or offered them to the curia under his will, they shall be
accepted, and become decurions in accordance with the desire of the
testator; or if they wish this to be done, they can offer themselves to the
curia, and shall (as has already been stated) receive nine-twelfths
of his estate; for We wish that, under all circumstances, whether the father
makes a will or dies without doing so, those who become members of the
curia shall receive nine-twelfths of his estate. But where the father
only manumitted his children, and did not offer them to the curia,
and either all, or some of them, wish to become members of it, then the
nine-twelfths of his estate shall be given to him or them who become
decurions. When none of the natural children either desires to become a
member of the curia, or is offered to it, the curia shall be
entitled to nine-twelfths of the father's property. For it is perfectly
clear that the Treasury enjoys this right as laid down by the constitution
enacted by Us.
These are
the provisions made by Us with reference to natural children who become
legitimate by means of their transfer to the curia, so far as they
relate the manner in which they should be offered and to their successions.
CHAPTER
VII.
Three
other constitutions have been promulgated, one of them by Zeno, of pious
memory, which did not fully prescribe rules for the future but only had
reference to the past, and this We have permitted to be inserted into Our
Code, in order not to deprive those persons whom this constitution favored,
or their descendants, of the benefit conferred by the same. So far as the
Constitution of Anastasius, of pious memory, which provided for the adoption
of natural children, is concerned, We do not permit it for the future to
cause any annoyance to Our subjects, and We only allow it to become
operative where it is advantageous to different persons, as We do not wish
to be
thought to
have deprived anyone of these privileges by means of Our laws. For it is
always necessary to begin by introducing what is beneficial, and not to
annul useful regulations which have previously been established by
legislators. We approve the Constitution of Our Father which recommends
moderation, has been drawn up in an orderly manner, and prohibits the
adoption of natural children; which adoption, however, is extremely absurd
and inconsiderately places certain natural children in a superior class to
those who are legitimate.
CHAPTER
Vill.
CONCERNING
THE SECOND METHOD OF LEGITIMATION BY MEANS OF DOTAL INSTRUMENTS.
There are
other methods which have been introduced by Us, and which We shall
enumerate, which grant the right of legitimacy to children who are
originally illegitimate; but We do not discuss their successions, for in
rendering them legitimate We confer upon them the same rights of inheritance
as those enjoy who are legitimate from the time of their birth. Where anyone
has entered into a dotal contract with a freeborn woman, or with a
freedwoman with whom he is allowed to live in concubinage, whether he is
already the father of legitimate children, or has only natural ones, We
decree that marriages of this kind shall be lawful, and that the children
born or conceived before such an union has taken place shall be legitimate,
and that even though after that children may be born, or those who are
already born may die, the first offspring shall, nevertheless, be
legitimate. For the affection entertained for the second children is
disclosed by the execution of the dotal contract, and the father who is
induced to make it himself confers the right of legitimacy upon children
born after the execution of the same, and it would be absurd for any
circumstance favorable to the last children not also to be advantageous to
those born before the contract was executed, and that they should be
prevented not only from enjoying the right of legitimacy but also that of
the inheritance of their father's estate, as the children born after the
marriage become legitimate by operation of law under the terms of the dotal
contract. Hence We make but one disposition of children born before and
after the contract was executed, and We have for the future disposed of all
controversies to which many constitutions gave rise by stating that although
the father may not have had any children after the dotal contract was made,
those that he already has are none the less legitimate. For as other
offspring may be born to him, and he has been able to divest those, who came
into the world before the dotal contract was drawn up, of the condition of
natural children, the proof of his affection for them gives them the right
of legitimacy, and there is no stigma which it does not effectually remove.
(1) In
addition to this it is, for good reason, added that, if a child conceived
before the dotal contract was drawn up should be born afterwards, it will be
the lawful issue of him who was qualified to
execute
such a contract in conformity with Our former Constitutions; and We have
been induced to enact this provision because it relates to the order in
which children are born. For as a doubt arose whether it was necessary to
consider the date of conception, or that of the birth of children, We hereby
decree that not the date of their conception but that of their birth must be
taken into account, because of the benefit which will accrue to them by
doing so. If, however, it should happen under certain circumstances that the
date of conception will be more advantageous to them than that of birth, We
then direct that the time which is more beneficial shall be considered.
CHAPTER
IX.
CONCERNING
THE THIRD METHOD OF LEGITIMATION BY MEANS OF IMPERIAL RESCRIPTS.
We also
decree that where anyone desires to render his offspring legitimate, and
their mother is no longer living, or if he is greatly attached to his
children and their mother is not without blemish in his eyes, and he does
not deem her worthy of lawful marriage; or because the mother is dead, or he
has no respect for her; or he has been treated badly by his children who
have designedly concealed their mother to prevent her estate from going to
their father who would otherwise be entitled to it, and to prevent him on
the death of their mother from enjoying the use and usufruct of her property
by law, through having children under his control; under such circumstances
where a father who has no legitimate children, but only natural ones,
desires to render them legitimate, and if (as We have just stated) their
mother is dead, or if she is living but bears an evil reputation; or where
she does not appear; or in case it is impossible for the father to draw up a
dotal instrument with her (as would be the case where either of the parties
entered the priesthood), We grant him authority to legitimate his natural
children if (as has already been stated) he has already no legitimate issue;
for as there are methods of rendering slaves at the same time free and
freeborn and restoring them to the condition of nature, so, if a father has
legitimate children, whether they are the offspring of a freeborn woman or
of one who has been manumitted, and he desires to restore them to their
natural condition of freedom, render them legitimate for the future, and
have them under his control, he can do so by virtue of an Imperial Rescript.
For in the
beginning when Nature alone had power over men, and before any written laws
were enforced, the distinction between natural and legitimate children did
not exist, but the first children born to Our first parents, as well as
those who subsequently came into the world (as We have stated in the
beginning of the present law) were legitimate. So far as offspring are
concerned Nature originally created them all free, and only produced
legitimate children, and as wars were the cause of servitude, so it was the
inclination of mankind to concupiscence which gave rise to the law relating
to natural children.
Wherefore,
since it is proper to correct similar passions by corresponding remedies,
one has been introduced by Our predecessors, and the other by Us.
(1) Hence,
in cases like those above mentioned, when a father leaves the mother of his
children in her original condition, he shall be permitted to apply to the
Emperor, stating that he desires to restore his offspring to nature and
their former freedom and legal rights, and that he desires them to be under
his control, and to differ in no respect from those who are legitimate. This
having taken place, his illegitimate children shall hereafter enjoy the
benefit of legitimation, for We desire to correct unnatural prejudices, and
at the same time direct the course of those who have no lawful issue, so
that by this brief provision such a violation of natural laws may be
remedied.
CHAPTER X.
CONCERNING
THE FOURTH METHOD OF LEGITIMATION BY MEANS OF THE WILL OF THE FATHER
CONFIRMED BY THE
EMPEROR.
If,
indeed, he who is only the father of natural children has not, on account of
certain accidental circumstances, been able to render them legitimate in the
ways which We have already mentioned, but at the time of his death desires,
under any of the aforesaid conditions, to execute a will by which his
children may become his lawful successors, We grant him the authority and
permission to do so; but the children, after the death of their father, must
petition Us, make a statement of the facts, and produce the will, and then
they shall be heirs according to law, and shall obtain the gift of
legitimation at the same time from their father and from the Emperor, that
is to say, from both Nature and the law.
CHAPTER
XI.
Generally
speaking, We desire that this Constitution shall be applicable to all
children who are rendered legitimate in the ways in which We have just
enumerated. But if fathers are not permitted to relinquish the right of
paternal authority without the consent of their children, there is much more
reason that a child should not be subjected to such authority against his
will, and as if he feared to follow the fortunes of his father by being
placed under his control, whether through being offered to the curia
by virtue of the execution of a dotal contract; or any other way; and We do
not think that either the legislator or the government should have power to
do this.
(1) Where,
however, there are several children, and some of them desire to be under the
control of their father, and others do not, those who wish to be legitimated
shall have that right conferred upon them, and the others shall remain in
their natural condition.
We
establish this rule without abolishing any of the preceding methods of
legitimation, and We only add it to the others in cases
where the
latter are not available; for where there are only legitimate children and
afterwards natural children are born, legitimation is not acquired by the
latter, unless by offering them to the curia, or in accordance with
Our Constitutions which have introduced the method of legitimation by means
of dotal contracts.
(2) We do
not think that the method of adoption formerly introduced by certain
Emperors, Our predecessors, is reprehensible, but We abolish it in
accordance with the terms of the Constitution promulgated by Our Father, as
it does not pay sufficient regard to chastity; and, besides, it would not be
advisable for regulations which have once been duly abrogated to be again
introduced into the government.
Therefore
these things having been ordered by Us, and We having stated in what way it
is proper for the right of legitimation to be transferred to the Roman City,
nothing need be provided with reference to the succession of children of
this kind, for the same rule applies to these successions which governs
those of other children who were legitimate at the time of their birth.
CHAPTER
XII.
CONCERNING
THE SUCCESSIONS OF ALL NATURAL CHILDREN.
Thus
children who are rendered legitimate are to be distinguished from those who
continue to remain natural, and We will now proceed to treat of the
successions of the latter. It pleased Valentinian and Gratian, of Divine
memory, to establish humane rules with reference to this subject; hence
where the father of natural children has legitimate offspring, the
above-mentioned Emperors rendered them capable of acquiring one-twelfth of
his estate along with their mother, and forbade anything else to be given
them by a last will. Where there were no natural children, they allotted
only half of one-twelfth to the concubine, provided always that the man had
no legitimate wife (and they made this provision applicable to men who had
but one concubine) .
If,
however, the fathers of natural children have no lawful issue, and the said
children have neither father nor mother, they are permitted to leave or give
their own natural children, conjointly with their mother, a share of their
estate, up to one-fourth of the same; and where the natural children have
received more than that amount, the surplus shall revert to those who are
legally called to the succession. This is what the sons of the elder
Theodosius decreed, although they were far from making it perfect.
(1)
Therefore We, although We have already enacted a humane law, and have
granted to natural children, through the generosity of their father,
one-half instead of a quarter of his estate, when he has no legitimate
children living, still, for subsequent reasons, after more careful
consideration, and desiring to show greater indulgence, We enact the present
law. As fraud was frequently committed, which is
indeed the
case at the present time, We desire to free men from impiety, for certain
parents who are not at liberty to leave their natural children as much as
they wish select third parties whom they appoint their heirs, and direct to
transfer their property to their children. The latter, however, often act in
a wicked manner, and refuse to comply with the will of the testator, and
(what is considered even more reprehensible) they perjure themselves. We
have nothing to say with reference to what has been stated concerning
individuals of high rank who, in former times, were guilty of similar
offences.
(2) Hence,
in order that We may not permit things of this kind to be done in the
future, and that We may prevent natural children from performing acts that
strangers and unknown persons are not allowed to perform, We order, by the
present law, that where a father has legitimate issue, he cannot either
leave or give his natural children more than one-twelfth of his estate (for
We hold that this is the purport of Our former Constitution), and if he
should, under any pretext whatsoever, attempt to give them anything more, it
shall accrue to the legitimate children, or where there are no natural
children but only a concubine, We permit one-twenty-fourth of the estate to
be left or given to her.
(3) Where
the father has no legitimate children, nor any ascendants to whom the law
compels him to leave a specified share of his own estate, he will be
permitted to appoint his natural children his heirs to all his property, to
divide it among them at his pleasure, and to transfer it to them by ordinary
or ante-nuptial donations, or by means of a dowry, or in any other lawful
way whatsoever. Thus fathers will have no need to avail themselves of the
services of a third party who may be inclined to dishonesty or perjury, but
they can apportion their estates absolutely under the terms of the will.
Where,
however, those whom We have previously mentioned have any ascendants, they
must leave them the share that We and the law have prescribed, and they will
be at liberty to bequeath all the remainder of their property to their
natural children. We have made these rules applicable to persons who dispose
of their estates by written and legal wills.
(4) If,
however, anyone should die without leaving legitimate issue (We mean by this
children, grandchildren, and their descendants), or a lawful wife, without
making any disposition of his estate, and any cognates, or even his
emancipator should appear and demand possession of the property, or even Our
Treasury should do so (for We do not make any exception of it under these
circumstances), and if, during his lifetime, the deceased had lived with a
free woman in concubinage and had had children by her (We only make this
rule applicable where the concubine resided in his house, or his children
did so, and there was no question as to his affection for her), We grant
them maintenance and the right to take one-sixth of the estate of their
deceased father, in case he should die intestate; which said one-sixth shall
be divided by their mother in such a way that the latter shall receive a
share equal to that of each child.
We
establish this regulation where the father lived with a single concubine, or
had children either by her or some other concubine, who was either dead or
had been separated from him, and whose children resided in his house; for
then We grant them the right to claim one-sixth of his estate in case he
should die without leaving a will.
(5) But in
case a man was so given to concupiscence that he had several other
concubines in addition to the first, and was in the habit of committing
fornication with a multitude of women, who were harlots (for this is the
proper expression to use), and when he died had children by them as well as
several concubines, a man of this kind is utterly contemptible, and shall,
together with his children and his concubines, be entirely excluded from the
benefits of this law. For as, when anyone is married to a lawful wife, he
cannot, during the existence of the marriage, contract any others, and by
reason of them have legitimate children, so, neither after he has
acknowledged the concubine in the manner in which We have mentioned, and has
issue by her, and is guilty of any other act of licentiousness, We do not
allow his children to be admitted to his succession, if he should die
intestate. For if We did not provide for this, no difference- would exist
between women for whom the deceased had entertained more or less affection,
nor would any distinction be made between the children, and We do not enact
this law for the benefit of debauched men, but for such as are reputable.
Nor do We discriminate between male and female children, because, since
Nature made no distinction between them, We do not enact one law for women
and another for men.
(6) If
anyone (for it is necessary to make use of every proper and pious resource)
who has legitimate children leaves any natural ones, We desire that the
latter shall be entitled to nothing whatever in case their father should die
intestate; but We direct that they shall receive from the legitimate
children a certain sum for their maintenance, in proportion to the value of
the estate of the deceased, which shall be determined in accordance with the
judgment of a good citizen.
This rule
shall be observed even if the decedent had a wife, and his natural children,
although they were born of a concubine who subsequently died, shall be
supported by his successors.
What We
have already decreed with reference to natural grandchildren shall remain in
full force.
CHAPTER
XIII.
In cases
in which We have called natural children to the succession of their father,
and also in those in which they show proper respect to their parents, the
natural children shall be under the same obligations to their parents that
the latter should entertain for them, so far as their succession or their
maintenance is concerned, as We have previously provided.
CHAPTER
XIV.
But as it
has already been set forth in certain constitutions that curators must be
appointed for children in order to administer prop-
erty given
or left to them by their father, and as this rule should be preserved, We
hereby confirm it; granting to the mother (in accordance with what has
already been ordered) the right of administering the guardianship of the
natural children, and of doing in this respect everything which has been
enacted with reference to legitimate issue.
CHAPTER
XV.
THE
OFFSPRING OF INTERCOURSE PROHIBITED BY
LAW SHALL
NOT BE ENTITLED TO SUPPORT BY
THEIR
PARENTS.
This last
part of Our law demands proper arrangement, and an enumeration of those who
are unworthy of even the name of natural children. And, in the first place,
all children who are born of the intercourse (for We do not call this
marriage), which is either infamous, incestuous, or prohibited, are not
designated natural, and should not be supported by their parents, nor shall
they be entitled to share in any of the benefits of the present law.
Wherefore, although certain provisions with reference to children of this
kind were included in a Constitution addressed by Constantine, of pious
memory, to Gregory, We do not adopt them, as they have been abolished by
non-usage. For this Constitution refers to Phceniarchs, Syriarchs,
magistrates, and illustrious persons, and does not provide that the issue of
these should be natural, but even deprives them of the benefit of Imperial
munificence. We absolutely repeal this Constitution.
(1) These
things have been decreed by Us, in order that ignorance of Our laws may not
exist, and that all persons may know what children are legitimate and what
are natural, and how the latter are rendered legitimate; and that those who
continue to be natural should be treated with humanity, and also how they
become eligible to certain honors, and in what way they may be distinguished
from those who are unworthy of being called natural.
EPILOGUE.
Your
Highness will, by means of suitable proclamations, communicate to all
persons the provisions which it has pleased Us to incorporate in this law,
in order to correct the abuses prevalent among mankind, and supply the
deficiencies of nature, so that in this way Our subjects may become familiar
with these matters, and be informed of Our solicitude for their interests,
and that We prefer their welfare to every other consideration.
Given at
Constantinople, on the Kalends of September, during the thirteenth
year of the reign of Our Lord the Emperor Justinian, and the Consulate of
Appio.
TITLE II.
CONCERNING WITNESSES.
NINETIETH
NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
The
practice of introducing witnesses for establishing proof has long been
prevalent in order to prevent plaintiffs from easily concealing facts, and
to prevent actions from running the risk of being lost through the
fraudulent inclinations constantly existing in the minds of men. For it is
not merely for the purpose of rendering matters more clear that witnesses
are introduced, but to increase the certainty of the testimony. For when
persons, being well aware of what has taken place, make statements which are
either contradictory or false, they show, by such a course, that they are
unwilling that the truth should become known and judgment be rendered in
accordance with it; for they state occurrences which never existed, and ask
that their allegations shall solely be taken into consideration in the
determination of the case. For when the parties, being aware of certain
facts give conflicting evidence, or make statements that are absolutely
false, they, by means of this very fact, show that they do not wish the
truth to become known, or a decision to be promulgated in accordance with
it; but they give evidence concerning matters that never existed, and seek
to have judgment rendered upon such testimony. It would therefore be
extremely inadvisable to exclude the testimony of experienced witnesses,
since there are many facts which cannot become known except by the
introduction of evidence. Former legislators, indeed, forbade persons of
abject condition to testify, but they introduced many exceptions to this
rule, and even deprived many of the privilege of giving testimony. But as,
in spite of these prohibitions, the statements of witnesses are not always
correct, We have deemed it proper to add something to this subject, and to
diminish as far as possible the amount of false testimony.
We have
just learned of a case which occurred before the illustrious judge of the
Province of Bithynia with reference to a will, in which witnesses were
convicted and found guilty of the worst kind of forgery; for at the time the
will was executed the testatrix was actually dead, but some of the witnesses
held her hand for the purpose of making a cross, so that she would be
believed to have herself traced this venerable symbol, which they themselves
had made upon the paper. Therefore We, having carefully considered this
matter, thought that it was necessary to enact certain rules with reference
to the production of witnesses, as well as others concerning their civil
status. Hence We confirm, without exception, the regulations enacted by
legislators with reference to certain persons being forbidden to testify.
CHAPTER I.
WITNESSES
SHALL NOT BE ADMITTED TO TESTIFY UNLESS
THEY ARE
OF UNBLEMISHED REPUTATION, OR JUDICIAL
WITNESSES.
We
especially decree with regard to this Great and Most Fortunate City where
(through the favor of God) there is a very x-large number of estimable men,
that witnesses must be persons of good reputation, or not liable to
suspicion because of their rank, office, wealth, or dignity ; and when they
do not belong to these classes, that they shall be considered as worthy of
confidence by both parties; and if this be the case they can testify.
Artisans, however, whose employment is ignoble, or who belong to the lowest
order of society and whose civil status is obscure, shall not be allowed to
give evidence; and where any doubt as to their competency exists, it can
easily be removed by showing that their lives are regular and blameless.
(1) If,
however, any witnesses, who are absolutely unknown, appear to attempt to
pervert the truth, they may be subjected to corporeal punishment; and if the
judges are magistrates, they themselves can inflict it. But where they are
not of such rank, they must, in this City, apply to an official of the Most
Magnificent Praetor of the People, and, in the provinces, to the public
defender; and by means of them scourge the witnesses until they no longer
conceal the truth, or until they acknowledge that they have been induced to
give their testimony in consideration of the payment of money, or that they
have been actuated by malice.
CHAPTER
II.
WITNESSES
TO THE PAYMENT OF A PECUNIARY DEBT EVIDENCED BY A WRITTEN INSTRUMENT SHALL
NOT BE SELECTED BY CHANCE; AND CONCERNING WITNESSES TO DOCUMENTS IN GENERAL.
Although
We have, for a long time, forbidden oral evidence to be given of the
discharge of an obligation contracted by a written instrument, unless in
accordance with the rule which We have prescribed, We, nevertheless, now
revoke this provision. For where a debt is based upon a written contract,
and oral testimony given by witnesses of the payment of the same is produced
by the parties interested, We desire it to be admitted by the judges,
provided the witnesses are men worthy df confidence, and are called for the
purpose of testifying as to the payment of the debt, arid to prove it was
made to someone, or to testify concerning the admissions of the person who
has received the property; for it is in this way that witnesses establish
the facts by their evidence. But We do not desire that frivolous testimony,
based upon what has been heard while people are passing, should, under any
circumstances, be valid; or that the evidence of those who state that they
met certain persons accidentally, and heard them say
that they
had received money from someone, or that they were indebted to another.
Statements
of this kind seem to Us to be absolutely suspicious, and deserving of no
attention whatever; and We have sometimes encountered similar ones while
dispensing justice, when, for instance, the claim is made that a x-large sum
of money has been paid, and two notaries have alleged that they were present
at the payment of the same (but there was no witness to this), and that the
debt was contracted in writing, while it was well known that the creditor
knew how to write, and could in his own hand have rendered the release of
the debtor clear beyond all doubt. Hatred for occurrences of this kind has
induced Us to enact the present law.
Another
similar case has recently been brought to Our attention, in which a certain
individual, in the presence of witnesses summoned expressly for that
purpose, and before a notary, acknowledged that he owed a debt. He did this
for money, having taken the place of the true debtor, and having afterwards
died, the amount was collected from the first debtor, while it was actually
due from the one who had acknowledged that he owed it. God does not allow a
transaction of this kind to remain concealed.
CHAPTER
III.
TESTIMONY
SHALL BE REDUCED TO WRITING, AND WHY THIS is DONE.
Therefore
We place no confidence in such testimony, nor (as We have already stated) in
the statements of notaries, for the reason that when persons are educated
and wish to acknowledge anything, they should do this in writing, or in
court, and thereby render it indubitable. We do not permit evidence liable
to suspicion to be accepted as true, and where any of this kind is given We
do not admit it; but We require witnesses to testify as to the very
transaction when they were called to acknowledge the execution of an
instrument by the person who produces them; and it is necessary (which is
the case where wills are concerned) that the witnesses should be summoned
expressly for that purpose, and should be persons of good repute, for under
such circumstances testimony obtained from them will be positive; but We
forbid any statement to be admitted as to the execution of an instrument,
when the witnesses were not present and did not sign it.
Where
witnesses are not of high rank (as We have previously stated) they shall be
subjected to torture; and where they openly contradict one another, the
judges must be careful to notice this, and if they should ascertain that
their statements are not true, they shall reject them, and accept such as
they may decide to be more worthy of confidence, and which are established
by thex-large r number of witnesses. If it should appear that the witnesses
fraudulently and maliciously contradict one another, they shall not go
unpunished,
unless it
can be proved that this was due to an accidental error, and not through
design.
CHAPTER
IV.
WITNESSES
SHALL NOT BE PRODUCED A FOURTH TIME WHEN WHAT THEY TESTIFY To Is ALREADY
KNOWN; OR, IN OTHER WORDS, How MANY WITNESSES SHALL BE PRODUCED, AND IN WHAT
WAY THIS SHOULD BE DONE.
For the
reason that many persons repeatedly produce witnesses even up to three
times, and then annoy Us by their applications, desiring to be permitted to
take their testimony a fourth time, We direct Our judges to give special
attention to this, and where witnesses have been produced three times, not
to allow this to be done again by the party who has already offered them,
and has accepted their testimony; since there is reason to fear that it may
be set aside, and that he who demands a new hearing may be less desirous for
the production of the witnesses than that some explanation or correction of
the preceding evidence may be made.
But where
anyone, after having produced witnesses, has not yet accepted their
testimony, or they have not completed it whether he himself, or one of his
advocates, is responsible for this, and his adversary alone has accepted the
testimony, or has disputed it without, however, having communicated the fact
to him who has already presented the witnesses three different times, and if
the party who produced them suspects that they have not told everything, and
demands that they add to their testimony, under such circumstances a fourth
production of the witnesses shall be granted him; but he must first be sworn
that neither he himself, nor his advocates, nor any other persons acting in
his behalf, have suppressed any evidence or requested this to be done; and
that it is not through fraud, design, or artifice that he asks that a fourth
production of the witnesses may take place, but for the reason that he has
not been able to avail himself of the testimony previously given. If he
should do this, he will not have need of an Imperial order which was
formerly necessary, but the provisions of this law will be sufficient, and
he can cause the witnesses to testify a fourth time. He is, however,
forbidden to produce them again, in order that an excuse may not be made to
protract the litigation, for We desire the judge to dispose of it with all
speed, in accordance with his good judgment.
(1) There
is, however, no doubt that although he may have produced the witnesses only
once or twice, if their statements have been contradicted, or if his
adversary having done this, he should accept it as true, and in this way
should have ascertained what the evidence was, he shall not be permitted
thereafter to again produce the witnesses, even if an Imperial order should
direct him to do so.
CHAPTER V.
WITNESSES
SHALL ONLY BE EXAMINED IN THEIR OWN PROVINCE AND IN THE LOCALITY WHERE THEY
ARE
CALLED.
We are
aware that a law has long existed which provides that if anyone should bring
suit in this City, the evidence must be given in the provinces where the
witnesses reside; and that the plaintiff shall have the right (with the
permission of the judge who shall grant a sufficient time) to take the
testimony of the witnesses in the province; and that, after this has been
done, the party in question shall bring the suit back to this City, in order
that it may be decided by the judge having jurisdiction of the same. But
many applications are made to Us asking that persons who are involved in
litigation in the provinces and have witnesses here may have them heard
under the law which We have just mentioned, and that the provincial judge
may be empowered to direct that the witnesses residing in this City be
produced and heard there, and that after this has been done, the case may
again be submitted to him; and as it is also requested that this rule be
made applicable in the provinces, in order that evidence may be obtained, We
authorize provincial magistrates to have witnesses heard here, and that any
evidence given by virtue of their decrees shall be taken by one of the most
eloquent judges appointed by Us for hat purpose; that the evidence can be
given in a different province from the one where suit was brought, either
before the defender or the Governor, by virtue of an order of the court
having jurisdiction of the case; and that a final decision shall be rendered
where proceedings were originally instituted.
We desire
that what has been enacted with reference to witnesses whose production here
has been ordered in the provinces shall also be applicable where such
production is ordered from one province to another, or from a province to
this city, and that authority to furnish evidence shall be granted to all
persons. The testimony of witnesses shall not be given in a province without
a written order being issued to those who have produced them, or to their
adversaries. This order shall bear the seal of the Registry, and shall be
despatched by the judges here or in the provinces, in order that if the
nature of the litigation requires other witnesses, they may not be excluded
on account of their statements.
We
understand that all that has been previously said only relates to pecuniary
cases, for where criminal proceedings in which there is great risk to run
are instituted, We desire that witnesses shall invariably be produced before
the judges having jurisdiction, as under such circumstances it may be
necessary to employ torture and other measures.
CHAPTER
VI.
THE
TESTIMONY OF A WITNESS WHO is ALLEGED TO BE A
SLAVE
SHALL BE RECEIVED, AND CONCERNING THE STATUS
OF
WITNESSES.
If,
however, the person who wishes to testify js said to be of servile
condition, but he himself states that he is free, evidence as to his birth
shall be furnished, and the trial of the case shall remain in abeyance until
this has been done; so that if the status of the witness is provide to be
servile, his testimony shall be just as if it had not been given at all.
When, however, the witness alleges that he is free, he shall be compelled to
produce the document by which freedom was conferred upon him, and after that
he can testify. If he alleges that he received his freedom in another
province, or that it is not easy for him to furnish proof of it, and he
makes oath to this effect, his evidence shall be committed to writing; but
where the instrument evidencing his manumission is not produced, the party
who has called the witness cannot avail himself of his testimony.
CHAPTER
VII.
WITNESSES
SHALL BE EXCLUDED FROM TESTIFYING ON ACCOUNT OF THEIR ENMITY; AND CONCERNING
HOSTILE
WITNESSES.
If,
however, anyone should say that a witness who was about to testify is
hostile to him, and he proves that, at the very time, he is involved in
criminal proceedings with him, the hostile witness shall not be admitted to
testify until the criminal case has been disposed of. When he is said to be
hostile for some other reason, for instance, because he has been sued for a
sum of money, his testimony shall be taken, but it will not be available
until the litigation between the witness and the party to the action shall
have been disposed of.
CHAPTER
Vill.
MEDIATORS
SHALL NOT TESTIFY UNLESS WITH THE
CONSENT OF
THE PARTIES, AND CONCERNING THE
EVIDENCE
OF BROKERS.
As We have
enacted a law having reference to civil cases by which We forbade persons
who have been mediators between parties litigant to testify, and certain
magistrates carry the application of this rule too far, and do not permit
the evidence of mediators to be accepted under any circumstances, We order
that, if both parties consent, he who has acted as mediator between them
shall be permitted to testify (for this kind of evidence is admissible), and
that he may even be compelled to do so if he refuses, for the prohibition
imposed by Our law upon mediators giving testimony is removed by the common
consent of the parties.
CHAPTER
IX.
THE
PRODUCTION OF WITNESSES SHALL NOT TAKE PLACE EXCEPT IN THE PRESENCE OF THE
ADVERSARY, AND AT WHAT TIME WITNESSES SHALL BE ADMITTED TO TESTIFY.
As We are
aware that certain persons frequently appear before defenders or the
illustrious Governors of provinces, or, indeed (as is usually the case) in
this City before the Illustrious Master of the Census, and complain to these
officials of having suffered injustice from someone, and of having been
injured or subjected to loss, stating that they desire to produce witnesses
to establish their allegations, We decree that hereafter witnesses shall
only be opposed to those who have testified in the presence of one party,
and that the defendant who resides in the city in which the evidence was
taken shall be notified by the judge, or the defender, to be present when
the testimony is taken.
If,
however, the defendant should refuse to appear, with a view to rendering the
evidence given in the presence of one party alone of no effect, We order
that testimony of this kind shall be just as valid as if the defendant had
been present when it was offered. For if he refuses to appear when the
witnesses are heard (as their evidence is given in public), he will be
considered to have been present, unless he may have been excused for some
good reason; his bad faith will be of no advantage to him, but the proofs
will be deemed to be sufficient, no matter what benefit may result from the
insolence of him who produced them, and he will be allowed to make use of
them though they may have been given only in the presence of one of the
litigants; for he who did not appear cannot, by his presumption and
audacity, prevent the evidence from having its effect.
All other
provisions with reference to witnesses, which Our predecessors or Ourselves
have prescribed, shall continue to remain in full force, and be observed by
Our superior or inferior judges in this City, as well as in the provinces;
in'order that by remedying, as far as possible, what relates to witnesses,
We may cause litigation to be conducted with more regularity and purity than
formerly.
We order
all magistrates to take cognizance of cases in the presence of the Holy
Gospels, and We also direct that plaintiffs, defendants, and advocates shall
be sworn; for God always keeps in view the souls of judges, litigants, and
witnesses, and His constant presence in lawsuits should remove all fraud,
and place the parties to actions beyond suspicion.
We desire
this law to remain in force for all time.
EPILOGUE OR PROMULGATION.
Your
Eminence will hasten to carry into effect the matters which it has pleased
Us to include in this Imperial Law.
Given on
the fifth of the Kalends of October, during the thirteenth year of
the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE III.
WHEN THE
PAYMENTS OF THE DOWRIES OF THE FIRST AND SECOND WIVES ARE BOTH DUE, THE
FIRST WIFE, OR THE CHILDREN WHO ARE THE ISSUE OF THE PRIOR MARRIAGE, SHALL
BE PREFERRED; AND IF THE WIFE, OR SOMEONE WHO HAS PROMISED A DOWRY FOR HER,
WAS WILLING TO PAY IT TO THE HUSBAND, AND THE LATTER NEGLECTED TO RECEIVE
IT, THE WIFE CANNOT, AT THE DISSOLUTION OF THE MARRIAGE, EXACT THE PAYMENT
OF THE ANTE-NUPTIAL DONATION.
NINETY-FIRST NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
The dowry
of the first wife shall have preference over that of the second, whether she
or her children demand it or not.
PREFACE.
When, a
short time ago, We were hearing a case, a doubtful matter arose which
requires amendment, and is not unworthy of more definite legislation. After
a man had buried his wife, he obtained the dowry of another, and then died,
leaving children by both marriages. The second wife, taking advantage of the
privilege which We have granted, desired to collect the dowry which she had
brought to her husband; the children by the first marriage, however,
objected to this, at the same time claiming the dowry of their mother, and
it was doubtful whether, as the first wife was no longer living, her
children could be permitted to contest the payment of the dowry of the
second; for We did not formerly, nor do We now grant this privilege to
anyone else, even to heirs or creditors, for We confer it upon the children
exclusively.
This case
presented many difficulties, for the second wife stated that before her
husband married her, he had already squandered the dowry of the first wife,
and that it was not just that, as he had only left enough to pay her own
dowry, she should be compelled to lose it, and that the children by the
first marriage should receive a dowry which had already been wasted. The
latter, however, on the other hand, pleaded the privilege of hypothecation,
and stated that as long as any property of the deceased existed, prior
hypothecation of the same should take precedence of subsequent ones.
CHAPTER I.
Therefore
this question being involved in doubt, in order to arrive at certainty, it
was decreed by Us that where any article included in a first or second dowry
was still in existence, the children of the first or second marriage should
respectively be entitled to it; or when the second wife was dead, her
children should be entitled to whatever
they could
prove belonged to them; for where dowries are still in existence, it is
proper that each one should take what belongs to him without having need of
any privilege. But where no article composing the dowry of either of the two
women was still in existence, or if some of the articles were, and some were
not, and both wives were living, for instance, where the first marriage had
been dissolved by repudiation, in which case the wife would have a right to
the dowry; or where both wives were dead, and had left children; or where
only one of them was dead; We give preference to the older dowry, and, by
way of compensation for property which is not to be found, We recognize the
superior claim of the first wife, her children, grandchildren,
great-grandchildren, and other successors, no matter who they may be; for in
the case of public debts the older is preferred to the more recent, and it
is actually necessary that in the case stated priority should be conceded to
the first dowry over the second. We do not, however, give preference to one
dowry over another, or to one hypothecation over another; but whatever is
prior in point of time shall have greater force, and be entitled to
privilege. We, by no means, permit hypothecations to be changed, annulled,
or diminished.
We
establish this rule, being well aware of having already enacted it in
another part of Our jurisprudence, but as this case was brought before Us,
and has given rise to different questions, We promulgate the present law
rather with a view to elucidating Our legislation than for the purpose of
prescribing something more advantageous.
CHAPTER
II.
WHERE A
HUSBAND is TO BLAME FOR NOT HAVING THE DOWRY PAID TO HIM.
It is also
advisable to add to the law the following provision, as a question arose
which has rendered it necessary for Us to do this. Where a woman owed her
dowry, and she herself wished to pay it; or where someone, either a relative
or a stranger, promised it for her, whether it be profectitious or
adventitious (for these are the legal terms), but her husband or his father
refused to accept it, and it is proved that the woman was ready to pay it,
or even to do something in addition; as, for example, where she tendered the
dowry, or, it consisting of movable property, she sealed it up, or deposited
it in conformity with Our laws; or having herself appeared alone in court,
she demanded that the dowry should be deposited, and the court officials
subsequently notified her husband of the fact, and the latter was guilty of
negligence; he cannot, after the marriage has been dissolved, refuse payment
of the ante-nuptial donation under the pretext that he has not received the
dowry.
Whenever a
creditor, to whom a debt is tendered, refuses to accept it, he who has been
willing to discharge the obligation in some respects resembles one who has
paid, and so far as a dowry is concerned, a tender is equivalent to payment.
For, where anyone who has prom-
ised a
dowry refuses to give it, We permit the ante-nuptial donation also to be
refused; and, for the same reason, when anyone who has promised a dowry is
willing to give it, and he who is entitled to receive it fraudulently
declines to do so, We grant the petition for the recovery of the
ante-nuptial donation, since the husband is to blame for nonpayment of the
dowry.
EPILOGUE.
Your
Highness will hasten to carry into effect the matters which We have been
pleased to include in this Imperial Law.
Given at
Constantinople, during the thirteenth year of the reign of Our Lord the
Emperor Justinian, and the Consulate of Appio.
TITLE IV.
CONCERNING
IMMENSE DONATIONS MADE TO CHILDREN.
NINETY-SECOND NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
We have
recently enacted certain legislation having reference to the Falcidian Law
and its portion, and have made no unimportant addition to it, for the reason
that its provisions were inequitable, and it did not please Us; still, it is
necessary to give preference to children whom the father may wish to favor,
not, however, to such an extent as to render the diminution suffered by
others intolerable.
CHAPTER I.
Therefore,
as the law enacted by Us remains in full force. We desire that if anyone
should make an immense donation to one or more of his children it will, in
the distribution of the estate, be necessary to reserve for each one of them
the share to which he or she was entitled by law before the father made the
donation to the child or children whom he honored in this way. Hence, those
who obtain their lawful share of the whole of their father's estate cannot
claim any of the donation, but the shares of the children will be increased
in proportion to the value of said estate, as it was before it was exhausted
by the donations; the children to whom they were given cannot allege that
they are content with these immense gifts, and that they will not claim
their father's estate; and while it is true that, if satisfied with the
donations, they cannot be compelled to accept the estate, still they will be
forced to make up to their brothers the share which We have decreed by Our
law, in order that the excessive amounts of the gifts may not deprive the
lawful heirs of that to which they are legally entitled, especially where a
father who acts wisely and judi-
ciously
towards all his offspring is allowed to give more to the children for whom
he entertains greater affection, but not to injure others by the immensity
of his donations, as well as to disobey Us. And, indeed, this was Our idea
from the beginning. But as We have allo'wed this parental injustice to
continue for a considerable time, now that We have become more familiar with
the human mind, and have seen parents give way to their passions, We make
this addition to Our preceding laws.
(1) We
decree that this rule shall apply to children who have shown proper respect
to their parents, but not to those whom their father reproaches for
veritable ingratitude. For if he should appear to suffer from it, and the
existence of ingratitude should be established, what has been proved by the
law with reference to ungrateful children shall remain in full force, and
shall not be changed in any respect.
EPILOGUE.
Your
Highness will hasten to provide for the execution of what We have been
pleased to set forth in this Imperial Law.
TITLE V.
CONCERNING
APPEALS. NINETY-THIRD NEW CONSTITUTION.
WHEN,
AFTER A CASE HAS BEEN BROUGHT BEFORE AN APPELLATE JUDGE, THE LITIGANTS
RESORT TO ARBITRATION, AND THE TERM OF Two YEARS HAS EXPIRED, THE APPEAL CAN
BE RENEWED BEFORE THE SAID APPELLATE JUDGE, AND THE EXPIRATION OF THE SAID
TERM OF Two YEARS CANNOT BE PLEADED.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
The
demands of Our subjects afford Us an opportunity to enact laws for their
benefit. A certain patron stated the following case, namely: A law is in
existence which provides that where an appellant keeps silent, or a
plaintiff does not prosecute his case for two years, he shall be deprived of
the resource of appeal, and cannot proceed further with it, and the decision
which has been appealed from shall be affirmed, and shall become obligatory
upon both parties.
A certain
Hesychius and his adversary had a lawsuit before an ordinary judge, and
Hesychius, having had a decision rendered against him, took an appeal, which
was brought before your tribunal. While the case was pending before you, the
parties abandoned it, and appointed arbiters for its settlement; but this
proceeding was also abandoned, and the parties did not conduct the case to a
conclusion before them, and the two years having elapsed, the adversary of
Hesychius
now alleges that the suit can no longer be prosecuted in your court by the
party who lost it, but the decision must be ratified, as the said term of
two years has expired; and he also states that Hesychius cannot proceed
further in your tribunal for the reason that he had taken the case before
arbiters.
CHAPTER I.
Therefore
We order that the matter which We have just mentioned shall, in no way, be
prejudiced by lapse of time, and that the decision of the first judge shall
not be affirmed after an appeal has once been taken from it; but that the
case shall continue to be conducted to judgment before Your Glory, even
though two years, or ten thousand more, may have elapsed. Hereafter, in
every instance in which anything of this kind happens, and, after a case has
been brought before the appellate judge (or where this has not yet been
done), arbiters are appointed, and a delay of two years subsequently takes
place, within which term the appellate judges are required to dispose of
litigation; and the suit should, for some reason or other, be returned to
the court of appeal, all the parties to the same shall be allowed to conduct
it to judgment, just as if they had not abandoned the appellate court to
have recourse to arbiters, and without anyone being able to plead the
expiration of the two years in bar of further proceedings. For it is not
just for him who has once chosen other judges to be allowed to take
advantage of the silence of the injured party, on the ground that he
entrusted his case to arbiters, and did not prosecute the case before the
appellate judge because it had been submitted to arbitration.
EPILOGUE.
We desire
that these rules shall be observed in every transaction in your tribunal, as
well as in every other in which appeals are determined, so that Our subjects
may be subjected to no injustice. If, however, the term of two years should
elapse after the parties have abandoned arbitration, then We wish the
original decision to be affirmed in accordance with the provisions which We
have laid down, and which shall hereafter be observed in every instance. All
other laws which have heretofore been enacted with reference to proceedings
on appeal and have been included by Us in Our Code of Laws shall remain in
full force.
TITLE VI.
MOTHERS
WHO ARE EITHER THE DEBTORS OR CREDITORS
OF MINORS
MAY ADMINISTER THE GUARDIANSHIP OF THE
LATTER,
AND SHALL NOT BE REQUIRED TO SWEAR THAT
THEY WILL
NOT CONTRACT SECOND MARRIAGES.
NINETY-FOURTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Pratorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
We have
recently promulgated a law with reference to the curator-ship of minors (for
in the investigation of cases brought before Us We have frequently become
aware of frauds which have been committed against them), which law prohibits
a debtor or creditor of minors to administer their curatorship, lest, having
their property in his power, he may be guilty of some act to their
disadvantage. This law is now confirmed by the present one.
CHAPTER I.
For the
reason that mothers are desirous of having the curatorship of their
children, and since they demand it in accordance with ancient law as well as
in conformity with those which We Ourselves have enacted, and objection is
made to this by certain persons under the pretext that a constitution of
this kind is not just, We desire to state in this law that mothers are
excepted under such circumstances. We were of the opinion, in the first
place, that it was extremely absurd for this prohibition to be made on the
ground of protecting the interests of minors, and it is not reasonable to
make the same rule applicable to both the mother and to strangers, for
natural love, more than anything else, relieves the former of suspicion so
far as her children are concerned, while strangers have no reason to favor
them, and it is not proper to deprive mothers of their right. For this
reason they shall, after having hypothecated their property in accordance
with the forms previously prescribed, be permitted to administer the estates
of their children, and to have no fears of the former restriction; for
everything will be just as if the law referred to had never been passed.
Hence,
whether dowries or ante-nuptial donations have been exacted, or whether the
mothers have other claims to the property of the minors, or the latter have
any against their mothers, either acquired through their father on their own
account (for anyone by making proper investigation can readily ascertain
this), these claims shall in no wise be prejudiced, and can be collected in
conformity with prior constitutions, whether the mother administers the
guardianship of either her legitimate or natural children.
CHAPTER
II.
For the
reason that We fear that all women may not be willing to swear by the
Omnipotent God not to marry again, and in order to prevent them from
perjuring themselves, We think that the law providing that when mothers
administer the guardianship of their children they shall make oath that they
will not contract a second marriage should be amended; for We are aware that
this law is disobeyed, and that perjury is committed almost as often as the
oath is taken, for this is a fact known to everyone. It is not, however,
because certain persons keep their oaths, that those who perjure themselves
may embrace the opportunity of being guilty of impiety towards God.
Legislators do
not
confine themselves to instances which rarely occur (as is shown by ancient
jurisprudence), but they take into account and provide for those which most
frequently take place.
Therefore,
We order that a different rule from the one applicable to mothers up to this
time shall be observed, for We desire them to renounce the Velleian Decree
of the Senate, and every other advantage; to comply with the regulations
which have been prescribed in the first place; and not to take the oath, as
the renunciation of the Velleian Decree of the Senate and other privileges
will be amply sufficient. We wish, nevertheless, that as soon as the woman
has contracted a second marriage she shall be deprived of the guardianship,
and be treated just as if she had sworn to not marry again, had lied openly
in court, and had preferred her second marriage to her own oath.
EPILOGUE.
Hence this
law is based upon maternal affection, and has been enacted by Us in order
that the honor of God may not in any respect sustain injury; it shall be
valid from the present time, and Your Highness will publish it in all the
provinces. We have transmitted the said law to the Most Glorious Prefect of
this Most Fortunate City, who is charged with these matters; and We desire
that it be executed from this very day by him and by the Most Illustrious
Praetor of the People, to whom the care of this city is entrusted. In order
that minors may be fully assured of the preservation of their property,
inventories of the same shall be drawn up in the presence of the illustrious
clerk and other persons who are usually summoned for this purpose under such
circumstances; bonds shall be executed, and everything done exactly as
provided by Our laws, through the instrumentality of the Most Illustrious
Praetor having jurisdiction in this city. He shall publish the present law
in Constantinople, so that all may become familiar with it, and no one be
ignorant of what We have enacted, for We have had it proclaimed throughout
the provinces by the Most Glorious Praetorian Prefects.
Given on
the fifth of the Ides of October, during the thirteenth year of the
reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE VII.
CONCERNING MAGISTRATES.
NINETY-FIFTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
We are
aware that a law previously enacted provides that magistrates invested with
civil or military jurisdiction shall not, after they
have been
deprived of their offices, abandon the province before having remained fifty
days in the capital of the same, constantly appearing there in public and
giving satisfaction to anyone who may bring suit against them; and that they
shall not leave the province under the pretext that they are summoned here,
and, in case they do leave it, they can be sent back. We have ascertained
that certain magistrates are so bold that, in defiance of the law which We
have just mentioned, they dare to leave their provinces and repair to this
Most Fortunate City, before having even relinquished the insignia of their
offices; and that they do this through apprehension of being prosecuted for
the acts of their administration, and of incurring just punishment for their
crimes.
CHAPTER I.
Hence We
decree that no magistrate, no matter to what province he may belong, whether
of the East, West, North, or South of the Empire, shall abandon it before
having given up the insignia of his office; and after having done so (for We
confirm the ancient custom), We wish him to show himself publicly for fifty
days in the province which he has governed, and finish all matters begun
during his administration, in order that it may be proved whether or not he
is entitled to confidence.
(1) Where,
however, anyone who is administering a civil or military magistracy, and
having been removed from it, leaves the province without having been
authorized to do so by Our order, he will be considered guilty of the crime
of treason, and shall be sent back to the province; and, after he has
satisfied all claims brought against him, he shall be subjected to the
extreme penalty of treason. If, then, after having relinquished his office,
he does not remain in the province for the prescribed time, and show himself
in public every day, or flees from the province, what We have heretofore
provided with reference to this shall be observed.
(2) We
notify all magistrates that when they have once accepted an office they must
discharge its duties; and We do not desire their successors to acquire the
habit of sending what are called interdicts outside the boundaries of the
province, or of removing Governors, delaying to take journeys, remaining
here too long, visiting other provinces before having repaired to the one
which they are called upon to govern, or of conducting themselves as
indolent magistrates are accustomed to do. We wish them promptly to assume
the administration of the government to which they were appointed, in order
that during the interval between the departure of the retiring magistrates
and the arrival of those who take their places, the province shall not
remain without a judge.
We desire
that, only two days before the magistrates arrive in the province where he
whom they succeed is to be found, they send him a friendly letter notifying
him to despatch an officer to meet them; that, up to that time, he who
occupies the position shall be entitled to his salary; that the entry of a
magistrate upon the duties of his
office
shall not date from the moment when he receives his commission, or from that
when your order has been dispatched; but that magistrates shall receive
their salaries from the very moment when (as has already been stated) they
enter the province itself; and that up to this time he alone who is
administering the government shall be entitled to his own. For it is not
practicable nor to be endured that the province should be left without a
judge; that the magistrate appointed by Us should substitute for himself a
man who perhaps has no experience; that he who surrenders his office should
quit the province before the proper time, and be deprived of the emoluments
to which he is entitled before he has relinquished his administration. Nor
shall he do this before the arrival of his successor in the province, and
only two days before the latter enters it.
EPILOGUE.
We desire
Your Highness to cause these provisions to be forever observed, and that as
soon as you ascertain that a magistrate has arrived in his province, you
will transfer to him the emoluments of him whom he succeeds; otherwise, in
accordance with what We have already prescribed, you will give said
emoluments to the magistrate who relinquishes his office, until his
successor coming into the province shows himself to those subject to his
jurisdiction. Your Highness will hasten to have what it has pleased Us to
include in this Imperial Law executed without delay.
Given at
Constantinople, on the Kalends of November, during the fourteenth
year of the reign of Our Lord the Emperor Justinian, and the Consulate of
Appio.
TITLE VIll.
CONCERNING
PERSONS WHO MAKE A BUSINESS OP BRINGING LAWSUITS, AND CONCERNING THOSE WHO
ARE SUED ONE OR MORE TIMES.
NINETY-SIXTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
As We
detest everything relating to malicious prosecution and subterfuge, We have
thought that there are some matters having reference to these subjects which
are in need of legal correction. For We have ascertained that some persons,
entitled to no cause of action, having established an understanding with
certain individuals who make a business of instituting legal proceedings,
sue others; and that they file complaints subjecting defendants to loss, and
then desist, after having exposed their adversaries to great expense; an
abuse
which has
especially prevailed in the provinces where such plaintiffs and those who
defend others have formed an association for profit.
CHAPTER I.
CONCERNING
THE SUMMONS TO COURT, AFTER WHICH
THE
PLAINTIFF MUST BE CAREFUL TO HAVE JOINDER OF
ISSUE TAKE
PLACE WITHIN Two MONTHS.
In order
to prevent these things from occurring in the future, We order that the
plaintiff shall not file a complaint and give the defendant occasion for
incurring expense without having previously furnished security to the latter
or his representative that he will, within two months, join issue in court
without fail; and if he should neglect to do so, that he will be liable to
the defendant for double the costs; but the bond shall not be given for more
than thirty-six aurei.
CHAPTER
II. CONCERNING THOSE WHO ARE SUED ONE OR MORE TIMES.
The
following matter is also worthy of amendment. Someone applies to Us, and
states that he has brought an action against a debtor before one of Our
judges; and that then the latter has, in his turn, summoned him who is
indebted to him before another judge, the result of which is something
astonishing, for each party to the suit appears as plaintiff; a state of
affairs which is at once pitiable and ridiculous, for where one of the
litigants desired to prosecute his own case, his adversary immediately sued
him, and brought him before another court to whose jurisdiction the former
was subject, so that the parties having sued each other were eternally
involved in litigation.
(1)
Therefore We decree that if anyone should think that another who has sued
him is indebted to him, he shall not, in his turn, bring an action against
him before another judge, but must bring it before the same one who already
has cognizance of the case, who shall dispose of both transactions. If the
judge before whom the action is brought is displeasing to him, he can reject
him, and We grant him a delay of twenty days dating from the service of the
complaint for this purpose, after which, and during the said twenty days, he
will be permitted to reject the judge, and obtain another before whom both
cases shall again be brought. In this way no more fraud will be committed,
and each litigant can avail himself of his own right.
If,
however, the defendant should keep silent, and should afterwards himself
attempt to bring suit before another judge, he will be obliged to wait until
the first action against himself has been decided, and then he can institute
proceedings before a different magistrate.
We
establish this rule to prevent litigants from being made the victims of the
schemes and malicious prosecutions which they are accustomed to employ
against one another.
EPILOGUE.
Your
Highness will hasten to cause the provisions which We have been pleased to
insert in this Imperial Law to be carried into effect.
Given at
Constantinople, on the Kalends of November, during the thirteenth
year of the reign of Our Lord the Emperor Justinian, and the Consulate of
Appio.
TITLE IX.
CONCERNING
THE EQUALITY OF THE DOWRY AND THE ANTE-NUPTIAL DONATION, As WELL As THE
INCREASE OF THE DOWRY AND ANTE-NUPTIAL DONATION, AND THE PRIVILEGE OF THE
DOWRY WHICH TAKES PRECEDENCE OF OTHER PRIVILEGES; AND How CREDITORS ARE
EXCEPTED FROM THIS PRIVILEGE WHEN THEY HAVE FURNISHED MONEY FOR THE PURCHASE
OF AN OFFICE ; AND CONCERNING THE RETURN OF THE DOWRY TO THE FATHER, AND ITS
GIFT A SECOND TIME IN BEHALF OF THE SAME DAUGHTER ON HER MARRIAGE TO ANOTHER
HUSBAND; AND CONCERNING THE COLLATION OF THE DOWRY WHEN THE HUSBAND DIES
INSOLVENT.
NINETY-SEVENTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
As We see
that many questions with reference to our original birth (that is to say,
concerning marriage and the procreation of children), as well as respecting
the end of life and what relates to the last wills and testaments of dying
persons are discussed in the laws, We have resolved closely to examine what
an ancient law prescribes with reference to dotal instruments, which
provides that the nuptial contracts between both parties to a marriage shall
transfer property of equal value; that, for example, one of them shall not
stipulate for half, and the other for a third or a fourth of a certain sum,
but an equitable course must be pursued, as prescribed by the law which
provides-that the agreement made by each shall be equal, that is to say,
that the profit obtained. by the parties severally shall be the half, the
third, the quarter, or any other share whatsoever; but it does not require
that the articles given should be the same in number, for it permits one of
the spouses to stipulate for one or two thousand aurei, or more, and
the other to stipulate for less, in such a way that the equality consists
rather in the words or letters alone than in the articles themselves.
CHAPTER I.
CONCERNING
THE EQUALITY OF THE DOWRY AND THE ANTE-NUPTIAL DONATION.
Therefore,
when correcting all these matters, We desire above all things that whatever
is given by these contracts shall be equal, so far as both the dowries and
ante-nuptial donations are concerned; that the husband shall stipulate for
an advantage as great as the wife; that this advantage shall be of as great
a value as the parties desire, but the amounts must be equal. For the
principles of justice and equity cannot be observed if the parties to the
marriage deceive one another in a business transaction, where they seem to
make equal stipulations, but the effect of the latter is unequal, and
articles are not furnished by both of them in the same quantity. Thus, for
instance, the law would be held to have been entirely evaded if the husband
should agree to give two thousand aurei, and his wife agreed to bring
him six thousand; or if the parties to the contract should stipulate to
receive the fourth of what they consented to give, for in this instance the
wife would only obtain five hundred aurei, that is to say, the fourth
of what her husband had promised, while the latter would obtain fifteen
hundred, which also is the fourth of the sum promised by his wife. In
consequence of this, the fourth of one of the parties would be muchx-large r
than that of the other, and from this fictitious uniformity a great
inequality would result.
Dotal
contracts which have already been drawn up shall retain the form which has
already been given them, as it is impossible for what has already taken
place to be considered as not having been accomplished; but We desire that
hereafter, in every donation, the stipulation for advantages shall be
uniform on both sides, and that the husband and wife shall agree upon equal
profits, which We decree in order that We may, in every respect, honor
justice and equity. Where one of the parties is more wealthy than the other,
he or she will be allowed to favor his or her consort by employing a
different method, which is lawful and acknowledged by Our laws, but whoever
does this is forbidden to grant his or her spouse a greater advantage by
means of a stipulation, which, though appearing to be equitable, will in
fact result in inequality.
These are
the provisions prescribed by the present law with reference to this subject
for the purpose of treating all persons with justice.
CHAPTER
II.
CONCERNING
THE INCREASE OF THE DOWRY AND THE ANTE-NUPTIAL DONATION.
We have
examined and carefully considered matters relating to ante-nuptial
donations, and We shall now treat of their increase. For, as preceding
legislators as well as Ourselves have already discussed this subject, We
have made use of many philosophical precepts which
it would
be difficult to enumerate, by means of which We repress and correct frauds
perpetrated by some persons under such circumstances, the justice of which
precepts We now confirm. For We have granted to dowries the privilege of
being preferred to hypothecations of older date, for the reason that when
creditors have made contracts with their debtors, they only took into
account the property of the latter, and not that of their wives, which
perhaps did not yet belong to them.
We have
likewise permitted persons to stipulate for increases (which was also done
in ancient times), and We have granted this power to the husband and the
wife; to both of them together if they so desire, or to one of them alone.
And, at first, for fear some fraud might be perpetrated, We direct that
where the increase of a dowry or a donation on account of marriage is
desired to be made, one of the parties interested shall not be permitted to
make it and the other confine himself or herself to the original
stipulation, but both of them must agree to the increase at the same time;
and compliance with this provision is not only enjoined upon each one but is
required of both; and they must always keep the amount of the two increases
the same, in accordance with the Constitution of Our Father. The reason
which has induced Us to establish this rule is to prevent the augmentation
from being simulated instead of genuine; especially on the part of the
woman, who otherwise would be enabled to avail herself of her privilege, and
thereby defraud her husband's creditors. When each of the parties owns land,
it is preferable for the stipulation providing for the increase to be made
for the same kind of property for which the stipulation was entered into at
the time of the marriage, and that the increase subsequently made should be
certain.
Where only
one of the married persons has immovable property, the addition of the wife
shall be made in land, in order that the dowry and its increase may be
equally privileged, so far as other creditors are concerned, and that the
existence of the augmentation may not be doubtful. The increase of the
husband shall consist of personal property, for no injury to anyone can
result under such circumstances. But where the estate of the woman consists
of land, and she stipulates that the increase shall be furnished in
movables, she is hereby notified that she will not be entitled to any other
privilege than that attaching to her dowry in the first place, and that the
increase in this instance is only fictitious. For stipulations made in the
beginning are not absolutely liable to suspicion like those which are
entered into afterwards to the prejudice of creditors, and for this very
reason give rise to doubt; and We do not desire creditors to be injured by
the privilege which We grant to dowries. Where, however, the husband is not
indebted to anyone, and hence no suspicion of fraud toward his creditors can
arise, the increase may be stipulated between the parties to consist of
money or anything else that they wish; provided always that this is done
equally so far as each of them is concerned, and in such a way that justice
may be preserved. For how can there be a suspicion of fraud when the husband
is not indebted to anyone, and the increases are agreed upon without
deception?
CHAPTER
III.
CONCERNING
THE PRIVILEGE OF THE DOWRY, AND THAT
OF
CREDITORS WHO HAVE ADVANCED MONEY FOR THE
PURCHASE
OF AN OFFICE.
The
determination of matters in doubt in cases of this kind is a legitimate
consequence. For We are aware that certain hypothecations, although of more
recent date, are preferred to those of older creditors on account of
privileges granted by the laws, and this occurs when the creditor has, by
advancing money, furnished them means to either purchase, build, or repair a
ship, to erect a house, to buy a field, or to do something else of this
kind; and he has also a prior lien over other creditors whose claims are
much older than his. The question, however, arises, if when a woman,
claiming to enjoy the privilege based upon a dowry and its increase, to
which this privilege also applies (as has already been stated) wishes to be
preferred to prior creditors, and, on the other hand, a creditor whose claim
is actually of later date, but who, because a ship, a house, or a field has
been bought or repaired with the money which he loaned, demands the same
privilege with respect to the property which has been purchased or repaired,
whether the dowry shall be preferred to the claim of a creditor of this
kind, and will be privileged so far as he is concerned ; or whether, on the
contrary, his claim shall be considered preferable for the reason that the
property has been increased in value by the expenditure of his money.
Therefore We, having devoted much attention to this point, decree that it is
not just for the woman under such circumstances to yield to a privilege of
this description. For We have seen (which is a legal absurdity) some females
make a profit of their own bodies, and earn a livelihood by fornication,
while others, who are opposed to such practices, and deliver themselves and
their property to their husbands, so far from profiting by this, have their
fortunes impaired, and when their husbands are unsuccessful in business,
lose all hope of recovering their dowries.
Hence We
decree that where a creditor has loaned money to repair a house, or to
purchase a field, he cannot plead his privilege to the prejudice of a woman,
for We are aware of the natural weakness of the sex, and how easily they are
defrauded. Nor do We permit their dowries to be diminished, for it is
sufficient for them to be deprived of their advantages (if they have
obtained any) by a prior antenuptial donation, as this loss is considerable
for them, and We do not wish them to run any risk of losing their dowries.
CHAPTER
IV.
CREDITORS
WHO HAVE LOANED MONEY FOR THE PURCHASE OF AN OFFICE SHALL BE EXCEPTED FROM
THIS PRIVILEGE.
As
inquiries have also been made of Us whether creditors who have loaned money
for the purchase of offices shall be preferred, We
direct
that if anyone has loaned money for the purchase of an office or for the
establishment of an institution, or for any other purpose of this kind, and
the reason for the loan is expressly stated in the instrument, and it was
agreed that if the object was accomplished, the person who lent the money
for the purchase should have a preferred claim to all others, it will take
precedence of the privilege of the woman in this instance alone; the
creditor, however, will not readily be believed, even if he can produce
testimony, for a written instrument bearing the signatures of witnesses and
drawn up solely with this end in view will be required. If the claim is
derived from an obligation contracted in this way, no suspicion will arise,
and the contracting parties will not be deprived of the benefit of their own
agreement, but, under all other circumstances, wives will be preferred by
virtue of the privilege which We have already conceded to them.
CHAPTER V.
CONCERNING
THE DOWRY WHICH RETURNS TO THE
FATHER,
AND Is AGAIN GIVEN IN BEHALF OF THE SAME
DAUGHTER
TO HER SECOND HUSBAND.
As We have
already enacted a law providing that fathers who give dowries for their
daughters who are under their control or independent, which return to them
in case of the death of their sons-in-law; some persons have made the
inquiry whether, when a son-in-law dies and the dowry returns to the father
by whom it was given, he can diminish it, if he offers it again when his
daughter marries a second time; or whether he has no right to do this
because he has once taken it from his own property; and also, whether he
should give the same amount to his daughter when she contracts another
marriage, just as if she had not become a widow? A case was stated to Us
where a certain father when living had given thirty pounds of gold as a
dowry for his daughter, and the latter, having become a widow, and marrying
again, her father did not give her thirty pounds of gold but only
twenty-five, for the reason that his daughter had obtained half of the
ante-nuptial donation which consisted of fifteen pounds of gold; and hence
he, instead of giving her thirty pounds of gold the second time out of his
own estate, had only given her fifteen, as she had also obtained fifteen
from the ante-nuptial donation. We do not think that this is just, but We
desire that the daughter shall, in the division of the property of her
father, obtain the profit of her ante-nuptial donation, and that she shall
also receive the remaining fifteen pounds of gold from her father's estate,,
which the latter deprived her of just as if he had intended to injure her.
For what would the father have done if his son-in-law had lived, and his
daughter had not contracted a second marriage; or how could he diminish the
dowry which he had already given; and what right had he to appropriate the
profit which belonged to his daughter; for as she had a right to include in
her own possessions what she had acquired from her husband before his
death, and
which might obtain for her another more wealthy husband, she would not only
be entitled to thirty pounds of goldthat is to say, to the fifteen forming
part of the ante-nuptial donation, and those given by her fatherbut to
forty-five pounds, namely, the profit obtained through her deceased husband,
the accession to her private property, and what had been received from the
estate of her father, provided she kept all that the latter had given her.
We order
that these rules shall be applicable where the estate of the father remains
in the same condition in which it was originally, and if any accidental loss
should have diminished it to the extent that, in spite of his good
intentions, it would be impossible for him to give a dowry of the same value
as he had done at first; and if he can prove this diminution, he shall not
be compelled to bestow upon his daughter, when she marries a second time,
more than his fortune will justify.
The
daughter, however, shall be entitled to the entire profit obtained by the
first ante-nuptial donation, and when contracting a second marriage, she
shall receive from her father a dowry proportionate to his means.
It is
clear that the father, at the time of his death, will be absolutely
compelled to return to his daughter any profit which he may have obtained
from the ante-nuptial donation of her first husband (of which We only grant
the father the usufruct), and of which his daughter shall have the absolute
ownership.
CHAPTER
VI.
CONCERNING
THE COLLATION OF THE DOWRY WHEN THE HUSBAND DIES INSOLVENT.
We have
considered it necessary to decide the following question which has been
raised in innumerable instances. A father or a mother constituted a dowry
for his or her daughter, and she brought it to her husband; the latter died
insolvent, and, after the death of the parents, a demand was made upon the
daughter to surrender her dowry, or permit it to be deducted from her share
of her father's estate. Where the husband dies solvent, this point is easily
disposed of. But when the daughter has nothing left but the right of action
against her husband, who is insolvent, and it is stated that a dowry has
already been given for the daughter, and that she can only collate the right
of action for its recovery, which cannot have any effect in law, this case
appears to Us to be worthy of investigation. We are aware that the question
has been decided with harshness in many cases, and the wife been compelled
to place her dowry in the mass of the estate, or to receive that much less;
the result of which was that she did not obtain anything of what was given
her as dowry. We, however, come to her relief by amending Our other laws;
for as We have already, where her husband had failed in business, granted
her the power to recover her dowry during the existence of the marriage, and
to administer it in
a suitable
manner in accordance with the terms of Our Constitution, she herself will be
to blame if, when her husband began to squander his fortune, she did not
demand her dowry, and help herself (for she would have been able to recover
her own property without any diminution, and collate it with her father's
estate by taking that much less).
(1) Where,
however, the daughter was under the control of her father, and could not do
this without his approval; and if, after having applied to him and having
informed him of the condition of affairs, it should be proved that he gave
his consent for her to claim her dowry during her marriage, and retain it
for the future, in this instance she will preserve all her rights as well as
all her property, as We allow her to recover it, even including the
ante-nuptial donation during the existence of the marriage, and to free
herself from any subsequent risk.
But if it
should be established that the father did not either give his consent,
demand the dowry, or permit his daughter to do so, We are not willing that
she should be subjected to any risk on this account, and she must collate
the bare right of action which she has against the property of her insolvent
husband, and the result of this action will be shared by herself and her
brothers, nor shall she suffer any prejudice on account of the collation; a
lawful share of her father's estate shall be given her, and she shall only
place in the bulk of said estate the right of action which she has for the
recovery of the dowry.
This
action shall be brought by all the brothers, and any benefit derived
therefrom shall be shared by all of them. But where the father gives the
dowry under such circumstances, and the collation of it with his estate is
demanded, the same rule shall apply. When the amount of the dowry isx-large ,
and the father is not willing either to demand it, or to permit his daughter
to recover the same, then We desire that she herself shall proceed to do so;
and if she should fail, she will not expose herself to the risk of losing
anything through the insolvency of her husband.
We are
aware that the most learned Ulpianus has rendered a decision of this kind,
thereby coming to the relief of the wife when the husband is insolvent, and
that he holds that she shall not be compelled to make collation except to
the extent to which her husband is able to meet his obligations.
(2) As,
however, many things have been omitted in the multitude of laws which
existed before We compiled and arranged them in their proper order, and as
magistrates render decrees at variance with these laws, in order to prevent
abuses in this respect We have deemed it necessary to promulgate the present
enactment which interprets that Constitution of Ours which comes to the
relief of a wife even during the existence of the marriage; and in order
that its effect may not be confined to certain private individuals, We
decree that it shall be of general application. Hence collation shall be
made by all those to whose succession it refers, whether they be fathers,
grandfathers, mothers, grandmothers, or any other ascendants.
EPILOGUE.
Wherefore
Your Highness will hasten to communicate to all persons, and cause to be
perpetually observed the provisions which it has pleased Us to promulgate by
means of this Imperial Law.
Given at
Constantinople, on the fifteenth of the Kalends of December, during
the thirteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Ario.
TITLE X.
THE
HUSBAND DOES NOT ACQUIRE THE OWNERSHIP OF THE DOWRY, OR THE WOMAN THAT OF
THE ANTE-NUP-TIAL DONATION, BUT THEY ARE RESERVED FOR THEIR CHILDREN; AND,
PROVIDED THE PARENTS Do NOT CONTRACT A SECOND MARRIAGE, THEY WILL ONLY BE
ENTITLED TO THE USUFRUCT OF THE PROPERTY ; AND WHERE THEY MARRY A SECOND
TIME AFTER REPUDIATION HAS TAKEN PLACE, AND OBTAIN EITHER THE DOWRY OR THE
ANTE-NUPTIAL DONATION, THE OWNERSHIP WILL STILL BE PRESERVED FOR THEIR
CHILDREN, AND THEY WILL BE COMPELLED TO EMPLOY THE USUFRUCT FOR THE SUPPORT
OF THE LATTER. WHERE, HOWEVER, THE MARRIAGE Is DISSOLVED BY COMMON CONSENT,
AND THE PARENTS RETAIN SOMETHING FRAUDULENTLY, WHICH MAY CAUSE Loss TO THEIR
CHILDREN, THEY SHALL BE DEPRIVED OF SUCH PROPERTY, AND IT SHALL BE KEPT FOR
THE BENEFIT OF THEIR OFFSPRING.
NINETY-EIGHTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
Such
matters as are invariable do not require new legislation, for as they are
simple, and not susceptible of change, they always remain the same, and
being governed by eternal laws, are in need of no amendment. But whatever is
subject to constant variation requires the exercise of controlling wisdom,
which is obtained by means of laws; wherefore, as We are not loth to
administer justice, We settle many que'stiohs brought before Us by different
persons, and in disposing of such as We find ambiguous, We generally
determine them by Our legislation as may be necessary. Hence as it appears
that former legislators made certain divisions of the subject which will be
hereinafter treated, We deem it advisable to render this more simple by
means of a moderate law, which shall be operative from this day, but shall
not be applicable to anything which has already been
decided;
for We do not hesitate to enact other laws when they are better than those
already existing, whose purpose is the same.
When a
husband or a wife does not marry again, he or she retains the property
acquired by marriage, and it is united to his or her estate; while if either
one of them should marry a second time the said property belongs to the
issue of the first nuptials. We now intend to annul this inconsistency by
means of a simple and a better law. For as the husband or the wife who
marries a second time preserves for the issue of the first marriage the
ownership of the property which he or she has obtained by either the death
or the repudiation of her consort (for the person who marries again may
happen to have children by his or her second marriage), is it not unjust
that married persons who, at their death, leave legitimate offspring,
instead of preserving for them the property which they have acquired from
their deceased parents, should have the right to transfer this property to
strangers? For, indeed, what is more precious to parents than children who
are not ungrateful?
CHAPTER I.
THE
OWNERSHIP OF THE DOWRY AND DONATION GIVEN
IN
CONSIDERATION OF MARRIAGE SHALL BE PRESERVED
FOR THE
CHILDREN.
Therefore
We order that if the wife should die, and the husband acquire the dowry, he
must preserve it intact for her children, whether he contracts a second
marriage or not; and, on the other hand, if the husband should predecease
his wife, We desire that the latter should preserve for their children the
property obtained by the ante-nuptial donation. Consorts, however, shall be
entitled to the usufruct of nuptial property, and it is only the ownership
of the same which shall be preserved intact for their offspring. The
legislative provisions formerly enacted with reference to parents who marry
a second time are hereby confirmed. Those included in the present law shall
become operative from this day and for all future time, no matter in what
way the marriage may be dissolved; and they shall also be applicable to
marriages already dissolved either by death or otherwise, when either the
husband or wife is still living. For where both of them are dead, We do not
grant the benefit of this rule to their heirs, as what relates to them is at
an end, and We leave them subject to the control of the ancient enactments.
It is
certain that whenever there are children, and the law gives them a right to
the ownership, they can acquire this ownership as well as other accessories
and benefits by succession, as has been provided with reference to issue of
the first marriage, who, where their parents marry again, have certain
advantages conferred upon them by the laws.
CHAPTER
II.
WHEN A
MARRIAGE is DISSOLVED BY REPUDIATION OR BY COMMON CONSENT, ANY PROPERTY
OBTAINED BY EITHER THE HUSBAND OR WIFE SHALL BE PRESERVED FOR TH.EIR
CHILDREN; AND CONCERNING THE OBLIGATION OF PARENTS TO SUPPORT THEIR
OFFSPRING.
We have
also considered it necessary to dispose of a point which has been brought to
Our attention, for as husbands and wives sometimes enter into agreements
among themselves by means of which they fraudulently deprive their children
of what they have obtained by their marriage, thereby reducing them to want,
We have decided that it is absolutely necessary to enact a more stringent
law on this subject, in order that the fear of punishment may deter persons
from dissolving their marriages with a view to profiting by unjust gains,
and neglecting their own children.
(1) For
when a marriage is dissolved by consent or in any other manner, and there
are no children, the preceding regulations shall remain in force; but if
there are any children, what We are now about to enact shall be observed.
For where parents, without feeling any compunctions in reducing their
children to poverty, either voluntarily or by force enter into an agreement;
as, for instance, the husband is to blame and he places himself in a
position to forfeit the ante-nuptial donation, or when the wife runs the
risk of losing her dowry, the husband shall not be entitled to the dowry,
nor the wife to the antenuptial donation; but as soon as the loss of either
of these takes place, the ownership of the property shall vest in the common
children, and the usufruct of the same shall alone remain with the parents
who are separated, and whichever one obtains it shall be obliged to support
the children born of the marriage, and to provide them with all the
necessaries of life, in proportion to the value of the property in question.
(2) We,
however, are aware that whenever a marriage is dissolved by common consent,
although the ante-nuptial donation reverts to the husband who stipulated to
bestow it, and the dowry to the wife for whose benefit it was constituted,
and they give one another a x-large amount of gold to which they are entitled,
for example, by way of indemnity, or on some other ground, in such a way
that this donation cannot be regarded as a gain resulting from marriage;
under such circumstances it is not preserved for the benefit of the children
in accordance with the laws on this subject, but the money is given by the
husband as if derived from a foreign source, in order that the benefit of
the same may be solely enjoyed by the person who receives it.
Therefore,
with the intention of correcting the abuse and injury resulting from a fraud
of this description, We decree that whenever it takes place and any profit
is obtained .by either of the parties, the money shall also be preserved for
the children, the ownership of the same shall be immediately acquired by
them; and the husband or wife
who
receives it shall only be entitled to the usufruct. Thus married persons
will be induced to abstain from all fraud and every unreasonable desire of
prejudicing the rights of their children, so that they can neither
voluntarily, nor against their will, be able to injure them, but they will
remain chaste, and preserve that marital affection which it is proper for
those who are once united in matrimony to entertain for each other.
This law
abounds in chastity, it is consistent with good morals, and has for its
object the promotion of the love which fathers and mothers should bear to
their children, and provides that the property which their parents do not
voluntarily leave them shall be preserved for them by this means, with the
sanction of God who is the common Father of all men, that is to say, is
invested with universal dominion. Under these circumstances, the provisions
which have long been established with reference to profits and successions
are confirmed, as We do not make any changes in them except such as are
expressly set forth in this Constitution.
EPILOGUE.
Your
Highness will hasten to carry into effect what We have been pleased to enact
by this Imperial Law.
Given at
Constantinople, on the fifteenth of the Kalends of January, during
the twelfth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Justin.
TITLE XL
CONCERNING PERSONS JOINTLY LIABLE.
NINETY-NINTH NEW CONSTITUTION.
The
Emperor Justinian to John, Most Glorious Praetorian Prefect of the East,
Twice Consul and Patrician.
PREFACE.
We
remember to have long since introduced a law having reference to the
selection of mandators, sureties, and bondsmen, that includes numerous
provisions which are generally advantageous to Our subjects. Nevertheless, a
portion of it seems to Us to require some explanations and additions, as it
is, to a certain extent, imperfect and inconsistent.
CHAPTER I.
If anyone
should give certain persons as his sureties to be jointly liable, but should
not add that they shall be severally liable for the entire amount, they will
all of them be obliged at the same time to comply with the agreement. If any
provision like that above mentioned should be inserted in the instrument, it
must be observed, but this need not immediately be done in such a way as to
render each
debtor
individually liable, but only the share for which he is respori-sible shall
be collected from each, and suit should be brought against all of them, if
they are solvent and present, and the creditor thinks this to be advisable.
Where the debtors are solvent and at hand they must (every one of them, for
himself) discharge the obligation which he assumed as a surety, and by
reason of which they are all bound in full, and in this way the debt ov/ed
by all will not become the individual debt of each.
But if
all, or some of those who are jointly liable and were not sued, are partly
or wholly insolvent, or if they are absent, each one who is jointly liable
will be required to make up what the creditor cannot collect from the
others. In this way the creditor will be able to obtain the entire debt, and
will sustain no loss, even though the joint debtors may have, without his
knowledge, made some agreement among themselves to his prejudice, and each
joint debtor will be liable for what he became security for, at the time the
document was drawn up, without being allowed to evade it by artifice, fraud,
or agreement, all of which is prevented by this law.
(1) Where
all the joint debtors reside in the same place, We order that the judge
having jurisdiction shall immediately summon them before him, hear the case,
and render judgment against them all. Thus the joint debtors will be
compelled to discharge their obligations, their solvency will be
established, and the debt be discharged in accordance with law and justice.
(2) If,
however, the judge is not a Governor but some other magistrate, We authorize
a competent judge to hear the case in this city, or in the provinces; and
the illustrious Governor before whom the action is brought, or any other
competent judge may, by means of an executive officer, compel the joint
debtors to become parties to the suit, in order that the execution of this
law may not be interfered with. It shall begin to be operative with
reference to contracts from this very day, but We leave whatever is already
partly to be disposed of by the laws already enacted on this subject.
EPILOGUE.
Your
Highness will hasten to carry into effect whatever We have been pleased to
insert in this Imperial Law.
Given at Constantinople, on the fifteenth of the Kalends of January, during the year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
EIGHTH
COLLECTION.
TITLE I.
CONCERNING THE
TIME AVAILABLE WHEN MONEY FORMING PART OF THE DOWRY HAS NOT BEEN PAID.
ONE HUNDREDTH
NEW CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Praetorian Prefect of the East, twice
Consul and Patrician.
PREFACE.
Our laws have
left without consideration all cases where sums expected to be paid have not
been counted out and delivered, but We have abridged the prolixity and
length of these, lest men may be enabled to take advantage of their
negligence under such circumstances, or even be guilty of fraud; for
evidence is not always available by those who wish to make use of it, and
time disposes of many things. Wherefore We have, in certain instances,
abridged the length of complaints in cases where the money was not paid
over, which may be collected under laws already enacted; for, as the entire
time of the existence of the marriage was granted to husbands to demand a
dowry which had not been paid, and another year was conceded for this
purpose after their death, or after repudiation, We have deemed it proper by
means of a short and useful law to abridge the time during which the claim
for a dowry which was not paid shall be made, and release women from the
necessity of proving, after a long period had elapsed, that this had been
done.
CHAPTER I.
CONCERNING DOWRIES WHICH HAVE NOT BEEN PAID.
Therefore where
a man lives with his wife for the term of two years or less, and does not
receive his dowry, his silence shall not prejudice the rights of himself or
his heirs; but a demand for the dowry can be made within another year, as
the brief duration of the marriage impels Us to enact this legislation.
Where the matrimonial union lasts longer than two years, but less than ten,
We give the hus-
band permission
to present his claim during the existence of the marriage, and to state that
the dowry has not been paid to him, either wholly or in part. Where he has
once formulated his demand, under such circumstances, and his wife does not
prove that she paid the dowry, the husband shall transmit his right of
action to his heirs.
(1) When,
however, the dowry is not demanded within ten years, We forbid the husband,
on account of his silence, to claim it after this period has elapsed, and We
do not grant a year to his heirs for this purpose. We do not establish this
rule as a penalty against anyone, but on account of the solicitude which We
entertain for the liberty of Our subjects. For when the husband can demand
the dowry during so long a period (We mean the term of ten years), but
prefers to remain silent, it is perfectly clear that, although he has not
received it, it was his intention to entirely relinquish it himself, or
allow his heirs to do so.
The provisions
of this law shall be applicable even in case the marriage should be
dissolved by repudiation. We make no distinction where the woman herself has
stipulated for the dowry; for whether this be the case, or some other person
has constituted it for her; since, as We have previously stated, lapse of
time will invariably produce its effect, and will either confer or take away
the right to bring the action to collect the dowry.
It is, however,
unnecessary for the demand for the dowry merely to be made verbally (for
often indignation or some other incentive induces the husband to make it in
this way, or it may even happen that he does not demand it at all, and that
witnesses who have been purchased make false statements), but the demand
must be made in writing. If anyone should desire to bring suit for this
purpose, he shall absolutely be required to notify the woman or whoever is
obliged to pay the dowry, as there is nothing which prohibits the husband
from personally making the demand. The wife should not disregard the notice,
she cannot anticipate it, and he who is about to file the complaint should
not leave her in ignorance of the fact.
CHAPTER II.
Therefore,
generally speaking, it must be said that where a marriage is dissolved
either by death or repudiation within two years, the husband himself, as
well as his heir, can, during another year, apply to the court on the ground
that the money has not been paid. If, however, the marriage should last more
than two years, and less than ten, We do not grant the husband or his heir a
longer term than three months in which to make a demand for the dowry. But
when ten years have elapsed, then neither the husband nor his heir shall be
permitted to claim the dowry, and this time shall be sufficient to insure
its retention by the woman. Where the husband is a minor, and has not
claimed the dowry, We allow him a term not exceeding twelve years from the
date of his marriage to do so; for We are aware that marriages of this kind
are not contracted before the age of fifteen years; hence it follows that if
the minor has passed his twenty-fifth
year, he can,
until his twenty-seventh, claim the dowry on the ground that it has not been
paid, and if he should die during this time, his heirs shall have a year for
that purpose.
(1) But where
the heirs of anyone who is either of age or a minor did not demand the dowry
themselves and are minors, they will only have five years in which to claim
it on the ground of its not having been paid; and this time will be
sufficient for them without waiting for the majority of all the minors. The
following circumstance induced Us to enact the present law, namely: A
certain woman married a boy of fourteen years of age, and twenty years after
the death of the latter, she, taking an improper advantage of the age of the
minor son, whom she had had by him, demanded the return of her dowry. The
son, however, opposed this by alleging that the dowry had not been paid, but
he did so twenty-four years after his mother's marriage, a case which, after
due consideration, We had already provided for.
Under the
present law We allow minors the term of five years in which to avail
themselves of the claim that the dowry was not paid; nevertheless, a husband
who has given a receipt for the dowry cannot proceed in this manner, and all
cases of this kind shall be decided after the time of majority or minority
has elapsed. This rule is applicable to all future marriages, for, so far as
those at present existing are concerned, if they last less than ten years
and more than two, the husband, in order to demand a dowry which has not
been paid, will be entitled to the time granted him after the expiration of
the said terms. But where the marriage lasts less than two years, or more
than ten, afterwards, then We grant the husband two years in which to claim
the unpaid dowry and We allow his heirs three months after the dissolution
of the marriage for this purpose, in order that justice may be done to them
in every respect.
EPILOGUE.
Your Highness
will hasten to see that what We have been pleased to enact by this Imperial
Law is executed.
Given at
Constantinople, on the thirteenth of the Kalends of January, during
the thirteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Ario.
TITLE II.
CONCERNING
DONATIONS MADE BY DECURIONS TO THEIR SUCCESSORS EITHER AB INTESTATO OR BY
WILL.
ONE HUNDRED AN.D
FIRST NEW CONSTITUTION. The Emperor Justinian to John, Most Glorious
Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
An application
made to Us by certain decurions has afforded Us the opportunity of
promulgating a good law. And We enact it, not
merely as
applicable to certain decurions but to those who are subject to Our
authority. We mean to such as are in the East, as well as to all who are
included within the limits of the Empire. For, remembering that Our
predecessors were solicitous for the welfare of decurions, and to the
collation of their property in the curise, the result of this has
been that some persons have become members of the curia, and others
have been released from curial obligations. We now grant permission to
decurions to appoint heirs, not only among the decurions of the same city
(for they are permitted to do this at the present time), but even to appoint
as heirs persons who are not subject to curial duties, when they desire to
do so; but on the condition that he or they who are designated shall, in
every respect, take the place of the deceased, that is to say, shall be
invested with the curial status, and perform the functions of decurions;
and, under these circumstances, those who are appointed heirs shall be
entitled to the estate without opposition.
We are sure that
the amendment included in the present law will have such an effect that the
curia will thereby acquire great wealth; that the decurion and his
property will, in the future, derive substantial benefit from this
legislation; and that the curia will flourish on account of the x-large
number of its members to whose fortunes it will be entitled.
CHAPTER I.
Therefore We
order that when decurions make their wills, they shall be permitted to
designate as heirs either any persons whom they may select, or other
decurions of the same city (We authorize them to do this by Our law), or any
members of their families or even strangers, whether they are decurions or
not; and We permit them to appoint the said heirs to any share under
nine-twelfths of their estates, or to all of them, under the condition,
however, that they shall give themselves to the curia, join the body
of decurions, and discharge their official duties.
This rule shall
be applicable to children, grandchildren, and other descendants; but it
shall not be observed in the same way prescribed by the constitution having
reference to those who offer themselves to the curia, which directs
that the offspring of persons who have offered themselves in this way shall
not belong to the curial condition; but persons who bind themselves to the
curia shall be deeurions, just as if they had been so from the
beginning, and as if they had, through their families, been united with the
curia, had had their names inscribed upon its register, and had been
included in the body of decurions. For there is no difference whatever
between appointing as heir one who is a member of the same curia, or
appointing one who will soon become such.
CHAPTER II.
But where a
blood-relative is living who, being exempt from curial obligations, may be
called to the succession of a decurion that died intestate, and he wishes to
become a member of the curia,, he shall
be permitted to
do so, and he can have his name inscribed upon the register within six
months. He will then become a decurion; along with his successors his
property will pass to the Order, and will be the heir of the deceased; for
as the fortune of anyone who has once succeeded to an inheritance (whether
he is already a decurion, or becomes one hereafter) belongs to the curia,
he can claim nothing of the estate of the deceased, so far as one-fourth
or nine-twelfths of it are
concerned.
But where anyone
has given a x-large portion, or nine-twelfths of his property, to a decurion
of the same city, or to anyone else, and then offers himself together with
the remainder of his estate and the offspring which he already has, or which
he may have hereafter, to the cwriu to which he belongs, We decree
that this generous act shall take effect only under the condition that the
donee becomes a decurion, for We desire constantly to take precautions to
prevent the property of decurions from being in any way diverted from the
curia, of which they are members.
CHAPTER III.
But in order
that these things may take place without the appearance of collusion, and
that certain persons, having obtained the estates of decurions either
through donations or by will (as We have previously stated), or where they
pass in case of intestacy, may not, by virtue of such gifts, attempt to
enjoy said property without offering themselves to the curia,, We
order that if, as has already been stated, the donor has made a gift, the
property shall not immediately be transferred to the donee, but shall remain
in possession of the donor until the person who has accepted the donation
has bound himself to the curia, by means of an instrument executed
gratuitously, and without expense, before the judge of the province, in the
manner already prescribed; and that as soon as his name is inscribed upon
the register of decurions his property shall be delivered to him. But where
the donor has already transferred the property to the donee, and the latter
has not yet announced his intention of becoming a member of the curia,
three-fourths of the said property shall be reserved, which We desire,
by all means, to be acquired by it.
(1) If anyone
who is not a decurion should be entitled to the estate of a member of the
Order either by will or ab intestato, the curia, will share
the inheritance with him; and immediately after the death of the decurion,
an inventory shall be drawn up without any loss resulting therefrom, in the
presence of the defender of the city and of the person called to the
succession; the property shall be de-' livered to the curia under the
seal either of the defender or of the bishop; and when the aforesaid
statement has been committed to writing before the judge of the province,
and the heir has (in conformity with what has frequently been stated) become
a member of the curia, and his rights and any offspring which has
been or may subsequently be born to him have been duly transferred to the
curia, he shall then receive the property given and become the owner of
the same, just as
if he had been a
decurion in the first place, and he will not appear to differ from one born
in that condition. The judge of the province will receive without
compensation or expense the document by which the obligations to the
curia are assumed.
We do not
promulgate this law for the purpose of injuring the curia,, and
subjecting it to loss, but, on the contrary, for its benefit, and We desire
that it shall be valid for all time, since through the accession of wealth
and numbers it increases the power and the resources of decurions. Where,
however, he who is called to the succession of a decurion who died intestate
is not himself a member of the Order, and is unwilling to accept the estate,
and devote himself to the curia, the latter shall be entitled to
three-fourths of the property, and the heir shall be the owner of only the
one-fourth, which the previous law allots to him, even thougTi he may not be
a decurion. Where several heirs in the same degree are called to the
succession of a decurion, and some of them become members of the curia,
and others refuse, he or they who devote themselves to it shall be
entitled to three-fourths of the estate, and the heirs at law shall obtain
the other fourth; for We are desirous that three-fourths of the same shall
pass without diminution to the decurions of the city.
CHAPTER IV.
But if a
decurion should die leaving a daughter who is married to another decurion of
the same town, there is no doubt that she will receive the entire estate of
her father, or at least three-fourths of it, when he desires to leave
one-fourth to someone else; but where she had not already become the wife of
a decurion, and he who married her consents to become one and assume the
curial obligations, the marriage will be valid; the husband will
unquestionably be entitled to administer three-fourths of the estate on
account of his good- will to the curia, for which reason We wish
three-fourths of the property to be transferred to his wife; and he shall
assist in the conduct of the affairs of the municipality.
But when there
are several daughters, some of whom are married to men who are already
decurions, or to others who become such by the assumption of curial duties,
three-fourths of the estate shall be divided among them, and one-fourth
among the other daughters; but the men who have married the daughters of the
decurion shall use their property for the benefit of the curia, even
though the ownership of said property may be vested in their wives; for We
have given the estate of the father to the latter in order to compel their
husbands to perform the functions of decurions. When a woman married to a
man who has become a decurion dies, and she has had male children by him,
the estate will pass to these children, who themselves will become members
of the curia, and the transmission of the estate will take place
without further ceremony.
(1) If, however,
the children should be daughters, and some of them have married men who are
already decurions, or who have devoted themselves to the curia in the
same town, they shall also be
entitled to the
estate without any hindrance, by reason of being subjected to the
performance of the curial duties through the medium of their husbands. But
if, among the daughters whom the wife of the deceased decurion has left,
there should be any who are not married to decurions, and others who are the
wives of men that are already decurions, or will become so hereafter, then,
in accordance with the division formerly established, the daughters married
to decurions will have a right to three-fourths of the estate, and their
husbands shall discharge the curial functions in their behalf, and the other
daughters will be entitled to one-fourth.
Where, however,
a woman married to a decurion leaves either male or female children, her
husband will enjoy the usufruct of the property as long as he lives, on
condition of his discharging curial duties. If he marries a second time, and
becomes the father of male or female children, and his daughters marry
decurions, his children shall also hold the property for the benefit of the
curia; and if he dies, or does not contract a second marriage, or if,
having daughters, he does not marry them to men who are already decurions,
or who will become such, then the curia will acquire the property in
regular order. For We never allow this share of an estate and the functions
of decurions to be alienated, or where this kind of a succession passes to
several persons, We desire that three-fourths of the estate shall be
reserved for the curia by all the lineal descendants, either through
the male children of decurions, or the sons-in-law of the latter who assume
curial obligations.
This law shall
be observed for all time in cases which are still pending and have not been
decided by judicial decision or amicable intervention.
EPILOGUE.
Your Excellency
will hasten to cause to be observed what has seemed to Us to be proper to
promulgate by this Imperial Law, and you will especially make provision for
everything which concerns the public welfare.
TITLE III.
CONCERNING THE GOVERNOR OF ARABIA.
ONE HUNDRED AND
SECOND NEW CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Pratorian Prefect of the East, twice Consul
and Patrician.
PREFACE.
As We have
already given a better form to the greater portion of the magistracies of
the provinces which were previously in an inferior and abject condition, and
not adapted to the proper transaction of any public business, and as We have
afterwards appointed to them officials who were more qualified in every
respect, and the latter have begun to
conduct the
administration of affairs in such a way that everything shows great
improvement; and as We have revived a x-large number of ancient titles, such
as those of Proconsul, Prator, and Governor, and have increased the
emoluments of these magistrates, as well as added to their authority; and as
We have, above all, forbidden them to wrong Our subjects, or to employ a
multitude of hands to plunder them; and, with a view to prevent this, We
have required them to take the most terrible of oaths, and it is not until
they have done so that We have placed them in office, considering that they
are only then worthy of receiving their commissions; for all these reasons
We now turn Our attention to the country of the Arabs, where similar changes
are necessary because the people are in great want, and in direct
correspondence with the unhappy state of this nation, x-large numbers of its
inhabitants apply to Us for relief, all of them giving utterance to
lamentations, some, on account of thefts and robbery committed; others,
because of injuries sustained, and others again, on account of losses which
have been inflicted upon them; and We have ascertained that the cause of all
this evil can be traced to the incapacity and impotence of the magistrates
entrusted with the government. For those who are invested with civil
magistracy have so little power that they are, by a custom in some respects
of a servile character, subjected to the authority of a military commander,
and rendered dependent upon him, while he himself is not, properly speaking,
a magistrate. Hence it necessarily follows that during the long period when
there was no civil magistrate in Arabia, the military commander discharged
his duties, while he was not competent to perform the functions of either
this office or his own; and instead of trying to benefit Our subjects in any
way, he confined himself to the collection of the salaries of both
employments.
CHAPTER I.
These things
have induced Us to promulgate the present law, and, availing Ourselves of
it, We impart to the magistracy of Arabia a better form, and kindly grant to
him who is invested with its administration the name of Governor (which We
have also done in Pontus), and We also confer upon him the title of
spectabile magistrate, in order that he may not be, in any respect,
inferior to the military commander. He must supervise with great diligence
the collection of taxes, as well as pay particular attention to the welfare
of private persons; he must not allow Our subjects to suffer loss at the
hands of the military commander, the tribune, the retainers of any powerful
person, the officials of Our own Imperial domain, or those having charge of
Our private property, or even the members of Our Imperial household. He must
not too readily consent to anything, or be influenced by fear; he must
govern Our subjects with firmness, and, above all, keep his hands clean
towards God, Ourselves, and the law; as We desire him to take the same oaths
required by Us or other magistrates. He will receive, along with his
commission, the Imperial instructions employed by Our predecessors, and
adopted by the ancient Republic, and which We have renewed after they had
fallen into
desuetude. He
will always regulate his official conduct by them, and will obey Our orders.
If he observes these regulations in every respect, there will be no reason
for his not discharging his duties with propriety and sagacity; and, with
the aid of God, to acquire great skill and readiness in the administration
of justice.
CHAPTER II.
Therefore (as We
have already stated), the Governor of Arabia will principally devote himself
to the collection of taxes, and manifest a kind and paternal regard for
those who are required to pay them; but he must display great energy and
severity towards such as are shown lax in discharging their pecuniary
obligations. He shall also administer the affairs of the government in such
a way that everything will be conducted in an orderly manner; he shall see
that the Bostreni and other peoples do not take part in any tumults or
seditions, and that the festivals whose celebration has been sanctioned from
ancient times are not turned into scenes of rage and slaughter. He will
also, in conformity to Our mandates, have soldiers under his command (whom
he shall be at liberty to select here), and he will not fail to do whatever
is conducive to the public welfare. We desire him to be installed with the
same honors which We have bestowed upon the Governor of Pontus. He shall be
of spectabile rank, and be invested with various titles and many
other distinctions. We grant him emoluments similar in character to those of
the Governor of Pontus above mentioned, as We wish him to receive fourteen
pounds of gold by way of salary, besides other emoluments, and his assessor
to receive five, and the members of his court nine. He will govern in
accordance with the Imperial Mandates (as We have just stated) and make use
of his soldiers for that purpose.
Your Highness
will see that a x-large number of soldiers stationed in this part of the
Empire are subjected to the orders of the Governor of Arabia, and the latter
must obey him, and execute his orders. Hence the distinguished general of
the army will have absolutely no control over the soldiers whom We place
under the command of the Governor, nor over any civilian; he must not
interfere with any lawsuit which persons may have with one another, or where
anyone is brought into court, nor shall he interest himself in cases, as a
great distinction exists between civil and military jurisdiction. The
Governor, as well as the general, shall then confine themselves respectively
within the limits of their authority, as Our predecessors have prescribed
and directed in the organization of the government. The general is hereby
notified that if he meddles in civil affairs he will not retain his command,
but will be deprived of it, reduced to the condition of an ordinary citizen,
and subjected to the authority of the civil magistrate.
CHAPTER III.
This is what has
been laid down by Us with reference to the magistracy of Arabia. We are
satisfied that the government will,, with the
assistance of
God, be better administered hereafter. We do not spare money to accomplish
this purpose; the salary of the office has increased, and We have no doubt
that, for this reason, the Governor will exert every effort to see that the
public taxes, instead of being a source of loss to the Treasury, will, on
the other hand, be extremely profitable to it.
We especially
desire that the distinguished general of the army shall receive his
emoluments from the official appointed by the Governor of the province for
that purpose, and that he shall not be permitted to collect them himself, in
order that a base inclination may not induce him to take more than he is
entitled to; and if he should disobey these rules, he is hereby notified
that he will be fined fifteen pounds of gold.
TITLE IV.
CONCERNING THE PROCONSUL OF PALESTINE.
ONE HUNDRED AND
THIRD NEW CONSTITUTION.
Addressed to
John, Most Glorious Praetorian Prefect of the East, twice Consul and
Patrician.
PREFACE.
We have already
granted greater power to the Governors of other provinces who, formerly
deprived of much of their authority, were not capable of acting with energy;
We have bestowed upon them the rank of spectabile; We have increased
their salaries, as well as those of their assessors and subordinates; and,
among all the distinctions which We have conferred upon them We have
included that of hearing appeals; We have honored some of them with the
title of Proconsul, others with that of Count, others again with that of
Praetor, and still others with that of Governor; and We add, so to speak,
new ornaments to Our Empire by the splendid appointments which are
constantly being introduced.
We have
especially directed Our attention to the metropolis of Caesarea, the capital
of First Palestine, which province should, above all others, enjoy great
distinction, for the reason that it was formerly governed by a Proconsul
with the title of Prefect, although he was subsequently reduced to an
inferior rank. Palestine, at first, only constituted a single province, but
when it was divided into three parts, it did not retain the Proconsulate,
but was placed under the jurisdiction of an ordinary magistrate (as he is
called). Without considering that this capital is very ancient, its name was
always celebrated, either because Strato first founded it and constituted it
a city; or for the reason that the distinguished Emperor Vespasian, the
father of Titus, of pious memory, gave it the name of the Caesars instead of
that of the Tower of Strato, which it was formerly called because Strato
resided there after the Hebrew victories between the emperors; an act which
alone would be sufficient to invest him with the greatest glory.
(1) We are aware
that Palestine is inhabited by a great and estimable people, and forms no
inconsiderable part of Our Empire, both because of the amount of taxes which
it pays, and by reason of its exceeding loyalty; that it includes cities of
great renown; produces good citizens versed in all kinds of knowledge, as
well as eminent among the priesthood; and that, finally (which is more
important than everything else), Our Lord Jesus Christ, the Creator of the
Universe, the Word of God, and the salvation of all the human race, redeemed
us in Palestine, and it was there that He designed to become responsible for
our sins.
CHAPTER I.
Therefore, why
should We not increase the consideration due to this province, by adding to
the dignity of the magistrate who governs it, and why should We not elevate
him to the Proconsulate? Why should We not concede to him the title of this
office? And this is what We now do, by means of the present Pragmatic
Sanction, which We desire to be styled the Privilege of the Csesareans.
Hence We hereby create the Governor of Palestine a Proconsul; We confer upon
him the rank of spectabile magistrate, and all the attributes
peculiar to that office; he shall hear appeals brought before him from every
part of both Palestines, where the value of the property involved is not
over ten pounds of gold; and his rank will enable him to execute Our orders
with more distinction and greater authority. He will assume the venerable
and antique veneta (that is to say, the purple stole), and he will
wear it during the sacred monthly festivals; being invested with so much
honor, he will render himself agreeable to his subordinates ; he will
command a x-large number of soldiers, and do whatever is most useful to the
government and advantageous to Our subjects. We also bestow upon him, by way
of salary, twenty pounds of gold, which he shall freely divide between
himself, his assessor, and his attendants. He will notify Us of the division
to be made of it, in order that We may confirm its distribution by means of
an Imperial Pragmatic Sanction, as We are not willing for the Governor of
Palestine and his assessor to be paid the moderate emoluments which they
formerly received, or that his attendants, who are occupied with such x-large
collections of taxes, and have considerable risk to run on this account,
should be deprived of all means of assistance, especially when the
Proconsul, his assessor, and the members of his court are well disposed
toward Us, diligently collect the public tributes, and abstain from unjust
exactions.
.CHAPTER II.
In addition to
this, the distinguished military commander of Palestine at the time shall
not, in any way, interfere with civil cases, or the disbursement of taxes,
but the Proconsul himself shall decide all public and private litigation (as
has already been stated) ; he must especially see that the public revenues
are paid without delay or loss, and keep his hands clear of all corruption.
What We decree
will be carefully observed, for Stephen, whom We appoint the first Proconsul
of Palestine, is deserving of great praise, and Our experience with him in
former times induces Us to believe that he will discharge the duties of this
office with wisdom. He must be especially careful to maintain order in the
cities, and see that no popular tumult is excited therein. For this was one
of his duties when he was invested with the magistracy; and he, having
obtained the government of a province prone to sedition due to difference of
religion, as well as other causes, pacified it, and entirely delivered it
from all kinds of tumults and troubles, which is what We enjoin him to do
now. If it should become necessary for him to visit Second Palestine, for
the purpose of suppressing disorder, he must not permit anything improper to
take place there, and above all, in that part of the province in which We
are aware that widespread disturbances exist, the results of which are
serious.
CHAPTER III.
If he should be
in need of any soldiers stationed in the province, We hereby place those
under his command whose energy We know has been tested as much in protecting
the citizens of the town as in preserving peace among the inhabitants of the
country, and in collecting the public taxes.
We confirm in
all its force the Imperial Pragmatic Sanction which was originally
promulgated on this subject, and by which the distinguished departmental
commander, or the most glorious general of the army is prohibited from
depriving the Proconsul of the military authority conferred upon him, for
fear that tumults or sedition may arise in the city. For tumults will never
take place while the Proconsul administers the civil magistracy, if he
maintains strict discipline among the collectors of tribute, and is careful
to provide soldiers ready to execute his commands, whenever this becomes
necessary, and suppresses crimes committed by these persons or by others.
(1) The eminent
general of that department, and he who is invested with Proconsular
magistracy, shall be entirely distinct from each other, so far as their
respective duties are concerned. For the former will have charge of the
troops known as limitanei, and fcederati,1 and of
the entire body of soldiers in the province, with the exception of those
allotted to the service of the Proconsul; while the latter will have
jurisdiction over private persons as well as civil matters, and will command
the military forces placed at his disposal. No one can evade his
jurisdiction in matters relating to public taxes or popular sedition.
1 The
limitanei were soldiers entrusted with the defence of the frontiers.
In return for this dangerous service, and in addition to their regular pay,
they were given lands taken from the enemy, in perpetuity, which descended
to their heirs, solely on condition that the latter embraced the military
profession, and these lands could, under no circumstances, be held by
person's in civil life. (Vide Spartianus, Pescennius Niger, VII;
Lampridius, Alexander Severus, LVII.)
The Proconsul
will command and direct all his subordinates, none of whom shall disobey his
rules or orders, or, under any pretext, be permitted to defraud the public,
or injure the citizens in any way; the promoter of public sedition shall not
avail himself of his rank, his dignity, his sacerdotal character, or any
other privilege whatsoever, to enable him to escape the consequences of his
acts, but he can only avoid liability and punishment when he has not
committed any offence.
(2) Thus (as We
have already stated) We grant these powers to the above-mentioned
magistrate, and We desire then to be perpetually recognized by means of this
Imperial Pragmatic Sanction. In order that the authority of Your Excellency
may be undisputed, We order this Decree to be inscribed upon the registers
of your office, so that all the future inhabitants of the province may know
that the Proconsular office has been restored to them; that the highest rank
of Proconsul has again been established in First Palestine; and that this
magistrate, who was formerly deprived of the pomp attaching to the office,
is now invested with all due honor and distinction.
EPILOGUE.
Your Excellency
will see that what it has pleased Us to enact by this Imperial Law is
carried into effect.
TITLE V.
CONCERNING THE
PRAETOR OP SICILY. ONE HUNDRED AND FOURTH NEW CONSTITUTION. The Epitome of
the One Hundred and Fourth Novel is partly taken from Haloander, and partly
from Julianus.
Sicily shall
have a Praetor who will be entrusted with the administration of civil
matters, and have charge of the military establishment.
(2) The
collection of the public taxes of Sicily shall not be one of the duties of
the Praetor, but shall devolve upon the Count of the Patrimony of Italy.
(3) Appeals from
Sicily to this Capital shall be heard by the Most Excellent Quaestor; and
decrees of the defenders of the city or of the municipal magistrates shall
be confirmed by this illustrious dignitary, whenever this is necessary.
The fosderati
were the inhabitants of certain states of Italy connected with Rome
under the terms of treaties, which, while not exactly tributary or subject
to Roman sovereignty, nor even colonists, were, nevertheless, obliged to
provide a specified number of soldiers for the army. The Latini were
the most prominent of these allies. Their original exclusion from
citizenship, as well as the fact that their dependent condition exacted the
hardships, dangers, and expense of war without adequate compensation, was
productive of much dissatisfaction, sometimes resulting in resistance and
bloodshed. All fcederati, through the undiscriminating indulgence of
the emperors, ultimately became cives.ED.
TITLE VI.
CONCERNING
CONSULS.
ONE HUNDRED AND
FIFTH NEW CONSTITUTION.
The Emperor
Justinian to Strategius, Count of the Imperialx-large sses, Ex-Consul and
Patrician.
PREFACE.
The Romans, in
ancient times, established the title and office of Consul for the purpose of
employing these officials against their enemies, and it was in pursuance of
decrees which created them according to the laws of the Republic that the
Consuls immediately drew lots for the provinces, in which the Romans were at
war; and it was also by virtue of these decrees that they, in like manner,
acquired the fasces. When the authority to make peace or war was
subsequently transferred to the most pious Emperors, the rights of the
Consuls were restricted to the practice of moderate liberality, not
exceeding a fixed amount. But, gradually, certain Consuls assumed great
ostentation, and displayed undue magnificence, without reflecting that, up
to that time, this had riot been done; for great riches which surpass the
conceptions of the mind, and which are not derived from the office of the
person who possesses them but from private resources, are not the lot of
many men. Therefore, as We see that this title which, from the most distant
times, and for nearly a thousand years, has been preserved with the Roman
government is in a fair way to be lost, We think that some provision should
be made with reference to the consuls, in order to diminish their enormous
expenses and render them easy to be borne, so that the Consulate may
continue to exist among the Romans, and be obtainable by all good citizens
whom We consider worthy of being honored in this manner.
Hence, taking
all these matters into consideration, We have decided what sum should be
given under such circumstances. The distinguished Emperor Marcian
promulgated a law forbidding Consuls to distribute money among the people,
and this law was the first one of his Constitutions. But We have ascertained
that after it was enacted, certain Consuls observed it, and no longer made
such popular donations, while others requested permission to bestow gifts in
this manner, and, after it was granted, they did as they pleased in this
respect, scattering sums that were excessive in amount; others, however,
practicing moderation, limited themselves to the distribution ofx-large sses
of inferior value. As a just medium was regarded by Our predecessors as
preferable, and all extremes are dangerous, We have deemed it proper to.
establish a suitable rule with reference to this subject, in order that
nothing may be inordinate or irregular, and unworthy of Our reign.
CHAPTER I.
CONCERNING THE SEVEN PROCESSIONS OF THE CONSULS.
Therefore We
direct that every annual Consul, whom We appoint, shall bestow upon the
people by way ofx-large ss, distribution, and expenses as much as he can
afford; and We set forth in this Constitution everything relative to such
presents made by the Consuls. We give the force of law to the following
regulations, and anyone who violates them shall be punished.
We desire, in
the first place, that there shall be seven Consular processions. For when
anyone intends to give entertainments to the people for their enjoyment, We
provide for this by means of circuses, animal combats, and the concerts of
musicians, and do not permit them to be deprived of any of these amusements.
The first
Consular procession shall take place on the Kalends of January, when
the person entitled to the Consulate receives the commission of his office.
After this procession, a second exhibition, that is, one of horse contests
(called mappze) shall be given. Then a third, theatrical in
character, is to be exhibited, but only once; next, the one known as "For
the Entire Day," shall be represented for the delectation of the people;
this exhibition, called in Greek wayxpanov, and, consisting of
combats of men with wild beasts, requires great courage, as the animals
must, by all means, be killed. The course of the fifth procession is
directed to the theatre called Adorna, where comedy, tragedy,
concerts by musicians, and all kinds of performances take place. The Consul
shall then give another exhibition of contending horses, called
hippomachia. This is the sixth procession. Finally, when he relinquishes
the honor conferred upon him, he does so by means of a solemn ceremony.
In this manner
the celebration of seven nights of processions proceeds without any of the
observances prescribed by antiquity being omitted. And if, not being content
with what was originally the custom, We have provided for a second contest
of horses, and have continued the two theatrical exhibitions, it is certain
that We have introduced no innovation by doing so. What We have directed
shall then be considered to be sufficient; each exhibition shall be given
publicly; and the number shall not be increased so as to render them
obnoxious to the people, for what rarely occurs is regarded as wonderful.
These are the
rules which We have laid down with reference to Consular expenses.
CHAPTER II.
CONCERNING THE
WIFE AND THE MOTHER OF THE CONSUL.
If the Consul
has a wife, We regulate her expenses also, for it is proper for her to share
the distinction of her husband. But when he is unmarried, what We have
already decreed shall be sufficient, unless his
mother is
living, and she has not already participated in the honors of the Consulate,
or her son wishes her to enjoy them with him. We only concede this privilege
to his mother, hence no other woman than the wife and the mother of the
Consul shall be distinguished in this manner; for the reason that wives, in
accordance with law, share the distinction of their husbands, and mothers
also enjoy it, if the Consul so desires.
This rule does
not apply to the daughters, sisters, or daughters-in-law of Consuls, and
still less to anyone who does not belong to his family, for this is
absolutely prohibited.
(1) But how much
should the Consul distribute among the populace during the seven
processions? We shall decide this much better than was done by the
Constitution of Marcian, of Divine memory. This Constitution forbids every
exhibition of munificence, but We amend it by allowing the incumbent of the
consular office to exercise his generosity. For when he does not wish to
distribute anything among the people, We do not compel him to do so; just as
when he desires to be liberal and honor them with gifts of silver coin, We
do not prohibit it. We, however, forbid him to scatter gold coin about in
either x-large or small sums, no matter what may be its weight or
denomination; and he shall only distribute silver, as We have just remarked
: for We grant the Empire the exclusive right to scatter gold, as the amount
of its wealth permits it alone to despise this metal.
The Consuls
will, therefore, restrict themselves to the distribution of silver among the
people, which, next to gold, is the most precious metal; and We direct them
to bestow it in the coins called missiles, cavese, thymelicse,
quadrangul'se, and others of this kind; for the reason that the smaller
the denomination of the coins distributed the greater will be the number of
the persons who receive them.
Thus the
liberality of the Consuls will be in proportion to the means and inclination
of him who makes the donation, and he will be at liberty either to
distribute nothing, or to use moderation, or to exhibit an excessive
profusion. While enacting these provisions, We do not compel the Consuls to
scatter money about against their will, just as We do not prohibit those who
desire to do so.
This is a rule
that We establish with reference to coins thrown to the populace. Hence if a
Consul desires to be generous, he can distribute money during these
processions as he may deem to be advisable, and he is only forbidden to
distribute gold, which is a privilege solely reserved for the Emperor.
(2) We strictly
prohibit any of the provisions which We have enacted in the present law from
being violated, or others to be added to them. Hence, in order that We may
prescribe no limits to the gift of money under such circumstances, We leave
it to the discretion of those who bestow it; so that its distribution may
absolutely depend upon the desire and pecuniary resources of the donor.
What, however, .has once been prescribed and ordered by Us, Our law forbids
to be disobeyed.
If anyone should
presume to violate these provisions, he shall pay a fine of a hundred pounds
of gold for having disregarded Our precepts, and evaded the intention of
this enactment, as far as was in his power. For if it has been adopted
solely to prevent the poverty of Consuls through their excessive liberality,
and for this reason We have restricted these superfluous donations and
reduced the expenses of processions for the entertainment of the people, as
well as those of public exhibitions, to a more reasonable figure; and if,
taking into consideration what is proper relating to the distribution of
money, and We only authorize silver to be scattered, and allow Consuls to
give nothing at all when they are unwilling; this has been done in order
that We may have ax-large r number of these magistrates, and that they may
always adorn Our reign with their names, and anyone who does not comply with
these rules, and violates Our law, shall be considered worthy of punishment.
For in this way We shall always have Consuls who will not hesitate to bestow
immense gifts, and will under no circumstances have reason to fear and avoid
the Consulate as an office involving certain risk. Hence We order that this
law shall be observed in all its force.
(3) Therefore,
no one shall presume to violate it, whether he be a man of great wealth, or
one of Our judges, or a member of the Great Curia, or discharges the
functions of any public employment whatsoever. For, taking all these matters
into account, We have proposed to Ourselves to maintain equality in
donations of this kind, permitting no one to exceed the limit fixed by this
law, unless with reference to the amount of silver which Re is authorized to
scatter or not to scatter among the populace, during the processions; which
(as We have already stated) We leave entirely to the discretion of the
Consuls themselves. Great favors are granted by this law of Ours to those
who are accustomed to receive such gifts; for if they run the risk of
receiving nothing from Consuls who neglect their duties, they will now
obtain moderate presents, and will be indebted to this law, which is also
indulgent to the Consul who bestows nox-large ss.
We forbid the
Most Glorious Consuls to scatter gold or great vases among the people, for
We desire them to display their liberality by the distribution of the coins
previously mentioned. We establish this rule through motives of humanity,
and in order to consult the interests of the people; for if those who
display their consular munificence do as We have directed, they will, by
this means alone, conciliate the masses. Those who foment seditions through
x-large ly sharing in the generosity of the Consuls will no longer engage in
contention; they will not come to blows, as they formerly did, by making use
of clubs or stones, which conduct is especially odious to Us. For We see
them use every effort to afflict one another with innumerable evils where
various articles are thrown among and seized by them from which their
households derive no benefit, but which they squander during the same day in
drunkenness and debauchery. And whenever, in the hope of obtaining
considerable profit, one of them incurs expense and afterwards obtains
nothing from consular generosity, or less than the
amount he has
disbursed, he is obliged to suffer loss to pay the debt which he had
contracted; and, in addition, be subjected to the blows, wounds, and
misfortunes which result. Where, however, the money scattered by the Consuls
is distributed with moderation, the populace do not exert great efforts to
seize it, and not making calculations for excessive gain they do not give
one another blows, or inflict severe wounds, in order to obtain possession
of what is bestowed.
Therefore We
have, by means of this law, introduced a provision which is of general
application and appropriate to the form of government; so that the course of
time may always be indicated after the Empire is mentioned by the constant
mention of the Consuls themselves. We also provide a suitable consolation
for Our most glorious judges; for those who are members of the great
curia; for Our people, and for all others (in that We release those whom
We honor with the Consulate from being compelled to incur enormous expense)
even though this may have been unexpected, and We suppress all superfluous
outlay, so that We may render the Consulate immortal in the government.
(4) Therefore
(as We have already stated) Our explanation of this law, copies of which
shall be filed in the Court of Your Highness, to whom We have addressed it,
hereinafter follows. We direct that the Most Glorious Consuls now in office
shall receive from your tribunal alone a copy of the said explanation
appended to this law, so that by means of the same everything which is done
may be properly executed. We wish this to be issued by Your office in order
that the Consuls may not be allowed to evade its provisions, nor those who
are called compilers alter anything which We have decreed. A copy shall be
given on the responsibility of those members of the Court of Your Glory to
whom it is entrusted, which shall bear the signature of the magistrate
exercising the functions of the office which you now occupy, in order that
what We have provided may not, in any way, be changed. None of those persons
called to the Consulate will experience any hesitation in accepting the
place, if he always confines himself to moderate expenditures. For We,
through Our generosity, continue to give to the Consuls everything which
they have been, up to the present time, accustomed to receive from the court
of Your Highness, or even from other sources, for, while reducing their
expenses, We do not diminish Our liberality towards them.
The Emperor,
however, is not subject to the rules which We have just formulated, for God
has made the laws themselves subject to his control by giving him to men as
an incarnate law; the Consulate belongs to him in perpetuity, whether he
himself discharges its functions over all cities, peoples, and nations in
pursuance of any private design by which he may be actuated, or whether he
confers upon others the consular robe and attributes, as the office is
always a part of the Imperial dignity.
EPILOGUE.
Your Highness
will cause this law to be perpetually observed in accordance with its
provisions.
To the law: One
copy is addressed to John, Most Glorious Praetorian Prefect, twice Consul
and Patrician. Another is addressed to Longinus, Most Learned and Most
Glorious Prefect of this Capital City.
Given at
Constantinople, on the fifth of the Kalends of July, after the
Consulate of the most illustrious Belisarius.
TITLE VII.
CONCERNING MARITIME INTEREST.
ONE HUNDRED AND
SIXTH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious
Praetorian Prefect.
PREFACE.
We have received
a message from Your Highness for which We Ourself have given occasion. Two
men, Peter and Eulogius, have applied to Us, stating that they are
accustomed and it is their business to lend money to the masters of ships,
or to merchants who are generally engaged in maritime trade. Our law
ordinarily styles such transactions loans on transport, and it fears them,
because they give rise to uncertainty; hence it is necessary that the custom
in accordance with which they are practiced should become clear, and that We
should make provision for rendering this custom a positive rule. Therefore,
We, having designated you to ascertain the nature of the doubt, and report
it to Us, to the end that We may be fully informed, Your Glory has, in
accordance with the terms of your appointment, called together the
shipmasters who are accustomed to make this kind of loans, and interrogated
them as to the ancient custom. The said shipmasters, giving their testimony
under oath, stated that there are various kinds of maritime loans, and that
creditors have been pleased to impose a measure of wheat or barley for every
solidus that they lend to shipmasters, who pay a certain sum to the
receiver of public taxes, as well as to those who navigate ships without
paying any taxes; that the creditors obtain this benefit from the money
which they lend, and that, in addition, they collect by way of interest one
aureus for every ten aurei; but they assume the risk of the
sums which are loaned. When the creditors do not lend their money in this
way, they demand as interest the eighth part of each aureus, not for
a specified time, but until the ships return safely; the creditors take this
interest when a vessel remains away an entire year, or almost that long, or
when the duration of the voyage exceeds this term; whilst if the ship
returns promptly, and without being absent more than one or two months, the
creditors do not claim as interest more than three siliqute for each
aureus. The same rule applies where the voyage was extremely short,
or when the sum loaned is in the possession of some other person than the
debtor.
Where the
merchants undertake another voyage, the rate of interest is fixed
accordingly, whether the money remains in the hands of the same merchant, or
is transferred to someone else in accordance with the agreement entered into
between the parties.
If, however,
after the safe return of the vessel, the shipmasters should not be able to
sail again on account of bad weather, a delay of only thirty days shall be
granted by the creditors to their debtors, and they shall exact nothing by
way of interest for the sums loaned until the cargo is sold; the merchants
will be required to prevent the sums loaned to them from passing into the
hands of other persons without paying interest to the creditors at six per
cent; and unless they do this immediately and protect the loan by offering
landed security, the creditors will not be liable for maritime losses.
These are the
statements which have been made by shipmasters under oath, and which you
have transmitted to Us in order that We may make such provision with
reference to them as appears to Us to be proper. This is the question which
you have referred to Us for Our decision,
CHAPTER I.
Therefore We,
having read these statements and become familiar with the case, do hereby
decree that the customs whose existence has been established in the presence
of Your Highness, shall continue to be observed now and for all time to
come, for the reason that they are not opposed to laws already in force, and
that they shall have legal effect so far as shipmasters and merchants are
concerned; that they shall be complied with in all litigation instituted
with reference to maritime interest; that the risk shall be incurred in
accordance with the terms of the aforesaid agreements; and that all other
customs brought to the knowledge of Your Highness shall be applicable, so
far as shipmasters and merchants are concerned; as it is not just that what
has been practiced for a long time, and has been established in a permanent
manner, as is shown by the testimony given before Your Glory, should not be
observed in transactions which subsequently take place. For is it not
equitable that the method followed up to this time should be observed in
compliance with the terms of a special law, and without requiring any other
positive enactment; that this law should be operative hereafter in all cases
relating to shipmasters or merchants, and that it should constitute a form
of legislation generally applicable to the masters of ships and merchants
and their contracts ? It, then, shall constitute part of the laws which We
have already enacted, and judges must render their decisions in accordance
with its provisions.
EPILOGUE.
Therefore Your
Highness will be careful to have what it has pleased Us to order to be
perpetually observed.
-;
TITLE Vill.
CONCERNING
IMPERFECT WILLS EXECUTED BY PARENTS
WITH REFERENCE
TO THEIR CHILDREN ; AND CONCERNING
THE DISTRIBUTION
OF THE ESTATE OF A FATHER MADE
AND SIGNED BY
His CHILDREN IN His PRESENCE.
ONE HUNDRED AND
SEVENTH NEW CONSTITUTION.
The Emperor
Justinian to Bassus, Most Magnificent Count of the Domestics, who discharges
the duties of John, Most Glorious Praetorian Prefect, twice Consul and
Patrician.
PREFACE.
A law was
promulgated by Constantine, of Divine memory, with reference to the
confidence which should be reposed in conjectures; but as the nature of
cases frequently varies, this law has need of amendment. It provides that
the wishes of dying persons shall be strictly complied with by their
offspring; but it permits the latter to interpret these wishes by directing
that if the assertions made by the deceased are not clear, but can be
explained by certain indications, conjectures, or writings, they shall be
equally applicable to children who are independent, or emancipated.
Theodosius made
the same rule operative not only where fathers, but also where mothers and
other ascendants of either sex were concerned; and men took advantage of
this to such an extent that they inferred, rather than interpreted, the
intentions of moribund persons. Thus, although testators may not have
written the names of their heirs, and may not have made any statements as to
the disposition of their property, or estimated the amount of it, their
heirs, nevertheless, thought that they were authorized to ascertain their
wishes by means of inferences and probabilities.
CHAPTER I.
CONCERNING THE
WISHES OF PARENTS AS TO THE DISTRIBUTION OF THEIR ESTATES.
Hence, desiring
everything to be clear and well defined (for what is so appropriate to the
laws as perspicuity, especially where the testamentary dispositions of
deceased persons are involved?), We hereby direct that if anyone who knows
how to write should wish to divide .his estate among his children, he must
first put down the date with his signature; next he must inscribe the names
of his children with his own hand; and then he must indicate the shares for
which he appoints them heirs by completely writing them out, and not by
merely expressing them in numerals, in order that said shares may be exactly
known and free from all doubt. When he desires to make such distribution of
all his property by either a general or special assignment of certain
specified articles, he must reduce this to writing, so that every-
thing having
been duly enumerated, there may be no ground for the children to institute a
contest.
Where he wishes
to leave legacies, trusts, or grants of freedom to his wife or to strangers,
he shall write his dispositions to that effect with his own hand; and,
finally, testators must declare in the presence of witnesses that they
desire what they have stated in their wills to take effect, and be executed
without any dispute, or the pretext being advanced that this is merely
written on the paper, and that the other formalities required in wills have
not been complied with. We make this single alteration in order that the
hand and the tongue of the testator may have all the virtue attributable to
the execution of a formal instrument.
CHAPTER II.
If a testator
should continue to have this intention until death, no one shall afterwards
be able to introduce witnesses to prove that he wished to alter his will, or
do anything of this kind; as he was permitted to revoke it and draw up
another containing the perfect expression of his wishes, and which alone
would be carried into effect. For We grant him the power to expressly state
in the presence of seven witnesses that he does not desire that the former
will which he has made should remain valid any longer, but that he intends
to make a new one; and he can then do this by executing a faultless
testament with all the necessary formalities, or by the mere verbal
expression of his wishes, and at his death his former will shall be regarded
as void, and the second one as perfect.
CHAPTER III.
As We have
ascertained that certain persons distribute their estates among their
children, and induce the latter to agree to this by their signatures, We
adopt this rule. Therefore, where anyone divides his property, and, calling
his children together, causes them to consent to the apportionment which he
has made, by attaching their signatures to a written instrument, this shall
be considered valid, and will be advantageous to the children. A division of
this kind must be confirmed in conformity with the constitution which We
have promulgated on this subject, and which We ratify by the present law in
all cases to which it is applicable. Where the father, alone, signed the
instrument making the distribution, and which he has rendered clear by his
signature, it also shall be valid; for the reason that this method has
already been included in Our legislation. Hence it is evident that this law
will be applicable to all cases which may hereafter arise.
EPILOGUE.
Your Highness,
having been informed of the provisions which it has pleased Us to enact by
this Imperial Law, will cause them to be generally published, in order that
no one may be ignorant of what We have prescribed for the welfare of Our
.subjects.
Given at
Constantinople, on the Kalends of January, during the reign of Our
Lord the Emperor Justinian, and the Consulate of Basil.
TITLE IX.
CONCERNING
TRANSFERS.
ONE HUNDRED AND
EIGHTH NEW CONSTITUTION.
The Emperor
Justinian to Bassus, Most Magnificent Count of the Domestics, who is
Discharging the duties of John, Most Glorious Praetorian Prefect.
PREFACE.
As We have heard
of an instance in which an ambiguous testament had been submitted for
interpretation, We have thought it proper that the decision of the question
should be made the subject of a positive law; for We are accustomed to make
such transactions the occasion for the enactment of better legislation.
(1) A certain
man, when appointing his children heirs, desiring that the survivors should
be substituted for those who might die before them, ordered that if any one
of his children who would be his future heir should die without issue,
everything which he left him, except that to which he was entitled by law,
and all other property and rights of which he was possessed at the time of
his death, should be transferred to the survivor of the other children, or
to the offspring of the said survivor if the latter himself should die,
releasing them from giving any bond or security, by reason of the
substitution of the aforesaid property. The testator, having died, left as
his heirs one son who had children, and another who had none. He who had
children forbade the other to take the substituted property, on the ground
that he would diminish its value. The latter, however, relying upon the
words of the will, namely: "That he should deliver whatever was in his
possession at the time of his death," claimed to have the right to use the
property in any way he pleased, without being prevented from so doing in any
way whatsoever.
(2) Therefore
We, taking advantage of this opportunity, have deemed it necessary to
dispose of the ancient legislation, and settle this matter for the future,
to treat the subject with clearness, and to include this case in a law, in
order that judges may learn how to hear and determine others of a similar
character. We are aware that the most wise Papinianus, in the Nineteenth
Book of his "Questions," allows ambiguous alienations to be made in
instances of this kind; he discusses the point of ascertaining when it is
necessary to prohibit, and he thinks that this should only be done where a
trust is to be executed by the person who is charged with it. And the
philosophical Emperor Marcus also disposed of a similar case in which the
judgment of a good citizen seemed to be required to determine the meaning of
words under such circumstances.
CHAPTER I.
Therefore We
consider it advisable to establish the rule that where a testator, in
general terms, directs the property to be delivered by the terms of a trust,
what We have already decreed in cases of this
description
shall be observed. When, however, the trust resembles the one which has been
referred to Us, and the testator only subjected to delivery such property as
might be found at the time of the death of the person charged with the
execution of the trust, then what has been prescribed by former laws shall
be complied with. When the bequest of the testator is of this nature, or in
some respects resembles the one above mentioned, We order that he who is
charged with the execution of the trust shall only be required to preserve
for the substitute the amount of the Falcidian portion, the contribution of
which is compulsory, and that he cannot absolutely deduct anything from the
said Falcidian portion, but the three-fourths of the estate to which he was
appointed heir shall remain in the hands of the trustee, and only a fourth
of the same shall be reserved for the benefit of the substitute.
We do not permit
the trustee to make donations, for the purpose (as Papinianus said) of
defeating the object of the trust, in order to diminish the fourth of the
estate referred to, but We decree that he shall preserve this portion of the
trust for the substitute; that all of the remainder shall belong to him, and
that he shall be at liberty to make use of it as the true owner, in whatever
way he wishes.
If the heir
charged with the trust should acquire the fourth that he ought to reserve,
the reason for his doing so should be ascertained; and if having no other
property he should desire to constitute a dowry or to make an ante-nuptial
donation, he shall be permitted to do so, as is stated in the preceding law,
by which We have not absolutely prohibit a trustee from making a diminution
of this kind in a trust. He shall also have authority to diminish the fourth
reserved by the substitute for the redemption of captives (for We make an
exception in this instance and dedicate it to God), as We are actuated by
motives of piety which seem to Us to be the most precious of all things.
CHAPTER II.
If, however, the
trustee should not have enough to defray his expenses, he can, for that
purpose, make use of the property to be delivered under the trust, and We
grant him permission to do so (for this was the intention of the testator)
desiring the remainder to be transferred, just as if the testator had
expressly stated that delivery of the remaining property should be made
after the expenses were paid. But where the trustee has no ground for
encroaching upon the fourth of the estate which he is obliged to transfer,
he will be compelled to preserve it all and deliver it to the substitute. If
he has paid out anything on account of the substituted property, he must
take enough from some other source to make up the said fourth, which, as has
just been stated, shall, on no account, be diminished. When, however, the
trustee has obtained the fourth of the substitution, and has nothing himself
out of which to make up the deficiency, We, by the terms of this law, grant
the substitute the right to bring an action in rem against the
purchasers, or other persons who have received the property, in order that
the terms of the trust may be complied with
through the
recovery of said property, a privilege which we have already conceded with
reference to legacies, by authorizing the legatee under Our Constitution to
bring an action in rem in order to be able to execute the trust.
Wherefore the heir charged with the trust must give security to preserve at
least the fourth of the substituted property, unless the testator excuses
him from doing so, as he did in the case referred to Us; for when the
testator releases the heir not only from the necessity of furnishing
security, but also from that of executing a bond, We will not act in
conformity with his wishes if We prescribe otherwise.
EPILOGUE.
This decision is
rendered with reference to the proceedings which gave rise to it, as well as
to all others concerning wills, where the testators are dead; and it also
applies to trusts which have not yet been carried out for the reason that
the heirs charged with their execution are still living.
We decree that
these provisions shall be observed not only so far as children are
concerned, but also with reference to other relatives and strangers, who are
charged with the execution of a trust of this
kind.
Your Glory will
communicate this law to all Our subjects, so that they may learn how they
should live, die, make wills, create trusts, and comply with the other
provisions ordered under similar circum-stjincGS
Given at
Constantinople, on the Kalends of February, during the fourteenth
year of the reign of Our Lord the Emperor Justinian, under the Consulate of
Basil.
TITLE X.
CONCERNING THE
DOTAL PRIVILEGES WHICH ARE NOT GRANTED TO WOMEN WHO ARE HERETICS.
ONE HUNDRED AND
NINTH NEW CONSTITUTION. The Emperor Justinian to John, Most Glorious
Pratorian Prefect of the East, twice Consul and Patrician.
PREFACE.
We are convinced
that Our sole hope of the permanency of the Empire during Our reign depends
upon the favor of God, for We . know that that hope is the source of the
safety of the soul, and the preservation of the government. Wherefore Our
laws should be based upon it, and constantly take it into consideration, for
it is their beginning, middle, and end. Everyone is aware that those who
have ruled before Us, and especially Leo, of pious memory, and Justin, Our
Father, of pious memory, in their constitutions, forbade all heretics to
have any share in public employments or offices, in order that they might
not have an opportunity to make use of them against the Holy
and Apostolic
Church of God. We, also, have forbidden this, strengthening it in every way
by the authority of Our Constitution. Our predecessors denned as heretics,
and We also designate as such those who are the members of different
heterodox sects, and among the latter We include persons who adopt the
insane Hebrew doctrines of Nestorius the Eutychian, the Acephali, who
endorse the evil dogmas of Dioscorus and Severus; those who renew the
impiety of Manichseus and Apollinaris; as well as all such as are not
affiliated with the Catholic and Apostolic Church of God, in which the most
holy bishops, the patriarchs of the entire earth, of Italy, of Rome and of
this Royal City, of Alexandria, Antioch, and Jerusalem, along with all the
holy bishops subject to their authority, preach the true faith and
ecclesiastical tradition.
Hence We very
properly call persons heretics who do not receive the holy sacraments from
the reverend bishops in the Catholic Church; for although they may give
themselves the name of Christians, still they are separated from the belief
and communion of Christians, even when they acknowledge that they are
subject to the judgment of God.
CHAPTER I.
Therefore the
provisions enacted with reference to heretics are well known to all. But as
We desire that persons who embrace and defend the orthodox faith shall have
greater privileges than those who hold themselves aloof from the flock of
God (as it is not just for heretics to enjoy the same advantages as the
orthodox), We now address Ourselves to the present law. For as We have
granted the privilege of the dowry to women, in order that they may be
preferred to prior creditors, and that their claim shall be first in order
and not liable to be barred by prescription, nor be pleaded with reference
to ante-nuptial donations, according to the times for which they were made,
We now, by this Imperial Law, decree that this privilege, tacit
hypothecation, and all other rights which were granted by Our laws to women
to enjoy and make use of, shall be conceded to those alone who profess Our
adorable faith (We mean that of the Catholic and Apostolic Church), and who
participate in its salutary communion.
We also
absolutely forbid women who are separated from the Holy Catholic Church, and
are unwilling to receive the Holy Communion from the hands of priests,
beloved of God, to enjoy such privileges. For if they renounce the favors of
God, and absent themselves from the Holy Communion, there is all the more
reason why they should not enjoy them, and that We should not permit them to
participate in the benefits of Our laws; hence they are declared incapable
of doing so, and shall be deprived of all the advantages of Our
Constitution.
CHAPTER II.
Women, however,
who embrace a better doctrine and acknowledge the true faith, shall be
permitted to share in the above-mentioned benefits.
These provisions
must be observed throughout the entire Roman Empire, and their execution
shall generally be promoted by the bishops and ecclesiastics beloved of God,
by Our magistrates and superior and inferior judges, as well as by Your
Highness, to whom they are addressed. Hence judges, before whom cases are
brought against women, or by women who desire to avail themselves of any
privileges, shall conform to the spirit of this law; and if it should be
ascertained that the said women do not profess the orthodox faith, or
receive the adorable communion in the Holy Catholic and Apostolic Church, at
the hands of the reverend clergy, they shall not be permitted to enjoy the
privileges conferred by Our Constitution.
EPILOGUE.
Therefore Your
Highness, as soon as you have been advised of what it has pleased Us to
promulgate by means of this law, will take measures to have it applied to
all cases brought before you, and render it operative and effective;
publishing it by means of solemn edicts and precepts, so that it may be
brought to the knowledge of all, and that Our subjects in this Most
Fortunate City, as well as in the provinces, may become aware of how great
Our solicitude is for the preservation of the faith of Our Lord Jesus
Christ, and the welfare of the people of the Empire.
Given at
Constantinople, on the second of the Kalends of May, during the
fourteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Basil.
TITLE XI.
CONCERNING MARITIME INTEREST.
ONE HUNDRED AND
TENTH NEW CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Praetorian Prefect of the East, twice
Consul and Patrician.
PREFACE.
We are well
aware that We have already enacted a law with reference to money loaned on
property transported by sea, which law has been communicated to Your
Highness.
CHAPTER I.
But several
applications having subsequently been made to Us, We have learned that this
law is not advantageous, and that it is the desire of Your tribunal that it
should be rescinded; and We have also been informed that it has been
recorded in all the provinces. We now wish to repeal it entirely, and We
decree that if it has already been despatched to the different provinces, it
shall not be executed there, but shall be considered void. We also decree
that, hereafter, cases shall
proceed just as
if the said law had never been written, and that everything shall be
conducted in accordance with the legislation previously enacted by Us on the
subject.
EPILOGUE.
Therefore Your
Highness will hasten to carry into effect the provisions contained in this
Imperial Law.
Given at
Constantinople, on the sixth of the Kalends of May, during the reign
of Our Lord the Emperor Justinian, and the Consulate of Belisarius.
TITLE XII.
THIS
CONSTITUTION REPEALS THE ONE WHICH GRANTED
TO RELIGIOUS
PLACES FREEDOM FROM PRESCRIPTION,
UNLESS A HUNDRED
YEARS HAD ELAPSED.
ONE HUNDRED AND
ELEVENTH NEW CONSTITUTION.
The Emperor
Justinian to Theodotus, Praetorian Prefect of the
East.
PREFACE.
The laws bear
the same relation to business transactions as medicines do to diseases.
Hence it sometimes happens that the effect is not what was anticipated, and
that what was considered to be beneficial proves, through experience, to be
worthless. This fact is established by the necessity which compels Us to
enact the present law, in which We reconsider the privilege that a pious
intention recently induced Us to grant, by the terms of a Constitution, to
the Holy Churches of God, to monasteries, and other religious foundations.
We ordered that these places should have the right to bring suit during the
term of a hundred years, but the result of this has been that many actions
were brought, just as new scars form on old wounds already healed, and the
proceedings instituted failed of success on account of the insuperable
difficulty of obtaining evidence; for, after the lapse of a century, one can
no longer rely upon human testimony any more than force can then be imparted
to contracts, confidence be reposed in documents, or life be restored to
witnesses.
CHAPTER I.
And as a great
number of matters demand Our attention, We decide with equity, and above all
religiously, with reference to the aforesaid privilege; and as experience
has taught Us to limit this privilege as much as possible, We hereby decree
that in the case of suits against which formerly the prescription of twenty
years could be pleaded, this term shall now be extended to forty in favor of
venerable churches, monasteries, hospitals, orphan asylums, foundling
hospitals and infirmaries for the poor; but the benefit of the prescription
of thirty
years shall
always be reserved for them against other persons and any actions which may
be brought against them. We grant (as already stated) this extension of ten
years solely to religious places, their rights, and their contracts, so
that, after the expiration of this term, the right to institute personal as
well as hypothecary actions shall be extinguished forever.
We do not in any
way derogate from other exceptions; and the prescription for thirty years,
as well as others, shall remain in full force. But, as previously stated,
religious actions shall enjoy the privilege of not being prescribed except
by the lapse of forty years, as aforesaid, in instances where Our
Constitution granted them the right of not being barred until after the
lapse of a hundred years. Where a judicial decision or a compromise has
ended cases brought by Churches and other Holy places before the enactment
of the present constitution, We do not desire that they shall be revived;
but for the future this provision shall be pleaded in actions concerning
which silence has been kept for eight lusters, or, where proceedings have
been instituted but have not yet been disposed of.
EPILOGUE.
Therefore Your
Illustrious and Magnificent Authority will communicate to all Our subjects
the regulations which Our Eternal Majesty has prescribed by this general
law.
Given at
Constantinople, on the Kalends of July, during the fifteenth year of
the reign of Our Lord the Emperor Justinian, ever Augustus, and the
Consulate of Basil.
TITLE XIII.
CONCERNING
PROPERTY IN LITIGATION, AND THE BOND FOR THE TENTH PART OF THE VALUE OF THE
OBJECT IN CONTROVERSY WHICH MUST BE FURNISHED BY THE PLAINTIFF.
ONE HUNDRED AND
TWELFTH NEW CONSTITUTION. The Emperor Justinian to Theodotus, Praetorian
Prefect of the East.
PREFACE.
The wisdom of
ancient legislators, as well as Imperial Majesty, has promulgated many laws
with reference to property in litigation. Judges have frequently petitioned
Us to resolve doubts which have arisen among them on subjects of this kind,
and to explain in a lucid manner the laws and constitutions applicable to
the same, in order that it may hereafter be perfectly clear what things can
properly be styled litigious.
CHAPTER I. WHAT
PROPERTY is SUBJECT TO LITIGATION.
Therefore We
decree that where a lawsuit is pending between a plaintiff and a possessor
with reference to the ownership of any movable property which is capable of
moving itself, either by judicial assignment or by petitions addressed to
the Emperor which have been recorded in court, and communicated to the
defendant by the petitioner ; or whether an appeal has been taken and the
property decided to be litigious; under such circumstances, the preceding
Constitution promulgated by Ourselves shall remain in full force; which said
Constitution establishes a distinction between purchasers who are aware that
the property which they purchased is litigious, and those who are not. We
think that it should be added that when, during the course of the trial for
the possession of a litigious article, the defendant dies, and his heirs
wish to divide his estate, they shall be permitted to do so without any
hindrance; for when property subject to litigation passes by succession to
heirs, the division of it made between them should not be considered as an
alienation.
But when it
happens that when one of the parties to an action to recover such property
dies, after bequeathing the ownership of the same, which is still uncertain,
to anyone by his last will as a legacy, We order by Our present law that the
legatee shall have a right to profit by the bequest, where the heir has been
decided to be the owner of it, under the terms of a judicial decision; but
when the heir loses his case in court, the legatee cannot demand of him
other property in the place of the legacy, because, as the testator was
aware that the object bequeathed was litigious, he, by that very fact,
subjected the legatee to the result of the suit. For this reason We grant
the legatee (provided he thinks that this will be advantageous to him) the
privilege of being represented in the case, in order that he may not
afterwards be able to charge the heir with negligence or fraud. We decree
that hypothecated articles shall not be called litigious, and that this
distinction shall be made whether the property specified is movable,
immovable, or capable of moving itself. Where it is expressly subjected to
hypothecation, the debtor is hereby authorized to sell it to anyone whenever
he thinks it advisable to do so, provided, however, that he pays the
creditor the amount of the debt out of the purchase-money; but if he should
not pay him, the creditor who has preserved his lien upon the property sold
can recover it for the purpose of satisfying his claim.
We order that
this rule shall be observed, unless the said property has previously been
encumbered to other creditors by a general or special hypothecation; for
then, in accordance with the terms of Our Imperial Law, We direct that the
privileges resulting from priority of obligations shall be observed for the
benefit of each of the creditors. The necessary consequence of this is that
We do not understand general hypothecation to be included in the term
litigious, but desire that
hypothecary
actions shall be decided in conformity to the provisions of former laws,
whose force We order shall continue to be maintained.
We promulgate
the present provisions with reference to property subject to litigation, as
well as to special and general hypothecations, in order that hereafter no
doubt may arise in court on these subjects, and that suits may be determined
in accordance with the distinction which We have established.
CHAPTER II.
CONCERNING THE
BOND WHICH SHOULD BE FURNISHED BY THE PLAINTIFF BEFORE SERVING NOTICE ON THE
DEFENDANT.
Our foresight
has devised another method of excluding the claims of those who institute
malicious prosecutions, and of suppressing the frauds of those who make a
business of doing so. For We order all judges, whenever any persons appear
or are summoned before them, to add to their decrees that notice of the
filing of complaints shall not be given to defendants, or fees be collected
by bailiffs, unless the plaintiff signs the complaint himself or by
notaries, and if he does not furnish a surety for whose solvency the court
shall be responsible, and state that he will prosecute the case to the end,
using every effort to do so either in person or by a lawful attorney, and he
is afterwards proved to have brought suit unjustly, he shall pay the
defendant, by way of costs and expenses, the tenth part of the value of the
property mentioned in the complaint. When the plaintiff says that he cannot
furnish a surety, We order him to swear to this on the Holy Gospels, in the
presence of the judge who is to hear the case, and he must also give a
juratory bond by which he promises what is above set forth.
(1) But when
what We have previously stated is not observed in the manner prescribed, We
do not require the defendant to answer him who has instituted the
proceedings. If a magistrate, his court, or any of his executive officers
should presume to sue anyone without complying with the aforesaid
formalities, the magistrate and his court shall be fined ten pounds of gold,
and the party responsible for the affair shall be sentenced to the
confiscation of his property and to exile for five years.
The Magnificent
Count of Private Affairs in office at the time shall be responsible for the
collection and payment into the Treasury of the fine prescribed by this law.
All the expenses incurred by the defendant on account of a citation made in
violation to the terms of Our law shall be reimbursed him by the plaintiff
at the risk of the judge before whom the plaintiff brought suit, as well as
of the officials who execute his commands, in order that those who have
absolute confidence in Our government and the majesty of the Most High may
profit by this indemnity.
We, however,
order that where any cases are brought in court by common consent, the
penalty prescribed by this constitution shall not be incurred, and they
shall be disposed of as directed by Our other laws.
CHAPTER III.
AFTER THE LAPSE
OF A YEAR AND THE PUBLICATION OF
THREE EDICTS, A
DECISION SHOULD BE RENDERED WITH
REFERENCE TO THE
CLAIM OF THE PLAINTIFF WHO is
GUILTY OF
CONTUMACY.
We desire all
litigation to be promptly disposed of, and resist the malice of those who
institute proceedings without intending to conduct them to final judgment,
relying upon the law which provides that no one can, against his will, be
compelled to exercise rights of action to which he is entitled. Therefore
We, hastening to abolish this dishonorable practice, do hereby order that
where persons bring suit against anyone, either by means of judicial notice,
or through petitions addressed to the Emperor, presented to the judge, and
communicated to the adversary, and a competent magistrate has begun to hear
the case, they shall not take advantage of the aforesaid law; for it is
unjust for him who has prepared for the action which he intends to bring,
and summoned his adversary to court, to refuse to proceed, since this
refusal is rather the privilege of the defendant than of the plaintiff.
Hence, We direct that the plaintiff shall conduct the action which he has
begun to the end.
If, however, he
should delay, We grant the defendant authority to compel the judge before
whom proceedings were instituted to notify the plaintiff to appear before
his tribunal, either in his own proper person, or by a lawful attorney. If
he does not appear in response to this notice, he shall be summoned by three
publications of the Edict, which shall be made at intervals of at least
thirty days from one another. We desire that ordinary judges shall, not only
by the voice of criers, but also by the publication of edicts, call into
court any of the litigants who may be absent, for there are comparatively
few persons present who can hear the voices of criers, while every one can
learn of edicts published in this way at intervals of several days. We also
permit all other magistrates who have cognizance of cases by Imperial order
to summon, by means of edicts, parties who do not appear in court, in order
that litigation may not become interminable.
(1) But where
the action has not yet actually been begun before a judge, but someone has
only been sued by the filing of a complaint, or by means of a petition
addressed to Our Clemency, and Our order has been communicated to the judge
either in writing or by mandate, and notice has been served by the plaintiff
upon his adversary, the defendant will also be permitted to appear before a
competent magistrate, and through him summon the plaintiff in the manner
already stated, in order that, after the latter has appeared, the suit may
be tried in accordance with law and be terminated in a suitable manner.
(2) Where the
plaintiff, after having been summoned to court by the publication of three
separate edicts, is unwilling to proceed either in person or by an attorney
(as already stated), then We grant him the term of a year within which, if
he does not go on with the case, We permit the judge to examine the
allegations of the party who is
present, in
accordance with Our laws, even in the absence of the adversary, and, having
ascertained the truth after careful investigation, to render a legal
decision. If, however, he should appear within the aforesaid term of a year,
and desire to try the case, We order that the judge shall, by all means,
compel the plaintiff to pay to the defendant all expenses and costs which
the latter has incurred on account of the litigation, until the suit was
terminated in conformity with law. If he should appear, and desire, by
paying the costs, to interrupt the course of the year, and withdraw from the
suit, and not remain until it has been decided, We order that, after the
publication of the edicts and the expiration of the year, he shall be
entirely deprived of the right of action which he thought he had against the
defendant; for the fraudulent conduct of one who abandons a case, the course
of which has already been interrupted, is worse than that of him who only
abandoned it once. Still, We permit those who have not instituted
proceedings of this kind against others to enjoy the benefit of the law
which does not require anyone to exercise rights of action to which he is
entitled, if he is unwilling to do so.
EPILOGUE.
Our most dear
and beloved relative, Theodotus, We decree that all these provisions shall
become operative in suits which have not yet been disposed of by judicial
decision, amicable compromise, or in any other way known to the law.
Therefore Your Illustrious and Magnificent Authority will communicate this
law, which We have enacted for all time, to all persons by means of edicts
published in this Royal City, and by notices despatched to the provinces
under Your jurisdiction, in order that Our subjects may be informed of and
observe the regulations which We have established for their benefit.
Given at
Constantinople, on the fourth of the Ides of September, during the
fifteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Basil.
TITLE XIV.
IMPERIAL
PRAGMATIC SANCTIONS OR ORDERS SHALL NOT
BE GIVEN
CONSIDERATION IF INTRODUCED DURING THE
HEARING OF A
CASE, BUT SUITS SHALL BE DECIDED IN
CONFORMITY WITH
GENERAL ANCIENT LAWS.
ONE HUNDRED AND
THIRTEENTH NEW CONSTITUTION. The Emperor Justinian to Theodotus, Imperial
Praetorian Prefect.
PREFACE.
We, desiring
that Our laws may be thoroughly executed, and taking proper care to maintain
their force, have deemed it proper to publish the present decree, to insure
compliance with these constitutions. For We have learned that certain judges
desiring to delay those who have
cases before
them, and with a view to concealing the reasons for such delay, frequently
excuse themselves on the ground that they have received pragmatic sanctions,
Imperial orders, or notices from Our illustrious referendaries, in
accordance with which they are required to hear or determine the case.
CHAPTER I.
Therefore, We
decree that when a case is tried, whether it relates to pecuniary, criminal,
or any other matters here or in the provinces, no pragmatic sanction,
Imperial order or notice, either written or verbal, issued in this Capital
by Our illustrious referendaries, or by any other magistrate whomsoever,
prescribing how judges must hear or decide an action which has already been
begun, shall be communicated to the magistrate; and if this should be done,
it shall be of no force or effect, as We desire cases to be tried and
decided in conformity with Our general laws, for what is generally
established has no need of regulation from other sources.
Where, however,
any point already brought to the attention of a judge, or which, even before
this was done, has been submitted to Us, and We Ourselves have decided it,
it will not require consideration by another tribunal. For (as has already
been stated) matters which have been disposed of by an Imperial decision do
not need the investigation of other magistrates, nor any revocation
whatsoever; and if We (to whom God has given authority to issue orders) have
rendered judgment in any case, We do not permit a judge, either by virtue of
a pragmatic sanction, or in pursuance of instructions given by Our
illustrious referendaries, or by any other magistrate, to hear and determine
it again, since what We have once decided cannot be corrected by anyone, Our
decisions being unalterable when they are embodied in a written decree. But
where a judge entertains any doubt with reference to the law, he must notify
Us of the fact, and wait until We send him a written opinion or
interpretation, and then decide the question in accordance with it.
(1) But if, when
the case was heard, an Imperial Pragmatic Sanction or a notice emanating
from Our illustrious referendaries or from any other magistrate whomsoever,
or based upon any of the aforesaid ordinances, directing that a specified
form of inquiry shall be conducted, or a certain decision rendered, is
served upon a judge, We order him to pay no attention whatever to it. Such
communications are void, and have absolutely no force whatever, but the
judge shall examine the case in accordance with Our general laws, and
terminate it in a proper manner. If, however, he should not do this, he
shall be subjected to a fine of ten pounds of gold, and, in addition, will
experience the effects of Our extreme indignation. Any magistrate who
presumed to dictate any pragmatic sanction of this kind, together with his
subordinates, and Our illustrious referendaries who may issue such
documents, shall be liable to the same penalty.
What We have
provided shall be applicable whether the judge has been appointed by Our
order, or under a judicial precept, or whether
he hears the
case as arbiter by virtue of a submission to arbitration, whether the
proceedings are committed to writing or not. But when a judge, without
having proper regard for his own safety, presumes to render a decision in
accordance with orders which have been given him, We declare the said
decision to be void, without there being any need to appeal from it, and
without the penalty prescribed by the agreement for arbitration being
incurred, for We wish all judges to hear cases, and render their decisions
in conformity with Our general statutes. Nor can any doubt exist that no
judicial order whatsoever will be effective against what is prescribed by
Our present law.
CHAPTER II.
It is necessary,
however, for magistrates to know that they must determine, in accordance
with the general laws, questions which may now arise where one of the
parties litigant has obtained an order prescribing the manner in which the
case should be heard and decided, as We are not willing for anyone who has
already obtained such an order to enjoy the benefit of it, where a final
judgment has not yet been rendered. But when this has been done, We decree
that it shall be absolutely exempt from the effect of the provisions of Our
present law, even though an appeal may have been taken from it, or some kind
of reconsideration of it may have occurred. We do not, however, prohibit
such an order, whether written or unwritten, from becoming operative where,
instead of prescribing how the judge shall decide or render judgment, it
directs that the case shall be disposed of; or the appearance of the
defendants take place; or the judge render a final decision; or some other
magistrate be appointed in conformity with law.
CHAPTER III.
In order that
all Our subjects, and especially those who have been ruined by lawsuits, may
be informed of Our solicitude for their welfare, and that no one may violate
Our present Imperial Law, or pretend ignorance of the same, We decree that
whenever an action is begun in court this law shall be copied and made a
part of the proceedings before a bond has been furnished. For in this way,
being conspicuous, any attempt made against its observance will be
prevented, or the solvency of the sureties furnished by litigants being
questioned, it will restrain the efforts of those who are desirous of
violating it by the severe penalties which it denounces against them, and it
will not permit the enforcement of these penalties to be deferred.
We enact the
present constitution for the purpose of excluding all 'inquiry and injustice
from matters of this kind, and by means of it We maintain the other laws of
the Empire in all their force, and free from the exercise of every kind of
fraud, for it is by virtue of these laws that We have received from God the
right of empire, and it is by means of them that We have always desired to
fortify and preserve Our government.
EPILOGUE.
Your Highness
will be careful to observe the provisions which it has pleased Us to insert
in this constitution; and you will communicate them by means of notices
published in this Most Fortunate City, and addressed to the Governors of
provinces, in order that all persons may be informed of Our desire for their
prosperity and happiness.
Given at
Constantinople, on the tenth of the Kalends of December, during the
fifteenth year of the reign of Our Lord the Emperor Justinian, and the
Consulate of Basil.
TITLE XV.
IMPERIAL ORDERS
SHALL BEAR THE SIGNATURE OF THE MOST GLORIOUS QUAESTOR.
ONE HUNDRED AND
FOURTEENTH NEW CONSTITUTION. The Emperor Justinian to Theodotus, Imperial
Praetorian Prefect.
PREFACE.
The solicitude
of Our Serenity provides remedies for Our subjects, and We do not cease to
inquire what needs correction in Our administration. Therefore We
voluntarily exert Ourselves to obtain repose for others, as We think that it
is a matter of universal advantage for Imperial orders to be given with
proper security, so that no one may be able to produce them at will.
CHAPTER I.
Hence We decree
by the present law that no Imperial order directed to a judge through the
instrumentality of the Magnificent Quaestor, or any other incumbent of any
charge, employment, or office, shall be accepted by the magistrate having
jurisdiction of the case, when the said order does not bear the annotation
of the Magnificent Quaestor setting forth for what person, to what judge,
and by what official it is issued; and all uncertainty having been removed,
no one will be able to allege any excuse. All judges and other magistrates
are notified that if they should accept an Imperial order (which does not
bear the annotation of the Most Magnificent Quaestor) having reference to
any matter whatsoever, they will be subjected to a fine of twenty pounds of
gold, and the members of their court will be liable to the same amount. If
any order of this kind should come into their hands We command them
immediately to refer it to the Magnificent Quaestor, or send it to him by
the person who delivered it, so that, Our illustrious and beloved relative
Theodotus, the punishment prescribed by the laws against forgers may be
inflicted upon them.
EPILOGUE.
Your Highness
will cause notice of the present law, which shall perpetually be valid, to
be given to all persons.
A Short
Epitome of the Same Novel.
Every Imperial
order shall bear the signature of the Quaestor and shall show for what
purpose it was published, and what judge was appointed. This, however, will
not prevent every Imperial Rescript from being signed by the Emperor, for
this constitution does not repeal or abrogate what is stated in the Code,
but merely adds what is here prescribed, namely, what relates to orders
which need not be signed by the Emperor.
TITLE XVI.
WHEN A JUDGE
HEARS AN APPEAL, HE SHOULD DECIDE IN CONFORMITY WITH THOSE LAWS WHICH WERE
IN FORCE AT THE TIME WHEN THE DECISION WAS RENDERED, AND NOT IN ACCORDANCE
WITH THOSE WHICH WERE SUBSEQUENTLY PROMULGATED; AND CONCERNING OTHER
MATTERS.
ONE HUNDRED AND
FIFTEENTH NEW CONSTITUTION.
(1) When
appeals, reviews of cases, and reports of magistrates are heard, they shall
be decided in conformity with the laws which were in force at the time when
judgment was rendered, and not in accordance with those subsequently
promulgated.
(2) If one of
the parties litigant should state that he will abide by his allegations, but
the other hesitates, as if he was not satisfied, the judge shall grant both
of them a delay of three months, and when this term has elapsed, he must
wait no longer before rendering his decision.
(3) What cases
of ingratitude can reasonably be stated by parents against their children.
(4) And, on the
other hand, what cases of ingratitude children can reasonably allege against
their parents.
(5) The next of
kin to a deceased person, as well as those who mourn his loss, shall not be
arrested or brought into court during the nine months immediately following
his death.
(6) Concerning
the obligation contracted, and promises made with reference to pre-existing
debts. Where anyone has previously borrowed money, or made any promises with
reference to it such as, "I will pay the debt," or "So-and-So will pay it
for me," or, "Either I or So-and-So will pay it."
The Emperor
Justinian to Theodotus, Praetorian Prefect of the
East.
PREFACE.
We have learned
that a suit was brought between Eustatius, Most Reverend Bishop of the City
of Thelona, and Pistus, deacon of the church of Thelmisense, and that a
final decision was rendered by the Governor of the province, from which
decision an appeal was taken. The judges before whom the appeal was brought,
being in doubt, asked Us whether they should determine the case in
conformity with the
laws which were
in force when the decision from which the appeal was taken was rendered, or
in conformity with the tenor of those which We have enacted since that time.
We have thought it just for a case on appeal to be heard and determined in
accordance with the laws which were in force at the time when judgment was
rendered. And with all due foresight, We direct that every time a doubt of
this kind arises after the enactment of the present law, the case shall be
decided in the same way.
CHAPTER I.
CASES TAKEN UP
ON APPEAL SHALL BE DECIDED IN ACCORDANCE WITH THE LAWS IN FORCE AT THE TIME
WHEN THE DECISION APPEALED FROM WAS RENDERED.
Therefore, We
decree that where a final decision has been rendered in any case, and an
appeal has been taken from it, the judges having cognizance of the appeal
must decide the case in conformity with the laws in force at the time when
the final decision was rendered, which rule also shall apply to cases
reviewed by Prastorian Prefects, as well as to those heard by referees
appointed by judges, when both parties have agreed to abide by their present
allegations, and the judges shall inquire of their referees what decision
should be rendered. For in all these instances, We decree that judges who
have jurisdiction of cases taken up on appeal shall observe the laws which
were in force at the time of the decision or report, even though a law
making a different provision may have been promulgated and applied to former
cases.
CHAPTER II.
CONCERNING THOSE
WHO STATE THAT THEY HAVE OTHER
ALLEGATIONS TO
MAKE, AFTER THEIR ADVERSARIES HAVE
FORMALLY
DECLARED THAT THEY HAD NOTHING MORE
TO ADVANCE.
We add the
following provisions to this law, for the reason that it sometimes happens
among litigants that one of the parties sets forth his allegations, and the
other, being aware that he has a bad case, after the arguments and the
delays granted by the laws to produce evidence (through fear that the
weakness of his case may be manifested too soon) states that he is unwilling
to rely upon the allegations which he has made; We hereby decree that when
one party has produced all his testimony and the other says that he has
more, the judge having jurisdiction shall compel the latter, without delay,
to . produce the' remainder of his evidence within twenty days after his
adversary has produced his; and if, after this time has elapsed, he does not
do so, the judge shall grant him another month, in order that his malice may
be exposed; and if, in spite of this, he still delays, he should give him a
third month; and if, during the three months which We grant him, he does not
produce all his evidence, the judge, without
waiting any
longer, shall render a decision in conformity with the laws; or, when it is
necessary, he must refer the case to Us in order that litigants who conduct
their suits without justification may not be allowed to protract the
proceedings beyond reasonable limits.
CHAPTER III.
WHAT ARE JUST
CAUSES FOR THE DISINHERITANCE OF
CHILDREN.
We have decided
that it is proper to add this chapter to the present law. Therefore We order
that no father or mother, grandfather or grandmother, great-grandfather or
great-grandmother shall, under any circumstances, forget to mention their
son, daughter, or other descendants in their wills, or disinherit them
unless they have left them, by donation, legacy, or trust, or in some other
way, the shares to which they are entitled by law; or it has been proved
that their children are ungrateful, and have expressly stated the instances
of their ingratitude in their wills.
But as We are
well aware that the reasons for which children should be considered
ungrateful are scattered through different statutes, and have not been
clearly determined; and as, besides, some of these reasons have not appeared
to Us to deserve the reproach of ingratitude, and others, which do deserve
it, have been omitted, We have considered it necessary to mention them
explicitly in this law, in order that no one, relying upon some other
enactment, may be permitted to state instances of ingratitude which are not
included in this Constitution. Hence We decree that the following shall be
just reason for alleging ingratitude.
(1) Where a
child has laid violent hands upon his parents.
(2) Where he has
heaped gross and opprobrious insults upon
them.
(3) Where he has
brought criminal accusations against them, for offences which do not involve
either the Emperor or the government.
(4) Where he is
a malefactor, and habitually associates with criminals.
(5) Where he has
attempted the life of his parents, either by
poison or in
some other way.
(6) Where a son
has had criminal intercourse with his stepmother, or his father's concubine.
(7) Where a son
has acted as informer against his parents, and, by so doing, has subjected
them to great expense.
(8) Where one of
the parents being ill, his or her children, or one of them who is entitled
to. the succession, refused to furnish security for the person or debts of
his parents (after having been asked to do so), when it is proved that he
was solvent to the extent of the sum demanded. What We state with reference
to security applies, however, only to male children.
(9) Where a son
prevented his parents from making a will, and they were able to make it
afterwards, they shall be permitted to dis-
inherit their
son for this reason. But where a parent dies intestate because he or she was
prevented from making a will, and this is proved either by those who are
called to the succession of the deceased 0,6 intestato, along with
the aforesaid son, who prevented the will from being executed after his
death, or by those whom the deceased desired to be his heirs or legatees, or
by persons who have suffered some loss because of interference with the
right of testation, this ground of ingratitude shall be decided in
conformity with the other laws enacted on this subject.
(10) Where, in
opposition to the will of his parents, the son associates with actors or
buffoons, and continues to do so, unless his parents belong to the same
profession.
(11) Where one
of the aforesaid parents, desiring to give his or her daughter or
granddaughter a husband, and bestow upon her a dowry in proportion to his or
her means, and the daughter refused to be married, and preferred to lead a
life of debauchery. When, however, the daughter has arrived at the age of
twenty-five years, and her parents have prevented her from marrying, and, in
consequence, she had led a licentious life, or she had married a freeman
without the consent of her parents, We are unwilling to characterize this as
ingratitude, because not she, but her parents are to blame.
(12) If,
however, either of the said parents should be insane, and his or her
children, or any of them, or where there are no children, the
blood-relatives of the unfortunate person who are called to the succession
ab intestato should not treat him with proper respect and care, and
the latter should subsequently be cured of his or her affliction, he or she
will have the power to accuse the negligent son or sons, or cognates, of
being ungrateful, in his or her will. When a stranger, seeing that the
insane person is neglected by his or her children, cognates, or other
appointed heirs, provides for him or her through motives of charity, We
permit him to make a formal demand in writing upon the heirs at law, or
those appointed by will to the estate of the insane person, to take charge
of the latter. If, after a notice of this kind has been served, the heir
should still be guilty of neglect, and the said stranger can prove that he
has taken the insane person into his house, and cared for him at his own
expense, until the end of his life, We decree that he who exhibited such
solicitude and compassion for the insane person, even though he may have
been in no way related to him, shall be entitled to his estate, and the
appointment of his heirs shall be void, they being unworthy on account of
their having failed to take care of the insane person (as We have previously
stated), but the other provisions of the will shall remain in full force and
effect.
(13) Where one
of the aforesaid parents is retained in captivity, and one or all of the
children do not hasten to ransom him, he shall have the power, if he can
escape from captivity, to insert this as a cause of ingratitude into his
will. But where, through the negligence or contempt of his children, he is
not liberated, and dies a prisoner, We do not permit them to obtain his
estate, for the reason that they
did not make any
effort to release him, and We order that all the property left by the
captive to his negligent children shall pass to the church of the town in
which he was born, that a public inventory of tsaid property
shall be drawn up, in order that nothing of which it consists may be lost,
and that whatever is acquired by the church in this way shall be employed
for the ransom of captives. We prescribe these regulations only against
persons whom it is not permitted to disinherit, and where the acts of
ingratitude have been thoroughly established. It is obvious that it is
ingratitude which has induced Us to give this law universal effect. And We
order, in general, that where a captive has no children, and dies in
captivity, and those persons who are called to his succession have not
exerted themselves to liberate him, none of them shall succeed to his
estate, even though the deceased may, before he was taken prisoner, have
drawn up a will by which he appointed them his heirs.
This appointment
of heirs having been declared void, the other clauses of the will shall,
however, be observed in all their force; the property of persons who have
died in captivity will pass to the churches in the towns in which they were
born, and must not be used in any other way than for the ransom of captives,
in order that the estates of those who are not ransomed by their relatives
may be employed for the deliverance of other captives, and their souls be
comforted by this exceedingly pious act.
What We have
just decreed shall also be observed, if before having been taken prisoner,
the captive appointed a stranger his heir, and the latter, being aware of
this fact, neglected to ransom him. This penalty shall only be inflicted
upon those who have reached the eighteenth year of their age. If, under such
circumstances, a minor should not have the money necessary to redeem the
captive, he shall be permitted, if he has reached the aforesaid age, to
borrow it; and to hypothecate for this purpose any movable or immovable
property belonging either to himself or to the person who is detained in
captivity; for We direct that contracts made under such conditions, with
reference to property which is proved to have been given or expended for the
redemption of captives, shall be just as valid as if they had been entered
into by individuals who were independent and of lawful age; and no prejudice
shall result to those who, for reasons of this kind, may have contracted in
the manner aforesaid with persons who are not their own masters; and he who
returns from captivity will be compelled to ratify contracts of this
description, and will be obliged to comply with them just as in the case of
his own private obligations.
(14) Where
either of the aforesaid parents, being orthodox, is convinced that his son,
or his children, do not acknowledge the Catholic faith, and do not commune
in the Church where all the patriarchs together teach the true religion, and
spread the doctrine of the four holy Councils of Nicea, Constantinople, the
first Council of Ephesus, and that of Chalcedon; he or she will be
especially permitted to denounce them as ungrateful on this ground and to
disinherit them by will, for We place heresy among acts of ingratitude. But
with a view
to the general
welfare of Catholic children, We direct that, while preserving the force of
laws already enacted with reference to other heretics, for instance, the
Nestorians, and the Acephali, when their parents are known to have embraced
the insane Hebrew tenets of Nestorius, or the mad doctrines of the Acephali,
and have, for this reason, withdrawn from the communion of the Catholic
Church, they shall not be allowed to appoint any other heirs than their
orthodox children, who are members of the Catholic communion, or where there
are no children, their agnates and cognates who also are Catholics.
If there should
be some orthodox children who are members of the Catholic Church, and there
are others who, at the same time, are separated from it, We decree that the
entire estates of the parents shall pass to those of their children who are
Catholics, even though the said parents may, contrary to the tenor of this
Constitution, have made testamentary dispositions in favor of heretical
persons. But where the children separated from the Church subsequently enter
its bosom, that portion of their father's estate to which they were entitled
shall be transferred to them in the condition in which it was found to exist
at the time of its delivery, in order that the Catholics who formerly had
possession of it may experience no anxiety nor deprivation with reference to
any profits which they may have acquired, or concerning their administration
of said property during the intermediate time, for as We prohibit the
alienation of anything which the Catholic heirs held as representatives of
their brothers who were not Catholics, so We do not permit the restitution
of any income from the said property, under any circumstances, to be exacted
from those who have had possession of it, or that their management of the
same shall be investigated.
If the heretical
children persist in the same error to the end of their lives, without
becoming members of the Church, We order that the Catholic brothers, or the
heirs of the latter, shall acquire complete ownership of this property. But
where all the children are perverse, and are separated from the communion of
the Catholic Church, and it is proved that there are agnates or cognates who
are members of the said Church, they shall be preferred to the heretical
children, and shall be entitled to the estate of the deceased; and where the
children and the 'nearest agnates and cognates are strangers to the orthodox
religion, and the deceased parents have, during their lifetime, belonged to
the order of the priesthood, We desire that their estates should be
transferred to the town in which they had their domicile; and if the
ecclesiastics should neglect to claim them for a year, the ownership of the
same shall pass to the Treasury. Where, on the other hand, the parents are
members of the laity, We order that their property, without any distinction,
shall also be united to Our private domain.
These rules
shall be observed even where the parents have died intestate, and all the
regulations included in other constitutions against heretics, Nestorians,
Acephali, and other persons who are not communicants of the Catholic Church
(in which the patriarchs proclaim
the doctrine of
the four Councils hereinbefore mentioned), and which relate to their
successions, shall also be observed; for as We are considering corporeal
matters, how much more reason is there for Us to pay attention to the
salvation of souls ?
Therefore,
whether parents have mentioned in their wills all the acts of ingratitude
above stated, or whether they have only mentioned some of them, or even one
alone, no matter which it may be, and the appointed heirs prove that the
said act or acts are true, We direct that the will shall remain in full
force. But where the acts of ingratitude are not established, the rights of
the disinherited children cannot be prejudiced, the will shall be declared
void, so far as it relates to the appointment of heirs, and the children
shall obtain the estate in equal shares on the ground of intestacy. We
establish this rule in order that children may not be condemned through
false accusations, or may not, through fraud, be deprived of the estates of
their parents. If, however, any legacies or trusts, grants of freedom, or
appointments of guardians should be left in wills declared void under such
circumstances, or where any other testamentary dispositions authorized by
the laws are inserted in a will, We order that all shall take effect, that
the legacies shall be acquired by those to whom they have been bequeathed,
and that the will shall be just as valid, so far as these matters are
concerned, as if it had never been annulled.
Such are the
rules which We prescribe with reference to the wills of parents.
CHAPTER IV.
WHAT ARE GOOD
REASONS FOR THE DISINHERITANCE OF
PARENTS.
We have
considered it proper to lay down the same rules as to the wills of children
with some distinctions. Hence We order that children shall not be permitted
to pass over their parents, or exclude them in any way from the acquisition
of their property (to the extent that they are permitted to dispose of it),
except in the cases which We shall enumerate, and which must be specifically
set forth in their wills. These We declare to be the following:
(1) Where
parents have delivered up their children to death; except in cases where
treason is known to have been committed by them.
(2) Where it is
proved that parents have attempted to deprive their children of life by
poison or other criminal acts.
(3) Where a
father has had sexual intercourse with his daughter-in-law, or his son's
concubine.
(4) Where
parents have prevented their children from disposing, by will, of property
which they had a right to bequeath, and whatever We have ordered with
reference to the interference with testation by children shall be applicable
to parents. But if a husband should administer poison to his wife with the
intention of either killing her or depriving her of reason, or a wife should
administer it to her husband, or one of them should attempt the life of the
other in any way
whatsoever, We
decree that an offence of this kind (provided it demands criminal
prosecution) shall be tried and punished in conformity with the laws.
Children shall not be permitted to leave any portion of their estates to one
who has been convicted of a crime of this kind.
(5) Where all of
the children, or only one of them, become insane, and the parents neglect to
care for them, We order that, under these circumstances, everything shall be
observed which We have previously decreed with reference to insane parents.
(6) We also add
to these cases the misfortune of captivity; and where children suffer it,
and are not ransomed because of the contempt or negligence of their parents,
and they die while in the hands of the enemy, their parents shall, by no
means, be entitled to the property of their children which the latter are
entitled to dispose of; but all the rules shall be observed which We have
above prescribed with reference to parents, cognates, and agnates, who are
called to the succession of persons of this kind, or to strangers, where any
of them have been appointed heirs.
(7) If any one
of the aforesaid children, who belongs to the orthodox faith, should
ascertain that his parent or parents do not acknowledge its doctrines, what
We have ordered above with reference to parents shall be applicable to him
under such circumstances. Therefore, where children have mentioned in their
wills all or any of the acts of ingratitude which We have enumerated, or
even only one of them, and the heirs whom they appointed should prove all,
some, or only one of the said acts, We direct that the will shall remain in
full force. But in case the acts of ingratitude should not be established,
the rights of the children shall not be prejudiced; the will shall be void,
so far as the appointment of heirs is concerned, and the natural heirs of
the deceased will be entitled to his estate, on the ground of intestacy; but
all legacies, trusts, grants of freedom, appointments of guardians, and
other testamentary dispositions shall become operative, as previously
stated.
' We absolutely
repeal everything that preceding laws have provided in opposition to this
Constitution, so far as it relates to legacies, trusts, grants of freedom,
appointments of guardians, or any other similar subjects whatsoever. These
are the penalties for disinheritance or the grounds prescribed for acts of
ingratitude committed against the persons aforesaid. Where, however, any of
these acts are included in the number of criminal offences, those who are
guilty of them shall be subjected to the other penalties enumerated in the
laws.
CHAPTER V.
A CREDITOR SHALL
NOT BE PERMITTED TO ANNOY THE HEIRS OF A DECEASED PERSON ON ACCOUNT OF THE
DEBT BEFORE TEN DAYS HAVE ELAPSED AFTER His DEATH.
We have laid
down the preceding rules in order to prevent parents and children from
sustaining any injury from testamentary disposi-
tions. Where,
however, those appointed heirs under these circumstances have been directed
to remain content with certain property, We order that in an instance of
this kind the will shall by no means ' be declared void, even though the
testator may have left said heirs less than the lawful share to which they
were entitled, but the deficiency must be made up by the other heirs in
conformity with Our laws, for the sole intention of Our Serenity is to keep
parents and children from being injured by being passed over, or suffering
disinheritance. Parents should consider that there was a time when they were
children, and that then they expected to receive the estates of those to
whom they owed their existence; just as children should, on the other hand,
use every effort to retain the good will of their parents, because they
themselves desire to become fathers, and be honored by their offspring. The
consequence of this is, that the present law which We have thought should be
promulgated with reference to this subject, has been enacted for the benefit
and security of both parents and children.
While recently
deciding a case, We have ascertained that Pulcheria, a daughter who had
treated her parents with respect, was disinherited by her mother in her
will, and deprived of both the maternal and paternal estates; but, as We
have ascertained that this will resulted from the deceit and fraud of
certain individuals, We have not permitted it to take effect, and have
ordered, by a written decree, that the daughter should become the heir of
both her father and her mother.
(1) We also
remember that a law was promulgated by Us in which We ordered that no one
should detain the body of a deceased person, or oppose his burial on account
of a debt. We have recently been informed that a father was arrested for a
debt while returning from the funeral of his son, and We have concluded that
it is as religious as humane to suppress such acts of cruelty by means of
this most pious law. Therefore We decree that no one shall, under any
circumstances, be permitted to sue, or annoy in any way the heirs, parents,
children, wife, cognates, agnates, or other relatives, or the sureties of a
deceased person, within the nine days following his death, during which they
are presumed to have been mourning; and We forbid any notice to be served
upon them, or that they be brought into court either for a debt due from the
deceased, or for any other matter in which they may be specially interested.
If, during the
said nine days, a creditor should be so bold as to exact a bond, a promise,
a security, or anything else of this kind from the persons aforesaid, We
decree that this claim shall be void. But where, after the expiration of
nine days, anyone thinks that he has a right of action against these
persons, he can exercise it in accordance with the laws, and his right will
not be prejudiced in any way by prescription, or by any lawful allegation
which he may make during the intermediate time.
CHAPTER VI.
CONCERNING THE
ACKNOWLEDGMENT OF A DEBT ALREADY
DUE.
We deem it
proper to include in this law another chapter having reference to sums of
money acknowledged or promised. Therefore We decree that where anyone admits
a claim, or promises a sum of money, either in his own name or in that of
someone else, for instance, making use of the clause: "I. will pay you," he
will absolutely be required to fulfill his promise, or discharge his
obligation for the amount mentioned, and will be compelled to pay the debt.
When he says, "You will be paid by me, or by So-and-So," those whom he
mentioned and who did not give their consent to the obligation will suffer
no prejudice from these words; and he who employed them will not be liable
for anything, or will only pay in proportion to the share of the debt which
he is known to owe in accordance with law. If he should say, "You will be
paid either by me or by So-and-So," a pledge of this kind does not injure
those who do not agree to it; but he who made it will be bound to discharge
the entire indebtedness, and if, finally, anyone should say, "You will be
paid," as this verb is used impersonally, he is considered to have promised
nothing and to be free from all liability. But when a creditor believes that
he has a right of action against the persons mentioned, he can exercise it
against them in conformity with the laws, and avail himself of their aid.
EPILOGUE.
We order, most
dear and devoted relative, that these provisions shall be observed in all
cases which have not yet been disposed of by judicial decree or amicable
compromise.
Your Highness
will communicate to all Our subjects this general law which We have enacted,
and will publish it by means of edicts in this Royal City, as is customary,
and in the provinces by special notices addressed to the Governors thereof.
Given at
Constantinople, on the Kalends of February, during the fifteenth year
of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XVII.
No SOLDIER OR
ALLY SHALL BE KEPT IN THE PRIVATE HOUSE OR POSSESSION OF ANYONE.
ONE HUNDRED AND
SIXTEENTH NEW CONSTITUTION.
The Emperor
Justinian to Theodotus, Praetorian Prefect of the East.
PREFACE.
As the
benevolence of God has been evinced for the care of Our subjects, military
discipline has begun to be established, and this
result has been
so thoroughly accomplished by Divine Providence that the impetuosity of the
barbarians has been restrained, and the affairs of the government improved.
But as certain persons have not paid sufficient regard to their own safety,
and have presumed to remove and employ for their own private benefit
soldiers and allies, who should be fighting against the enemy for the
defence of the Empire, We, by the present law, forbid all Our subjects in
the future to remove soldiers, no matter to what corps of the army they may
belong, or allies (in whose behalf We have greatly exerted Ourself), with
the intention of employing them in their private houses or on their lands,
for they have been trained in the use of arms in order that they might
promote the common welfare of all.
CHAPTER I.
Hence all
persons who have soldiers or allies either in their houses, or on their
estates, and employ them in any way whatsoever in private occupations, are
warned that if, within thirty days from the date of the promulgation of this
law in their province, they do not dismiss them, their own property will be
confiscated for the Treasury, they themselves will be deprived of their
offices and honors, and any soldiers or allies who remain with them after
the expiration of this term shall not only be stripped of their military
rank, but also be put to death.
The magistrates
of each province also are notified that if they do not immediately arrest
soldiers or allies who have been found living in places subject to the
jurisdiction of collectors, or their friends, or any other persons, or
owners of property, or those who are employed on the lands or in the private
service of anyone whomsoever, and seize and subject them to punishment and
send the soldiers to the corps to which they belong, and the allies to their
own posts, they will be liable to a penalty of ten pounds of gold, and will,
in addition, be sentenced to exile, as having presumed to disobey orders.
Therefore no one
can, for the purpose of evading this law, avail himself of any Imperial
Pragmatic Sanction, or order of any of Our judges, or any other pretext of
this kind, but the soldiers must return to their commands with all haste,
and the allies repair to their posts, and both of them exert themselves for
the public welfare, as We absolutely forbid Our soldiers or allies, in the
future, to be occupied for the benefit of private persons.
EPILOGUE.
As soon as Your
Eminence becomes acquainted with the provisions which We have been pleased
to include in the present law, you will hasten to have them published in
this Most Fortunate City by means of edicts, and in the provinces by
proclamations issued for that purpose.
Given at
Constantinople, during the fifteenth year of Our Lord the Emperor Justinian,
and the Consulate of Basil.
TITLE XVIII.
A MOTHER,
GRANDMOTHER, AND OTHER RELATIVES SHALL BE PERMITTED TO DISPOSE OF THE
REMAINDER OP THEIR ESTATES IN ANY WAY THEY MAY DESIRE, AFTER HAVING LEFT TO
THEIR CHILDREN THE SHARE PRESCRIBED BY LAW; AND CONCERNING SEVERAL OTHER
MATTERS.
ONE HUNDRED AND SEVENTEENTH NEW
CONSTITUTION.
The Emperor
Justinian to Theodotus, Praetorian Prefect of the East.
PREFACE.
Various
questions having been submitted to Us, We have deemed it necessary to
dispose of them by means of this general law.
CHAPTER I.
WHERE ANYONE
APPOINTS A SON UNDER PATERNAL CONTROL HIS HEIR,
SUBJECT TO THE CONDITION THAT THE FATHER OF THE LATTER SHALL NOT HAVE THE
USUFRUCT OF THE ESTATE.
Hence We order
that after a mother and a grandmother, or any other relatives, have left
their children the share prescribed by law, they shall be permitted to
dispose of the remainder of their estates, either wholly or in part, and
give it either to a son, a daughter, a grandson, a granddaughter, and the
descendants of the latter, or bequeath it by a last will under the following
restriction and condition, namely: that the father, or anyone who has them
under his control, shall not enjoy the usufruct of the property, nor share
in the same to any extent whatever; for the persons whom We have just
mentioned can leave this property to strangers without the parents of the
children obtaining any benefit from the same. We make this provision in
order that the privilege may be granted not only to relatives but also to
everyone else.
(1) When
property is left or donated in this way to persons who are under someone's
control, they can, if they are of age, dispose of it in any way that they
may desire; but if they are minors, it must be administered by whomever the
testator or donor indicated for that purpose, until the children to whom the
said property was donated or left attain their majority; and the testator or
donor will be at liberty to entrust the management of the said property to
the mother or grandmother of those to whom it is given even though she may
have married again, provided she is willing to assume it.
But where he who
left or gave a share of his estate did not designate anyone to administer it
for the children, or where he who was appointed is unwilling or unable to do
so, or should die before the children attain their
majority, We order that under these circumstances a competent judge shall
appoint some trustworthy person curator of the inheritance, who must furnish
the requisite bond, and the said curator shall manage and take care of the
estate left to the minors until they become of age, as has been stated. We
desire that the law which permits parents to enjoy the usufruct of their
children's property shall be observed in all cases, except where the express
condition that they shall not do so has been prescribed.
CHAPTER II.
CONCERNING ONE
WHO WAS REFERRED TO AS A CHILD IN SOME INSTRUMENT.
We have
considered it proper to order that when anyone has a son or a daughter by a
free woman, with whom legal marriage can be contracted, and states either in
a public or private instrument, bearing the signatures of three reliable
witnesses, or in a will, or in the public records, that So-and-So is his son
or his daughter, without adding the word "natural," such children shall be
legitimate; no other proof of legitimacy shall be required of them; and they
shall enjoy all the rights which Our laws bestow upon lawful issue; since
the father (as has already been stated) has called them his own children,
and has shown by this that he and their mother are legally married, and
proof of this shall not be required of her. But where a father, having
several children by the same woman, gives one of them some mark of
legitimacy, in conformity with what has previously been stated, this
acknowledgment will enable the others by a common mother to acquire the
right of legitimate birth.
CHAPTER III.
CONCERNING A
WOMAN WHO MARRIES WITHOUT ANY DOTAL CONTRACT.
We have thought
it advisable to add to the present constitution that where anyone has
married a woman through mere affection, without any written contract, and
has had children by her, and the marriage is subsequently dissolved, and the
husband marries another wife with whom he makes a dotal contract, and also
has children by her, the offspring of the wife with whom he did not enter
into a dotal contract shall not be prejudiced, so far as the paternal estate
is concerned; but they shall be called to the succession of their father
along with those born of the second wife, whose union was accompanied by a
dotal agreement, since marriage can exist when induced solely by affection.
We desire that
this rule shall also be applicable where a man has married a woman under a
dotal agreement, and afterwards marries another through affection alone.
CHAPTER IV.
CONCERNING THE
MARRIAGES OF ILLUSTRIOUS PERSONS,
AND WHEN THEY
ARE CONTRACTED BY MEANS OF DOTAL
INSTRUMENTS.
But as We have
previously enacted a law which directs that dotal agreements should be drawn
up, or other proofs of marriage be established, before the defenders of the
Church, by whom it is proper that marriages should be confirmed, or before
whom the parties should be sworn, We consider it proper by means of the
present law to provide a more exact regulation with reference to what has
for a long time been determined relative to this subject. Hence We decree
that those who are invested with the highest dignities, up to that of
"illustrious," shall only be permitted to contract marriage when dotal
instruments are executed.
We except from
this rule anyone who, before having obtained his rank, has married a woman
solely through affection, for We order that marriages contracted in this way
before promotion to official honors shall remain lawful, and that the issue
of the same shall be legitimate. Persons, however, who have already attained
to great distinction, cannot marry without entering into dotal agreements
with their wives.
We, however,
release the barbarian subjects of Our Empire from this obligation, even
though they may be persons of high rank, and We allow them to contract
marriage through mere affection. We do not prohibit all Our other subjects,
no matter what official rank they may have obtained, or what public duties
they may discharge, with the exception of those who (as has already been
stated) have attained to high rank, to marry women by entering into dotal
agreements with them, when they desire, or have the power to do so. Where,
however, this has not been done in writing, We decree that marriages which
have been contracted through mere affection shall not be less valid, and
that the issue of such matrimonial unions shall be legitimate.
CHAPTER V.
WHEN A MARRIAGE
is CONTRACTED WITHOUT A DOWRY
AND THE
SURVIVING HUSBAND IS POOR, HE SHALL BE
ENTITLED TO THE
FOURTH PART OF THE ESTATE OF His
DECEASED WIFE.
We some time
since enacted a law providing that where a man married a woman solely
through nuptial affection, without any dowry, and he afterwards divorces her
without any cause recognized by the law, she shall be entitled to the fourth
part of the property of her husband ; and after this law We promulgated
another, by which it is provided that if anyone should marry a wife without
a dowry, having been induced to do so by mere affection, and lives all his
life with her, and dies before she does, she, also, shall be entitled to the
fourth part of his estate, provided that the said fourth does not exceed the
value
of a hundred
pounds of gold. We, however, at present displaying more sagacity, do hereby
decree that children born of marriages due to mere affection shall, under
these circumstances, be deemed legitimate, and be called to the succession
of their father's estates; and that in each of these instances the wife
shall receive the fourth of her husband's property where he only had three
children by her, or by a preceding marriage; but if he had more than that,
the wife shall then be entitled to as much as each of the children. But she
shall only have a right to the usufruct of the share of the property she
receives, and the ownership of the same shall be reserved for the children
whom she has had by this same marriage; but where such a woman has not had
any children by her husband, We decree that she shall acquire the ownership
of the said property.
We desire that a
woman who was put away without good cause shall receive the portion
established by this law at the very moment of repudiation; but, under
similar circumstances, We absolutely forbid the husband to obtain the fourth
part of the estate of "his wife in accordance with Our former law.
CHAPTER VI.
CONCERNING THE
CONSTITUTIONS ENACTED BY THE EMPEROR LEO AND THE EMPEROR CONSTANTINE.
The Constitution
of the Emperor Leo, of pious memory, shall preserve all the force in every
case not provided for by the present law. We, however, entirely repeal the
one enacted by the Emperor Constantine, of pious memory, and addressed to
Gregory, as well as the interpretation placed upon it by the Emperor
Martian, of pious memory, which forbids persons of high rank to marry women
whom the said law styles "abject." We grant permission to persons even
though they are dignitaries of high rank, if they wish to do so, to marry
women of this kind, provided they enter into dotal contracts with them, but
so far as other persons who are not distinguished in this manner are
concerned, they shall be at liberty to marry them in any way they may
desire, either by a written contract, or through nuptial affection, provided
that the said women are free, and marriage can legally be contracted with
them.
CHAPTER VII.
How AND BY WHOM
CHILDREN ARE SUPPORTED AFTER A MARRIAGE HAS BEEN DISSOLVED BY REPUDIATION.
We have thought
that when marriage is dissolved between husband and wife, some provision
should be made to prevent the children born of the marriage from suffering
any injury through its dissolution, and to enable them to be called to the
succession of their parents, and be maintained at their father's expense.
Where the latter furnished the cause for divorce, and the mother does not
marry again, the children shall remain with her, and the father shall pay
for their
support; but
where it is proved that the woman was to blame for the dissolution of the
marriage, under these circumstances, the children shall remain with, and be
supported by their father. If the father is poor and the mother is rich, We
direct that the poor children shall live with their mother, and be brought
up by her; for as wealthy children are obliged to support their mother when
she is poor, it is only just that poor children should be maintained by
their wealthy mother, and this We order to be done.
What We have
stated with reference to poor children, and the duty of their mother to
support them, We direct shall also apply to all ascendants and descendants
of both sexes.
CHAPTER Vill.
CONCERNING THE
JUST CAUSES FOR WHICH A HUSBAND is PERMITTED TO OBTAIN A DIVORCE.
As We have found
many cases in the ancient laws as well as in Our own where the dissolution
of marriage was easily effected, We have thought it advisable to rescind
some of the provisions which have appeared to Us to be improper causes of
divorce, and to specifically insert into the present law only those for
which either the husband or wife can reasonably give notice of repudiation.
We shall now enumerate the causes for which a husband can safely give notice
of repudiation to his wife and obtain her dowry, the ownership of which
shall vest in the children by this marriage, and where there are none of
these living, it shall vest in the husband. The following are good causes
for repudiation.
(1) Where a
woman is aware that certain persons are plotting against the government, and
does not inform her husband. But if the husband, having learned of this from
his wife, should remain silent, the latter will be permitted to notify the
government by means of any persons whomsoever, in order that her husband may
not take advantage of this as a pretext for repudiation.
(2) Where the
husband thinks that he can convict his wife of adultery; but he must
previously file a complaint against her, as well as against the adulterer,
and if the accusation is shown to be true, the husband, after having served
notice of repudiation, will be entitled to the ante-nuptial donation, as
well as the dowry; and when there are no children, he will also be entitled
to an amount equal to the third of the dowry, out of the other property of
his wife, the ownership of which, as well as that of the dowry, will
absolutely vest in him. But where the husband has children by the same
marriage, We, in conformity with the spirit of the laws on this subject, do
hereby decree that the ownership of the property, as well as that of the
other possessions of the wife, shall be preserved for their benefit.
A husband,
legally convicted of being the accomplice of the adulterer, shall be
punished along with his wife; and if the adulterer is married, his wife will
obtain her own dowry as well as the ante-
nuptial
donation; and if they have children, she will only be entitled to the
usufruct of the donation, being obliged to preserve the ownership of the
same for her children, as prescribed by law. As a mark of Our liberality We
grant the children all the other property of the husband. But where there
are no children, We decree that the ownership of the ante-nuptial donation
shall vest in the wife of the man who was guilty of adultery, and that the
remainder of his property shall be confiscated to the Treasury, in
conformity to the ancient laws.
(3) Where a wife
has plotted against the life of her husband in any way whatsoever, or where
she has consented for others to do so, without informing her husband.
(4) Where she
attends banquets, or bathes with strangers, against the wishes of her
husband.
(5) Where she
remains away from her husband's house without his consent, unless she is
visiting her own parents.
(6) Where,
without the knowledge, or against the prohibition of her husband, she
attends circuses, theatres, or other public exhibitions.
(7) If, however,
a husband, without one of the aforesaid reasons, should drive his wife away
from his own house, and she, not having any relatives with whom she can
live, is obliged to pass a night outside, We order that the husband shall
not, under these circumstances, have permission to send a notice of
repudiation to his wife, since he himself is responsible for what she has
done.
CHAPTER IX.
f
CONCERNING THE
JUST CAUSES FOR DIVORCE WHICH ARE GRANTED TO THE WIFE.
We decree that
the following are the only causes for which a wife can reasonably serve
notice of repudiation upon her husband, obtain her dowry, and exact the
ante-nuptial donation, in case there are no children, or retain it for their
benefit if there are any.
(1) Where the
husband was implicated in some plot against the Empire; or where, being
informed that others were, he did not denounce them to the government either
in person, or by someone else.
(2) Where the
husband has, in any way whatsoever, attempted to kill his wife, or if, being
informed that others desired to do so, did not warn her, or take measures to
avenge her in conformity with the laws.
(3) Where the
husband has attempted to violate the chastity of his wife, by seeking to
deliver her to other men for the purpose of committing adultery.
(4) Where the
husband filed an accusation of adultery against his wife, and was not able
to prove it, his wife will be permitted to serve notice of repudiation on
him for this reason, and to recover her own dowry, and acquire the
ante-nuptial donation, and, in addition, to punish the husband for a false
accusation of this kind. Where there is no issue of the marriage, she shall
receive the ownership of an amount of the other property of her husband
equal in value to the
third of the
ante-nuptial donation; but where there are children, We order that the
entire estate of her husband shall be set aside for their benefit.
All other
provisions relating to ante-nuptial donations, which are included in other
laws, are hereby confirmed, and the husband, on account of the accusation of
adultery which he was unable to establish, shall be punished in the same way
that the wife would have been if the offence had been proved.
(5) Where a man,
having contempt for his wife, is known to have entertained another woman in
the house where he lives with her; or if, while dwelling in the same city,
he is convicted of having frequently been in the company of another woman,
residing in another house, and having been reprimanded once or twice, either
by his parents or by those of his wife, or by any other persons worthy of
confidence, he does not abstain from such debauchery, his wife will for this
reason be permitted to dissolve the marriage, to obtain her dowry in
addition to the ante-nuptial donation; and in order to punish her husband
for such an injury, she can also exact from his other property up to
one-third of the appraised value of the ante-nuptial donation; and if she
has any children, she will only be entitled to the usufruct of the said
donation, and that of the penalty of the third of the amount which she is
entitled to out of the other property of her husband, she being compelled to
reserve the ownership of the same for their common children. When, however,
she has no children, We direct that she shall receive the ownership of the
said property.
CHAPTER X.
IT SHALL NOT BE
LAWFUL TO DISSOLVE A MARRIAGE BY
COMMON CONSENT,
UNLESS FOR SOME
PLAUSIBLE
REASON.
For the reason
that certain persons up to the present time have been accustomed to dissolve
their marriages by common consent, We absolutely forbid this for the future,
unless where the parties interested are impelled by the desire of living in
chastity. When they have any children, We decree that the dowry and
ante-nuptial donation shall be preserved for their benefit. But if, after
the marriage has been dissolved by common consent through motives of
chastity, either of the parties should contract another, or is found to be
living in debauchery, We order that if (as has already been stated) any
children by this marriage should be living, the ownership of the dowry, of
the antenuptial donation, and of the other property of the person who is
guilty of the offence shall vest in the children, and when they are minors,
the said property shall be administered by either the husband or the wife,
who has not, in any respect, violated the present law.
But where both
husband and wife are given to the same vice, We order that their property
shall belong to the children, and that someone shall be appointed to manage
the shares of those who are minors, either by a competent judge or by other
magistrates charged with this
duty by Our
laws. When there are no children, the property of both husband and wife
shall be confiscated for the benefit of the Treasury, and they shall be
subjected to legal punishment. Otherwise, however, We do not permit
dissolution of marriage to take place by common consent under any
circumstances.
CHAPTER
XI.
FOR How LONG A
TIME A WIFE SHOULD WAIT BEFORE
MARRYING AGAIN
WHILE HER HUSBAND is ABSENT ON
AN EXPEDITION.
We have deemed
it proper to amend what We have enacted up to this time with reference to
soldiers, allies, members of favored corps, or any other persons forming
part of the army, who are employed in military expeditions and operations.
Hence We order that wives shall be compelled to await their husbands'
return, no matter how many years they may be absent, even though they may
not have received any information, or answers to letters which they may have
written. Where, however, the wife of a soldier has heard that her husband is
dead, We do not permit her to contract another marriage before having
appeared, either by her parents or by someone else, before the first
chartularies of the division in which her husband served, and inquired of
them or of the tribune (if there is any) whether her husband is actually
dead; and the said officers shall bear witness to this fact by swearing to
it on the Holy Gospels, as well as by the execution and record of a public
document. After the wife has received this formal proof of the death of her
husband, We decree that she shall wait one more year, and after it has
elapsed, she will be allowed to contract another marriage.
If, however, a
woman should presume to violate this provision, and marry again, both she
herself and the man who married her shall be punished as guilty of adultery.
Where the persons who have given testimony by public documents and under
oath are convicted of having perjured themselves, they shall be deprived of
their military rank, and be compelled to pay ten pounds of gold to him whom
they falsely stated that the man was dead; and the latter shall be permitted
to take his wife back, if he should desire to do so. But where the death of
a member of one of the favored divisions of the army is in doubt, the
evidence of the chief of the same and the officer in charge of the registers
shall be obtained; and where the question is with reference to the death of
an ally, his wife shall take the testimony of the commander of the post to
which he is attached. We order that these rules shall be applicable to all
other persons in the military service.
CHAPTER XII.
FOR WHAT REASONS
A MARRIAGE is DISSOLVED WITHOUT A PENALTY.
We have
concluded that some special additions should be made to the above-mentioned
causes by means of which marriages can be
dissolved
without a penalty; that is to say, in cases where husbands have not, from
the beginning, been able to copulate with their wives, and to do what Nature
has conceded to men; and, above all, when husbands and wives have, during
marriage, chosen to adopt a holy life and reside in monasteries; and,
finally, when they have been detained in captivity for a considerable time;
for, in these three instances, We direct that the provisions contained in
Our former laws which relate to this subject shall remain in force. Hence We
decree that only the causes enumerated in the present law can bring about
the dissolution of legitimate marriage. We order that all others, without
exception, shall be abolished, and none of them (this, however, does not
refer to such as are specifically mentioned in this Constitution), even
though it may be included in the Constitutions formerly enacted, as well in
the ancient laws, shall be able to dissolve the marriage.
CHAPTER XIII.
WHERE A WIFE HAS
GIVEN NOTICE OF REPUDIATION TO HER HUSBAND WITHOUT JUST CAUSE.
But for the
reason that certain women who desire to live debauched lives hasten to
dissolve their marriages, We order that when a wife wishes to dissolve her
marriage for some other cause than those above stated by Us, she shall not
be permitted to do so; and if she should still entertain this wicked design,
and serve notice of repudiation upon her husband, We order that her dowry
shall be given to him to be kept for their common children, in accordance
with law, and that, if she should have no children, it shall belong to the
husband.
The woman shall,
upon the responsibility of the judge who hears the case, be delivered to the
bishop of the city in which both of them reside, in order that she may at
once be confined in a monastery, to remain there as long as she lives; and
when such a woman has children, two-thirds of her property shall be given to
them, and the other third to the monastery to which she is sent, and in
which the absolute ownership of the same shall vest. When, however, she is
childless, but has parents, two-thirds of her property shall be transferred
to the monastery to which she is sent, and the other third to her parents,
unless they, while having her under their control, had given their consent
to the illegal notice of repudiation; in which case We do not permit them to
have any of her estate whatever, but We wish all of it to be transferred to
the venerable monastery. Where, however, she has neither living children nor
parents, the monastery will be entitled to all her property.
If the judge who
hears the case should not do this, that is to say, should not, after she has
been arrested, deliver her to the bishop of the city, to the end that she
may be placed in the monastery, and the said judge has jurisdiction in this
Most Fortunate City, he shall pay a penalty of twenty pounds of gold, and
his officials shall pay ten. Where a judge of this kind is stationed in a
province, and does not obey what has been ordered by Us under such
circumstances, he will
be liable to a
fine of ten pounds of gold, and his subordinates to one of five. When the
judge has not been regularly appointed, he must pay a fine of ten pounds of
gold, and his subordinates one of five, which fines shall be collected from
the persons aforesaid by the Count of Private Affairs, and the Body of the
Palatines, and be paid into Our Treasury.
But where the
husband has attempted to dissolve the marriage with his wife, and has
illegally given her notice of repudiation, We order that he shall return
what he received as dowry, and surrender the ante-nuptial donation, and that
there shall be taken from the remainder of his property and given to his
wife a sum equal to the third part of the amount bestowed in consideration
of marriage. When there are children, the wife shall only be entitled to the
usufruct of the ante-nuptial donation, in addition to that of the third of
the estate of the husband granted by Us, and the ownership of the same shall
be reserved for the children. When there are no children, the woman shall
have both the usufruct and ownership of the property, and We order that
these provisions shall be applicable not only to marriages dissolved for
lawful reasons, but also to such as are dissolved for others that are
illegal; and We decree that all questions having reference to the cases
above mentioned shall be heard and determined in conformity with this Our
Constitution.
CHAPTER XIV.
WHERE ANYONE PUNISHES His WIFE BY BEATING HER.
If a man should
beat his wife with a whip or a rod, without having been induced to do so for
one of the reasons which We have stated to be sufficient, where the woman is
at fault, to cause dissolution of the marriage, We do not wish it to be
dissolved on this account; but the husband who has been convicted of having,
without such a reason, struck his wife with a whip or a rod, shall give her
by way of compensation for an injury of this kind (even during the existence
of the marriage) a sum equal in value to the amount of the antenuptial
donation to be taken out of his other property.
CHAPTER XV.
WHERE A HUSBAND
SUSPECTS ANYONE OF WISHING TO ATTACK THE MODESTY OF His WIFE.
We also add to
what has been already enacted that where anyone suspects some man of
desiring to violate the chastity of his wife, and after having notified him
three times in writing to desist and obtained the evidence of three men
worthy of confidence, and after this he finds him associating with his wife,
either in his own home, in that of his wife, or in that of the adulterer, or
in a public house, or in the suburbs, he shall be permitted to kill him with
his own hands without
being
apprehensive of any responsibility. If, however, he should find him talking
with his wife in some other place, and he can prove this by three reliable
witnesses called together for that purpose, he can bring him before a judge
having criminal jurisdiction. If the judge should ascertain that it is true
that the man was found with a woman after three written notices not to do so
had been served upon him, the husband shall be allowed to punish him as
being guilty of adultery from this fact alone, and can prosecute him for the
crime.
(1) But as there
are certain impious individuals who have even the audacity to commit
adultery in religious houses, and are guilty of sin where men who fear God
are accustomed to ask pardon for their offences, We order that if any such
person against whom suspicions have arisen, after he has been warned three
times (as has been stated) should be found in a religious house with the
wife of another, the husband will be permitted to bring the two guilty
parties before the defender of the Church, or other members of the clergy,
in order for them to be kept separate at their risk, in accordance with the
laws which forbid the most holy churches from protecting persons guilty of
adultery, until the judge, having been notified of the crime, sends them to
the bishop of the city to be punished. The judge shall not look for any
other proof of the offence than (as We have already stated) that of the
three notices aforesaid; for they, having been served, the guilty parties
must, by all means, be prosecuted for adultery, and shall derive no
protection from the sacred place for which they have shown contempt by their
own illegal acts. For if Our laws do not permit persons who perpetrate rapes
of virgins or adultery elsewhere to betake themselves to houses of prayer in
order to be protected by the said houses, how can We allow ecclesiastical
property to render assistance to those who have committed crime in the very
church itself? Persons who presume to outrage the sanctity of sacred places
shall be brought before the courts and suffer the penalty which they
deserve; for who can be guilty of crime where salvation is solicited? And,
generally speaking, We decree that if anyone should find his wife, his
daughter, his granddaughter, or his betrothed, in conversation with a man in
any religious house, and suspect that they are holding an interview for the
purpose of indulging their base desires, by taking advantage of the sacred
character of the place, he can bring them before the defender, or other
ecclesiastics attached to the most holy church, in order that they may keep
them separate at their own risk, until they can be brought before the judge
and their case be decided in accordance with law.
EPILOGUE.
Therefore, We
desire that the provisions prescribed by Our Tranquillity in the present
law, which shall be perpetually valid, must be observed in all the cases to
which it refers, with the exception of those which have already been
disposed of by judicial decision, or amicable compromise; for We desire
these to remain unaltered.
Your Most
Glorious and Eminent Authority will communicate this law to all persons by
means of public edicts in this Illustrious City, and through instructions
addressed to the Governors of provinces, in order that no one may be
ignorant of what We have effected for the public welfare. Your Highness will
also promulgate this law by means of private notices, without their
publication resulting in any undue expense to Our subjects.
Given on the
fifteenth of the Kalends of January, during the fifteenth year of the
reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
AUTHENTIC OR NEW
CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
NINTH
COLLECTION.
TITLE I.
CONCERNING HEIRS
WHO SUCCEED AB INTESTATO, AND THE ABOLITION OF THE RIGHT OP AGNATES.
ONE HUNDRED AND
EIGHTEENTH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious
Imperial Praetorian Prefect of the East.
PREFACE.
We, having
ascertained that many laws which were promulgated in ancient times have not,
so far as intestate succession is concerned, made a just distinction between
male and female relatives, deem it necessary to settle all questions
relating to the intestate succession of cognates, by making a clear and
exact decision in the present law: therefore all previous enactments
relating to this subject are hereby repealed, and what We now establish
shall be solely observed for the future. Hence, as it is understood that
intestate successions of all kinds include three degrees, that is to say,
that of ascendants, that of descendants, and that of collaterals (which are
divided into agnates and cognates),"We"order that the first degree of
succession shall be that of descendants.
CHAPTER I.
CONCERNING THE SUCCESSION OF DESCENDANTS.
Where anyone who
dies intestate leaves descendants of either sex, or of any degree
whatsoever, derived from males or females, who are either independent or
under the control of others, the said descendants
shall take
precedence over all ascendants and collateral relatives. For although the
deceased may have been under the control of others, We order that his
children, no matter what their sex or degree, shall be preferred even to the
parents to whose authority they were subject; that is to say, solely with
respect to such property as was not acquired for the benefit of the parents
in conformity with others of Our laws; for We confirm Our laws which relate
to the usufruct which should be acquired or preserved for the parents. If,
however, one of the descendants whom We have just mentioned should die, and
himself leave children of either sex, or other descendants, the latter will
succeed to the place of their father, whether they were under the power of
him whose succession is in question, or whether they were their own masters;
and no matter what their number may be, they shall receive from the estate
of the deceased as x-large a share as their father would have been entitled to
if he had lived. Ancient legislation designated this order of succession as
per stirpes. We do not desire that the degree should be sought for in
considering such an order; but We direct that the grandchildren by a
predeceased son or daughter shall be called to the succession concurrently
with the sons and daughters, and that no distinction shall be made between
the children of either sex, whether they are descended from males or
females, or whether they are independent, or under the control of others.
These are the
provisions which We make with reference to the succession of descendants,
and in consequence of this We deem it advisable next to treat of ascendants,
and the way in which they are called to the succession of descendants.
CHAPTER II.
CONCERNING THE SUCCESSION OF ASCENDANTS.
Therefore, if
the deceased did not leave any descendants, but was survived by his father
or mother, or other ascendants, We desire that they shall be preferred to
all collateral relatives, with the exception of full brothers, as will be
hereinafter stated. But where there are several surviving ascendants, We
order that those shall be preferred who are in the nearest degree, whether
they are males or females, or are on the father's or mother's side. Where
they are of the same degree, the estate shall be divided equally among them,
so that all the ascendants on the father's side, no matter how many there
are, shall receive half of the estate, and the ascendants on the mother's
side, without reference to their number, shall receive the other half. But
where any brothers or sisters of the deceased survive, along with the
ascendants, they shall be called to the succession concurrently with the
relatives next in degree; and if the father or mother is living, the estate
shall be divided among them per capita, and each of the descendants
and brothers shall be entitled to an equal share of the same; and the father
shall not, under these circumstances, be entitled to the usufruct of the
share which passes to his sons or daughters, for We grant them by the
present law the rights of ownership as well as usufruct,
so far as this
share is concerned, and no distinction shall be made between persons of
either sex who are called to the succession, whether they are related
through males or females, and whether the person to whom they succeed was
independent, or under someone's control.
We must now
consider the third order of succession, which is called collateral, and is
divided into agnates and cognates, so that this order having been
determined, Our law may be perfect in every respect.
CHAPTER III.
CONCERNING THE SUCCESSION OP COLLATERALS.
Where the
deceased left neither descendants or ascendants, We call first to the
inheritance the full brothers and sisters, whom We have already called
concurrently with the parents. Where there are no full brothers living, We
call, in the second order, brothers related to the deceased by a single
parent, either the father or the mother; but where the deceased left
brothers, and also children of another brother or sister, already dead, the
latter shall be called to the succession per stirpes, along with the
males and females descended from the father or mother of the deceased, and
no matter what their number may be, they will be entitled to the same share
of the estate that their father would have received had he been living. The
result of this is that if the predeceased brother, whose children are
living, was related to the deceased on both sides, and at the same time
there are other brothers related to him through the father or mother alone,
the children of the full brother, although they are in the third degree,
will be preferred to his own stock (whether it be derived from males or
females through the father or mother of the deceased), just as their father
would have been preferred to them if he had lived. On the other hand, if a
full brother of the deceased should survive, We exclude the children of the
predeceased brother, who would have only been related to the deceased by a
single parent, just as this dead brother would also have been excluded if he
were living.
We only grant
the right of representation in this degree of relationship to the sons and
daughters of brothers or sisters, in order that they may succeed their
parents. We refuse it to everyone else in the collateral line; but permit
the children of brothers to enjoy it when they are called with the male or
female descendants per stirpes either on the father's or mother's
side. When, however (as We have already stated), ascendants are called to
the succession along with brothers of the deceased, We do not permit
brothers' or sisters' children to be called concurrently with them to the
intestate succession of a brother or a sister, even though their father or
mother was fully related to the deceased.
Hence, as We
have granted the privilege of representation to the children of brothers or
sisters, in order that, succeeding to the place of their own parents, and
being alone in the third degree, they may be called to the inheritance with
others of the second degree, it is clear that they are preferred to those
related per stirpes, whether
they are male or
female, and connected with the deceased only on the father's or mother's
side, even though the latter are also in the third degree of relationship.
(1) Where the
deceased left neither brothers, nor brothers' children (as We have
previously stated), We then call to the succession all collateral relatives
according to the privilege of each degree, so that the next of kin shall be
preferred to the others; but where there are several in the same degree, the
estate shall be divided among them according to their number, which Our laws
call per capita.
CHAPTER IV.
CONCERNING THE
ABOLITION OF THE RIGHT OF AGNATES TO INHERITANCE.
We do not wish
any difference to exist between persons who are called to a succession or
inheritance, whether they be male or female, if they were related to the
deceased; but We direct that all distinctions shall be abolished in the
successions of agnates and cognates, whether the relationship is derived
through a woman, through emancipation, or in any other way whatsoever as
prescribed by former laws; and We order that all persons, without any
distinction in this respect, shall be entitled to the intestate succession
of their cognates, in accordance with their degree of relationship.
CHAPTER V.
CONCERNING THE
LEGAL GUARDIANSHIP OF CHILDREN, AND CONCERNING THE MOTHER AND GRANDMOTHER.
Having disposed
of the question of inheritance, We shall now discuss guardianship. We order
that everyone, according to his degree of relationship, and in the order in
which he is called to the succession, either alone or along with others,
shall be liable to guardianship, and that no distinction shall be made in
this respect between agnates and cognates; but all persons who are related
to the minor, whether they are descended from males or females, shall be
equally called to perform its duties, provided they are males, and have
attained their majority; that no law forbids them from accepting the
guardianship; and they do not avail themselves of a proper excuse for being
released. We prohibit all women, except the mother and grandmother, from
acting as guardians. We only permit the latter to be the guardians of their
children in the order of succession, and where they, by means of written
instruments, renounce the right to contract other marriages, and the benefit
of the Velleian Decree of the Senate. When they make this renunciation, they
shall be preferred to all collaterals except testamentary guardians alone,
for We desire the wish and the choice of the deceased by all means to be
observed. But where several persons in the same degree of relationship are
called to be guardians, We decree that after they have been summoned before
a competent judge, one or more of them, or as many as will be required to
administer the property of the minor, shall be chosen and notified of their
selection, and enter upon the discharge of their duties, and the guardians
appointed shall be personally responsible, and their property shall be
tacitly liable to the minor for the acts of their administration when he
becomes of age.
CHAPTER VI.
CONCERNING THE
FORCE AND AUTHORITY OF THIS CONSTITUTION WITH REFERENCE TO PERSONS AND
THINGS.
We desire that
everything which We have enacted with reference to intestate successions
shall be applicable to those who acknowledge the Catholic faith, for We
order that the laws already promulgated by Us with reference to heretics
shall continue to be valid, and We make no innovation or change in them by
the introduction of the present enactment. Therefore, We wish this
constitution always to be observed in those cases which have arisen since
the beginning of the month of July of the present sixth indiction, or in any
which may arise hereafter. For We order that all cases which have arisen
previous to that time shall be decided in conformity with the ancient laws.
EPILOGUE.
Therefore Your
Glory will see that the provisions which We have included in the present
constitution are brought to the knowledge of all Our subjects, and you will
have them published in this Royal City by means of edicts, as is customary,
and in the provinces through orders addressed to the illustrious Governors,
in order that none of the subjects of Our Empire may be ignorant of Our
solicitude for them. The promulgation of this law shall take place in all
the provinces without any expense being incurred by either the citizens or
provincials.
Given in the New
Palace, on the seventh of the Kalends of August, during the
eighteenth year of the reign of Our Lord the Emperor Justinian, and the
third after the Consulate of Basil.
TITLE II.
AN ANTE-NUPTIAL
DONATION SHALL BE CONSIDERED A SPECIAL CONTRACT, AND CONCERNING DIVERS OTHER
MATTERS.
ONE HUNDRED AND
NINETEENTH NEW CONSTITUTION.
The Emperor
Justinian to Peter, Most Glorious Prefect of the
East.
CHAPTER I.
AN ANTE-NUPTIAL
DONATION DOES NOT REQUIRE TO BE
RECORDED.
We order by the
present law that a donation bestowed in consideration of marriage shall be
considered as a special contract, and not classed with other donations, for
the reason that an equal amount of dowry is given in exchange therefor.
Hence an ante-nuptial donation shall be entirely operative, so far as the
woman as well as the man is concerned, whether it has been inscribed upon
the public records or not; whether it has been committed to writing in favor
of the wife, by the husband or by anyone else; or whether a gift has been
made in favor of the husband, provided the latter causes it to be included
in the number of nuptial donations.
We order that
this rule shall be observed, no matter what the amount of the donation is,
even though (as has already been stated) it may not have been recorded.
CHAPTER II. A
MINOR CAN MANUMIT SLAVES BY WILL.
We also decree
by this law that minors shall, from the time when they can dispose of their
property by will, be permitted to liberate their slaves in this manner,
without their being prevented from doing so on account of their age; and We
hereby repeal the law which formerly forbade them to do this.
CHAPTER III.
No CREDIT SHALL
BE GIVEN TO A WRITTEN INSTRUMENT IN WHICH ANOTHER INSTRUMENT Is MENTIONED,
UNLESS THE LATTER Is PRODUCED.
In addition to
this, We order that if anyone should, in one document, make mention of
another, this shall have no effect, unless 'the other document referred to
is produced; or unless some other legal evidence is offered by which the
amount of property stated is shown to be actually due, for this was also
provided by the ancient laws.
CHAPTER IV.
CONCERNING APPEALS.
We also decree
that when an appeal has been taken upon the last day when this can be done,
each party, or only the one who has taken the appeal, must personally appear
before the judge, and request him or his councillors or referendaries to
examine the case; and if the judge should fail to receive the appeal during
the time prescribed for that purpose, the parties to the action, or the one
who took the
appeal, shall
not be prejudiced in any respect on account of this delay; but such appeals
shall afterwards be heard and disposed of by a lawful decision.
CHAPTER V.
CONCERNING THE
REVIEW OF DECISIONS RENDERED BY PR.ETORIAN PREFECTS.
We have thought
that something under this head requires correction, for as Our laws set
forth that when the Most Glorious Prstorian Prefects have rendered a
decision, no appeal can be taken from it, hence we order that whenever a
judgment of the Most Glorious Prefect, no matter to what district he may
belong, is pronounced, and one of the parties litigant considers himself to
be injured thereby, he shall be permitted, within ten days afterwards, to
present a petition to the Most Glorious Prefects who rendered it, or to
their councillors or referees; and when this has been done, the judgment
cannot be executed by the party who obtained it, if he does not previously
furnish good security for as x-large an amount as that for which the decision
was rendered; in order that if, after the Praetorian Prefect has reviewed
it, the formalities prescribed by law have been observed, and the decision
set aside, the property in controversy, together with all lawful
augmentations, may be restored to the person who loses the case. But where,
during the ten days after rendition of the judgment, he who thinks that he
has been injured by it does not file a petition, We order that execution
shall take place without a surety being required; the right of review,
however, being still reserved for the party who thinks that he has been
injured.
CHAPTER VI.
WHERE A MINOR OF
TWENTY-FIVE YEARS OF AGE WISHES TO DEMAND RESTITUTION AGAINST THE ACCEPTANCE
OF
AN ESTATE.
We also decree
that where minors desire to reject an estate which has descended to them,
and which they have accepted, and all the creditors of said estate are
present in the place where complete restitution is demanded; these creditors
shall be called before the judge, and the minor must reject the estate in
their presence. But where all or some of the creditors are absent, those
minors who wish to reject it shall apply to the judge of the district where
they reside, and he shall summon the creditors by means of ordinary
citations; and if they do not appear within the term of three months, the
said minors will be permitted to reject the estate without incurring any
responsibility, and the judge before whom the application for complete
restitution was made shall designate the place where the movable or
immovable property constituting the estate shall be kept, and the amount of
the same shall be stated in a public inventory entered upon the records.
CHAPTER VII.
CONCERNING
PRESCRIPTIONS, OR, IN OTHER WORDS, CONCERNING THE BAD FAITH OF A POSSESSOR
WHO ALIENATES PROPERTY.
Moreover, We
decree that where anyone has possession of property in bad faith, and
alienates it either by sale, donation, or in any other manner, and the
person who thinks that the property belongs to him, having been informed of
the alienation, does not, in conformity to law, within ten years if he is
present, or within twenty if he is absent, bring suit against the purchaser,
the donee, or the person to which said property has been transferred in any
other way whatsoever, the possessor of said property shall hold it legally,
that is to say, after the lapse of ten years when the parties are present,
and after twenty when they are absent.
But where the
true owner of any of the property is not aware that it belongs to him, and
that it has been alienated, he will only be excluded from asserting his
right by the prescription of thirty years; and he who is in possession under
such circumstances cannot allege that he holds the property in good faith,
when he himself has received it from a fraudulent possessor.
CHAPTER Vill.
CONCERNING
PERSONS WHO ARE ABSENT AND PRESENT WHERE A DECENNIAL PRESCRIPTION Is
INVOLVED.
We have deemed
it proper to decree, with reference to a prescription of ten years, that
when anyone against whom such prescription can be pleaded with reference to
the acquisition of property is present for some years and absent for others,
there shall be added to the years when he was present the number necessary
for the completion of those during which he was absent. We order that all
the rules which We have prescribed with reference to temporary prescription
shall not be applicable to past cases, but to future ones; and shall only be
valid so far as those which may arise after the enactment of the present law
are concerned.
CHAPTER IX.
A TESTATOR SHALL
NOT BE COMPELLED TO WRITE THE NAMES OF His HEIRS WITH His OWN HAND.
We have stated
previous to the enactment of this law that a testator shall be required to
write the names of his heirs in his will with his own hand, or by those of
witnesses. But We have ascertained that through the severity of this
provision many wills have been rendered void, testators either not being
able to conform to it, or perhaps being reluctant for the witnesses to know
their wishes. We hereby order that testators who desire to do so can observe
this
rule when making
their wills, but if they do not observe it, but follow the former custom,
their wills shall be valid wherever anyone writes the name of his heir with
his own hand, or through the agency of another; provided he complies in
every respect with the other legal formalities required in testamentary
execution.
CHAPTER X.
CONCERNING
IMMOVABLE PROPERTY WHICH BELONGS TO RELIGIOUS PLACES.
We order the
law, by which We directed that property which has come from a holy church to
Our House shall not be transferred to private persons, to be repealed, and
We declare this to be applicable to such property as has already been
lawfully added to Our House, as well as to what may hereafter be transferred
to it.
CHAPTER XI.
CONCERNING THE
FALCIDIAN LAW, WHICH DOES NOT APPLY TO PROPERTY WHOSE ALIENATION Is
PROHIBITED.
Where anyone
makes a will, and leaves immovable property to his family or to anyone else,
as a legacy, specifically stating that said property shall never be
alienated, but that it shall always remain in the hands of the heirs or
successors of him to whom it was left, We decree that the Falcidian Law
shall have no effect where a bequest of this kind is involved, for the
reason that the testator himself prohibited its alienation.
Moreover, We
direct that these rules shall be observed in cases which have not yet been
disposed of by judicial decree, amicable agreement, or in any other lawful
manner.
EPILOGUE.
Therefore Your
Eminence will see that what We have decreed by the present law shall remain
forever valid, and be brought to the attention of all Our subjects by means
of edicts promulgated in this Royal City, and by notices despatched to all
the Governors of provinces.
Given at
Constantinople, on the thirteenth of the Kalends of February, during
the Consulate of Our Lord the Emperor Justinian, and the year of the
Consulate of Basil.
TITLE III.
CONCERNING
ALIENATION, EMPHYTEUSIS, LEASE, HYPOTHECATION, AND DIVERS OTHER CONTRACTS
HAVING REFERENCE TO SACRED PROPERTY EVERYWHERE.
ONE HUNDRED AND
TWENTIETH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious
Praetorian Prefect of the East.
PREFACE.
We, having
already promulgated many different enactments with regard to alienations,
emphyteutical contracts, leases, and other agreements relating to the
administration of ecclesiastical property, now deem it proper to combine all
these matters in the present law.
CHAPTER I.
CONCERNING THE
ALIENATION AND EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY.
Hence We order
that those who have charge of the property of the Most Holy Church of this
Royal City, or that of any orphan asylum, hospital, place of entertainment
for strangers, infirmary for poor and sick people, or any other religious
establishments situated in this Royal City, or in the territory subject to
its jurisdiction (with, however, the exception of monasteries), shall be
permitted to sell, give, exchange, deliver by reciprocal donation, or
alienate in any manner whatsoever, any immovable property, right to a supply
of grain, or rustic slave, unless the exchange is made with the Imperial
House, but We do not permit serfs to be legally alienated.
We decree that
the Most Holy Principal Church of this Royal City, and other religious
houses, shall only grant an emphyteutical lease to one who receives it in
person and to two of his heirs in succession, and We only release him who is
entitled to the property by emphyteutical right from the sixth part of his
actual rent. So far as suburban property belonging to the Most Holy
Principal Church itself, or to the other religious foundations above
enumerated, and which are situated in this Royal City, or in its territory,
are concerned, We order that when said property yields a fixed rent as
income, it shall be leased in emphyteusis by its managers or stewards to the
emphy-teuta, and two of his immediate successors, in the manner above
prescribed; and that, instead of the rent being diminished, it shall, on the
contrary, be increased.
But where such
suburban property returns absolutely no income, We permit the administrators
of religious houses to transfer them by emphyteusis (as previously stated)
for any amount of rent which they may decide upon.
(1) Where any
property whatsoever, which has been leased in emphyteusis by a religious
house, is transferred to the Imperial Domain, to Our Treasury, to a city or
a curia, or to any other religious establishment, We permit the
administrators of the religious house by which the emphyteusis was granted
in the beginning to state within two years after the date when the
emphyteusis was made to one of the aforesaid establishments, whether its
intention is for the property thus leased to be left in the hands of those
who have possession of it, with the understanding that they shall pay the
annual rent mentioned in the agreement, or whether they wish to cancel the
lease and take back the said property for the reason that they are of the
opinion that this will be the more advantageous course to pursue.
(2) Where,
however, there are any places belonging to the Most Holy Principal Church,
or to any other religious establishment on which are situated ancient
buildings which have been abandoned, and which do not yield any income, and
the religious establishment owning said buildings cannot repair them, We
grant permission to their superintendents to lease them in perpetual
emphyteusis, provided, however, that the emphyteutical rent shall amount to
a third of the sums formerly collected, when the said buildings were in good
repair; or, if the emphyteuta should prefer to do so, he shall receive the
ruined houses under an agreement that he will begin to build, and will pay
to the venerable religious house, from which he received the emphyteusis,
half the rent which the building would yield after an appraisement of the
same has been made. We permit this to be done, and also authorize an
emphyteuta of this kind to make use of any materials forming part of the
abandoned habitation.
CHAPTER II.
WHERE ANYONE
DESIRES TO ACQUIRE THE USUFRUCT OF PROPERTY BELONGING TO A CHURCH.
When anyone
desires to obtain the usufruct of immovable property belonging to the
principal church of this Royal City, or to one of the religious
establishments which We have mentioned in the preceding chapter, he shall
not receive it, unless he immediately transfers the ownership of other
property, not burdened with heavy fiscal charges which yields an income
equal to that which is to be given to him. After his death, or after the
time agreed upon for the enjoyment of the usufruct, which must not exceed
the life of him who receives it, has elapsed, the title to both pieces of
property shall absolutely vest in the same religious house, so far as the
usufruct and ownership of the same are concerned.
CHAPTER III.
IT SHALL BE
PERMISSIBLE TO LEASE ECCLESIASTICAL PROPERTY FOR NOT MORE THAN THIRTY YEARS.
We grant
permission to religious establishments to make contracts for leases for any
term the contracting parties may choose, provided, however, it does not
exceed thirty years.
CHAPTER IV.
IT SHALL BE
PERMITTED TO ENCUMBER IMMOVABLE ECCLESIASTICAL PROPERTY BY GIVING IT IN
PLEDGE.
If, however, any
one of the aforesaid religious establishments should require money for the
payment of taxes to the Treasury, or for any other necessary purpose, its
managers shall have the right to hypothecate a piece of immovable property,
or give it in special pledge,
the creditor
shall hold possession of the same and harvest the crops, and he must credit
their value upon the sums due to him, as well as by way of interest, which,
however, cannot exceed three per cent. But where those having charge of the
affairs of the said religious establishment discharge the debt, or it is
paid out of the income of the property given in pledge, the said property
shall be returned to the religious establishment which encumbered it.
CHAPTER V.
CONCERNING THE
EMPHYTEUSIS AND HYPOTHECATION OF ECCLESIASTICAL PROPERTY.
We desire that
emphyteuses and hypothecations made for a term exceeding five years, and
which are contracted by the Holy Principal Church of this City, shall be
executed with the approval and consent of the Most Blessed Archbishop and
Patriarch of this Most Fortunate Capital and in the presence of the
venerable stewards and chartularies of the Holy Principal Church, who shall
make oath that the contract was not entered into for the purpose of
defrauding the church of its rights. Where there are chartularies in any of
the other religious establishments, they, also, shall be sworn in the same
way before the head of the said religious house. When there are none, the
contract shall, in the presence of the Holy Gospels, be committed to writing
by those in authority, who shall add to it the oath setting forth that no
injury or fraud is committed against the said religious house.
(1) We forbid
stewards, superintendents of orphan asylums, and others having charge of
religious establishments, as well as all chartularies, their parents,
children, and others related to them by the ties of blood or marriage, to
accept in person, or through the intervention of another, an emphyteusis,
lease, or hypothecation of property belonging to any of the said religious
houses; and they are hereby notified that if anything of this kind should be
done it will be void; and We order that all the property, not only of those
who accept such a contract, but also that of the stewards, chartularies, or
superintendents with whom they were implicated, shall, after their death,
pass to the religious house from which they accepted the emphyteusis, the
lease, or the hypothecation.
CHAPTER VI.
CONCERNING THE
PROPERTY OF OTHER CHURCHES SITUATED OUTSIDE THE CITY OF CONSTANTINOPLE.
We have laid
down the preceding rules concerning matters in which the principal church,
and the other religious houses of this Royal City or its environs, are
interested. We now deem it advisable to prescribe the following regulations
for the other holy churches, monasteries, places of entertainment for
strangers, hospitals, and other religious establishments situated in all the
provinces of Our
Empire, as well
as for the monasteries in this Royal City and its adjacent territory.
(1) Therefore We
permit the religious establishments aforesaid to transfer property belonging
to them, not only by temporary emphyteusis, but also, if they so desire, by
perpetual lease. When these are holy churches or other religious houses
which the most holy bishop of the diocese governs in person, or causes to be
administered by a holy choir of the clergy, the emphyteutical contract shall
be made with their knowledge and consent; and the stewards, managers, and
chartularies of the religious house shall swear in the presence of the
bishop, or of the said holy choir of the clergy, that the emphyteusis will
not be productive of any loss to the said religious house.
Where asylums
for poor and infirm persons, or any places of entertainment for strangers,
hospitals, or other religious establishments subject to private
administration, or any sacred oratories, lease property by emphyteusis, the
contract shall be made with the consent of the majority of the ecclesiastics
who have charge of the same, as well as with the approbation of the steward.
And where this is a place of entertainment for strangers, as asylum for poor
and infirm people, a hospital or some other establishment of this kind, the
contract shall be drawn up in the presence of the official in charge; and
the managers of the said house shall make oath in the presence of the holy
bishop by whom they were appointed or ordained that the said religious house
can suffer neither injury nor fraud through the execution of such a
contract.
(2) But so far
as the holy monasteries are concerned, their heads, together with the
majority of the monks attached to them, must draw up the contract. We decree
that, in all preceding cases, the instrument shall include the oath that no
injury or fraud against the rights of the monastery is contemplated. The
formalities hereinbefore mentioned having been complied with, the emphyteuta
shall net be released from the payment of more than the sixth part of the
income yielded by the property given in emphyteusis.
We order that
all that We have above prescribed with reference to buildings belonging to
religious houses situated in this Royal City, which have fallen into decay,
shall be applicable to such buildings when they belong to religious
establishments situated in the provinces. We also think it proper to state
with reference to the latter that where any of them are oppressed with
debts, either on account of public obligations, or for some other urgent
reason, and it is not possible for them to release themselves from liability
by the disposal of movable property, land shall at first specially be
pledged to the creditor, in order that he may take the crops of the same,
and credit the proceeds upon the sums which he has loaned, as well as the
interest which cannot exceed three per cent.
But where the
creditor is not willing to be paid in this way, We decree that those who are
subject to the authority of the most holy patriarchs, that is to say, the
most holy metropolitans and other bishops, archimandrites, superintendents
of orphan asylums, hos-
pitals, and
places for the entertainment of strangers, and the heads of other religious
establishments, shall draw up their emphyteutical leases in the presence of
the most holy patriarch by whom they have been ordained or appointed; that
the said instruments shall be confirmed by their oaths, and with the consent
of the majority of the clergy; that the officials in charge must state the
amount of the indebtedness, and testify that it is impossible to discharge
it by the sale of movable property; and those of the clergy who are ordained
by the most holy patriarchs, that is to say, the metropolitans and other
bishops, the archimandrites, the superintendents of orphan asylums and of
institutions for the poor and infirm, and the heads of other religious
establishments, shall execute instruments of this kind before the said
metropolitan bishops, and they shall be drawn up in the same way by bishops
who have been ordained by the patriarchs or metropolitans, and are under
their personal jurisdiction, and the heads of monasteries, asylums for the
poor and infirm, places of entertainment for strangers, hospitals, or other
establishments of this kind; provided, however, that when these instruments
are executed in the presence of the patriarchs, the metropolitans, or other
bishops, the said religious establishment shall not be subjected to expense
of any kind. For We decree that, for the future, emphyteutical contracts
shall be executed gratuitously by the persons or houses that We have just
mentioned, in the presence of the provincial judges, or the defenders of
districts. After what has been above stated has taken place before the most
holy patriarchs, metropolitans, or other bishops, notices shall be posted
for twenty days in a public place of the town by those having supervision of
the religious house which has contracted the debt, and then anyone desiring
to buy the immovable property must appear, and he who will give the most for
it shall be preferred to the others. These formalities having been complied
with, the sale shall be concluded, and the purchase-money entirely employed
for the payment of the debt, for unless this is done, the purchaser will not
legally be released from liability; and, finally, it must be expressly
stated in the instrument that there is no intention to defraud the religious
house.
If, after the
above-mentioned requirements have been observed, and no purchaser can be
found for the property, We direct that the creditors of the aforesaid
religious houses shall receive, by way of payment, the property offered for
sale in accordance with a just and exact appraisement of the same. The tenth
part of said appraisement shall be added to the price; the property
transferred by way of payment to the creditor shall be of the same value as
his claim; the absolute ownership of the same shall vest in him; and the
managers of the religious establishment and the majority of the
ecclesiastics attached to it must give their consent to sales of this
description. The immovable property given in satisfaction of the debt shall
not be selected by the creditor, but the choice shall be equitably made;
part of it shall be composed of land yielding an income, and part of the
land which is barren, and belongs to the same religious house; and
the appraisement
of both pieces shall be made in accordance with the income they return, the
amount of the indebtedness to the Treasury, and other considerations.
(3) If, however,
anyone has loaned, or shall hereafter loan money to the bishop, steward, or
head of any religious house whatsoever, situated in this Royal City, or in
the provinces, We decree that he shall not be held to have loaned it to the
said religious house, if he does not, in the first place, show that the
authorities have borrowed it for its benefit; that they are not heirs of the
creditor of the said religious house; that they have no right of action
against it; and that the sums lent have been employed for its benefit;
otherwise, the creditor must bring suit against the person who received the
loan, or his heirs.
CHAPTER VII.
CONCERNING THE
EXCHANGE OF ECCLESIASTICAL PROPERTY.
We order that,
with the exception of the Most Holy Principal Church of this Royal City, and
the orphan asylums, the houses for the entertainment of strangers, as well
as the hospitals for the relief of poor and infirm persons which, situated
in this Royal City, are under the jurisdiction of the Principal Church, all
most holy churches, religious establishments, and monasteries situated both
in this Capital and in the different provinces shall be permitted to
exchange property with one another; provided that reciprocal indemnity in
favor of each house exists, and that the consent, not only of the heads of
these houses, but also of the majority of the clergy attached to them, shall
be either set forth in writing, or publicly stated.
We do not permit
any articles which have been transferred from the Imperial Domain to any
religious establishment whatsoever, or which may hereafter be transferred,
to be sold, pledged, exchanged, or alienated, even when such contracts are
made with other religious establishments.
(1) But as We
have ascertained that alienations of monasteries have even been made by
certain persons, for the purpose of conveying them to private individuals
without regard to their sacred destination, We absolutely forbid this to be
done. Where, however, an act of this kind is proved, We grant permission to
the most holy bishop of the diocese to recover said monastery, and restore
it to its former
condition.
If, however, any
of the aforesaid religious houses situated in this Royal City, or in any of
the other provinces (with the exception of the Most Holy Principal Church of
this Royal City), should have a tract of land owing a x-large amount of taxes
to the Treasury, from which land it receives no income, We authorize those
having the administration of the said religious house to alienate this land
in any way that they may desire; but public instruments must be drawn up for
the security of the religious house by those who have appointed
or ordained its
managers, and the latter shall swear on the Holy Scriptures, in the presence
of the superior of the religious house, and the majority of the clergy
attached thereto, that the alienation is not made through treason, favor, or
fraud, but for the benefit of the said religious house.
We forbid the
stewards and administrators of the clergy, the chartularies of religious
establishments, no matter where they may be located, their parents,
children, and those to whom they are related by the ties of consanguinity or
marriage, to execute in their own proper person, or by someone acting for
them, any contract of lease, emphyteusis, purchase, or hypothecation,
relating to immovable property belonging to the said religious houses, just
as We forbid this with reference to similar establishments situated in this
Royal City.
CHAPTER Vill.
WHERE THE
EMPHYTEUTA OF THE CHURCH DOES NOT PAY His RENT FOR Two YEARS.
If the lessee,
or emphyteuta of land belonging to the Most Holy Principal Church, or to any
other religious establishment situated within Our Empire, permits the
property which he has received, or may hereafter receive, according to the
terms of this constitution, to become deteriorated, or if he fails to pay
the emphyteutical rent, or what he promised, for two years, We grant
permission to the religious house, which made the emphyteusis or lease, to
collect the rent which is due, as well as to restore the property leased or
given in emphyteusis to its former condition, and to eject the emphyteuta or
lessee, without his being able to demand anything from the religious house
on the ground of improvements.
When the persons
having charge of the matter do not wish to eject him, We decree that they
shall collect whatever is known to be due under the lease or emphyteusis,
and that the said lessees or emphyteuta shall then keep the land which he
has rented until the term fixed for the duration of the lease has expired,
and that he shall pay everything which has been agreed upon. If, however,
the emphyteuta or lessee should take to flight, We grant permission to the
heads of the religious house to obtain from his private property sufficient
to indemnify the establishment of which they have charge, without the
emphyteuta being allowed to claim anything for improvements.
CHAPTER IX.
CHURCHES SHALL
BE PERMITTED TO ALIENATE IMMOVABLE PROPERTY FOR THE PURPOSE OF REDEEMING
CAPTIVES.
We authorize the
most holy churches of the cities and their stewards to alienate their
immovable property for the ransom of captives, provided that the said
immovable property has not been given to the said churches under the
condition that it should not be alienated. We
grant the Most
Holy Church of Jerusalem permission to sell any houses belonging to it,
which are not situated in that city, for a sum not less than the total
amount of rent received from them for fifty years; in order that it may use
this money to obtain a better revenue. Where, however, any persons have
given, sold, or transferred in any other way, or left unproductive lands to
any religious house whatsoever, situated either in this Royal City, or in
the provinces, We decree that the religious house which has acquired such
lands shall suffer no damage, and shall not be oppressed with taxes levied
by the Treasury, or in any other way whatsoever; but that all the
obligations attaching to said sterile lands shall revert to those who have
given them, or to their heirs, who shall also be obliged to take back the
said lands and pay to the said religious house out of their private estates
an amount equal to the loss which the latter has sustained. Where, however,
this loss is due to the fact that certain sums were paid to the said house
in consideration of its acceptance of the said sterile lands, We order that
it shall acquire the ownership of these sums, and that the lands in question
shall, by all means, be returned to whoever donated them or to his heirs.
(1) With
reference to this subject, We order that no necessity shall compel the most
holy churches, or other religious establishments situated both in this Royal
City and in all the provinces of Our Empire, to purchase barren or fertile
lands situated anywhere, in order that they may not run the risk of .losing
those they have, or of becoming oppressed with debts. Where, however,
someone desires to obtain the usufruct of any immovable property belonging
to one of the religious houses aforesaid (in accordance with what We have
already decreed concerning such establishments situated in this Royal City),
he must immediately convey the ownership of other land to the said religious
establishment, the revenues of which land shall be equal in amount to those
of that transferred to him by the church, and not be subject to heavy fiscal
charges. After his death, or after the expiration of the time prescribed for
the existence of the usufruct (which, however, cannot exceed the life of the
person entitled to it), both pieces of property, including their ownership
and usufruct, shall be acquired by the said religious establishment.
This is what We
order with reference to immovable property.
CHAPTER X.
CONCERNING THE
SACRED UTENSILS OF ANY CHURCH OR
ORATORY.
We have decreed
in general terms, with reference to the sacred utensils belonging to the
Most Holy Principal Church of this City or the other holy houses of prayer,
no matter where they are situated in Our Empire, that the said utensils
cannot be sold or pledged except for the ransom of captives. But where there
are several of these in any one of the religious establishments, which are
not absolutely
necessary for
ordinary use, and the said religious house is in debt, and has no other
personal property with which it can meet its obligations, We allow it either
to dispose of the superfluous articles to other religious establishments
which have none, by means of instruments publicly executed, or to melt them,
and then sell the metal, using the price for the discharge of the debt, in
order to prevent immovable property from being alienated.
CHAPTER
XI.
To WHAT
PENALTY PERSONS WILL BE LIABLE WHO VIOLATE THE PRESENT CONSTITUTION.
If, however, in
contravention of the present law, a contract should be made with reference
to movable or immovable property belonging to one of the religious
establishments aforesaid, the property which is the subject of the contract
shall be returned to the said holy church or religious house, together with
the income of the same which has been collected in the meantime; and it
shall retain the price paid, or the reciprocal gift or whatever was, by way
of consideration, donated in exchange. Where an emphyteusis is executed in
violation of what We have just ordered, We direct the property transferred
by the same to be returned to the most holy church or religious house whose
interests are involved, that the rent shall be paid in accordance with the
agreement, and that the lease shall terminate, just as if the time specified
by the emphyteutical contract had expired.
When a donation
of ecclesiastical property belonging to a church or any other religious
house is made, it shall be returned to the Most Holy Principal Church, or
other religious house, together with the income received during the
existence of the donation; and the donee shall, in addition, pay a sum equal
to the value of the property given.
When a contract
of hypothecation is entered into in violation of this law, the creditor
shall lose everything due to him, the property hypothecated shall be
returned to the religious establishment, and the notaries who, in opposition
to this law, have been so bold as to use their authority for such a purpose,
shall be condemned to perpetual exile.
Where a contract
of this kind has been made in compliance with the ancient constitutions, in
existence before the enactment of this law, it shall remain in full force.
We, however, decree that all instruments which have been drawn up in
contravention of the ancient laws shall be annulled, that the articles
transferred in violation of their provisions shall be restored to the
religious establishments, that everything done hereafter shall be in
accordance with the present law, and that all former constitutions enacted
on similar subjects are hereby repealed.
EPILOGUE.
Therefore, Your
Eminence will hasten to cause the matters included by Us in the present law
to be observed for all time, and will,
with this end in
view, publish an edict for ten consecutive days in public places; but no one
shall be despatched into the provinces for this purpose, for We desire the
said law to be promulgated without Our subjects sustaining any injury.
Given at
Constantinople, on the seventh of the Ides of May, during the reign
of the Emperor Justinian, and the Consulate of Basil.
TITLE IV.
PARTIAL PAYMENTS OP INTEREST SHALL BE DOUBLED.
ONE HUNDRED AND
TWENTY-FIRST NEW CONSTITUTION. The Emperor Justinian to Basil, Governor of
Tarsus.
PREFACE.
As decurions are
constantly presenting petitions to Us, and We desire to be indulgent to
them, We do not permit, under any circumstances, artifices opposed to law,
and statements inspired by fraud, to have any validity.
CHAPTER I.
Eusebius and
Aphthonius, sons of Palladius, and grandsons of Demetrius, informed Us that
Demetrius owed Artemidorus five hundred aurei on account of a loan on
which also interest was agreed to be paid, and that they wished to profit by
an Imperial Pragmatic Sanction recently promulgated, which prescribed that
where double the amount of the debt had been paid, nothing more could be
collected from the debtor under Our laws. They also alleged that Epimachus
and Artemon, successors of the creditor Artemidorus, declared that Eusebius
and Aphthonius had made false statements in their petition, and that they
were unworthy of any indulgence from Us, on account of double payment of the
debt, and that only nine hundred and forty-nine aurei had been
received.
The petitioners
answered that Palladius, their father, as well as Demetrius, their
grandfather, and Paulus, had paid eight hundred and sixty-seven aurei.
Artemon and Priscianus, the sons of Artemidorus, who was the grandfather
of Epimachus, and the other Artemon, said in reply that partial payments
should not be added to the principal; that they could only be considered as
interest; that the Governor of the province had decided that this was the
case; and that, for this reason, they had required of Palladius, for the
first note bearing interest and calling for five hundred aurei,
another note of six hundred.
The reply of the
petitioners to this was that the indebtedness had been paid at different
times; that Palladius had paid seventy-two aurei, and Aphonius ten,
which, together with the eight hundred and sixty-seven aurei already
paid, made a total of nine hundred and forty-nine: As the judge who heard
the case was not convinced that these partial payments should be credited on
the entire amount of the
debt, he had not
admitted their claim, and had ordered them to pay six hundred aurei
as principal. The petitioners asked Us to be released from this requirement,
and to be discharged from liability for the entire indebtedness by paying
fifty-one aurei more, and that the note of six hundred aurei
bearing interest should be returned to them.
CHAPTER II.
Therefore, as
Our laws do not require more than double the principal to be paid, the only
difference existing between those previously enacted and this one is, that
while they direct that the payment of interest, when it amounts to double
the principal, shall extinguish the debt, where the said payments are not
partial;1 We permit payments, even if they are partial, to
extinguish the indebtedness, when they are equal to double the amount of the
principal; and We order that the calculation of interest shall be made in
this way, and that if the petitioners should pay enough to make up the
thousand aurei, they will be entitled to recover the note of six
hundred aurei bearing interest, in order that the debt may not be
collected more than once.
EPILOGUE.
Your
Magnificence will see that what it has pleased Us to enact in this Imperial
Pragmatic Sanction is carried into effect, and that the interpretation given
by the decisions which the petitioners have referred to Us, as well as every
fraudulent act which has been, or may subsequently be committed by only one
of the parties, is considered void. Most beloved brother, may God preserve
you for many years.
Given at
Constantinople, on the Kalends of May, during the Consulate of
Belisarius.
TITLE V.
EDICT OP OUR
MOST Pious LORD JUSTINIAN, WITH REFERENCE TO THE REGULATION OF ARTISANS.
ONE HUNDRED AND
TWENTY-SECOND NEW CONSTITUTION.
PREFACE.
We have
ascertained that, in spite of the punishment inflicted by Our Lord God,
persons engaged in trade and literary pursuits, as well as artisans and
agriculturists of different kinds, and sailors, when they should lead better
lives, have devoted themselves to the acquisition of gain, and demand double
and triple wages and salaries, in violation of ancient customs.
V
1
This was also the rule in ancient India. "Interest on money, received at
once, not month by month, or day by day, as it ought, must never be more
than enough to double the debt, that is, more than the amount of the
principal paid at the same time." (Sir Wm. Jones, The Laws of Menu, Page
296.)ED.
CHAPTER I.
Hence it has
seemed advisable to Us, by means of this Imperial Edict, to forbid all
persons to yield to the detestable passion of avarice; in order that no one
who is the master of any art or trade, or any merchant of any description,
or anyone engaged in agricultural pursuits, may, hereafter, demand as salary
or wages more than ancient custom prescribes. We also decree that the
measurers of buildings, tillable land, and other property, shall not charge
more for their services than is just and that they shall observe the
established practice in this respect.
We order that
these rules shall be observed by those who have control of the work, as well
as by those who purchase the materials. We do not permit them to pay more
than is authorized by common usage. They are hereby notified that anyone who
demands more than this, and who is convicted of having accepted or given
more than was agreed upon in the beginning, will be compelled to pay three
times the amount to the Treasury.
EPILOGUE.
We order that
all violations of this law shall be ascertained and punished, and that the
pecuniary penalty imposed by it shall be collected by Your Excellency and
the Most Glorious Prefect of this Most Fortunate City, for We desire to
exact from violators of this Our Edict the fine for which they are liable,
and have them subjected to punishment. All officials belonging to Your Court
shall incur a penalty of five pounds of gold if they fail to enforce any one
of these regulations.
Given at
Constantinople, on the second of the Kalends of April, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Belisarius.
TITLE VI.
CONCERNING THE
MOST HOLY BISHOPS AND THE MOST REVEREND CLERGY AND MONKS.
ONE HUNDRED AND
TWENTY-THIRD NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious
Master of Our Imperial Offices.
PREFACE.
We, having
already made some certain provisions with reference to the government and
privileges of the holy churches, and other religious houses, as well as to
other subjects connected therewith, have deemed it advisable to include in
this law, after suitable correction, the provisions long since enacted in
different constitutions concerning the holy bishops, the clergy, and the
monks.
CHAPTER I.
CONCERNING THE CONSECRATION OF BISHOPS.
Therefore We
decree that every time it becomes necessary to consecrate a bishop, the
clergy and the primates of the city shall, in the presence of the Holy
Gospels, issue a decree in favor of three persons, in which they must state,
at the peril of their souls, that they have not been induced to make the
choice of the said three persons, either by gifts, promises, friendship, or
any other motive; that they know that those whom they appoint profess the
Catholic faith; that they are of honorable life; that they are acquainted
with letters; that they neither have, nor have had, a wife or concubine; and
have had no legitimate or natural children; or that, if in the beginning,
anyone of the said three candidates did have a wife, he had only one, and
that she was neither a widow, nor had been married to another man, and that
the laws or Imperial Constitutions did not prohibit his marriage to her; and
that, finally, none of the three candidates is a decurion or other official,
or if one of them is liable to obligations of this kind, he has assumed the
monastic habit and been the inmate of a monastery for not less than fifteen
years.
(1) The
following must also be inserted in ecclesiastical decrees; namely, that the
person chosen is not less than thirty-five years of age, and is well known
to the clergy; and among the three persons in whose behalf such a decree is
issued, the best qualified shall be consecrated on the responsibility of the
prelate who performs the ceremony.
A decurion or
other official who, as has just been stated, is called to the episcopate
after having resided for fifteen years in a monastery, shall be released
from his civil obligation; still, although this is done, he shall only be
entitled to the fourth of his property, and the remainder, in accordance
with Our law, shall belong to the curia and the Treasury.
(2) We, however,
give permission to those who issue the decree, that if any one of the laity,
except a decurion or other official, is considered to be worthy of the
above-mentioned choice, he shall be elected along with two other members of
the priesthood, or monastic order, and where a layman is raised to the
episcopate in this way, he shall not immediately be consecrated a bishop;
but, in the first place, he shall be enrolled among the clergy for not less
than three months, and instructed in its sacred canons, and the daily
service of the Church, and then he may be consecrated bishop, for he whose
duty it is to instruct others should not be taught by them after his
consecration. When (as happens in certain places) three eligible persons are
not to be found, those who issue the decrees shall be permitted to designate
two or even one alone, but they must possess all the qualifications already
prescribed by Us.
If, however,
those whose duty it is to elect a bishop do not issue their decrees within
six months, then the prelate whose duty it is to
perform the
consecration can do so at the peril of his soul, and all the other
formalities which We have enumerated must be observed. Where anyone is
consecrated bishop in violation of these provisions, We order that he shall
be expelled from the episcopate; that he who is presumed to consecrate him
shall be deprived of office for the space of a year; and that all the
property which he has accumulated at any time, or under any circumstances,
shall, as a penalty for the fault which he has committed, be transferred to
the ownership of the church of which he is the bishop.
CHAPTER II.
CONCERNING THE ACCUSERS OF BISHOPS.
Where a
candidate for the episcopate is accused of anything by which, in accordance
with the laws or canons, his consecration may be prevented, it shall be
postponed, and whether the accuser is present and makes the charge in
person, or whether he delays proving it for three months, it must be
carefully examined by him whose duty it is to consecrate him, and if he
should be found guilty, his consecration shall be refused; but if, on the
other hand, he is shown to be innocent, he shall be consecrated, and the
accuser, whether he has not succeeded in establishing the accusation, or
whether he has abandoned it, shall be driven from the province in which he
resides. If, however, the accused person should be consecrated before the
accusation has been heard, he shall be expelled from the priesthood, the
prelate who hastened to consecrate such a person shall undergo the penalty
which We have above prescribed; that is to say, he shall be deprived of the
performance of his sacred duties for a year and all his property shall be
confiscated for the benefit of the Church.
(1) We, by all
means, forbid a bishop to be consecrated in consideration of payment for his
election in gold or other property. If anyone should violate this rule,
those who pay the money, and those who receive it, as well as any
intermediaries, shall suffer condemnation in accordance with the Holy
Scriptures and the sacred canons. Hence, both of them shall be deprived of
the honor of the priesthood, or of the clergy, and whatever has been given
shall be recovered for the benefit of the church whose ministry they
attempted to purchase. But when a layman receives the money, or acts as an
intermediary for the purpose of obtaining the episcopate for anyone, We
decree that there shall be collected from him, for the benefit of the
church, double the value of the property given, and We not only wish that
whatever has been paid shall be recovered in this way, but also the amount
for which any bond may have been executed to secure the acquisition of the
episcopate. And We finally order that all pledges and securities given,
offers of every kind made, and bonds executed for this purpose shall be
void. He who has received a bond shall not only be liable for its amount,
but double that sum shall be collected from him for the benefit of the
church.
CHAPTER III.
WHEKE A BISHOP
OFFERS His PROPERTY TO THE CHURCH
EITHER BEFORE OR
AFTER His CONSECRATION, AND WHAT
SHALL BE PAID
FOR THE RIGHT OF THE SEE.
Where a bishop,
either before or after his consecration, desires to offer to the church
whose ministry he has received either all or a part of his property, We do
not forbid him to do so; and We direct that he shall be released from every
sentence and penalty prescribed by the present law, and We also deem him
worthy of all praise as his act is not a purchase, but an offering. We
permit bishops who have been consecrated, when they assume office, to pay
only the sums which are customary, and which are hereinafter set forth.
Therefore We order the most blessed archbishops and patriarchs, that is to
say, those of ancient Rome, of Constantinople, Alexandria, Antioch and
Jerusalem, who have been accustomed to pay twenty pounds of gold at the time
of their consecration by bishops and clerks, to continue to pay the said
sum, but We forbid them to pay anything more. We decree that the
metropolitans, who are consecrated by their own synod, or by the most
blessed patriarchs, as well as all other prelates who are consecrated by
patriarchs and metropolitans, shall pay a hundred solidi for the
right of the see, and that they shall formally pay three hundred to the
notaries of the prelate who confers the consecration, and his other
officials.
When the annual
revenues of the church are less than thirty pounds of gold, but are not less
than ten, one hundred solidi shall be paid for the right of the see,
and two hundred to all the officials who are accustomed to receive them.
When the revenues of the church are under ten pounds of gold, but not under
five; fifty solidi shall be paid for the right of the see, and two
hundred to the officials. When the church has an income of less than five
pounds of gold, but not less than two, eighteen solidi shall be paid
for the right of the see, and twenty-four to the officials above mentioned.
In conclusion, if the amount of the revenues of the church is known to be
less than three pounds of gold, but not less than two, twelve solidi
shall be paid for the right of the see, and six for every other purpose. For
We forbid the bishop of a church which has an income of less than two pounds
of gold to pay anything either for the see, or in conformity with any custom
whatsoever. The first priest of the bishop who performs the consecration,
and the archdeacon, shall receive the sums which We have just enumerated,
and shall divide among those who are accustomed to receive them.
We order that
these rules shall, by all means, be observed, in order that the churches may
not be oppressed with debts, and priests become venal. If, however, anyone
should, under any circumstances, presume to receive anything in excess of
what We have prescribed'under the pretext of a right of the see, or of
custom, We order that three times the amount which he has been paid shall be
taken out of his property for the benefit of the church of him who gave it.
These are the
regulations which We have promulgated with reference to the consecration of
bishops.
CHAPTER IV.
THE EPISCOPATE
RELEASES A MAN FROM THE CONDITION OF SLAVE OR SERF.
We order that
bishops shall be liberated from their condition of slaves or serfs, after
their consecration, unless some decurion or other official has been
consecrated without having complied with the prescribed formalities, and We
direct that a bishop of this kind shall be expelled from the episcopate, and
returned to his curia, or other office, in order that the priesthood
may not be injured by his civil condition. We order, however, that those who
are subject to curial obligations, and are known to have been consecrated
bishops before the enactment of this law, shall be freed from their status;
but they can transfer a lawful share of their own property to the curia,
and the Treasury, without any interference with ecclesiastical rights so
far as the property which, having been acquired during the episcopate, will
belong to the Church by virtue of Our provision, is concerned. Where anyone
who has been raised to the episcopate is under the control of a parent, he
will become independent by the mere fact of his consecration.
CHAPTER V.
CONCERNING
PRIESTS, DEACONS, AND SUBDEACONS,
CALLED BY THE
RIGHT OF COGNATION TO DISCHARGE
THE DUTIES OF
GUARDIANS OR CURATORS.
Holy bishops and
monks cannot, legally, be appointed guardians or curators of any persons
whomsoever; but We permit priests, deacons, and subdeacons to accept the
guardianship and the curatorship of an estate under the law, and by the
right of cognation; and We authorize those who are called to do so by the
degree of relationship, to undertake the administration of these trusts.
When, within four months from the time when a priest, deacon, or subdeacon
is called to assume the duties of guardianship or curatorship, he states
that he voluntarily accepts it, he will not be prejudiced by this statement,
so far as any other guardianship or curatorship is concerned.
CHAPTER VI.
MEMBERS OF THE
CLERGY SHALL NOT PERFORM THE DUTIES OF PUBLIC OFFICE, OR TRANSACT ANY
SECULAR BUSINESS.
We do not permit
a deacon, a steward, or any other member of the clergy, no matter what his
rank may be, or any monk attached to a
church or
monastery, to be appointed a receiver or collector of taxes, a recorder of
public or private property, a superintendent of a household, or an attorney
to conduct litigation; nor do We allow him to act as surety for any of the
above-mentioned purposes; and formulate this rule in order that religious
establishments may sustain no injury, or the holy services of the Church be
interfered with. When, however, those in charge of churches or monasteries
desire to obtain control of adjacent real property either under lease or
emphyteusis, We permit them to do so; provided all the members of the
priesthood and the monks give their consent in the instrument evidencing the
contract, which must be publicly recorded; and they declare that the said
religious houses will be benefited thereby.
We also
authorize churches and other religious houses to contract with one another
by lease or emphyteusis, just as We grant members of the clergy the right to
lease and control the lands of their own churches, with the consent of the
bishop and the steward, with the exception of persons whom We have forbidden
to do this by the terms of a former law. If a bishop should violate these
rules, We order that all the property which has come into his hands in any
way or by means of any person whomsoever, before and after his consecration,
shall be demanded and seized by his church.
Where stewards,
or other members of the clergy do this, a fine fixed by the bishop shall be
collected from them, for the benefit of the church; and those to whom they
have entrusted the harvest of the crops or any land whatsoever, or the
supervision of a house, or who have accepted them as sureties under such
circumstances, shall have no right of action against the church or
monastery; nor any claim upon the property of either, or upon that of those
in charge of the same; nor against the persons to whom they have confided
their administrations, or the property or sureties of the latter. If,
however, the public should suffer any loss on this account, those who have
charged the persons above mentioned with the exaction of public revenues or
tributes; or who have farmed out to them collections of any kind; or have
accepted them as sureties; shall be compelled to make good the loss out of
their own estates.1
CHAPTER VII.
A BISHOP SHALL
NOT BE BROUGHT INTO COURT FOR THE PURPOSE OF TESTIFYING.
No person shall
be permitted to compel a reverend bishop to appear in court for the purpose
of giving testimony, but the judge shall send one of his subordinate
officers to him, in order that he may state what he knows upon the Holy
Gospels in a manner becoming to the priesthood.
1
This is in accordance with the maxim: "Clerici non ponentur in officiis."
ED.
CHAPTER Vill.
A BISHOP SHALL
NOT BE BROUGHT BEFORE A SECULAR JUDGE FOR ANY REASON WHATSOEVER.
We do not permit
a bishop to be forced to appear against his will before a civil or military
judge in any pecuniary or criminal proceeding whatsoever, without an
Imperial order; and any magistrate who presumes to issue an order of this
kind, either in writing or orally, after having been deprived of his office,
shall pay a fine of twenty pounds of gold for the benefit of the church
whose bishop was summoned and ordered to appear; and the bailiff who
executed the order, after having also been deprived of his office, shall be
scourged and sent into exile.
CHAPTER IX.
BISHOPS SHALL NOT LEAVE THEIR OWN CHURCHES.
We forbid the
bishops beloved of God to leave their own churches and go elsewhere; and
when they are obliged to do so, they must not depart without having obtained
letters for that purpose from the Most Blessed Patriarch or Metropolitan, or
an Imperial order; hence bishops who are under the jurisdiction of the Most
Blessed Archbishop and Patriarch of Constantinople shall not be permitted to
visit this Royal City without his permission, or Our order. When a bishop,
no matter where he is stationed, leaves his diocese after having complied
with this formality, he cannot remain absent from his church longer than a
year. Bishops who, as has just been stated, come from any diocese whatsoever
to this Royal City, shall, before doing anything else, apply to the Most
Blessed Archbishop and Patriarch of Constantinople to be presented by him to
Our Tranquillity.
Where those who
leave their dioceses do not observe these rules, or if they remain absent
from their churches longer than a year, in the first place, their expenses
shall not be paid by the stewards of their churches, and their superiors
must notify them by letters to return, and those who delay doing so shall be
recalled in accordance with the sacred canons; and if they do not return
within the time prescribed they shall be removed from the episcopate, and
better bishops shall be consecrated in their stead, by virtue of the present
law.
This rule shall
be observed with reference to the members of the clergy, no matter to what
order they may belong, or what duties they perform.
CHAPTER X.
ARCHBISHOPS AND
PATRIARCHS SHALL FREQUENTLY
HOLD COUNCILS
AND SYNODS DURING THE COURSE
OF A YEAR.
In order that
ecclesiastical discipline may be strictly maintained, and the sacred canons
be complied with, We order that every blessed archbishop, patriarch, and
metropolitan shall call together the very
reverend bishops
subject to his authority in the same province once or twice every year, in
order, with their assistance, carefully to investigate all controversies
which have arisen between bishops, clerks, or monks, decide these
controversies, and remedy everything which has been done contrary to the
canons by anyone whomsoever.
We forbid the
most reverend bishops, priests, deacons, subdeacons, readers, and all other
ecclesiastics, no matter of what holy association or order they may be
members, to gamble with dice; to take part as spectators in games of chance,
where other persons are playing; or to be present at a public exhibition of
any kind. If any one of them should violate this provision, We order that he
shall be prohibited from performing his sacred duties for three years, and
shall be confined in a monastery. Nevertheless, if during the said term of
three years, he should evince repentance in proportion to his sin, his
superior is hereby authorized to shorten the time, and restore him to the
ministry.
The most
reverend bishops are notified that they must punish every violation of this
law; and if, after having learned of an offence com-mitted against its
provisions, they fail to exact the penalty, they themselves will be
accountable to God for not doing so. No bishop, however, shall be compelled
against his will to remove from his clergy any priest who is under his
jurisdiction.
CHAPTER XI.
No ONE SHALL BE
EXCOMMUNICATED BEFORE His CASE HAS BEEN DISPOSED OF.
We forbid all
bishops and priests to deprive anyone of the holy communion before the
offence for which the sacred canons prescribe excommunication has been
proved. If anyone, in violation of this provision, should deprive another of
the sacrament, he who has been unjustly excommunicated shall be released
from the sentence by a prelate of higher authority, and will be entitled to
receive the holy communion. But the ecclesiastic who has presumed to exclude
him from this sacred rite shall himself be excommunicated by the prelate to
whose authority he is subject, for as long a time as the latter may deem
advisable, in order that he may undergo a just penalty for what he unjustly
did.
No bishop shall
be permitted to strike anyone with his own hands; for an act of this kind is
unbecoming to a member of the priesthood. If any bishop who has been
expelled from the priesthood, in conformity with the ecclesiastical canons,
should have the audacity to leave the place in which he was ordered to pass
his life, and return to the city from which he has been driven, We order
that he shall be placed in a monastery situated in some other region, in
order that he may, by the practice of a monastic life, atone for the crimes
which he committed while in the priesthood.
CHAPTER XII.
WHO THOSE ARE
THAT SHOULD BE ORDAINED PRIESTS.
We do not permit
members of the clergy to be ordained unless they are acquainted with
letters; or where they do not profess the true faith;
or where their
life is not without blemish, and they shall not be ordained if they have had
(or have at the time) a concubine or any natural children. They must live
chastely, and must have only one lawful wife, who was neither a widow nor
separated from her husband, and with whom marriage was not forbidden either
by the laws or the sacred canons.
CHAPTER XIII.
CONCERNING THE
AGE OF PRIESTS AND OTHER MEMBERS OF THE CLERGY.
We do not permit
anyone to be ordained a priest who is under thirty-five years of age, or to
become a deacon or subdeacon under twenty-five, or a reader under eighteen
years. A woman who is less than forty years of age, or who has married a
second time, shall not be made a deaconess in the Holy Church.
CHAPTER XIV.
CONCERNING THE WIVES OF MEMBERS OF THE CLERGY.
If at the time
of the ordination of a member of the priesthood, no matter to what body or
order he may belong, an accuser appears, who states that the candidate is
unworthy of receiving ordination, the ceremony must be postponed, and the
hearing of the accusation, as well as what We have prescribed with reference
to the consecration of bishops, shall be proceeded with. Where anyone who is
to be made a deacon has not (as has previously been stated) been married, he
shall not be ordained until after an examination conducted by the
ecclesiastic who is to confer ordination upon him has taken place, and he
has promised to live chastely without lawful marriage; and the prelate who
ordains the deacon or subdeacon shall not, when he performs the ceremony,
authorize him subsequently to take a wife. Any bishop who permits this to be
done shall be deprived of his episcopate.
If, however,
after his ordination, any priest, deacon or subdeacon should marry, he shall
be expelled from the clergy, and shall be delivered, along with his own
property, to the curia of the city in which he is an ecclesiastic.
But where a reader marries a second time, or his first wife was a widow, or
separated from her husband, or her marriage was prohibited by the laws or
sacred canons, he shall, by no means, be promoted to any other
ecclesiastical dignity; and if this should take place under any
circumstances whatsoever, he shall be deprived of his office and restored to
his former position.
CHAPTER XV.
UNDER WHAT
CIRCUMSTANCES DECURIONS CAN BE ORDAINED MEMBERS OF THE CLERGY.
We do not permit
a decurion, or the incumbent of any office, to be ordained a member of the
clergy, in order that no injury may be done to this holy order. If, however,
persons of this kind should become
members of the
clergy, the result will be the same as if they had not entered the
priesthood, and they shall be restored to their former civil condition,
unless, perhaps, one of them has embraced a monastic life for not less than
fifteen years, as We direct that persons of this kind may be ordained; but,
under such circumstances, a portion of their property shall be given to the
curia, and the Treasury.
If a decurion,
or other official, after having obtained the honor of the priesthood, should
marry a wife or entertain a concubine, he shall be returned to the curia,
or other civil employment to the status of which he was subject,
although he may have been admitted to a clerical organization whose members
are not forbidden by the laws or the sacred canons to marry. We decree that
this provision shall apply to all other monks who leave monasteries by
reason of their promotion to some ecclesiastical dignity, even if they may
not have been liable to the performance of civil obligations.
Generally
speaking, We forbid everyone of any ecclesiastical rank whatsoever to
withdraw from it, and become a layman; for he is hereby warned that if he
commits an act of this kind, he will be deprived of the magistracy, office,
or charge with which he is invested, and transferred to the curial condition
of his city. Those who, while subject to curial obligations, have been
ordained members of the priesthood before the enactment of this Our present
law, shall comply with the pecuniary requirements of their condition, by
means of substitutes, and shall personally be released from the performance
of municipal duties.
CHAPTER XVI.
ORDINATIONS SHALL BE MADE GRATUITOUSLY.
We do not permit
a member of the clergy, no matter what his rank may be, to give anything to
the prelate by whom he is ordained, or to anyone else; as We only desire him
to pay to the officers of the ecclesiastic who ordains him the fees which
they are accustomed to receive, and which cannot exceed their salaries for
one year. He must discharge the duties of his ministry in the holy church to
which he is appointed, and pay absolutely nothing to the clergy in
consideration of his admission; nor shall he, on this account, be deprived
of his own emoluments or other perquisites.
The
superintendent of a place of entertainment for strangers, of a hospital, of
an asylum for the poor and infirm, or of any other religious establishment,
or who has charge of any other ecclesiastical administration, shall not give
anything for the place entrusted to him either to the person by whom he was
appointed, or to anyone else whomsoever. Anyone who, in violation of what We
have decreed, acts as donor, recipient, or intermediary in such a
transaction, shall be dismissed from the priesthood, be deprived of
membership in the clergy, as well as of the administration which has been
entrusted to him, and whatever he accepted shall be claimed by the religious
establishment of which the individual referred to received the direction,
management, or supervision. When he who accepts a gift, or acts as
an intermediary
in a case of this kind is a layman, double the amount given him shall be
demanded by, and delivered to the religious establishment whose direction,
management, or supervision was conferred upon him. Where, however, a member
of the clergy of any rank whatever, or the superintendent of a religious
establishment, before or after he has been ordained, or any administration
or charge has been entrusted to him, desires to offer some of his property
to the church in which he is ordained, or to the establishment whose
direction or management has been conferred upon him, We not only do not
forbid him to do so, but We exhort him strongly to perform this act for the
salvation of his soul; for while We prohibit donations from being made to
certain private persons, this rule does not apply to churches or other
religious establishments.
CHAPTER XVII.
IN WHAT WAY A
SLAVE OR A SERF MAY BE ORDAINED A MEMBER OF THE CLERGY.
When a slave is
ordained a member of the clergy, and his master is aware of the fact, and
manifests no opposition, the slave will become free and freeborn by the mere
fact of his ordination. Where, however, the ordination took place without
the knowledge of his master, the latter will be granted a year in which to
establish the condition of his slave, and recover him. Where a slave who (as
We have just stated) has become free by the fact of his ordination, whether
this was known or unknown to his master, abandons the ecclesiastical
ministry, and adopts a secular life, he shall be restored to his master and
to servitude. We, however, permit serfs attached to the glebe to become
members of the clergy, even without the consent of their masters, provided
that, after having become ecclesiastics, they continue to cultivate the soil
as their duty requires.
CHAPTER XVIII.
CONCERNING THE FOUNDERS OF CHURCHES.
Where anyone has
built an oratory, and reserved to himself and his heirs the privilege of
appointing members of the clergy to conduct its service, and he provides
means for paying the expenses of the said clergy, and those whom he appoints
are worthy to discharge sacerdotal functions, they shall be ordained. When
the sacred canons prohibit the persons nominated by the founder from being
accepted because they are unworthy, the most holy bishop must ordain others
whom he thinks to be better qualified. We order the most reverend members of
the clergy to comply with the rules of their churches, and discharge, in
every respect, the ecclesiastical duties required of them. The most holy
bishop of each city will be careful to ascertain any violations of this law,
and the heads of all ecclesiastical organizations will subject those who do
not observe it to the prescribed penalty.
CHAPTER XIX.
ALL MEMBERS OF
THE CLERGY SHALL HAVE CONTROL OF THEIR OWN PROPERTY.
We decree that
priests, deacons, subdeacons, choristers, and readers, to whom We give the
name of "clerks," can hold property, whose ownership comes to them from any
source whatever; that they shall be permitted, even though under the control
of their parents, to give said property away in accordance with law, just as
is the case with peculium castrense, and to dispose of it by will;
provided, however, that they leave to their children, or if there are none,
to their parents, the lawful share to which they are entitled.
CHAPTER
XX.
To WHAT PENALTY
ECCLESIASTICS ARE SUBJECTED WHO GIVE FALSE TESTIMONY.
Where most
reverend priests or deacons are found to have given false testimony in
pecuniary cases, it will be sufficient for them to be whipped, suspended
from the discharge of their sacred duties for three years, and confined in
monasteries. Where, however, they have given false testimony in criminal
cases, We order that after having been expelled from the priesthood, they
shall undergo the penalties prescribed by law. When clerks belonging to
other ecclesiastical orders have been convicted of having given false
testimony in any case whatever, either civil or criminaj, they shall not
only be deprived of their ecclesiastical offices, but shall also be
scourged.
CHAPTER
XXI.
ECCLESIASTICS
SHALL BE SUED BEFORE THEIR OWN BISHOPS.
When anyone has
a right of action against a clerk, a monk, a deaconess, a nun, or a hermit,
he must bring suit in the first place before the most holy bishop, to whose
jurisdiction both parties are subject; the bishop will hear the case; and if
both parties acquiesce in his decision, We order that it shall be executed
by the magistrate of the district. Where, however, one of the litigants
files an objection within ten days, then the judge of the district must
examine the case, and if he finds the decision rendered by the bishop to be
just, he shall ratify and execute it, and he who has been defeated a second
time will not be permitted to appeal. But where the decision of the judge is
opposed to that of the bishop, an appeal will be admissible, and it shall be
taken and prosecuted as prescribed by law. If the bishop should decide a
case between any persons whomsoever, by virtue of an Imperial command or a
judicial order, the appeal shall be brought before the Imperial Council, or
the magistrate who has been authorized by the latter to hear it.
(1) Where any
one of the most reverend persons whom We have mentioned is accused of a
crime before the bishop, and the latter ascertains that the accusation is
true, he shall, in accordance with the ecclesiastical canons, deprive the
guilty party of the honor and rank with which he is invested, a competent
judge shall arrest him, and, after having examined the case in conformity
with law, shall decide it. Where, however, the accuser first appears before
a civil magistrate, and can prove the charge by a legal investigation, he
must do so by means of public documents and evidence, before the bishop of
the diocese ; and if the defendant should be found guilty of the crime of
which he is accused, the bishop shall then, in accordance with the
ecclesiastical canons, deprive him of the honors and rank with which he is
invested, and the judge shall punish him as prescribed by law.
But if the
bishop should not think that the evidence is sufficient, he shall be
permitted to postpone the deprivation of the accused of his honors and rank,
the latter shall be kept in confinement, and the case shall be referred to
Us, or to the appointing magistrate, in order that, after having examined
it, such a disposition of it may be made as We
deem proper.
(2) When anyone
has a right of action in a pecuniary case against any of the persons
previously mentioned, and the bishop postpones its examination, the
plaintiff will have a right to apply to a civil magistrate, but the accused
person shall, under no circumstances, be compelled to give a surety, and
shall only furnish security by the hypothecation of his property, without
being sworn. When a criminal charge is brought against any of the persons
aforesaid, he who is accused must be placed under lawful restraint. Where,
however, the suit relates to ecclesiastical matters, civil judges will have
no jurisdiction whatever; but the most holy bishop shall hear and determine
it in conformity with the sacred canons.
CHAPTER XXII.
BISHOPS SHALL BE
SUED BEFORE THEIR OWN METROPOLITAN AND SHALL NOT BE REQUIRED TO FURNISH
SECURITY WITH REFERENCE TO LITIGATION.
Where any most
holy bishop has a controversy with another bishop of the same synod, whether
with reference to an ecclesiastical right, or concerning other matters; the
metropolitan, along with the other prelates of his synod, shall hear and
determine the case; and if both parties do not acquiesce in the decision,
then the Most Blessed Patriarch shall take cognizance of the case, and
decide it in accordance with the ecclesiastical canons and the laws, without
either party being allowed to call his decision in question.
But where suit
is brought by a clerk, or anyone else, against a bishop, with reference to
any matter whatsoever, the case shall be decided by the Most Holy
Metropolitan, in conformity with the sacred canons and Our own laws, and if
any of the parties should question the decision, an appeal may be taken to
the Most Blessed Archbishop of
the diocese, and
he shall dispose of it in conformity with the canons and the laws. Where,
however, an action of this kind is brought against a metropolitan by a
bishop, a clerk, or any other person whomsoever, the most blessed patriarch
of the diocese shall hear and decide it in the same way. But in all other
cases in which bishops are sued before their own metropolitan, patriarch, or
any other magistrate whomsoever, no bond or security shall be required of
them; provided, however, they take care to free themselves from
responsibility in the actions brought against them.
CHAPTER XXIII.
STEWARDS AND
OTHER ADMINISTRATORS SHALL BE SUED BEFORE THEIR OWN BISHOP.
We order that
stewards, superintendents of places for the entertainment of strangers, of
hospitals, of asylums for the poor and infirm, and of other ecclesiastical
establishments, as well as all other clerks, shall, so far as the management
of the affairs entrusted to them is concerned, be sued before the bishop to
whose authority they are subject, to compel them to render an account of
their administration, and to recover what they are ascertained to owe to the
said ecclesiastical establishments. Where, however, any of these officials
think that they have been injured, the metropolitan shall hear the case,
after the amount to be collected for them has been determined; or the Most
Blessed Patriarchs shall decide it, if the account was rendered before a
metropolitan, or if he has ordered restitution to be made. For We do not
allow the above-mentioned administrators, when their official conduct is in
question, to leave the jurisdiction of their own bishops, and have recourse
to other tribunals, before the examination has taken place, and the balance
which they owe, has been paid. Where an ecclesiastic, or any official of
this kind dies before having rendered his accounts, and turned over the
remainder due, We order that his heirs shall be required to render them and
make payment in the same way.
CHAPTER XXIV.
BISHOPS SHALL BE
SUED IN THE PLACE WHERE THE CAUSE OF ACTION AROSE.
Where a bishop
or clerk belonging to any province whatsoever is in Constantinople, and
someone wishes to bring an action against him, this must be done where the
transaction took place, and the case shall be heard there. But where
proceedings have not yet been instituted, the defendant shall answer those
who sue him, before the Most Glorious Praetorian Prefect of the East, or
such judges as We may appoint.
CHAPTER XXV.
CONCERNING APOCRISARII.
The most
reverend apocrisarii of every church, who either reside here, or,
having been ordained by their bishops, are sent to the Most
Blessed
Patriarchs or Metropolitans of this city, shall accept no summons, and shall
sue no one in the name of their bishops, in any matter in which the Church
is interested, or for a public or private debt, unless they have obtained a
mandate for this purpose from their bishops or stewards; for it is only
under such circumstances that We permit those who are sued by apocrisarii
to set up defences against their church or their bishop, when they have
any to make. But when apocrisarii individually contract obligations
having reference to certain cases or actions, they must answer in person
when suit is brought against them.
CHAPTER XXVI.
BISHOPS SHALL
NOT BE SUED DURING THE TIME THEY ARE ACTING AS DELEGATES.
When bishops or
clerks come to this Royal City, or go elsewhere, in the capacity of
delegates representing either their town or their church, or for the purpose
of conducting the ordination of a bishop, We decree that they shall not be
annoyed or molested by anyone whomsoever, and that those who allege that
they are their creditors can only sue them after they have returned to their
province; the said creditors, however, shall not, so far as any rights of
action to which they think that they are entitled are concerned, be
prejudiced by reason of temporary prescription during the time that they
allowed to elapse under such circumstances.
CHAPTER XXVII.
MONKS SHALL
DEFEND THEMSELVES BY AN ATTORNEY; AND CONCERNING THE AMOUNT OF FEES TO BE
PAID.
Whenever a suit
is brought, and a legal summons is served, or an execution is issued in any
civil proceeding whatsoever, either public or private, against a clerk, a
monk, a nun, or a monastery, and especially against a monastery of women, We
order that notice of it shall be given without the commission of any injury,
and with all due respect under the circumstances, and that the nun or the
hermit who is sued shall not be taken from his or her monastery, but an
attorney shall be appointed to answer in the case.
Monks shall,
either in their own proper persons, or by an attorney, be permitted to
conduct cases in which the monastery is interested, and the judge or
judicial officer who violates this law is hereby warned that he will be
deprived of his place; that a fine of five pounds of gold will be imposed by
the Most Magnificent Count of Private Affairs; and that the official who
executed orders of the tribunal will, in addition to this, be scourged and
sent into exile.
The most holy
bishops of the dioceses will see that these provisions are not violated in
any respect, and that if they should be, that the punishment above mentioned
is inflicted, and they must notify Us whenever it becomes necessary for the
judge to impose a different penalty.
CHAPTER XXVIII.
CONCERNING THE
AMOUNT OF COSTS TO BE PAID WHERE MEMBERS OF THE CLERGY ARE CONCERNED.
We do not permit
persons who discharge any ecclesiastical duties whatsoever (such for
instance as deaconesses, nuns, and male and female ascetics), when they
receive a legal notice in this Royal City, or in the provinces in which they
reside, to pay more than four siliquse by way of fees, in any kind of
a criminal or civil case, no matter what may be the value of the property
involved. If a judicial officer sent by Our command to a magistrate, or a
most blessed patriarch, serves a summons on any one of the persons above
mentioned in another province, he will not be entitled to receive more than
one siliqua. Where a x-large number of such persons are made defendants
in one and the same case, We order that one of them shall pay the fees for
all.
A bishop shall
not be subject to the payment of any fees on account of matters in which his
church is interested; and if any are demanded under such circumstances, they
must be paid by the stewards, whose duty it is to defend suits brought
against the church, or by other persons who may be designated for this
purpose.
Anyone who
presumes to collect fees in violation of the provisions above mentioned
shall be compelled to pay to the person from whom he exacted them double as
much as he received; if he is the incumbent of an office he shall be
deprived of it, and if he is a clerk, he shall be expelled from the
priesthood.
CHAPTER
XXIX.
NEITHER CLERKS
NOR BISHOPS SHALL HAVE SUPERINDUCED WOMEN IN THEIR HOUSES.
We forbid
priests, deacons, subdeacons, and all members of the clergy who do not have
wives in accordance with the sacred canons, to keep any superinduced woman
in their houses, unless she is their mother, their sister, their daughter,
or some other female who will not give rise to suspicion. If any clerk, in
violation of this rule, should keep a woman in his house who can render him
suspected, and, after having been notified once or twice by his bishop or
his clergy to cease to live with her, is not willing to send her away, or an
accuser appears who proves that he is living unchastely with a woman, the
bishop shall expel him from the priesthood, in accordance with the
ecclesiastical canons, and he shall be delivered up to the curia of
the city of which he was a clerk. We also forbid prelates to keep women, or
to live with them. If a bishop should be convicted of not having conformed
to this rule, he shall be expelled from the episcopate, for he has shown
himself to be unworthy of the priesthood.1
1 "Superinduced
women, of course, were identical with those known as 'subintroduced' in
mediaeval times, that is to say members of sacerdotal harems.
CHAPTER XXX.
CONCERNING DEACONESSES.
We, by no means,
permit a deaconess to live with a man where there may be good reason to
suspect that she is leading an immoral life. If a deaconess should disregard
this warning, the prelate to whose authority she is subject shall notify her
to send the man away from her house, and if she manifests any hesitation in
complying with this notice, she shall be deprived of the exercise of her
ecclesiastical functions, and her own emoluments, and shall be placed in a
monastery to remain there all her life. When she has any children, her
property shall be divided among them per capita, in such a way that
the monastery shall receive the share to which the woman herself is
In the early
ages of the Church, the entertainment of females of the kind for the relief
of the physiological necessities of the gentlemen of the clergy, even after
it had ceased to be authorized by the Canon Law (as was the case at first),
being almost universal, not only failed to excite comment, but was regarded
by the laity as a well-established right of the priesthood, and a necessary
incident of ecclesiastical life. The sale of licenses for this purpose,
which priests and other orders of the clergy were obliged to pay for whether
they availed themselves of the privilege or not, long constituted one of the
most lucrative perquisites of the English episcopacy. The focaria, or
regular inmate of the priestly household, was declared by authorities well
versed in the Civil and Canon Law to be exempt from the jurisdiction of
secular magistrates, on the ground that she was a member of a clerk's
family, which not only secured her immunity from molestation by the ordinary
tribunals, but conferred upon her a degree of social importance which would
not otherwise have been attainable without the performance of the marriage
ceremony."
After the Church
considered it advisable, at least nominally, to attempt to suppress this
abuse, the penalty imposedforfeiture of the living and expulsion from the
priesthoodwas found to be grossly inadequate, even if the necessary
evidence could be obtained, which, owing to the obstacles thrown in the way
of the investigators, whose connivance was often more than suspected, was
always a matter of extreme difficulty. It was only when the offence was
unusually flagrant that a culprit could be made the subject of
ecclesiastical justice. The fulminations of popes and councils had,
moreover, comparatively little effect, on account of the widespread
profligacy of the age, and the unconcealed remissness of the governing
prelates themselves. Bribery was frequently resorted to for the purpose of
avoiding prosecution and extortion by way of penalty, hence pious
concubinage was recognized as a ready and profitable means of replenishing
the royal exchequer. In England, during the thirteenth century, all
subintroduced women who could be found were arrested by the order of King
John, and their sacerdotal paramours forced to redeem them by the payment of
enormous sums of money. "Presbyterorum clericorum focarix, per totam
Angliam, a ministris regis capias sunt, et graviter ad se redimendum
compulsx." (Matthew Paris, Chronica, 156.)
The offspring of
these illicit unions enjoyed a quasi legitimacy, and often acquired by will
the benefices of their fathers, as well as no inconsiderable amount of the
property of the Church. Their prolific character is evidenced by the fact
that the offspring derived from them equalled in number the issue of
legitimate marriages among the laity, and the phenomenal sexual appetite and
virility of one reverend prelate was attested by his paternity of sixty-five
children.
The successful
resistance of the clergy of what they considered an encroachment on one of
their most cherished privileges, combined with the general laxity of morals,
prevented for centuries the actual reform of public clerical incontinence;
the records of criminal tribunals and divorce statistics reveal the
deplorable fact that its secret practice has never been eradicated.ED.
entitled, in
order to provide for her nourishment and support. Where, however, she has no
children, her entire estate shall be divided between the monastery to which
she is sent, and the church to which she was originally attached.
CHAPTER
XXXI.
CONCERNING THOSE
WHO ARE GUILTY OF ABUSE OF A BISHOP OR OTHER MEMBERS OF THE CLERGY IN A
CHURCH.
When, during the
celebration of the sacred rites in a church, anyone, having entered it
reviles the bishop, clerks, or other ministers of the same, We order him to
be scourged, and sent into exile. If, however, he should interrupt the
service, or forbid it to be conducted, he shall be punished capitally.
This rule shall
also be observed with reference to the processions in which bishops or
clerks take part, for where anyone is only guilty of abuse, he shall be
exiled and scourged, but where he interferes with a procession, he shall be
put to death. We order both civil and military magistrates to punish
offences of this kind.
CHAPTER XXXII.
THE LAITY SHALL
NOT TAKE PART IN RELIGIOUS PROCESSIONS WITHOUT THE PRESENCE OF THE BISHOP,
THE CLERGY, AND THE CROSSES.
We forbid all
laymen to form religious processions without the presence of the holy
bishops and reverend clerks to whose jurisdiction they are subject. For what
kind of a religious procession is that in which ecclesiastics do not
participate and offer up solemn prayers? We forbid the honored crosses
(which priests carry at the head of processions) to be kept anywhere else
than in religious houses; and it is only when processions are necessary that
those who ordinarily carry the holy crosses receive them. Hence processions
shall be composed of bishops and the clergy; and the most holy prelates of
the different dioceses, together with the clerks, and the magistrates of the
district will see that this rule is enforced.
If any one of
the persons mentioned in this Chapter should transgress this Our law, or
fail to punish its violation, he will be liable to the aforesaid penalties
at the hands of the most reverend monks and monasteries.
CHAPTER XXXIII.
It remains for
us to establish regulations for the sacred monasteries and most reverend
monks, therefore, first of all, We decree as follows:
Here the
entire first chapter of Novel V is translated into Greek.
CHAPTER
XXXIV.
AN ABBOT SHALL
BE CHOSEN NOT so MUCH ON ACCOUNT OF His TERM OF MONASTIC SERVICE AS BECAUSE
OF His
GOOD REPUTATION.
Hence We order
that an abbot or an archimandrite, who is ordained in any monastery
whatsoever, shall not be selected on account of his monastic rank, but that
all the monks who enjoy the best reputation shall choose their head in the
presence of the Holy Gospels, stating at the time that their choice is not
influenced by friendship, or by any other motive, but that they make the
appointment for the reason that they know that the candidate professes the
true faith, that his life is chaste, that he is worthy of governing, and
that he can maintain discipline among the monks, and observe all the rules
of the monastery, and then the most holy bishop within whose jurisdiction
the monastery is situated shall ordain as abbot the person who has been
elected in this way.
What We have
stated with reference to the ordination of abbots shall also apply to
monasteries of women, and to hermitages.
CHAPTER XXXV.
CONCERNING THE NOVITIATE OF MONKS.
When anyone
wishes to enter the monastic life, and is known to be exempt from civil
obligations, We authorize the abbot of the monastery to admit him, if he
thinks it advisable. But where the candidate is not known, or is subject to
certain civil disabilities, he shall not be admitted before the expiration
of three years, in order that, during this time, the head of the monastery
may ascertain his status. Where anyone appears within three years, and says
that the novice is a slave, a tenant, or a serf, and that he entered the
monastery to avoid cultivating the soil, or because he has committed a theft
or some other offence, he shall be returned to his master, together with the
articles which he is proved to have brought with him into the monastery, and
the master shall, before taking him back, swear that he will not inflict any
punishment upon him.
But where no one
of this kind appears within three years, and the novice is not molested, and
no demand is made for him, the abbot of the monastery must admit him to the
order after the lapse of the said term of three years, if he deems him
worthy, and no one shall afterwards be permitted to annoy him with reference
to his condition as long as he professes a monastic life. Nevertheless, any
property which he is ascertained to have brought into the monastery shall be
entirely returned to its owner. But where anyone, who has once assumed the
monastic habit, afterwards leaves the monastery, adopts a secular life, and
wanders about through towns and country, he shall be restored to his
original status.
CHAPTER XXXVI.
MONKS SHALL OCCUPY THE SAME ROOM.
In all
monasteries which are called caenobia We order that, in accordance
with the monachal canons, all the inmates shall sleep separately in one room
in order that they may be able to testify as to the chaste conduct of one
another; unless, however, where some of them, on account of their monastic
experience, or their old age and bodily infirmities, desire to live quietly
in retired cells within the monastery, they can do so with the knowledge and
consent of the abbot. This rule shall be applicable to nunneries, as well as
hermitages, but We do not permit them to apply to any other monasteries of
Our Empire.
Where a
monastery is inhabited by persons of both sexes, We order that the men shall
be absolutely separated from the women, that the women shall continue to
live in the monastery in which they are at the time, and that the men should
build another. Where there are several monasteries, and it is not necessary
to build new ones, the most holy bishop of the diocese shall place the monks
with other monks, and the nuns with other nuns, being careful to establish
them in different monasteries; and any property they hold in common shall be
divided among them, in accordance with the rights of all. The women shall,
themselves, select either a priest or a deacon to represent them, or to
administer the holy communion to them, and the reverend bishop must appoint
someone for this purpose whom he knows to profess the true faith, and to
lead a blameless life. If, however, the person whom they select is neither a
priest nor a deacon, and, notwithstanding this, the bishop thinks him worthy
to have charge of the monastery (as has already been stated), he shall
ordain him apocrisiarius, in accordance with the wishes of the nuns,
but he will not be permitted to live in the monastery.
CHAPTER XXXVII.
WHERE ANYONE
ENTERS A MONASTERY, THE FACT THAT HE is MARRIED AND HAS CHILDREN WILL MAKE
NO DIFFERENCE.
Where anyone
gives anything to his children or to a stranger as a dowry or an
ante-nuptial donation, or where he bequeaths them an inheritance or a legacy
under the condition that they marry, or where he leaves them an estate
absolutely, or where he provides for restitution, and the conditions are not
complied with, We order that these acts shall be invalid and considered as
not having been performed, if those upon whom the said conditions were
imposed enter monasteries, or become clerks, deaconesses, or hermits; but
that the clerks and deaconesses of churches may, by way of consolation, if
they remain until the end of their lives in their ecclesiastical status,
employ the property given or left under such circumstances in pious works;
for We desire that bequests left in this way to persons of both sexes who
enter a
monastery or a hermitage, and lead chaste lives, shall, as well as their
other possessions, belong to the monastery or hermitage which they entered
in the beginning.
But when it is
prescribed that if the aforesaid conditions should not be fulfilled, the
substitution or restitution shall take place for the ransom of captives, or
the support of the poor, We do not permit a provision of this kind to be
disregarded.
CHAPTER XXXVIII.
PERSONS WHO
ENTER A MONASTERY DEDICATE THEMSELVES AND THEIR PROPERTY TO THE SAME.
Where either a
woman or a man embraces the monastic life and enters a monastery, and they
have no children, We order that the monastery shall be entitled to their
estates. But if any such person should have children, and did not dispose of
his property before entering the monastery, and should set apart their
lawful share for his children, he shall be permitted, even after entering
the monastery, to divide his estate among them; provided, however, he does
not diminish the portion that anyone of them is entitled to, but what he
does not give to his children shall belong to the monastery. Where, however,
he wishes to divide his entire estate among his children, he must, by all
means, in doing so, reserve one share for the monastery. But if he who
resides in the monastery should die before having distributed his properly
among his children, the latter will be entitled to their lawful share of the
same, and the remainder will belong to the monastery.
CHAPTER XXXIX.
WHENEVER A
BETROTHAL BECOMES OF NO EFFECT ON ACCOUNT OF THE ENTRANCE OF ONE OF THE
PARTIES INTO A MONASTERY, THE BETROTHAL GIFT SHALL BE RETURNED.
Where a
betrothal takes place between persons in accordance with law, and the man
enters a monastery, he will be entitled to the gift which he made; just as
where the woman embraces a monastic life she shall only be required to
return the betrothal gift which she received, the penalty being remitted, so
far as both parties are concerned.
CHAPTER XL.
WHENEVER A
HUSBAND OR A WIFE ENTERS A MONASTERY.
But when, during
the existence of the marriage, the man or the woman alone enters the
monastery, the marriage shall be dissolved without repudiation, after the
one who entered the monastery has assumed the monastic habit. If the man
should embrace a monastic life he must restore the dowry to his wife, along
with anything else that he may have received from her; and he must give her,
in addi-
tion, the same
share of the ante-nuptial donation to which she would have been entitled in
case of his death, in accordance with the terms of the contract as set forth
in the dotal instrument. Where the wife enters the monastery, the husband,
on the other hand, can retain the ante-nuptial donation, and that part of
the dowry stipulated in the case of the death of the woman; and We order
that the remainder of the dowry, as well as any other property of the wife
which is in the hands of the husband, shall be returned to her.
Where both
parties adopt a monastic life, We direct that any dotal agreements made by
them shall be void; that the husband shall retain the ante-nuptial donation,
and the wife recover her dowry, as well as anything else that is proved to
have been given to the husband, in order that each of them may enjoy his or
her property without sustaining any loss; unless the man did not wish to
bestow anything on his betrothed, or the latter on the former, or the
husband on his wife, or the wife on her husband, as otherwise We do not
permit the husband or the wife to profit in any respect by the nuptial
agreements.
CHAPTER XLI.
PARENTS SHALL
NOT BE PERMITTED TO DISINHERIT THEIR
CHILDREN ON THE
GROUND OF INGRATITUDE WHEN THE
LATTER ENTER
MONASTERIES.
We do not allow
parents to disinherit their children, or children to disinherit their
parents, and exclude them from their estates as being ungrateful, when
either of them abandons a secular life for a monastic one. We also forbid
parents to remove their children from the holy monasteries, when they have
adopted a monastic life.
CHAPTER XLII.
CONCERNING A MONK WHO ABANDONS His MONASTERY.
If a monk should
leave his monastery and enter another, We order that any property of which
he was possessed at the time when he departed shall belong to the one of
which he first became an inmate. We order the most holy bishops of the
diocese to see that neither monks nor nuns wander about through the cities,
and where they have any necessary answers to make in court, that they do so
by means of their apocrisiarii, without leaving their monasteries.
Where a monk who is invested with any dignity or office abandons his
monastery to embrace a secular life, he shall first be deprived of his
employment, and shall then be returned to the monastery, to which any
property of which he is proved to have been possessed when he departed shall
belong. If he should leave the monastery a second time, the judge of the
province in which he is found shall retain him, and place him among the
court officials subject to his authority.
CHAPTER XLIII.
CONCERNING THE RAVISHERS op NUNS.
If anyone should
ravish, seduce, or corrupt a nun, a deaconess, or any other holy woman
wearing a religious habit, We order that his property shall be seized by the
most holy bishop of the diocese, as well as by the Governor of any province
whatsoever and their subordinates, for the benefit of the religious
establishment to which the woman who permitted herself to be seduced was an
inmate; that the ravisher, together with his accomplices in the crime, shall
be capitally punished; and that the woman shall, with her property, be
placed in a monastery where she can be securely guarded, and not have an
opportunity to commit the same offence again. But where the deaconess above
mentioned has any legitimate children, the share of her estate to which they
are entitled shall be given to them. If, within a year after the time when a
crime of this kind has become public, the property of those implicated
should not be claimed for the benefit of religious establishments, We order
the Count of Private Affairs to transfer it entirely to Our Treasury; and We
decree that the judge of the district, who neglected to claim said property,
shall be deprived of his office, and that the Count of Private Affairs shall
collect from him a fine of five pounds of gold.
CHAPTER XLIV.
LAYMEN AND
ACTORS SHALL NOT BE PERMITTED TO MAKE USE OF A MONASTIC HABIT.
Generally
speaking, We forbid all members of the laity, and especially actors and
actresses, as well as prostitutes, to make use of the habit of a monk, a
nun, or an ascetic of either sex, or to imitate the costume of any such
persons; for those who have the audacity either to wear such garments or
imitate them or ridicule the practice of ecclesiastical discipline are
warned that they will be liable to corporeal punishment, as well as to be
sent into exile. Not only bishops of dioceses, and the clergy subject to
their jurisdiction, but also civil and military magistrates and their
subordinates, together with public defenders, will see that this rule is
observed.
We order that
the penalties inserted in the present constitution, which also were
prescribed by preceding laws, shall be fully applicable to, and be inflicted
for future crimes, as well as for those which have already been perpetrated.
But so far as the penalties exclusively prescribed by the present law are
concerned, We direct that they shall solely be applicable to offences
committed hereafter.
EPILOGUE.
Therefore Your
Glory will take measures to see that what We have inserted in the present
law is hereafter observed in every respect.
Given at
Constantinople, on the Kalends of May, during the reign of the
Emperor Justinian, and the Consulate of Basil, Addressed to Peter,
Praetorian Prefect.
TITLE VII.
LITIGANTS SHALL
SWEAR AT THE BEGINNING OF AN ACTION THAT THEY HAVE NOT PROMISED TO GIVE
ANYTHING TO THE JUDGES AND THAT THEY WILL GIVE NOTHING HEREAFTER. CONCERNING
FEES. REFERENDARIES WILL DO WHAT THEY ARE ORDERED WITHOUT INTERFERING WITH
THE JUDGMENTS RENDERED, WHICH THEY THEMSELVES MUST SEE ARE EXECUTED.
ONE HUNDRED AND
TWENTY-FOURTH NEW CONSTITUTION. The Emperor Justinian to Peter, Most
Glorious Praetorian Prefect.
PREFACE.
We promulgate
the present law in order that the integrity of judges may be made apparent,
and that nothing contributed by litigants may effect evasion of the laws.
CHAPTER I.
Therefore We
order that whenever actions or appeals are brought before any judges or
other magistrates, the principal parties, or those to whom the prosecution
of the suit has passed in the meantime, shall swear in the presence of the
Holy Gospels and the judges that they have neither given nor promised
anything to the latter or to anyone else, and that they will not do so,
either in person or by the agency of anyone whomsoever, in order to obtain
the favor of said judges; with the exception of the ordinary fees advanced
by litigants to advocates to represent them, and to such other persons as
Our laws authorize payment to be made.
We decree that
these rules shall be observed in Our Imperial Consistory, whenever
consultations are applied for there, and that the above-mentioned oath shall
be administered in the presence of the Senate. When (as sometimes happens)
some of the litigants cannot appear in court, We order that those who do
appear shall be sworn, and that some of the court officers shall then be
dispatched to the absent litigants along with the adverse parties, in order
that they may take the oath in their presence. But where one of them is a
woman, and she, on account of her natural timidity, is not accustomed to
appear before strange men, the officers sent by the magistrate shall take
her oath without the adverse party being present. Where both parties, or
either of them, happen to be in different places, We order that the one who
is absent shall be publicly sworn, in the manner in which We have just
mentioned, either before the judge of the province where he resides, or in
the presence of the public defender.
We desire that
this present constitution shall be so strictly observed that, if one of the
litigants, when either absent or present, should refuse to take the
prescribed oath, and the judge is notified of the refusal, he shall be
deprived of his right of action, if he is the plaintiff; and that judgment
shall be rendered against him if he is the defendant.
CHAPTER II.
WHERE A
LITIGANT, REPENTING OF His ACT, MENTIONS THE NAME OF PERSONS TO WHOM HE GAVE
SOMETHING.
Where one of the
litigants states that he has given or promised something to any person, and
mentions his name, and proves what he alleges, he will deserve to be
pardoned after the case has been decided; and when it is a pecuniary one, he
who received the gift or accepted the promise shall be compelled by the
Count of Private Affairs to pay three times the amount of what was given or
agreed upon; and, in every instance, the official shall lose the dignity or
public employment with which he is invested.
Where the
accusation is a criminal one, he who, by accepting a bribe, hastened to take
upon himself the crime of another, shall be subjected to the confiscation of
his own property, and be sent into exile. When, however, the litigant is
unable to prove that anything was either given or promised, he who is said
to have received the gift or accepted the promise must swear that he did not
do so, either in person or by someone else, and this oath having been taken,
he shall be discharged; and the litigant who was unable to establish his
allegations shall, where the case involves the payment of money, be required
by the Count of Private Affairs to pay the value of the property in
litigation, after it has been appraised, and he must then abide the result
of the trial. In criminal cases, he who is not able to prove his statements
shall have his property confiscated, and the case shall be decided by
competent judges in accordance with law.
When a litigant
swears that he neither gave nor promised anything, and within ten months
after the decision has been rendered it is ascertained that he did give
something, the aforesaid penalty shall be imposed both upon the giver, and
the receiver of the gift. In cases prosecuted by guardians or curators, they
must be sworn; and where there is ground for the infliction of any of the
penalties above mentioned, growing out of the oath aforesaid, the guardians
or curators shall alone be liable to them, without the rights of those
subject to their guardianship or curatorship being prejudiced in the
slightest degree.
CHAPTER III.
CONCERNING THE
PROHIBITION OF ILLEGAL FEES.
We also order
that throughout the entire extent of Our Empire, both military and civil
magistrates shall take measures to prevent the executive officers of judges,
prefects, and other magistrates from
collecting,
under the pretext of fees, anything whatsoever in excess of what is provided
by Our laws; even though the said officers may rely upon an Imperial mandate
issued by Us; and wherever they detect any officer in exacting more than he
is entitled to, they are authorized to arrest and imprison him, and exact
from him fourfold the amount of the excess which he received; so that when
the simple loss is returned to the person who suffered it, three times that
shall be paid into Our Treasury. Where a civil or military magistrate after
having, in any instance, been applied to neglects (as We have already
stated) to redress the wrong of the injured party, quadruple damages shall
be collected from him in the manner aforesaid; and We order that this
penalty shall be exacted by the Count of Our Private Affairs. And when
competent judges fail to punish their executive officers, who extort
anything by way of fees, in contravention of Our laws, after they have
become aware of the fact, We permit those on whom the demand is made to give
no more than what is prescribed by Our Constitution, and if the officers
should attempt to collect anything in excess of this, the former are hereby
authorized to resist them.
CHAPTER IV.
A JUDGE SHALL
NOT COMPEL PERSONS TO EFFECT A COMPROMISE.
As a law enacted
by Our Father, of pious memory, as well as by Ourself, forbade ordinary
judges to insert in their decisions anything whatsoever based on an Imperial
order not committed to writing, and as this law also provided that the
eminent referendaries must publish Our mandates in the proper manner, We
hereby confirm it, and prohibit the said referendaries and their associates,
whenever they take cognizance of cases within their jurisdiction, or when
they submit any questions to Our Majesty, from detaining a litigant, either
in his own person, or when he is represented by someone else, in order to
make him agree to a contract to collect nothing under a bond, and compel him
to compromise, or come to terms with his adversary; and, in conclusion, We
forbid them to interfere in lawsuits of any description; for We, in every
proceeding whatsoever, only authorize these officials to notify regular
judges, or those who have been specially appointed by Our commands issued
either in writing or verbally.
If one of them
should presume to violate the present law, the litigant who has sustained
any loss, or who has been treated unjustly with reference to his property,
shall suffer no infringement of his rights. The guilty official, however,
shall be compelled by a competent judge to make good, out of his own estate,
the loss sustained by the injured person, and he shall also be deprived of
his office and his rank.
We order that
these rules shall be applicable not only to future cases, but also to such
as have already been begun but have not yet been terminated.
EPILOGUE.
Therefore Your
Eminence will see that this law, which shall always be observed, is brought
to the knowledge of Our subjects by means of formal edicts published in the
Royal City, in order that all persons may be informed of what We have
decreed for their common benefit.
Given under the
Consulate of Basil.
TITLE Vill.
JUDGES SHALL NOT
WAIT FOR IMPERIAL ORDERS, BUT SHALL DECIDE IN WHATEVER MANNER THEY THINK
BEST.
ONE HUNDRED AND
TWENTY-FIFTH NEW CONSTITUTION. The Emperor Justinian to Gabriel, Most
Glorious Pratorian Prefect of the East.
PREFACE.
As many
magistrates, after long arguments have been made and great expense incurred
by persons in cases tried before them, refer them to Us, We have deemed it
necessary to suppress this abuse by means of a general law, in order that
litigation may not be protracted, and that new trials may not result.
CHAPTER I.
Therefore We
order all judges not to refer to Us, in any way or at any time, suits which
have been brought before them, but to examine them carefully, and make such
disposition of them as may appear to be just and lawful; and where all the
parties interested acquiesce in their decisions, they shall be executed in
conformity with law. But where one of the litigants thinks that he has been
injured by a decree, he can avail himself of the right of appeal, and the
case shall then be heard and determined in the order prescribed by law.
Where, however, two or more judges hear a case, and are of different
opinions, We order each of them to render his decision in accordance with
what seems to him to be proper.
Your Highness,
together with all superior and inferior magistrates, will exert yourself to
see that the provisions which We have inserted in the present law are
observed in perpetuity; so that no one may be ignorant of what We enact for
the benefit of Our subjects, and that notices are issued in such a way as to
occasion them no unnecessary expense.
Given at
Constantinople, on the Ides of October, during the reign of Our Lord
the Emperor Justinian, and the Consulate of Basil.
TITLE IX.
A COPY OF THE
IMPERIAL FORM HAVING REFERENCE TO
APPEALS.
ONE HUNDRED AND
TWENTY-SIXTH NEW CONSTITUTION.
The Emperor
Justinian to Peter, Most Glorious Praetorian Prefect of the East.
PREFACE.
The most Holy
Princes Theodosius and Valentinian expressly set forth in a law that the
Quaestor of the Imperial Palace, along with the Prefect of the Praetors of
the East, who temporarily occupies the throne of Your Excellency, shall
examine cases which have been appealed according to the form of the Imperial
Consultations. We have, however, ascertained that in examinations of this
kind, things take place which are unworthy of Our Empire and of Our
Government. For litigants, agents, and their advocates, as well as all those
who perform legal duties in cases taken up on appeal, when they appear
before Our magistrates, use the garments, the coverings of the feet, as well
as the language which should only be employed by those who appear in the
presence of Our Imperial Majesty. In addition to this, the said magistrates
render their decisions, not in their own names, but as if We Ourself were
present, and were deciding and issuing decrees in Our own person.
CHAPTER I.
We forbid this
to be done in the future, in any judicial proceeding whatsoever, and order
that the Quaestor of Our Palace at the time in office, along with Your
Excellency, to hear suits of this kind with the Imperial Praetorian Prefect,
and not render interlocutory decrees in Our name, but in theirs, and to
pronounce judgment in accordance with law. The secretaries alone shall
discharge their duties in these proceedings and the magistrates are also
notified that if anything should be committed in violation of these
provisions, while they are determining such cases, they will be considered
guilty of treason.
CHAPTER II.
Again, We order
with reference to all appeals, that whenever an appeal is taken, and all the
parties are present on the last day of the prescribed term, the judges shall
without delay hear all the facts of the case, as well as the decision from
which the appeal was taken, and render judgment in conformity with law and
justice. But when the appellant appears alone on the last day, We direct
that if the defendant who has been notified to be present, does not appear
on the same day, the judges, after having examined the documents, shall
legally decide the case; but if, on the other hand, the defendant should
appear, and the plaintiff, after having been notified, does not do so, the
judges shall wait not only until the end of the term allowed for appearance,
but
also the entire
time granted for satisfaction, that is to say, three months. If the
appellant should not then present himself, the decision shall not be
confirmed by lapse of time; but, as only one of the parties is present in
court, the judges shall examine the decision appealed from, and if they find
that it has been regularly rendered, they shall affirm it. Where anything
has been admitted through negligence, they must correct it, and render
judgment in conformity to law. But where the hearing of the appeal had been
begun within the prescribed time by both parties, or by one alone, the
decision shall not be confirmed by the lapse of two years, but justice and
the truth must diligently be taken into consideration; the judges shall
render a final decision in the presence of one or both the parties; and We
order that the examination of cases of this kind shall not be continued for
a longer period, as has been done up to this time in former appeals, but
that it shall take place upon the appointed day.
CHAPTER III.
Hence We decree
that all judges shall, without fail, receive appeals not forbidden by the
law which are brought before them during the prescribed time. But they must
give their written acknowledgment of the appeal to the parties litigant
within thirty days after it has been taken, and this document shall bear
their signature, in order that the parties may, for their own security, give
notice of the same to a competent magistrate.
If any judge
should neglect to do this, the decision shall be confirmed by lapse of time,
and the judge who did not observe what We order shall be compelled to make
good out of his own property any loss which the litigant may have sustained
because the document granting the appeal was not issued, and he shall, in
addition, pay a fine of ten pounds of gold for the benefit of the Treasury
of Our Private Affairs.
EPILOGUE.
Therefore Your
Glorious Authority, born for the administration of important matters, will
take pains to publish the present law in this Royal City, and to promulgate
it elsewhere, in order that all Our subjects may learn what they are obliged
to do.
TITLE X.
BROTHERS'
CHILDREN SUCCEED JUST AS BROTHERS DO, EVEN WHEN THERE ARE ASCENDANTS LIVING.
THE RIGHTS OP WOMEN ARE NOT PREJUDICED FROM THE FACT THAT THE ANTE-NUPTIAL
DONATION WAS NOT RECORDED, BUT WHERE THE HUSBAND DOES NOT OBSERVE THIS
FORMALITY HE WILL GAIN NO PROFIT FROM THE MARRIAGE IP HE DEMANDS IT. WOMEN
WHO DO NOT MARRY A SECOND TIME ARE ENTITLED TO THE OWNERSHIP OF A SHARE OF
THE ANTE-NUPTIAL DONATION EQUAL TO THAT OF ONE OF THEIR CHILDREN. THE
PENALTIES TO WHICH BOTH HUSBAND AND WIFE ARE LIABLE SHALL BE THE SAME WHEN
NOTICE OP REPUDIATION is SERVED WITHOUT REASONABLE CAUSE.
ONE HUNDRED AND
TWENTY-SEVENTH NEW CONSTITUTION.
The Same Emperor
to Bassus, Praetorian Prefect.
PREFACE.
We do not
hesitate to amend Our laws whenever We find this to be advantageous to Our
subjects. We remember to have enacted one by which We ordered that where a
person, when dying, left brothers, and children of another predeceased
brother, the children of the latter, as representing their father and
entitled to his share, were called to the inheritance on the same terms with
the brothers. Where, however, the deceased left an ascendant, as well as
full brothers, and the children of a brother who was dead, the brothers were
called to the succession along with the ascendants, and the children of the
deceased brother were excluded.
CHAPTER I.
THE CHILDREN OF
BROTHERS SHALL BE CALLED TO THE SUCCESSION EVEN WHERE THERE ARE SURVIVING
ASCENDANTS OF THE FIRST DEGREE.
Therefore We
justly amend this provision, and order that where anyone at the time of his
death leaves an ascendant, as well as brothers who can be called to the
succession along with -their parents, and children of another predeceased
brother, the latter shall be called along with the ascendants and the
brothers, and shall be entitled to the same share of the estate as their
father would have obtained if he had been living. We make this provision
with reference to the children of a brother whose father was related to the
deceased by both father and mother. We decree this absolutely, and direct
that the same order shall be observed when the children of brothers are
called
to the
succession with brothers alone, or when ascendants are called along with
these same brothers.
This provision
shall be observed from the Kalends of January of the eleventh
indiction.
CHAPTER II.
* WHEN A
DONATION IN CONSIDERATION OF MARRIAGE SHOULD BE RECORDED.
Being of the
opinion that the subject of this chapter also should be amended, We
constitute it a part of the present law. Experience has taught Us that it is
advantageous for women that ante-nuptial donations should be recorded in the
Bureau of Public Documents, in order that if the original instruments should
be destroyed (which may very easily occur) the evidence will always remain
upon the marriage register; and We order that the husbands themselves, or
those who have drawn up the ante-nuptial donations shall, when these
donations amount to more than five hundred solidi, have them
recorded, that is to say, in this Royal City, in the Bureau of Public
Documents in the office of the Superintendent of the Census, and in the
provinces, in the office of the Defender of each town, or in that of those
through whose hands documents of this kind should pass.
Where, however,
the husband did not cause the ante-nuptial donation to be recorded, We order
that it shall become operative so far as the woman is concerned, and that
when the time for payment of the donation arrives, that is to say, of a
portion of the same, she cannot be opposed on the ground of the failure to
record it. When, however, the dotal agreement and the execution of a portion
of it gives the husband a right of action for the recovery of the dowry, or
even of a part thereof, We order that he shall be deprived of the same when
he has not caused it to be recorded in the Bureau of Public Documents, as
has just been stated; for when men can have their donations recorded, it
seems to Us absurd that the risk resulting from the failure to do so should
be incurred by their wives.
CHAPTER III.
A WOMAN WHO DOES
NOT CONTRACT A SECOND MARRIAGE SHALL BE ENTITLED TO AS MUCH OF THE
ANTENUPTIAL DONATION AS ONE OF HER CHILDREN. As We think that women who do
not contract second marriages are worthy of ax-large r share than those who
do, We order that where a woman who has lost her husband refrains from
marrying again, she shall, as formerly, have the usufruct of the
ante-nuptial donation, as well as the ownership of a share of the same,
equal to that of one of her children; so that, under these circumstances,
she shall be held to occupy the place of a child.
We decree that
this rule shall apply not only to mothers, but also to fathers and other
ascendants who do not contract second marriages.
CHAPTER IV.
MARKIAGE SHALL NOT BE DISSOLVED WITHOUT CAUSE.
As We long since
introduced a law forbidding men and women to serve notice of repudiation
upon each other, and to dissolve their marriages (unless for some cause that
the law referred to permits), and as We punished persons who violate this
provision, We are now about to make a change with reference to the penalties
incurred, and We hereby decree, by way of amendment, that no distinction
shall exist between those to which the man and the woman are liable, who
presume to give notice of repudiation without good cause; but We desire that
men who do this shall be subject to the same penalty which women incur when
they dissolve their marriages without the causes authorized by Our law; and
that the penalty shall be equal for both parties, for We think that it is
only just for them to undergo the same punishment when they commit the same
offence.
EPILOGUE.
Therefore Your
Glory will publish this general law to the inhabitants of this city and the
provinces, by means of formal edicts, in order that no one may be ignorant
of what We order for the common welfare.
Given at
Constantinople, on the Kalends of September, during the twenty-second
year of the reign of Our Lord the Emperor Justinian, and the seventh after
the Consulate of Basil.
TITLE XI.
CONCERNING TAXPAYERS AND OTHER MATTERS.
ONE HUNDRED AND
TWENTY-EIGHTH NEW CONSTITUTION.
The Emperor
Justinian to Peter, Most Glorious Praetorian Prefect of the East.
CHAPTER I.
We, being
desirous of accomplishing everything which may be of advantage to Our
tributaries, do enact the present law, by which We decree that in the month
of July or August, of each indiction, there shall be inscribed on the public
records in the court of each diocese of Our Most Glorious Prefect, the
special lists of assessments for the future indiction. These lists shall
state the amount of taxes imposed upon each province or town, for every
acre, farm, century, or other property, either in kind or money; and there
shall also be stated the amount of taxes payable in kind, in accordance with
the rule adopted in each locality, and how much must be paid into the
Treasury, and what must be given or expended for various purposes.
Therefore We
order that when the lists have been drawn up they shall be sent to the
magistrates of the provinces at the beginning of each indiction, that they
may be published by the said magistrates
during the
months of September or October, in the towns over which they exercise
jurisdiction.
We desire that
copies of the same shall be despatched without delay, by the Court of the
Most Glorious Prefect, in order that people may be informed of the way in
which they must pay their taxes. If they should pay any, in addition to
those included in the special list of the current year, before the lists for
the following year have been recorded, or where they pay them in a province,
We order that said payment shall be placed to their credit, among the
contributions of the indiction, so that they may not suffer any loss.
If the said
lists should not be dispatched to the provinces as aforesaid during the time
which We prescribe, the officials in charge of Our Prsetorium shall pay a
fine of thirty pounds of gold, and one of twenty-five shall be exacted from
them in every province. And if any judge to whom the special lists are sent
does not publish them in the provinces, he shall be condemned to pay a fine
of ten pounds of gold, and be deprived of his office, and a fine of the same
amount shall be collected from his court.
CHAPTER II.
We order that
all taxes payable in kind shall be delivered at the commencement of each
indiction; but that those which are payable in money shall only be due at
certain specified times.
CHAPTER III.
We have decreed
with reference to fiscal payments, that partial or full receipts shall be
given to all taxpayers by the receivers of taxes, in which it shall be
stated in what way the payment has been made, as well as the number of
acres, the names of the farms, centuries, and other possessions on which the
taxes are levied. If the said officials do not give receipts in the manner
above stated, We order that a fine of ten pounds of gold shall be exacted of
them, and that they shall be subjected to corporeal punishment; and We also
order that a fine of ten pounds of gold shall be imposed upon the judge of
the province, if, having been notified, he does not take action, and compel
the receivers to give receipts in accordance with the rule which We have
established.
CHAPTER IV.
We order that
where a taxpayer has any doubts with reference to the property on which
fiscal tributes are assessed, or as to the amount of the different kinds of
contribution which he owes, those who have charge of the fiscal records
shall be compelled by the judge of the province (and in case he should
neglect to do so, by the most holy bishop of the diocese) to inform him of
the amount of the several tributes due and payable to the Treasury; and We
desire that those enumerated in the public lists shall be collected from the
possessor of the property.
CHAPTER V.
With a view to
the assistance of Our taxpayers and in order that owners of property may not
be compelled to give hypothecations for the payment in money of the tenth
part of their tax, and may not suffer any injury, We decree that those who
are held responsible for fiscal collections in every province, whether they
be defenders, collectors, decurions, or other officials, shall collect the
sums due at their own risk, and disburse them for the purposes for which
they are intended.
CHAPTER
VI.
We order that a
canonicarius shall continue to be sent into the provinces who can, at
the risk of those who appointed him, himself collect the fiscal tributes;
and under no pretext whatever shall an inspector be sent after him, nor any.
loss be inflicted upon Our subjects by reason of any inspection, for We
abolish for the future the name of this official; but where the
ca,nonica,rius does not discharge his duties properly, he shall be
removed, and another appointed instead of sending an inspector. We order
that canonicarii shall be content with the ordinary salaries to which
they are entitled, and that they commit no wrong against Our subjects.
CHAPTER VII.
If a
superindiction of any possession, whether reserved or tributary should, at
any time, take place, We order that its collection shall be made from him
who receives the fiscal tribute for the payment of which the said
superindictional possession was transferred to him. A superindiction,
however, shall only be made by virtue of a rescript, and after having been
examined by the judge of the province, who must render a decree in which he
shall designate the person entitled to receive the superindiction. When,
however, anyone thinks that he is wronged, he shall be permitted to appeal;
the appeal shall be heard in the Court of the Most Glorious Prefect, and be
decided in accordance with the laws.
CHAPTER Vill.
If the owner of
land does not appear, or is unable to pay the tax, so that it may be
necessary to impose an additional one, We order that said land shall,
together with all the serfs attached to it, and their peculia,
implements, crops, animals, and everything else used for cultivation,
immediately be given to those who are in possession of the lands dependent
upon, or tributary to the same; but where no one can be found who is,
according to the law, entitled to receive the superindiction, or where the
latter is postponed for any reason whatsoever, We order that documents fully
describing the nature and condition of the said land and its appurtenances,
shall be drawn up before the judge of the province, in order that the
decurions, collectors, or other officials may receive it; and if,
afterwards, anyone should be found who is legally entitled to receive the
superindiction, it shall be trans-
ferred to him,
subject to any deterioration caused by the acts of collectors, decurions,
judges, or their subordinates.
CHAPTER IX.
We also order
that articles designated transmissoria cannot be exacted from
taxpayers, instead of the payment of sums of money and taxes in kind which
are expended in the provinces; and with regard to taxes which are
transferred, nox-large r amount of them shall be paid than was levied in each
province in the beginning.
CHAPTER X.
Officials who
are despatched into the provinces for the purpose of making any public
collection whatsoever shall not proceed to accomplish the object of their
errand before having notified the judge of the province of the orders with
which they have been entrusted. We issue this decree to prevent persons who
pay fiscal tributes from being subjected to risk or loss on this account,
and this provision shall be observed with reference to private affairs.
CHAPTER XI.
We order those
who are charged with the duties of collecting fiscal tributes not to attempt
to excuse themselves by alleging that they are occupied with private
business, and if such a duty should be imposed upon them, they must, under
no circumstances, presume to act, for We do not desire Our subjects to be
injured on account of public
claims.
CHAPTER XII.
But where anyone
who actually owes public taxes informs the collector that another person is
his debtor, the collector shall not be allowed to annoy the latter, unless
he who actually owes the tax has previously shown that he is unable to pay
it himself. It must, however, be ascertained before the judge of the
province whether he who has been declared by the taxpayer to be indebted to
him is so in fact; and if this should be proved, the latter is the one from
whom the tax must be collected. But in either event, if a collector should
presume to demand or exact an amount more than We have prescribed, he shall
be deprived of his office; his property shall be confiscated; he shall be
sent into exile; and the judge who gave him the order or instructions shall
be subjected to a fine of ten pounds of gold, and his court shall pay one of
five.
CHAPTER XIII.
We absolutely
forbid any person charged with the collection of public tribute, as well as
the officers of the census, those who keep the accounts, and any other
public officials, no matter who they may be, to avail themselves of the
excuse that they reside in a sacred place, in order to evade the claims of
those who allege that they have been injured by them in the collection of
taxes.
CHAPTER XIV.
No one,
whosoever, shall be molested because of taxes on land which he does not
possess; but where farmers or serfs belonging to someone have any real
property in their own possession they themselves must pay the taxes on the
same, unless the owner thereof voluntarily agrees to do so.
CHAPTER XV.
We order that
those who collect public taxes shall use proper weights and measures, in
order not to injure Our taxpayers in this respect. Where, however, taxpayers
believe that they have sustained loss through the weights and measures
employed by collectors, they shall be permitted to receive from the Most
Glorious Prefects others intended to weigh or measure articles in kind
delivered as taxes, and from the Most Glorious Count of the Imperial
x-large sses, those used to weigh gold, silver, and other metals; and the said
weights and measures shall be kept in the church of each town, and shall be
exclusively employed in the determination of the quantities of articles to
be delivered by taxpayers, as well as in the apportionment of tributes, the
payment of soldiers, and other matters of this description.
CHAPTER XVI.
We, turning Our
attention to what may be advantageous to the cities of Our Empire and their
inhabitants, do hereby forbid tax collectors otherwise to employ the sums
destined for public works for the supply of the granaries of cities, or for
any other objects or salaries whatsoever, or to retain any of said sums, or
to profit by them in any way; but We order them to be paid over without
delay or diminution, so that they may immediately be used for the purposes
for which they were intended. The owners of land and the inhabitants of
towns will not, under any pretext whatsoever, be permitted to diminish these
sums in the slightest degree, neither on the ground of tributes, fees, or
any other expenses. If anyone should presume to give or receive any portion
of the said sums, We order him to pay to the town double the amount out of
his own property. Neither the judges of provinces, their attendants, nor
anyone else shall take part in the expenditure of these sums of money, or
interfere with their payment; but the most holy bishop of the diocese, the
principal citizens, and the owners of property shall appoint the curator of
the city, the officials charged with the replenishment of the public
granaries, and other administrators of this kind. At the end of the year,
the most holy bishop of the city, with five of the principal citizens, shall
require an account of the administrators whom they have appointed; and if it
should appear that they are indebted to them, the balance due shall be
collected at the risk of those who appointed them, and be employed for the
purpose for which it was 'destined. Where an official is found to be
incompetent to discharge his duties, We order that he shall be promptly
removed by the most holy bishop of the city, and the other owners
of property (as
has already been stated), and We warn the latter that, if the city should
sustain any loss by reason of their appointments, they must make it good out
of their own estates.
CHAPTER XVII.
None of those
who are employed in the office of the Most Glorious Prefects, or in any
other, or who are members of the Association of the Constituti, shall
be permitted to audit the accounts just mentioned; for the said officials
are only charged with receiving said accounts, whether they do this by
virtue of the order of any administrator, or in compliance with the written
order of a magistrate, or under the authority of a pragmatic or other
sanction, or of an Imperial mandate. If, however, anything of this kind
should be done, the most holy bishop, and the principal citizens of every
city, shall be allowed to disregard their claims, and the matter shall be
referred to Us; so that, having been informed of it, We may order that the
loss incurred by their cities may be made good by the said officials, and
that We may impose a suitable penalty upon them.
CHAPTER XVIII.
We also order
the secretaries of public works, who are subject to the Prefect of the
Imperial Praetors, to take no part in the auditing of accounts; and We
hereby annul all the orders by which, either generally or specially, this
right has been accorded, as well as those whereby others may hereafter be
obtained, and We do not desire examination of the accounts having reference
to these subjects to be committed to any of them, unless We may consider it
advantageous for the cities to select for this purpose some person of good
repute, who is of eminent rank; and then he whom We appoint shall receive
from Us a written order bearing Our signature, and stating the name of the
appointee, as well as his dignity, the causes, and the time for which the
examination of the accounts is entrusted to him. We decree that those who
require the rendition of accounts by such officials shall enjoy perfect
security, and shall not, themselves, afterwards be subjected to
investigation.
CHAPTER XIX.
In addition to
this, We decree that, in no part of Our Empire, shall a bishop at at the
same time as judge and represent the Most Glorious Prefects, or magistrates
invested with military office, or have any collection of fiscal tribute
entrusted to him; and in order to make this more simple, We forbid any
deputy-prefect to be sent into the provinces, unless by virtue of Our order,
in cases where haste or convenience require one to be despatched from the
prefecture to provide for military expenditures.
When a violation
of these rules takes place, a fine of thirty pounds of gold shall be exacted
of him who was appointed deputy, and he shall also be obliged to make good
all losses occasioned by the person
who appointed
him; and he who had the audacity to accept such an appointment shall be
deprived of his magistracy, his rank, and his employment, and shall be fined
ten pounds of gold.
CHAPTER XX.
In addition to
this, We forbid civil and military judges in the provinces to appoint
deputies in the cities, camps, or provinces within their jurisdiction to act
in their stead and govern in their name; and when this is done a fine of
five pounds of gold will be incurred not only by the official who nominated
the deputy, but by him who was bold enough to accept the place. We, however,
permit Governors, before arriving in the provinces, to send agents there to
act for them, with authority to do everything that they themselves could do,
while they are absent; but the said agents cannot inflict capital
punishment, or sentence anyone to the amputation of a limb. Where, by virtue
of Our order, a Governor is despatched to some other region, he will also be
allowed to have himself represented by an agent in a similar manner.
CHAPTER XXI.
We order all
magistrates, military as well as civil, to personally seek out those who
commit theft, violence, and robbery, who ravish women, or are guilty of
other illegal acts in the provinces, and inflict legal punishment upon them;
and We forbid them, under the pretext of custom, to accept anything for
their decisions, in cases of this kind, so that all Our subjects may remain
uninjured; for We do not permit any military, superior, or inferior judge to
despatch officers into the provinces to pursue thieves; to suppress
violence; to appoint tribunes to discharge similar duties, or officers
commissioned to examine certain individuals; and We establish this rule lest
the appointment of officials of this kind may serve as a pretext for the
exercise of even greater acts of violence against provincials.
If any judge
should not observe what We have decreed, he is hereby warned that he will
not only be deprived of his office, but that he will also be compelled to
pay a fine of ten pounds of gold as a penalty for his audacity, and that,
after having been subjected to corporeal punishment, and the confiscation of
his property, he will be relegated and sent into exile.
CHAPTER XXII.
Moreover, We
order that provincial judges and their subordinates, whenever they go from
one city to another, shall not exact anything for post-horses, or other
expenses; but We desire them to pay for these things out of the salaries
allowed them by the Treasury.
CHAPTER XXIII.
In addition to
this, We order that the provincial judges shall, by all means, remain there
for fifty days after they have relinquished their office, and answer in any
suits which may be brought against
them. If any
Governor should happen to leave his province before the term of fifty days
has expired, We decree that all those who have suffered any wrong at his
hands shall appear together before the most holy metropolitan bishop of the
same province; that each one of them shall, with his hands on the Holy
Gospels, state publicly the loss which he has sustained; and that this loss
shall be made up to him out of the property of the magistrate against whom
such allegations are made through the diligence and on the responsibility of
the Prefects of the said province, who are hereby notified that if they
neglect to execute what We have enacted, they, themselves, will be compelled
to make complete restitution to the persons who have been injured.
CHAPTER XXIV.
If any
provincial magistrate should be called to some other government, or assigned
to duty in another province, We order that he shall cause himself to be
represented by means of a lawfully appointed agent, in any actions brought
by those who allege that they have been injured by him; and if he does not
take the trouble to appoint such a representative, We order (as has been
previously stated) that documents shall be drawn up before the most holy
bishop, and that all the losses mentioned therein shall be made good in
accordance with the character of the acts, in favor of those who have sworn
to have sustained the damage; for the prefects in office at the time, as
well as the Governors, are equally responsible for the administration of the
provinces.
CHAPTER XXV.
We order that
all pecuniary penalties prescribed by the present law shall be collected
from those who violate its provisions, and shall redound to the profit of
Our Treasury, through the efforts of the Count of Private Affairs, and if
this official does not exact them, he, together with his court, shall be
compelled to pay them.
EPILOGUE.
Therefore, Your
Inviolable and Immutable Glory will hasten to bring to the knowledge of all
persons, and enforce the regulations which We have established for their
benefit by this salutary present law, which shall be observed for all time;
and this you will do by means of edicts published in this Royal City, and by
notices sent to the illustrious Governors of provinces, so that Our subjects
may be informed of them through the agency of these officials.
Given on the
Ides of June, during the reign of the Emperor Justinian, and the
Consulate of Basil.
TITLE XII.
CONCERNING THE
SAMARITES.
ONE HUNDRED AND
TWENTY-NINTH NEW CONSTITUTION. The Same Emperor to Ariobindus, Praetorian
Prefect.
PREFACE.
Among the
offences committed by Our subjects there is not one, no matter how serious
it may be, which We do not succeed in suppressing. For although the hatred
entertained by Us for malefactors naturally inclines Us to retribution,
still We only apply a remedy by admonishing, in the most suitable manner,
those who are guilty. We transform Our just anger into clemency, and We
yield to kindness, as is the case in the present law.
We have
previously imposed a great number of penalties upon the Samarites, who were
formerly of ferocious character, and enemies of the Christians, and whose
pride was excessive; and We, above all, deprived them of the power of making
wills, and when they died intestate We did not permit their property to pass
to their relatives called to the succession ab intestato, unless
their heirs at law or testamentary heirs professed the true Christian faith.
We also forbid them to bequeath legacies, and make donations or any other
disposition of their property, when the legatee or donee was not an adherent
of the orthodox religion. And, although We prescribed these penalties in a
general enactment, We did not exercise the same severity in their
application, for We never permitted the Treasury, or any other public
person, to derive any advantage from these penalties, although this was
expressly provided by the law.
CHAPTER I.
Therefore We,
observing that the Samarites are now inclined to act with moderation, think
that it is unworthy of Us to subject to the same punishment men who are no
longer liable to the same errors, and We, above all, relying upon the just
statements which Sergius, the Most Holy Bishop of the Metropolis of Csesarea,
has made to Us in their behalf, and the evidence which he has given Us of
their improved behavior, and their promise to be peaceful for the future, do
enact the present law, by which We authorize the Samarites, from this day,
to make wills and dispose of their property, in accordance with the
provisions of other laws; and We decree by this one that whenever they die
intestate, they, like other men, shall have for their heirs those who are
called to the succession of their estates on the ground of intestacy,
subject to the exception set forth in the present law. We also grant them
authority to make donations, to give and receive legacies, and to enter into
other contracts of this kind with absolute freedom. For after We have
permitted them to make wills, and dispose of their entire property, how
could We refuse them the right to bequeath a portion of it ?
CHAPTER II.
We do not,
however, include Christian heirs and Samarites in the same class, but We
again grant (and with good reason) a privilege to those who acknowledge the
better religion. Wherefore, if a Samarite should die intestate, and leave
children believing in God, those alone shall be called to his inheritance
who profess the Christian faith, and all others shall be excluded, who are
adherents of the heresy which the deceased acknowledged while living.
We render this
rule applicable not only to children, but also to other relatives, no matter
on which side they may be related to the deceased, so that those who
acknowledge the true faith may be preferred to those who do not; but We only
establish this distinction when the heirs who are called to .the succession
are in the same degree of relationship, and in the same way. For the heirs
most nearly related to the deceased are not excluded by others who are more
distant, and, even though the latter may be better Christians, We grant the
preference or the privilege to the next of kin.
CHAPTER III.
We do not,
however, deprive the heirs, who are excluded, of the benefit of repentance.
For if those who are deprived of the estate should afterwards adopt the
faith of Christians, they shall be called to the succession, and be entitled
to their share of the property, just as if they had always been adherents of
the true religion; and shall only forfeit the income from their share which
has been collected after the death of the deceased. When any Samarite makes
a will, We order that it shall be just as valid as if it was written by an
orthodox person. But where the father, or any one of the descendants (or
even one of the ascendants) wrote it, and all those called in the same
degree of inheritance profess the same heresy as their father, he cannot
leave them more than one-sixth of his estate, and the remainder shall pass
to those who acknowledge the true religion, unless the testator, being a
Christian, left some legacies, in which instance they shall be reserved for
any that may be willing to embrace the orthodox faith, they being placed on
the same footing with the legatees who were Christians from the beginning,
as We have provided with reference to intestate successions. Therefore, in
cases of this kind, We grant ascendants, descendants, those who profess the
true doctrine, and, above all, persons injured by the distribution of the
property made by the testator, to bring a complaint of inofficiousness.
CHAPTER IV.
We also permit
Samarites to make donations, receive and bequeath legacies, grant freedom to
slaves, and enter into contracts with one another, and this law does not
repeal any of Our former enactments. We strictly exclude Our Treasury, and
every other public person from participating, under the present
constitution, in the estates or other property of Samarites. For how can We,
with reference to the past,
call so strictly
to account those to whom We shall be lenient in the future ? Let all them
who are deserving of Our clemency give thanks to God and Ourself, as well as
to the Most Holy Sergius, who has been most instrumental in inducing Us to
exercise it.
EPILOGUE.
Therefore Your
Glory, being aware of Our humanity as disclosed by the present law in favor
of the Samarites, will publish in the provinces, by means of formal edicts,
the provisions which it has pleased Us to establish, in order that the
Samarites may always enjoy their advantages.
Given at
Constantinople, on the Kalends of July, during the twenty-fifth year
of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XIII.
IN WHAT WAY
SOLDIERS MUST ENTER AND PASS THROUGH CITIES.
ONE HUNDRED AND
THIRTIETH NEW CONSTITUTION. The Same Emperor to Peter, Prastorian Prefect.
PREFACE.
We think that
the good discipline of Our army, while on its march, is the first and most
important requisite to be observed in Our Empire, and that Our taxpayers
should not, in any way, suffer from it, and if they do, that they should be
indemnified.
CHAPTER I.
Therefore, We
order that every time arrangements are made for the passage of Our
magistrates and Our armies, commissaries shall be charged with the duty of
procuring provisions for them; and the Governors of the provinces which they
traverse shall make suitable preparations, so that when Our armies arrive,
they may conduct themselves with the greatest propriety. The commander of
each corps shall receive supplies without raising any controversy, and these
shall be delivered to both the officers and soldiers, in order that they may
retain the fifteenth part of what is delivered, for the purpose of
subsistence. But they must, as is customary, give receipts to the taxpayers
for whatever they have obtained, and these receipts shall be made out on the
responsibility of their magistrates, tribunes, counts, diasostse,
commissaries, and officers in command of each corps; the soldiers shall take
nothing from taxpayers under any pretext, not even on the ground that their
provisions are not ready, nor because their "entrance," of which We
absolutely abolish the name, being desirous that Our subjects may remain
uninjured, and always be secure.
CHAPTER II.
Soldiers must
accept the supplies which are found in each locality, and cannot demand
others which are not in the same region, nor shall they, on this account,
cause any loss or annoyance to Our taxpayers.
CHAPTER III.
We order that
the supplies furnished by Our possessors, and whose delivery is evidenced by
receipts, shall be credited by Your Highness, without any dispute, loss, or
imposition upon the amounts which the taxpayers owe to the Treasury, for the
indiction during which the said supplies have been furnished. If, however,
these should be found to exceed the amounts which are payable in kind, We
order that the taxpayers shall be indemnified for them out of the entire
tribute of the same province. If the tribute of the province should not
prove to be sufficient for this purpose, those who furnished the supplies
shall be reimbursed by the general office of Your Glory; or, indeed, We will
cause whatever may be necessary to be reserved out of the taxes paid during
the following indiction, and the receivers of fiscal tributes shall credit
the taxpayers with a sum equal to the entire expense incurred. All the
regulations hereinbefore mentioned shall be observed on the responsibility
of Your Glory, as well as by the Governors of provinces and those subject to
their authority, the receivers, and all the officials charged with the
administration of
tributes.
CHAPTER IV.
We also order
that no judge or soldier shall receive anything whatever from any town or
land, on account of his passage. If anyone should be detected in violating
this rule, We order that he shall be compelled to pay double the amount
which he had the audacity to accept.
CHAPTER V.
When anyone of
Our judges, soldiers, or those in control of their affairs do not give
receipts for the supplies which they receive, We direct that the taxpayers
who furnished them shall draw up public instruments in the presence of the
Governor, if there is one in the neighborhood, and before the most holy
bishop of the city; or where there is no Governor, before the most holy
bishop alone, or before the defenders of the district in which the land from
which the supplies were taken is situated; and that they shall state in said
instruments that Our magistrates, who passed through with the army, did not
give them any receipts, and they must also set forth the amount of the
supplies which they received. We desire that these instruments shall be sent
to Your Glory, and that you then reimburse the taxpayers or credit them for
what they have furnished, as We have previously stated, but you must deduct
the amount of the supplies stated in said instruments from the emoluments
granted by the Treasury to the commanders of the army, and the soldiers who
incurred the expense.
CHAPTER VI.
We also order
Our military commanders to despatch before them, when they are on the march,
diasostse and commissaries, to the places which Our army is to
traverse, in order to prepare subsistence for it, and that it may not be
necessary to send to other cities, lands, or possessions, for that purpose,
or to receive money from them on this account. If they should presume to
accept anything as the price of the subsistence which they furnish, We order
that instruments should be drawn up, and that it shall be stated in what
place and to whom the gifts were made, and whatever is specified in these
instruments shall either be credited or reimbursed by Your Glory, in the
manner above stated, in favor of those who have sustained any loss; and the
commanders of the army and the diasostse and commissaries shall
return double the amount which they had the audacity to accept, and the
others implicated shall be punished and sent into exile.
CHAPTER VII.
But where the
Governors of provinces act in collusion with the diasostse of Our
army, by not providing supplies, and under this pretext compel Our soldiers
to traverse different cities when they march through the country, We order
that, after having been deprived of their offices, they shall, with their
subordinates, be condemned to the confiscation of their property, and to
exile; for it is in this way by means of receipts, and instruments executed
as above stated, that Our subjects are rendered secure from loss.
CHAPTER Vill.
We direct that
these regulations shall be observed, not only with reference to the passage
of Our magistrates and soldiers, but also with respect to other persons whom
We may send into any country whatsoever for the maintenance of Our
government.
CHAPTER IX.
In order that
the liberty of Our subjects may not be infringed on account of the lodgings
which they are compelled to furnish the military, We forbid all Our soldiers
to accept quarters in the principal rooms which are used by the owners of
houses, and We direct them to leave them free for the occupancy of the
latter, and to lodge in vacant apartments.
EPILOGUE.
Therefore Your
Glory will communicate the provisions of the present law to the most holy
bishops of the neighborhood, the illustrious Governors, and all Our subjects
residing in each town and province. Our subjects, having ascertained what We
have enacted to protect them from wrong, are notified that if, having been
injured, they remain silent as to any violation of Our Constitution, they
themselves will be to blame for any losses which they may sustain.
Given at
Constantinople, on the Kalends of March, during the nineteenth year
of the reign of Our Lord the Emperor Justinian, and the fourth after the
Consulate of Basil, eighth indiction.
Published in the
City of Constantinople.
TITLE XIV.
CONCERNING
ECCLESIASTICAL TITLES AND PRIVILEGES, AND VARIOUS OTHER MATTERS.
ONE HUNDRED AND
THIRTY-FIRST NEW CONSTITUTION.
The Emperor
Justinian to Peter, Most Glorious Imperial Praetorian Prefect.
PREFACE.
We enact the
present law with reference to ecclesiastical rules and privileges and other
subjects in which holy churches and religious establishments are intrusted.
CHAPTER I.
CONCERNING FOUR HOLY COUNCILS.
Therefore We
order that the sacred, ecclesiastical rules which were adopted and confirmed
by the four Holy Councils, that is to say, that of the three hundred and
eighteen bishops held at Nicea, that of the one hundred and fifty bishops
held at Constantinople, the first one of Ephesus, where Nestorius was
condemned, and the one assembled at Chalcedon, where Eutyches and Nestorius
were anathematized, shall be considered as laws. We accept the dogmas of
these four Councils as sacred writings, and observe their rules as legally
effective.
CHAPTER II.
CONCERNING THE PRECEDENCE OP PATRIARCHS.
Hence, in
accordance with the provisions of these Councils, We order that the Most
Holy Pope of ancient Rome shall hold the first rank of all the Pontiffs, but
the Most Blessed Archbishop of Constantinople, or New Rome, shall occupy the
second place after the Holy Apostolic See of ancient Rome, which shall take
precedence over all other sees.
CHAPTER III.
CONCERNING THE
ARCHBISHOP OF THE FIRST JUSTINIANIAN.
The Most Blessed
Archbishop of the First Justinianian shall continue to retain under his
jurisdiction and authority the bishops of the provinces of Mediterranean
Dacia, of Dacia Ripense, of Privalis, of Dardania, of Upper Mysia, and of
Pannonia. He shall himself be
consecrated by
his Council, and shall replace the Apostolic See of Rome in the provinces
subject to his authority, in accordance with the regulations of the most
holy Pope Vigilius.
CHAPTER IV.
CONCERNING THE JUSTINIANIAN BISHOP OF CARTHAGE.
In like manner,
We preserve the pontifical right which We have granted to the Justinianian
bishop of Carthage, a city of Africa, for the reason that God has restored
it to Us. Bishops of other cities situated in different localities upon
which the metropolitan privilege has been conferred shall enjoy the same in
perpetuity. All the rights or benefits which have been conceded to churches,
religious establishments or houses, by Imperial munificence, or in any other
way, shall be absolutely maintained.
CHAPTER V.
CONCERNING THE
PRIVILEGES OF ECCLESIASTICAL POSSESSIONS.
We forbid lands
belonging to holy churches and religious establishments in general to be
subjected to degrading charges and extraordinary tributes. Where, however,
it becomes necessary to repair roads, bridges, or anything else, the
churches shall, along with other real property, contribute to this whenever
they have land dependent upon the city where work of this kind is necessary.
Where any possessions of decurions have been, or may hereafter be acquired
by a church or any other religious establishment, We desire that the latter
shall be released from liability for such contributions as are designated
"lucrative."
CHAPTER VI.
CONCERNING THE
PRESCRIPTION OF FORTY YEARS CONCEDED TO RELIGIOUS ESTABLISHMENTS.
We order that
instead of temporary prescriptions of ten, twenty, and thirty years, that of
forty years can only be pleaded against the most holy churches, and all
other religious houses, and this rule shall apply to the collection of
legacies and estates bequeathed for pious uses.
CHAPTER VII.
CONCERNING THE
CONSTRUCTION OF CHURCHES.
Where anyone
wishes to build a private chapel or monastery, We order that nothing shall
be done before the most holy bishop of the diocese has offered a prayer upon
the site where it is to be constructed, and has planted there a holy cross.
But where anyone has once begun the construction of a church, or the repair
of an old one, he shall be compelled by the bishop of the diocese, by his
stewards, and by the civil magistrates of the district, to complete it; and
if he should delay doing so and die, his heirs must finish the work which he
has commenced.
CHAPTER Vill.
THE SACRED
RIGHTS OF THE CHURCH SHALL NOT BE
CELEBRATED IN
THE SUBURBS OF TOWNS, OR IN HOUSES,
FIELDS, OR
PRIVATE PLACES.
If anyone should
presume to conduct religious services in his own house, or in a suburb, or
should permit others to do so without the presence of any members of the
clergy who are subject to the authority of the most holy bishop of the
diocese, We order that the said house, suburban place, or land, on which an
offence of this kind was committed, shall be claimed by the most holy
bishop, or his steward, or the civil magistrate, for the benefit of the
church of that locality.
Where, however,
the owner of the building in which the religious services were conducted was
ignorant of the fact, and his curators, lessees, or emphyteutas were
responsible, he shall suffer neither loss nor prejudice; but those who
conducted the services, or permitted this to be done, shall be expelled from
the province where the offence was perpetrated, and their property shall be
seized for the benefit of the most holy church of the neighborhood.
CHAPTER IX.
LEGACIES
BEQUEATHED TO GOD SHALL PASS TO THE CHURCH OF THE DIOCESE IN WHICH THE
TESTATOR HAD
His DOMICILE.
If anyone should
bequeath an estate or a legacy in the name of Almighty God and Our Saviour
Jesus Christ, We order that the church of the place in which the testator
had his domicile shall be entitled to the bequest. But if anyone should
appoint a saint his heir, or leave him a legacy, and does not specially
designate the place where the religious house dedicated to him is situated,
and there are several oratories dedicated to this saint in the same place or
city, then the legacy bequeathed by the testator shall go to the poorest
one. When there is no church dedicated to the saint, who was appointed heir,
in the same city, but there is one in the territory embraced by its
jurisdiction, the legacy shall be given to the latter. But where there is no
church at all, even in the said territory, then the legacy shall go to the
church of the town in which the testator had his domicile.
CHAPTER X. WHERE
ANYONE ORDERS AN ORATORY TO BE BUILT.
Where anyone, in
his will, provides for the construction of an oratory, a house for the
entertainment of strangers, a place of refuge for the poor and infirm, an
orphan asylum, a hospital, or any other religious establishment, We order
that it shall be completed under the supervision of the bishop of the
diocese and the civil magistrate, within five years if it is an oratory, and
within a year if it is a house for the
entertainment of
strangers, an asylum for the poor and infirm, or any other religious
establishment whatsoever. If the heirs of the deceased should not, within a
year, erect the said house for the entertainment of strangers, or other
religious establishment whose construction was ordered by him, We decree
that they shall buy or lease a building in which they can carry out the
directions of the testator, until the religious establishment aforesaid is
completed.
Where the
testator named the persons to be appointed superintendents of houses for the
entertainment of strangers, asylums for the poor and infirm, and other
religious establishments, or where he left their selection to his heirs, We
order the latter absolutely to comply with his wishes, but the holy bishops
of the diocese shall see that the superintendents faithfully discharge their
duties, and if they should ascertain that they do not make themselves
useful, they shall be authorized to appoint others who are better qualified.
CHAPTER XI.
LEGACIES
BEQUEATHED FOR THE RANSOM OF CAPTIVES SHALL BE EMPLOYED BY BISHOPS, ETC.
When anyone
leaves an estate or a legacy consisting of either movable or immovable
property, to be employed either for the redemption of captives, or for the
support of the poor, whether it is all to be delivered at once, or in annual
installments, his wishes must be faithfully complied with by those whom he
charged with this duty. Where the testator specially stated that he left the
property to the poor, We order that the most holy bishop of the city in
which the testator had his domicile shall receive the articles bequeathed,
and distribute them among indigent persons of the same city. But where he
left something to be used for the ransom of captives, without expressly
stating by whom the ransom should be paid, We also order that the bishop of
the diocese, and his stewards, shall receive the property bequeathed, and
perform this act of piety; for We desire that the most holy bishops shall
see that all such testamentary dispositions are observed in accordance with
the intention of the deceased, even though the testator or donor may have
specifically forbidden them to do so.
When those whom
a testator directed to carry out the provisions of his will defer doing so,
after having once or twice been notified by the bishop of the diocese, by
his stewards, or by other persons in authority, We decree that they shall be
deprived of what was left to them by the testator, and that the bishops of
the diocese (as previously stated) shall be entitled to claim not only
everything intended for the relief of the poor, and any income of the
property which may have been collected and its increase in value, but also
whatever the testator left to his heirs to enable them to do what he
directed; and the said prelates are hereby notified that if they,
themselves, should neglect to comply with the wishes of the testator, they
will be accountable to God.
If the most holy
bishop of the diocese should fail to obey any of the rules which We have
formulated, his most holy metropolitan shall be permitted to claim the
legacies, and execute the testamentary dispositions of the deceased, and all
other persons are authorized to give information of the failure to perform
the pious duties prescribed, and to see that they are accomplished.
CHAPTER XII.
THE FALCIDIAN
LAW DOES NOT APPLY TO LEGACIES LEFT FOR Pious USES.
If an heir, to
whom property has been left for pious uses, should not use it for that
purpose, under the pretext that the amount is insufficient, We order it to
be entirely employed for the purpose for which it was left, the Falcidian
Law not being applicable under such circumstances, and that this be done
under the superintendence of the most holy bishop of the diocese. We desire
legacies left for pious uses to be entirely delivered to those to whom they
were bequeathed, within six months after the record of the will. If the
persons charged with paying the legacies should delay to do so, the crops,
the interest, and all lawful increase in the value of the property from the
date of the death of the testator shall be collected from them.
Where an annual
legacy is left to a religious house, and those who are ordered to pay it, or
he who is directed to give possession is in the same province, or in an
adjacent one, We absolutely forbid the legacy to be alienated. But when the
possessors, or other persons whose duty it is to pay it, are at a distance,
then the religious houses, that are the legatees, are hereby authorized to
exchange the property bequeathed, with the consent of the trustee, and
receive in return suitable revenues from land not burdened with excessive
taxes, and which is greater in value by at least a fourth than that devised;
or the said religious houses can, if they so desire, sell the legacy, and
accept a price which must not be less than the entire amount of the income
collected in twenty-five years; provided, however, that the purchase-money
is employed for the benefit of the religious house to which the legacy was
bequeathed.
CHAPTER XIII.
BISHOPS SHALL
NOT, BY WILL, DISPOSE OF ANY PROPERTY WHICH THEY MAY HAVE ACQUIRED DURING
THEIR EPISCOPATE.
Again, We forbid
the most holy bishops to transfer to their own relatives, or otherwise
alienate property either movable, immovable, or which is capable of moving
itself, which came into their hands in any way, after they obtained the
episcopate. They shall, however, be permitted to use it for the ransom of
captives, the support of the poor, and other pious works, or for the benefit
of their own church; and We order that the ownership of all property, no
matter what it may be,
which they
acquire by the death of their parents, shall belong to the church in which
they perform their sacerdotal duties. We only grant them permission to
alienate or bequeath to whomever they please what is proved to have belonged
to them before they were raised to the episcopate, and that which, during
the episcopate, came into their hands from their ascendants, or from other
relatives to whom they could succeed ab intestato, as far as the
fourth degree.
We order that
all that We have prescribed relative to property acquired by the most holy
bishop during his episcopate shall also apply to the most reverend
superintendents of orphan asylums, institutions for the poor and infirm,
hospitals, houses for the entertainment of strangers, and asylums for old
men, as well as to the managers of other religious establishments, so far as
any property which may come into their hands in the manner above mentioned,
during the time of their administration, is concerned. But if a bishop, a
clerk, an ecclesiastic of any rank whatsoever, or a deaconess, should die
without making a will, and without leaving any legal successor, his or her
estate shall belong to the church to which he or she was attached.
CHAPTER
XIV.
HERETICS SHALL
NOT ACQUIRE IMMOVABLE PROPERTY, UNDER ANY CIRCUMSTANCES, FROM CHURCHES OR
PRIVATE INDIVIDUALS, NOR ERECT BUILDINGS FOR THE CELEBRATION OF THE RITES OF
THEIR FAITH.
We order that no
heretic shall acquire any immovable property from a church or any other
religious establishment whatsoever, either by lease, emphyteusis, purchase,
or in any other way; and when a heretic is paid anything in a contract of
this kind, he shall lose it, and the immovable property that he received
shall be recovered by the religious establishment which transferred it; and
the superintendent of said establishment shall be deprived of his office,
confined in a monastery, and excluded from the holy communion for an entire
year, by way of punishing him for having betrayed Christians to heretics.
Where an orthodox person is in possession of property on which a church is
situated, and alienates, bequeaths, leases it under emphyteusis or in any
other way, or entrusts the management of the same to a Jew, a Samaritan, an
Arian, or any other heretic, the said property shall be claimed by the
church of the neighborhood, and where a heretic (and among heretics We
include Nestorians, Acephali, and Eutychians) builds a house for the
celebration of his worship, or a new Jewish synagogue, the most holy church
of the diocese shall seize the building.
If anyone should
transfer land to a heretic under emphyteusis or any other form of lease, or
entrust the management of the same to him in any other way, he being well
aware that the person to whom he delivers it is a heretic, all the income
collected therefrom under the contract shall be claimed for the benefit of
the church of the city
within whose
territory the land in question is situated; but when the owner of the same
is ignorant that he to whom he gave possession is a heretic, he shall not be
deprived of it on account of his ignorance; but in either event the heretic
must be driven from the land, and his property confiscated for the Treasury.
CHAPTER
XV.
SUPERINTENDENTS
OF ORPHAN ASYLUMS RESEMBLE
GUARDIANS, AND
MUST DRAW UP INVENTORIES JUST
AS THEY DO.
The
superintendents of orphan asylums discharge the duties of guardians and
curators to the extent that they can sue and be sued with reference to the
property belonging to their establishments, or to the orphans as
individuals, without being obliged to furnish security. They shall receive
property belonging to said orphans, or the establishments to which they are
attached, in the presence of the public registrars, or by means of documents
drawn up in this Royal City before the Master of the Census, and in the
provinces before their Governors, or the defenders of the districts; and if
the superintendents should deem it necessary to alienate such property, they
must keep the purchase-money for the orphans, or employ it for their benefit
in the purchase of other things; and they shall not be obliged to render any
accounts of guardianship or curatorship.
We order that
all the general privileges enjoyed by the Most Holy Principal Church of
Constantinople shall be preserved for the orphan asylum of this Royal City,
as well as for the house of public entertainment called Samson of Holy Mary,
and for all the oratories, hospitals, or religious establishments which are
under its jurisdiction.
EPILOGUE.
Therefore Your
Highness will see that the provisions which we have enacted in the present
law are brought to the knowledge of all Our subjects, by means of edicts
formally promulgated in this Royal City; for We shall provide for this
publication in the provinces without any expense to Our taxpayers.
Given at
Constantinople, on the fifteenth of the Kalends of April, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XV.
CONCERNING THE
PROHIBITION OF HERETICAL
ASSEMBLIES.
ONE HUNDRED AND
THIRTY-SECOND NEW CONSTITUTION.
The Emperor
Flavius Justinian, Fortunate, Glorious, Victor and Triumpher, Ever Augustus,
to the Bishop of Constantinople.
PREFACE.
We believe that
the true and immaculate Christian faith is the first and greatest benefit
that men enjoy, that it should be strengthened in every respect, and that
all the holy priests throughout the earth should unite to preach it, and
should extirpate every kind of false doctrine, as is prescribed by Our laws
and Our edicts. But as heretics are not influenced by the fear of God, and
pay no attention to the penalties with which they are menaced by the
severity of the law, as they accomplish the work of the devil, and by
seduction debauch certain weak men, causing them to renounce the Holy
Catholic Faith and the Apostolic Church; and as they hold wicked assemblies
in secret, and clandestinely confer spurious baptisms, We have concluded
that it is the part of piety to warn such persons by this, Our present
edict, to abandon their insane delusions, to cease to destroy the souls of
weak-minded men, to return to the Holy Church of God, where true dogmas are
preached, and where all heresies with their heads are anathematized.
Heretics are
hereby notified that if, in the future, any of them should be detected in
attending prohibited assemblies, or of holding them in their houses, so far
from tolerating this, We shall transfer to the Holy Church the buildings in
which such offences are committed, and shall inflict upon the delinquents
the penalties imposed by Our Constitutions.
Given at
Constantinople, on the day before the Nones of April, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XVI. IN
WHAT MANNER MONKS SHOULD LIVE.
ONE HUNDRED AND
THIRTY-THIRD NEW CONSTITUTION. The Emperor Augustus to Menna, Most Blessed
Archbishop.
PREFACE.
Solitary life
and the meditation it encourages are sacred things, which elevate the mind
to God, and are of the greatest benefit, not only to those who profess such
a life, but also to all other persons, on account of its purity, and the
supplications which they address to the Deity. Monastic life was therefore
an object of especial solicitude to Our Imperial Predecessors, and We have
enacted not a few laws for the preservation of its honor and adornment, for
We follow the sacred rules, and the ancient fathers who formulated them, as
there is nothing to which a government should not pay attention, since it
has received from God the general supervision of all men.
We have also
recently enacted a constitution forbidding monks assembled in x-large numbers
and residing together as hermits to have separate rooms, to use private
dwellings or separate property, or to
live alone; but
requiring them to eat and sleep in common, and to lead becoming lives, in
order that they may be mutual witnesses of their own chastity; that those
who are younger may respect the age of the others who observe their actions,
and constantly watch over them, lest they may be detected in the commission
of sin, or of some shameful act during their sleep; for each monk must,
above all things, preserve his virtue even while in repose.
CHAPTER I.
We, however,
having been informed of certain matters which require legal intervention,
and in order to provide for the perfection and completion of former
constitutions, have been induced to issue the present law, by which We
absolutely prohibit monks from living separately and having private cells,
unless they are entirely alone in them; and We decree that each monastery
shall have two ministers; that the monks shall dwell in continence and
quiet, and that though there may be a great number of them together, they
shall live in common, whether engaged in prayer or in the satisfaction of
their natural requirements, in order that they may not commit any sin; that
they shall eat and sleep together, as has just been stated, unless they are
so numerous that one building cannot contain them all, and it is necessary
to distribute them among two or three others.
We order that
monks shall possess absolutely nothing of their own, and that they shall
remain constantly together in order to be able to have an eye upon one
another both day and night. For all are not sleeping at the same time, and
there is no doubt that while some are given to slumber, others are awake,
who scrutinize their actions. Where there are several buildings belonging to
one of the monasteries subject to the order of Your Holiness in this great
city, or in its environs, whether the said buildings have been erected by
Us, or whether they are separately inhabited by other monks, Your Holiness
will demolish them, and indicate to the monks the one in which they shall
reside; for what have they to fear in being united, and consecrating
themselves to God by renouncing a worldly life?
We desire that
this rule shall be observed now and hereafter, for all time; that no monks
shall live separately, but that all shall be assembled together and watch
one another's conduct. It is certain that if these regulations are complied
with, they will be free from all blame. Where, however, any one of them
becomes impudent and ventures to disobey what We have decreed, the head of
the monastery must subject him to punishment. For We desire that monastic
discipline be more strict in the future than it is at present; and in the
first place, We forbid that there shall be several entrances to the
monastery, and We wish that there shall be only one, or two at the most; and
that men of advanced age, who are chaste and of good reputation, shall be
stationed at the door to prevent the most reverend monks from going out
without the consent of the abbot (for they must use every effort to arouse
their zeal towards God, and prevent them from lacerating themselves), and
they shall also forbid strangers
from entering
the monastery, either by day or by night, when the latter do not encourage
the reverend monks to continue in the exercise of their sacred duties. Every
monastery shall be surrounded by strong walls, so that no one can leave it
except by the gates.
CHAPTER II.
When there is no
chapel in the monastery, as it is not proper for the monks to avail
themselves of this excuse to go out, for the purpose of taking walks and
conversing with other persons, We order them to repair to the church at the
very moment of the religious service, in the company of their abbots, their
deans, and their seniors, and when the service is at an end, they must all
return to their convent, and remain there honoring the Omnipotent God and
devoting themselves to the study of the Bible. Hence a x-large number of these
books must be kept in the monastery, so that each one can purify his soul,
and water it with the Holy Scriptures; for by their frequent perusal they
will have no longer any temptation to deceive, and will be relieved of all
human cares. Four or five of the oldest monks, who have practiced continence
and have deserved to be ordained priests, deacons, and other ecclesiastics,
shall be attached to the chapel of the monastery. These monks shall be
charged with giving lectures upon the Holy Scriptures, and imparting
instruction in them; they shall have the care of the sacred house; and shall
restrain petulant youth always desirous to pass the bounds of decorum.
CHAPTER III.
Women shall not
enter a monastery of men, nor shall men enter one of women, under the
pretext of the death or funeral of anyone, or for any other reason; even if
it is alleged that he or she has in the monastery a brother, a sister, or
other member of his or her family, for no earthly relationship exists for
monks, who have embraced the celestial life; and, besides, what could be the
object of those who desire to enter in such holy places, if it was not to
commit some forbidden act? Above all, as men are permitted to perform all
the duties relative to their monasteries, and the same privilege is accorded
to women in their convents, no person of a different sex from that of the
inmates of the monastic institutions can be introduced there, even if the
person alleges that he or she is the brother, sister, or other relative of a
monk or a nun; and if We remove the occasion for sin in the beginning, and
afterwards prevent souls from giving themselves up to the indulgence natural
to them, monks can lead a more regular life, and restrain their passions
with greater facility.
Therefore, all
persons shall obey this law, men shall not have sepulchres in the convents
of women, and women shall not bury their dead in monasteries inhabited by
men; for just as the occupations of of women are not suitable for men, so
also the labors of males are not proper for females. We do not wish that, on
account of the funerals of deceased persons, such a disgraceful mingling of
the sexes which
arises from a
wicked motive should take place; and We forbid this, for fear that by this
means a road may be opened for dishonorable conduct, and that no one may
shamelessly enter the residence of monks and bring trouble upon it by
alleging piety as a pretext, and claiming a relationship which those who
have embraced a solitary life should no longer acknowledge. Therefore it is
perfectly clear that persons employed in burials, principally pallbearers
and sextons, cannot enter monastic institutions; for while the rule is easy
to observe in the case of monasteries of men, this is not the case so far as
convents inhabited by women are concerned.
(1) Hence We
order that when a woman is buried in a monastery of women (for We do not
allow a man to be buried there), the most reverend women shall remain in
their apartments, and the one having charge of the door, and the abbess, if
she so desires, shall be present at the funeral; that those who are charged
with this duty shall perform it quickly; and that they shall dig the grave,
cover the body, and retire promptly, without seeing any of the most reverend
women, or being seen by them.
Men shall not
invent any excuse to enter the monasteries of women, nor women to enter
those of men; nor shall they allege as a pretext the prayers (called
memorial exercises) offered up on the third or ninth day after death, or
when forty days have elapsed, or even after a year; for as women while in a
convent are permitted to transact business, and the same privilege is
accorded to men who occupy monasteries, We do not, for any such reasons,
permit dishonorable acts to be committed in these sacred institutions.
CHAPTER IV.
But as no rule
is strictly observed unless someone is authorized to enforce it, We order
that every abbot shall have constant supervision of the conduct and
discipline of his monastery, that he shall promptly correct the slightest
fault which may be committed, and not permit the evil to become greater, and
souls fleeing from salvation to be lost. When there is (as in this Most
Fortunate City) a prior of monasteries, he must carefully maintain
discipline; he must send his apocrisiarii there; he must obtain
information with reference to neighboring convents, and ascertain whether
any offences are committed therein, and, if this should be the case, he must
punish them in the exercise of a just and proper discretion.
The bishop of
every town, and the patriarch or metropolitan, shall also maintain monastic
discipline; the bishops must send the most reverend defenders to the
monasteries to suppress abuses; see that the rules are observed; forbid
anything contrary to decorum to be committed, and when this takes place,
quickly correct it. The Most Holy Patriarch of this Most Fortunate City
shall examine all the monasteries situated therein, and shall appoint for
their supervision such of the defenders of the Most Holy Principal Church as
he considers most perfect and honest, and this supervision being exercised
by several
persons, the
rules will be better observed, and breaches of discipline more severely
punished.
CHAPTER V.
Every monastery
placed under the government of an abbot shall have (as We have already
stated) a/pocrisiarii, who, being old men, will preserve monastic
discipline, and not suffer monks to undergo corporeal injury; and they must
also be charged with the affairs and interests of the monasteries. Convents
of women shall also be provided with apocrisiarii to the number of
two or three, who, whenever it is possible, shall be eunuchs, or advanced in
years, and enjoy a great reputation for chastity. These apocrisiarii
shall be authorized to conduct the litigation of the monastery, and minister
the ineffable communion to the nuns at the proper time. If, however, they
should desire to obtain advice concerning the business of the monastery, or
confer with any most reverend hermit, they must only speak to the abbess
through the agency of the most reverend doorkeepers, for the women appointed
to have charge of the doors must guard the entrance and exit of the
monastery; they must prevent anyone from departing, and render the entrance
inaccessible to all men except the apocrisiarii. The latter must
apply to the doorkeepers, and announce their arrival; the abbess, having
been notified, shall come down and discuss their administration and the
object of their visit with them, and, in this way, the business of the
monastery will be conducted, and chastity will remain inviolate.
If any monk
should commit an offence (for all men are human, and no one has such control
over himself as to be absolutely free from sin, as this is the attribute of
God alone), they shall warn him, suspend him, and give him time for
repentance, in order that he may improve his behavior, come to his senses,
and not lose the fruit of his labors. But when a monk is guilty of a serious
offence, the apocrisiarii shall inflict a penalty in proportion to
its nature, they must severely reprimand him, and impose upon him a rigorous
penance. If they can in this way restore to virtue one who has fallen, and
has begun to be corrupted (and what We say is applicable to both monks and
nuns), they will render thanks to Omnipotent God, while the angels in Heaven
rejoice as they do when anyone is delivered from his sins.
Where, however,
a cenobite commits a crime which is beyond all remedy, he must then be
expelled from the monastery, as having abandoned virtue for vice, and he
alone will enjoy his perversity, so that he cannot infect the other monks as
with a pestilence emanating from diseased animals. The government does not
intend that the punishment of monks should be neglected, and as it is
necessary for it to see that it is inflicted, the indignation of the
authorities even against the abbot, the bishop of the diocese, or the
defenders of the church will not be restrained if they do not comply with
these provisions. Where, however, these holy persons pray to God for the
prosperity of the government with pure hands, and souls free from every
blemish, there is no doubt that Our armies will be victorious,
and Our cities
well governed; for where God is appeased and favorably disposed towards Us,
why should not We enjoy universal peace and the devotion of Our subjects?
The earth offers Us its fruits, the sea gives Us up its wealth, and the
prayers of Our people will invoke the blessing of God upon the entire
Empire.
On the other
hand, the monks will be entitled to more reverence; their lives will be
still more exemplary; and they will shine in the brilliancy of their
virtues. They will all have but one wish; all of them will strive to
accomplish the same object; all wickedness will be banished as much as
possible, more holy and better desires will be entertained; and recognizing
these facts, We enact the present law, which We consider to be useful.
CHAPTER VI.
We also desire
that when any most reverend monk has been proved to have frequented a
tavern, he shall immediately be delivered up to the defenders of the
district, or to the Most Glorious Praetorian Prefect of this City, and after
having been convicted, he must be punished; and notice shall be given to the
abbot in order that the latter may expel him from the monastery, as being
one who has exchanged an angelic life for one that is discreditable. Monks
must occupy themselves not only in studying the Holy Scriptures, but also in
strengthening their bodies (that is to say by manual labor), and thus both
meditate and work, for an idle mind produces nothing good.
We enact the
present law for the benefit of members of the monastic order; it shall be
observed in this Royal City, and in all the provinces; We shall address it
to the patriarchs to insure its execution; the latter will communicate it to
the metropolitans under their jurisdiction; the metropolitans will bring it
to the knowledge of all the bishops, and the bishops will notify the most
reverend monks and their abbot of its promulgation. We entrust its execution
not only to the abbots of the various monasteries, to the bishop beloved of
God, to the reverend metropolitans, and most holy patriarchs, but also, in
this city, to Your Excellency; and when any violation of it merits a more
severe punishment, it shall be inflicted by these Divine personages.
We order
Governors to cause Our law to be observed in their respective provinces, and
these magistrates shall be informed by the bishop beloved of God of any
violation of it that may take place. Thus both these holy persons and
magistrates will preserve unimpaired these provisions which have reference
to God and the Empire, for there is nothing more sacred than for the
government to enjoy the clemency of Omnipotent God, and Our Saviour Jesus
Christ, through the purity of most reverend personages. All clerks, monks,
and bishops of both superior and inferior rank must keep themselves pure,
and observe the sacred canons, and the Imperial statutes and Constitutions
enacted with reference to religious matters, whose entire force and effect
We confirm by the present law.
EPILOGUE.
Therefore Your
Holiness will hasten to carry into effect what We have been pleased to enact
by the present law, as soon as it is brought to your knowledge.
Given at
Constantinople, on the seventh of the Kalends of April, during the
Consulate of the Most Illustrious Ario.
TITLE XVII.
No JUDGE SHALL
BE PERMITTED TO HAVE A DEPUTY IN
His STEAD,
UNLESS FOR CERTAIN REASONS AN IMPERIAL
ORDER Is ISSUED
FOR THAT PURPOSE.
ONE HUNDRED AND THIRTY-FOURTH NEW CONSTITUTION.
CONCERNING DEPUTIES.
In the Name of
Our Lord Jesus Christ Our God, the Emperor Caesar, Flavius, Justinian,
Alemanicus, Gothicus, Francicus, German-icus, Fortunate, Pious, Glorious,
Victor and Triumpher, Ever Augustus, to Musonius, Urban Prefect.
PREFACE.
We, having
constantly in mind the welfare of Our subjects, and having ascertained that
they are subjected to annoyances at the hands of deputies sent into the
provinces by civil and military magistrates, have recently enacted a law for
the purpose of correcting such abuses.
CHAPTER I.
NO
MAGISTRATE SHALL BE PERMITTED TO APPOINT A DEPUTY.
As We are
desirous of benefiting Our subjects to the greatest extent possible, We
hereby prohibit the Praetorian Prefects, both of the East and of Illyria,
the Count of the Imperialx-large sses, and the Count of Private Affairs, from
sending deputies into the provinces; and We also forbid Governors as well as
judges stationed in the provinces, or in any city whatsoever to do this.
Only where necessity requires it do We permit deputies to be sent from the
prefecture into the provinces of Osdroena and Mesopotamia, as well as other
places, during expeditions, to secure supplies for the army, and they shall
not be appointed except by virtue of an Imperial order, expressly issued for
this purpose.
We also forbid
military commanders and generals-in-chief, in the provinces where they exert
their authority, to employ any deputies, substitutes, or officers charged
with the pursuit of thieves. If, however, it should become necessary for the
military commanders or generals-in-chief to be despatched to other places by
an Imperial order, then We shall appoint deputies
to take their places while they are absent. But no military or civil
magistrate shall be allowed to run over a province when there is no
necessity for it; and where any reason exists for their doing so, We order
them to travel with their courts, and at their own expense. We forbid them
to oppress Our subjects by requisitions for posts, for those services called
epi-demitices, or for any other expenses whatsoever. And We also
forbid them to exact the services of any of the magistrates above mentioned,
where they have unjustly established a custom for their own benefit, for
practices wrongfully instituted, and dishonorable customs cannot be
confirmed either by lapse of time or long-continued usage.
Civil and
military magistrates are hereby notified that if any of them should violate
this law by the appointment of a deputy, he shall pay a fine of twenty
pounds of gold, and the person who accepts such an employment shall lose his
property, and be sent into exile.
CHAPTER II.
In order the
better to insure obedience to Our law, We order that the bishops of the
diocese, the Governors of provinces, and the inhabitants of towns shall not,
in contravention of its provisions, receive either a deputy, or
officers charged with the pursuit of thieves; for We absolutely prohibit
every civil or military magistrate from employing officials of this kind. We
order especially the Governors of provinces to conduct themselves and their
administrations with so much wisdom that their acts will not require
investigation, and someone else be sent to replace them in the provinces.
Where, however, it becomes necessary to send any officers there to collect
taxes, or to suppress disturbances, they shall have neither the rank nor the
title of.deputies. Anyone who is assigned to a province for such a purpose
shall not subject Our subjects to any expense, he shall discharge the duties
entrusted to him, and the Governor, together with his subordinates, shall
give him all requisite assistance. Where an official is despatched to a
magistrate against whom a serious accusation has been made, We order the
provincial court to obey him. But, while We forbid the appointment of
deputies, We desire Governors of provinces and their courts to be
responsible for their administrations, to supervise public collections, to
maintain tranquillity in their jurisdictions, and to provide against all
injustice and annoyance.
If any judges or
collectors of taxes in the provinces should happen to need aid, We order the
Governors and their courts to give it to them, in order that the levy of
taxes may be made without hindrance. Competent provincial judges shall hear
and determine any civil or criminal cases which may be brought before them,
and they must decide them on their own responsibility, and dispose of them
according to law.
We also order
that as soon as the Governors of provinces receive their appointments,
whether they are present or absent, they must give bond to the Praetorian
Prefect, as well as to the Count of the Imperial
x-large sses, and the Count of Private Affairs, to insure the payment of the
sums to which each of said magistrates is entitled, and they should remain
responsible in accordance with the tenor of the bond, if they should divert
the money to improper purposes. In those cities and provinces where there
are no secretaries or magistrates charged with the collection of taxes at
their own risk, the Governors shall collect them on their own
responsibility.
CHAPTER III.
It has been
brought to Our attention that certain provincial magistrates act so unjustly
for the purpose of obtaining dishonorable gains that they do not permit
wills to be made, or those which have been made to be recorded; or marriages
to be contracted; or nuptial agreements to be executed, or the dead to be
buried, or inventories to be drawn up; or any similar acts to be performed,
either by means of written instruments, or in the presence of witnesses;
hence We forbid all magistrates, both civil and military, as well as their
courts and every other official, to presume to do anything of this kind. If,
however, any of them should venture to commit such a detestable act, or to
protect anyone who has had the audacity to do so, We decree that, after
having been deprived of their offices, they shall be sent into exile, and
shall pay double the expense which they have caused the injured person to
incur; for neither they themselves, nor anyone else, can diminish the
benefit of the laws. We grant full authority to the most holy bishops and
the principal citizens of the towns to prevent insolent acts of this
description, and see that the transactions which We have just mentioned are
completed in accordance with Our laws without hindrance or expense, and to
inform Us if any of these illegal acts are committed.
We desire
judges, whether of superior or inferior rank, to receive appeals legally
taken; they shall hear them specially in conformity with Our orders (for it
is permissible to appeal even from ecclesiastical judges), and to give,
without delay, a written acceptance of their appeal to the litigants so that
the decision of the case may legally be pronounced. But We decree that when
an appeal has once been taken in accordance with law, the execution of the
judgment shall be suspended, and the possession of the property in
controversy shall not be transferred until final judgment has been rendered.
CHAPTER IV.
But as adultery,
rape, homicide, and other offences are perpetrated in the provinces, We
order the magistrates to punish them in conformity to law, and place those
who are guilty under restraint, but We forbid them to arrest some on account
of others, for instance, in the place of true offenders persons who were
born in the same place; or to make their towns bear the losses which they
have caused. We also forbid them to take pledges from criminals, or to
punish a crime with a view to the profits which may be derived from doing
so, or to appropriate the property of delinquents
to their own use. For We desire that the latter shall suffer the punishment
prescribed by the laws, but We strictly forbid that the imposition of a
penalty shall prejudice the rights of Our subjects, to enable judges and
their families, or officers, to be pecuniarily benefited, lest the desire to
obtain such advantages may induce them to inflict unjust penalties or to
sell pardons to those who are guilty. If any provincial judge should,
himself, violate this rule, he shall make good the entire loss which he has
caused, shall be subjected to punishment, and sent into exile, and his
councillor shall undergo a similar penalty, if he gives his consent in
writing to any illegal act committed by the magistrate. The members of his
court, and all other persons who assist him in obtaining gains of this kind,
shall not only be compelled to make restitution, but the most guilty among
them shall suffer the penalties prescribed by the laws, and be sentenced to
exile.
CHAPTER V.
PERSONS GUILTY
OF CRIME SHALL BE SUMMONED BY MEANS OP LAWFUL EDICTS.
When any one of
the criminals whom We have just mentioned conceals himself, or leaves the
province in which he has committed the offence, We order the judge to call
him into court by the publication of lawful edicts, and if he does not obey,
the judge shall proceed in the manner prescribed by the laws. If it should
be ascertained that the guilty party is living in some other province, We
order the judge of the district in which the offence was committed to notify
the judge of the province in which the delinquent resides, by means of a
letter, to arrest him on his own responsibility and that of his court, and
to send the accused to him. When the judge who has received a public letter
of this kind fails to do what We have stated, and his court does not
surrender the criminal, or if it does not execute the orders given it, We
decree that the said magistrate shall pay a fine of three pounds of gold,
and his court an equal amount. If, induced by a desire for gain, a judge, or
any officer of his court, does not arrest a person of this description, or
if, after having arrested him, he does not deliver him up, he shall, after
conviction, be deprived of his office, and sent into exile.
CHAPTER VI.
A JUDGE SHALL
CARRY INTO EFFECT WHAT HAS BEEN ORDERED BY HIS
PREDECESSOR.
When We give a
written order to any magistrate, and, in the meantime, the said magistrate
relinquishes his office, his successor shall receive the order, shall record
it if it relates to a private matter, and shall execute it, just as if it
had been addressed to himself. If the said written order has reference to
the interests of the public, he shall examine it,
and if the Treasury is not in any way prejudiced thereby, shall cause it to
be executed. When, however, it affects the rights of the Treasury
injuriously, it shall remain inoperative, and the magistrate shall notify Us
of the fact, in order that We may issue a second order for the same purpose.
When
instructions are given by any magistrate whatsoever, and the latter, or the
person to whom the instructions are addressed, is deprived of his office
before they have been recorded, his successor shall receive them, and cause
them to be executed, if they are legal; but if they are contrary to law or
to the public welfare, We order that they shall be considered as not having
been written.
CHAPTER VII.
NO
CREDITOR SHALL PRESUME TO RETAIN THE CHILD OF HIS
DEBTOR AS SECURITY FOR THE DEBT.
For the reason
that We have ascertained that in many places in Our Empire a great injustice
is frequently committed, namely, that creditors presume to detain the
children of their debtors by way of pledge, and employ them in servile
occupations, or hold them under a lease, We forbid this practice, and order
that when a creditor commits such an act, he shall not only lose his claim,
but shall also pay an amount equal to it to him whom he detains, or to the
parents of the latter; and he shall afterwards be subjected to corporeal
punishment by the magistrates of the district, for the reason that he had
the audacity to retain possession of a free person as security for a debt,
or to lease him, or to take him in pledge.
CHAPTER Vill.
CONCERNING WOMEN WHO ACT AS SURETIES.
We make the
following provision for the welfare of Our subjects. Where a woman consents
to bind herself as surety for a loan, and stipulates in favor of her
husband, thereby encumbering either her person or her property, We order
that such an obligation shall be void, and of no effect, even though she may
have done this repeatedly; and it will make no difference whether the
obligation was private or public, for it shall, in every instance, be
regarded as not having been incurred, unless it is clearly established that
the sums lent have been used for the benefit of the woman.
CHAPTER IX.
WOMEN SHALL NOT BE CONFINED IN PRISON.
We think that it
is necessary to forbid a woman to be deprived of her liberty or imprisoned
for any reason whatsoever; but We order that where a woman is sued for
fiscal or private debts, she shall answer, and attend to the matter either
herself or through the agency of someone whom she
may select. When the woman in question is a widow, or she was not married in
the first place, she shall also, in her proper person, be permitted to
protect her rights in conformity to law, or to do so by means of an
attorney.
If a magistrate
of superior rank should presume to violate what We have prescribed, he shall
be compelled to pay a fine of twenty pounds of gold; if a superior judge
should do this, he shall be liable to a fine of ten pounds of gold, and the
officers subject to his authority shall be deprived of their places,
subjected to punishment, and sent into exile. But where a woman, after
having been legally notified, is unwilling to appoint anyone to represent
her, or where she is brought into court to answer, We forbid her to be
placed under restraint, or confined in prison; and We desire that she shall
be permitted to assert her legal rights.
When a woman is
accused of a crime which renders it necessary for her to be kept under
guard, and she can furnish a surety who will be responsible for her
appearance, We order that this shall be done; but when a woman swears that
she cannot furnish a surety, she shall furnish juratory security for the
satisfaction of the judgment. Where, however, the crime of which the woman
is accused is of an exceedingly serious nature, she shall be placed in a
convent or a hermitage, the reverend inmates thereof shall guard her
publicly and carefully until her case has been heard, and then the sentence
pronounced shall be executed in accordance with law. We do not permit a
woman to be placed in prison, or guarded by men on account of a fiscal
obligation, in any private proceeding, or for any criminal offence, lest her
chastity may suffer violation. Nor do We permit a nun or a female ascetic to
be taken from her convent or hermitage on account of any litigation in which
she may be involved.
CHAPTER X. WHAT
PENALTY IS INCURRED BY AN ADULTERESS.
When the
crime of adultery has been established, We
order that the penalties prescribed by Constantine, of Divine memory, shall
be inflicted upon those who are guilty; and all who have acted as agents or
intermediaries in the commission of this impious crime shall be subjected to
the same punishment. But so far as the property of the adulterer is
concerned, if he has a wife, We order that the dowry and ante-nuptial
donation shall be given to her, and that he shall receive the portion
granted by Our law; and if no dotal contract was drawn up, and there are any
ascendants or descendants as far as the third degree, they shall in their
regular order obtain the residue of his estate; and when there are no heirs
of this kind, We direct that it shall go to the Treasury. The adulteress
shall suffer corporeal punishment, and be confined in a monastery, and if
her husband desires to take her back within two years, We permit him to do
so; he can cohabit with her without subjecting himself to any risk on this
account; and the marriage shall not be prejudiced on account
of what occurred in the meantime. If, however, the aforesaid term
should elapse, or the husband, before he takes his wife back, should die, We
order that she shall receive the tonsure, assume the monastic habit, and
reside in the monastery for her entire life; and if she has any descendants,
they shall receive two-thirds of her estate, to be legally divided, and the
remaining third shall be given to the monastery in which she is placed. But
when there are no descendants, and she has ascendants who did not consent to
such wickedness, they will be entitled to one-third of her property, to be
distributed according to law, and two-thirds of it shall be given to the
monastery in which the said woman is confined. But where she has neither
descendants or ascendants, or her ascendants have not disapproved of her
wicked conduct, the monastery will be entitled to her entire estate, and, in
every instance, the benefits conferred by the dotal agreements shall be
enjoyed by her husband.
CHAPTER XI.
PENALTIES FOR UNJUST REPUDIATION.
As some persons
deliberately violate Our law, in which We plainly enumerated the only causes
for which a husband or a wife can serve notice of repudiation, We order that
no repudiation shall take place unless for the causes aforesaid, and We
prohibit them from dissolving their marriage by common consent, and mutually
committing such offences. But where both parties presume to dissolve the
marriage without alleging the reasons which We have set forth, We order
that, if they have any descendants who are the issue of this marriage or of
a former one, their estates shall be given to the latter as legally
prescribed; that both the husband and the wife shall be confined in a
monastery for the remainder of their lives; and that one-third of their
property shall be set aside to be delivered to the monasteries in which they
are placed; but the husband shall not be entitled to the usufruct of the
share transferred to his children, because, even though he may have them
under his control, he cannot enjoy the income of their property.
When, however,
the parties have no descendants but have ascendants, they shall be entitled
to a third of their estates, in case they did not consent to the impious
dissolution of the marriage; and the other two-thirds of the same shall be
given to the monasteries in which the husband and wife are confined. Where
they have neither descendants nor ascendants, or the latter have acquiesced
in the dissolution of the marriage, We decree that all their property shall
be transferred to the monasteries in which they are placed, in order that
Our law may not be violated, and the judgment of God treated with contempt
by reason of such conduct. We order that any officials who have assisted in
such a dissolution of marriage, or who have drawn up any abominable
instruments for this purpose, shall be subjected to corporeal punishment,
and sent into exile. If those who have been so bold as to dissolve their
marriage should desire to be reunited before being
placed in a monastery, We grant them permission to do so; and the penalty
shall then be imposed upon them, and they shall be entitled to their
property, and shall live together just as if no offence had been committed.
But where only one of the parties is willing to do this, and the other does
not consent, the penalty shall be inflicted upon the one who refuses to
return.
We order that
all these provisions shall be observed in this Royal City, as well as in the
provinces, and that they shall be enforced, not only by the Count of Private
Affairs but also by the Association of Palatines, as well as by provincial
judges and their subordinates ; all of whom are hereby warned that if they
neglect to punish any crime of this kind, or do not observe all these rules,
they shall be condemned to exile and the confiscation of their property. We
order the most holy bishops of the several dioceses to enforce this law; and
decree that the said persons shall be placed in the monasteries under their
supervision; and that the portion of their property which has been mentioned
by Us shall be claimed by the monastery.
CHAPTER XII.
Where, however,
anyone is accused of adultery, and through the baseness of the magistrates,
or for any other reason, escapes the penalty provided by law, and is
afterwards found to be living shamefully with the same woman, and he marries
her during the lifetime of her husband, or after his death, We decree that
the marriage shall be void, and if he who was audacious enough to commit
this offence should have taken to flight, We grant permission to every judge
to arrest him, and, after having tortured him, put him to death without
allowing him to give any excuse, or offer any evidence. We also order that
the woman shall be punished and placed in a monastery to remain there as
long as she lives; that the property of both parties shall be divided in
accordance with the rules already stated; and that this shall be done (as We
have prescribed) under the direction of the Count of Private Affairs and the
judge of the district.
CHAPTER XIII.
CONCERNING THE MITIGATION OF ALL PENALTIES.
As it is
necessary for Us to make allowance for human weakness, We abolish the
amputation of both hands, as well as that of both feet, and the imposition
of the punishment by which the joints are separated, which is a much more
serious penalty than the amputation of the hands. Hence We order that, if
anyone commits a crime for which the laws inflict the death penalty, those
who are guilty shall undergo it, and if the crime is one for which the
culprit does not deserve to be put to death, he shall be scourged, or sent
into exile. Where the offence is such as demands the amputation of a limb,
one hand only shall be cut off. We forbid the amputation of a limb because
of an ordinary theft, or the culprit to be put to death for this
reason, but we desire him to be punished in some other way. We call
those persons thieves who, without being armed, secretly remove property;
but when anyone openly makes an attack by force, either with or without
weapons, in houses, on the highways, or on the sea, We decree that he shall
be subjected to the punishment established by law.
In order that
not only corporeal penalties, but also slight pecuniary ones may be imposed,
We order that those who are accused of crimes for which the laws prescribe
either death or proscription, where the delinquents are convicted or
condemned, their property shall not be acquired by the judges and their
officers, nor shall it be transferred to the Treasury, in accordance with
ancient legislation; but their descendants and ascendants, up to the third
degree, when there are any, shall be entitled to it. Where, however, those
who are condemned have wives, We order that the latter shall, by all means,
receive the dowry and ante-nuptial donation. But in case the women were
married to such persons, without any dowry, they shall be entitled to the
share of the estates of those who have been condemned which is authorized by
law, whether they have any children or not. If the criminal should leave
none of the heirs above mentioned, then his estate shall go to the Treasury.
We order that
the ancient laws which have reference to persons convicted of the crime of
treason shall be observed.
EPILOGUE.
Therefore Your
Glory will see that Our present law is published in this city and sent to
the provinces, and notice thereof given to their Governors, in order that
all Our subjects may learn how great is Our solicitude for their welfare.
Given at
Constantinople on the Kalends of May, during the reign of Our Lord
the Emperor Justinian, and the Consulate of Basil.
TITLE XVIII.
NO ONE SHALL BE COMPELLED TO MAKE AN ASSIGNMENT OF
HIS PROPERTY.
ONE HUNDRED AND
THIRTY-FIFTH NEW CONSTITUTION.
PREFACE.
We do everything
in Our power in order that the provisions by means of which We endeavor to
propitiate Divine Omnipotence may be constantly improved, and shine with a
brighter light. One Zozarius, a native of Mysia, has informed Us, amidst
tears and earnest protestations, that he was insolently ordered by the
Illustrious Governor of that Province to be sued for the discharge of
certain pecuniary obligations, both public and private; that he did not
think that his
own property
could be rendered liable for the payment of said indebtedness; that he had
been treated with great injustice, and that the act bore the appearance of
having been devised for the purpose of causing annoyance. For as he said, in
what country can anyone who has lost his property through accident, and not
on account of culpable negligence, be forced to lead an ignominious life,
and be compelled (as may readily be imagined) to solicit his daily food and
go without clothing?
CHAPTER I.
We, having been
informed of this ill-treatment, sincerely desire to provide a remedy, for
the reason that the best way for Us to conciliate God is to allow nothing
disastrous to happen during Our reign; hence We forbid the most glorious or
most magnificent magistrates to compel those who are brought into court to
surrender their possessions for the payment of public or private pecuniary
obligations, or to insult them, and allege the pretext that it is customary
to remit corporeal penalties, when persons prefer to lose their property and
suffer the privations of indigence to being branded with opprobrium and
ignominy until death. The debtor must, however, make oath that he has no
means of obtaining either property or money with which to pay his debts.
Where, however,
the law, either by hereditary right, or through some donation by his
parents, transfers to him any chattels of which he has not yet acquired
possession, but which may be considered as belonging to him, and his
creditors can obtain a portion, or even all of them (with the exception of
what belongs to his wife, as this is actually her own), they will be
permitted to claim them, to bring suit against him who at some future time
will be the owner of said property, whether he is present or absent, and (to
speak more plainly) they are authorized to bring all actions and formulate
all demands for property which a debtor would be entitled to do.
EPILOGUE.
Therefore Your
Magnificence, as you love and cherish virtue, will cause to be carried into
effect the regulations which We have so piously been pleased to prescribe.
You will inflict the penalty of ten pounds of gold upon anyone who presumes
to violate them, and even those who have only had the intention of
disobeying what is justly enjoined by this Imperial Law will run the risk of
losing their lives.
Given at
Constantinople, on the Kalends of June, after the Consulate of
Belisarius.
TITLE XIX.
CONCERNING THE
CONTRACTS op BANKERS. ONE HUNDRED AND THIRTY-SIXTH NEW CONSTITUTION.
PREFACE.
The members of
the Body and Association of Bankers of this charming city have presented
petitions to Us, and have made requests under many heads, asking relief, for
the reason that they contribute to the public welfare in many ways, by means
of the securities which they furnish, and the obligations which they
contract for money loaned at great risk. For as We have promulgated an
Imperial Constitution which prescribes the manner of making collections, and
direct that the principal debtors and their property shall first be liable,
and that, only after they have been exhausted, shall recourse be had to the
sureties or mandators, or even to such debtors as have guaranteed the
payment of sums already loaned, the said bankers have asked to be relieved
of the legislation authorizing their creditors to disregard the general law
that, so far as they are concerned, permits them to be exhausted before
having recourse to the principal debtors, which is a source of considerable
loss to them. They add that whenever they receive from others obligations
guaranteeing the payment of sums already loaned, it is not those who
obtained the money who reimburse the creditors, but the mandators or
sureties who do so, and that it is only proper for them to enjoy the
privileges common to persons in general, and that they should not be
excepted by the terms of Our Constitution.
CHAPTER I.
Therefore We
order that whenever bankers lend a sum of money to anyone, or take
guarantees of debtors for sums already loaned, or sureties or mandators,
they must comply with the terms of the law which We have just mentioned, and
the order of liability which it prescribes, unless it is specially agreed
that the creditor shall be allowed to sue the principal debtor, as well as
the mandator, surety, or guarantor of money previously loaned without
observing the order prescribed by Our Constitution.
We permit the
execution of agreements of this kind on account of the great share which
bankers take in public contracts; and such agreements are not to be
considered contrary to law, because every person has a right to renounce any
privileges which the law grants him. Therefore, no matter in what capacity
they may act, bankers can sue the principal debtor as well as the mandator,
surety, and other guarantors; but where there was no written agreement, the
former constitution shall be entirely applicable to bankers, just as if an
agreement had been drawn up; they shall give the form and the rule to the
contract, as well as the order of liability of principal debtors, and
collections shall be made in accordance therewith.
CHAPTER II.
This chapter
treats of another exception, which We have long since granted to creditors;
for where anyone pursues the calling of a banker, or permits this to be done
by his children, the latter shall conduct their business, not as if they had
acquired their capital from their father, or from some other source, but as
if they had acquired it from their creditors. Bankers have requested Us to
concede this same privilege to them against their own debtors, and that
where anyone, either in person or by his children, conducts a business which
he has purchased with their money, and he cannot pay his debts in any other
way, he shall be compelled to release himself from liability to them by the
sale of the same. Hence, as We have enacted the preceding law in order that
it may be scrupulously observed, and not that it may be disregarded, We
order that it shall remain operative', and that bankers shall not be
deprived of its benefit (since the x-large number of their debtors who make
contracts are not considered to have used their own money), and We desire
bankers to enjoy the privilege that where any one of their debtors, or their
children, are engaged in any business, it may be subjected to hypothecation
in their favor, if it is included among those which are usually sold.
This rule
relating to the hypothecation of a commercial establishment belonging to the
children of their debtors is applicable, unless the latter clearly prove
that they have obtained it by means of their mother's property, or through
the generosity of the Emperor.
When debtors
cannot release themselves from liability in any other way, then the business
owned by the children shall serve to pay the bankers, as We enact this law
for their benefit, and are opposed to the privilege granted their creditors
to their disadvantage by this constitution. Therefore We grant to bankers
alone the contrary privilege, and the reason for Our liberality to them is
that they are generally useful in the execution of contracts, and expose
themselves to many risks in order to provide for the necessities of others.
CHAPTER III.
Therefore it is
not without reason that bankers, when they lend money to anyone, or when
they have already lent it for the purchase of movable or immovable property
of considerable value, and the said property has been purchased with the
identical money, ask that they should have a prior lien, and should not be
excluded from it by any artifice; but, at the same time, We desire that they
shall prove that the said property was bought with their money, and that
their debtors are unable to repay it, and the property acquired in this way
shall be adjudged to them, just as if they themselves had bought it, and
only the name of the purchaser had been added. For it would be unjust for
those who are given to such profuse expenditure, only to be able to secure
with difficulty the first lien upon property bought with their money, or
that they should not acquire it under the conditions set forth in the
agreement.
When bankers
observe what We decree, they shall obtain every request that they make of
Us, since We grant them the preference with respect to articles which they
can show have been acquired by means of the money which they loaned.
Where, however,
a verbal contract was made at the time or afterwards, under the terms of
which bankers pay out money, or (as is customary among them) provide jewels
for the adornment of women, or silver plate, and do not receive the price of
the articles they give or sell, in this way, they shall be permitted to
dispose of them as their own; even though they may not have any right to
them through hypothecation. For those who acquire such articles cannot own
what belongs to others, and they will vainly attempt to retain possession of
them, if they have not paid the price; when they have transferred them to
their heirs, the latter must restore them; and when they have not been so
transferred, the banker will be permitted to claim them, without any other
creditors being able to hold them as being hypothecated to themselves.
CHAPTER IV.
As We have
enacted a law forbidding bankers to loan money at more than eight per cent,
they have informed Us that as it was the custom to make loans without
committing the obligation to writing, they were afterwards paid a low rate
of interest, under the pretext that none had been agreed upon, and that it
is not proper for any interest to be paid without a stipulation. They,
however, state that there are many instances in which the obligation to pay
interest arises from a simple agreement, without any formal stipulation, and
that it is sometimes paid, not by virtue of any contract, but at the
instance of the creditors themselves. Therefore, We decree that interest at
the rate established by law, that is to say eight per cent, shall be paid to
bankers not only when a stipulation was entered into, but also when none
exists; as it is not just for those who are always ready to come to the
relief of almost all poor persons to be subjected to injustice on account of
the omission of such details.
CHAPTER V.
In addition to
this, they have also informed Us that those who contract, or have any
accounts with them, make their agreements by means of public documents in
the Forum, as well as by instruments written with their own hands and others
drawn up by third parties, which they sign; and they now ask Us that those
who enter into such agreements with them shall remain obligated, and be
required to pay, without being permitted to allege that, even though the
instruments were written with their own hands, and the statements or
accounts which they signed, and which were drawn up by others, the sums
mentioned in the said instruments were not received by them. The said
bankers have also requested that such instruments shall be considered as
evidences of hypothecation, and that they may be al-
lowed to collect
interest at eight per cent, even though this may not have actually been
agreed upon.
Therefore, as
these demands concern the public welfare, and deserve great consideration,
We shall attend to them in a proper way. And, indeed, where anyone executes
a public or a private document written entirely with his own hand, or signs
any written accounts drawn up by someone else, We order that he, as well as
his heirs, shall be personally liable. For We do not rashly grant bankers an
hypothecation which has not been agreed upon, and only when a lien has been
given to them in writing upon the property of their debtors; or the latter
have pledged it to them; or have merely stated that they encumber the said
property; or finally, when they have used any expression which suggests
hypothecation, do We concede this privilege to bankers, in order not to
deprive them of reasonable relief, or change the general character of Our
laws. Where interest has been stipulated for, the agreement evidencing it
shall be observed.
If it was merely
stated in writing that the claim shall bear interest, the contracting
parties shall not be permitted to say that there was no agreement to that
effect, in order to allege that the loan should bear none at all, but it can
be collected just as if interest at eight per cent had been expressly agreed
upon; and this provision shall be applicable for the future.
When no interest
is mentioned in accounts which have already been settled, as it is clear
that the contract in the beginning was drawn up with a view to the payment
of interest, for the reason that a banker who himself borrows money at
interest cannot spend it without an account of the same being given, he
shall be permitted to demand eight per cent; but bankers will, hereafter, be
required to observe what has been set forth in the present law.
CHAPTER VI.
We come with no
less resolution to the relief of bankers under the following circumstances.
Where accounts which expressly state the reason for which the loan was made
are settled, and the debtor himself signs them, without stating in his own
hand the reason why he borrowed the money, and no mention of the nature of
the loan is made in the receipt which was given him by way of discharge from
the debt, or other liability, he cannot require the banker, who is his
creditor, to prove the different reasons for the loan, unless in the
exercise of greater precaution he should tender him the oath, or ask his
heirs to be sworn; for We grant him this same privilege, provided he avails
himself of it within the prescribed time, for the purpose of opposing an
exception on the ground that the money was not received. But if the debtor
should allow this time to elapse, We release the banker from his oath (a
provision which We have already, inserted in Our general laws, although it
may not have been observed), for how can one justly conceive that a person
who has, in his own handwriting, acknowledged himself to be a debtor, or has
rendered
accounts, should be released, when he has not received what he stated in
writing was paid to him?
EPILOGUE.
Therefore, Your
Glory and all the magistrates of Our Empire will always be careful,
hereafter, to see that the rules which it has pleased Us to decree by this
Imperial Law are observed. Those who disobey them, and any magistrate who
permits this to be done, shall be liable to a fine of ten pounds of gold.
Given at
Constantinople, on the Kalends of April, during the reign of Our Lord
the Emperor Justinian, and the Consulate of Basil.
TITLE XX.
CONCERNING THE
ORDINATION OF BISHOPS AND OTHER MEMBERS OF THE CLERGY.
ONE HUNDRED AND
THIRTY-SEVENTH NEW CONSTITUTION.
Antonius Contius,
Translator.
The Emperor
Justinian to Peter, Master of the Offices.
PREFACE.
If, for the
general welfare, We have taken measures to render the civil laws more
effective, with whose execution, God, through His good will towards men, has
entrusted Us, how much more reason is there not for Us to compel the
observance of the sacred canons, and Divine Laws, which have been
promulgated for the safety of Our souls? For those who observe the sacred
canons become worthy of the assistance of Our Lord God, while those who
disobey them render themselves liable to be punished by Him. Therefore, the
most holy bishops who are charged with the enforcement of these laws are
liable to severe penalties when they allow any breaches of them to remain
unpunished. And, indeed, as the sacred canons have not been, up to this
time, strictly observed, various complaints have been made to Us of clerks,
monks, and certain bishops, on the ground that they do not live in
accordance with the divine canons; and indeed there are even some among them
who are either ignorant of, or do not perform the holy service of the mass,
or of the ceremony of baptism.
CHAPTER I.
Therefore We,
understanding and being deeply impressed with the spirit of God, do hereby
order that proceedings shall be instituted at ,the same time to inquire into
and correct the matters which have been submitted to Us. For if the general
laws do not suffer crimes committed by laymen to go unpunished, even when
investigated, how can We permit the rules canonically established by the
Holy Apostles
and the Holy
Fathers with reference to the salvation of all men to be treated with
contempt?
We are perfectly
aware that the principal reason why so many persons are guilty of sin is
because the episcopal synods are not held in accordance with the regulations
established by the Holy Apostles and Fathers of the Church. If this was
done, as every ecclesiastic would then apprehend being subjected to a
serious accusation, all would exert themselves to master the sacred
liturgies, and live temperately through fear of being rendered liable to
condemnation under the divine canons.
One reason why
certain persons sin is that bishops, priests, deacons, and other members of
the clergy, are ordained without examination, and without having produced
any evidence of sincere faith and a virtuous life. For if those who are
destined to pray for the people are found to be unworthy of exercising the
divine ministry, how can they propitiate God, and obtain his indulgence for
the faults and offences of the people? Gregory, the Theologian, following
the Holy Apostles and the divine canons, declares that the ordination of
priests must be made with exceeding care and thoroughness. For he says in
his great Apology: "Who can err in conducting himself in conformity with the
sacred canons and precepts laid down by St. Paul, in which he exhorts
bishops and priests to be temperate, sober, modest; not to be given to wine,
or to contentions with one another; to be assiduous in the acquirement of
knowledge, blameless in every respect, and to have no intercourse with
wicked people?" and he adds: "It is necessary, above all things, to be pure,
in order to purify others; wise, in order to teach wisdom; to obtain light
in order to give it; to approach God, before leading others to Him; to be
sanctified before rendering others so; to have hands to lead, and judgment
to impart advice."
Gregory also
says in the same discourse on the same subject: "Who is he that, like a
potter occupied in molding his clay, can at once create one competent to
preside over the altar and priesthood of God, a head of the true worship,
and worthy to stand with the angels, and to sing the praises of God with the
archangels, and offer up sacrifices with Christ?" He shows Us by these words
who are deserving of sacerdotal promotion; and, in the same place, referring
to unworthy persons who have been ordained, he remarks: "Those who, being
destitute of morality, are conducted to the holy altar of God and elevated
to the priesthood, although not attempting to practice virtue, will still be
considered at the same time as the disciples and teachers of religion and
will purify others, before having themselves been subjected to purification.
Yesterday sacrilegious persons, they are to-day priests; but recently,
strangers to the sacred canons, now they have become the celebrants of
mysteries; old in crime and new in piety, instead of being inspired with the
Holy Spirit they have need of the indulgence of mankind."
Finally, St.
Basil, referring to the prohibition made by the divine canons with reference
to the ordination as clerks of those who have
married a second
time, expresses himself as follows: "The canon excludes from the ministry of
the Church not only those who have had two wives, but also their children."
Such is the language of St. Basil.
The Holy Fathers
were so solicitous for the observance of this rule that those assembled at
Nicea promulgated a canon which included the same provision; they absolutely
prohibited bishops, priests, deacons, and other members of the clergy, from
living with women, unless these women were their mothers, their aunts, or
other females not liable to suspicion.
CHAPTEK II.
Therefore We,
conceding the authority of the sacred canons, do promulgate the present law,
by which We decree that every time it may be necessary to consecrate a
bishop in any city, the clergy and principal citizens of the said city shall
assemble, and issue proclamations by which they nominate three persons, and
then make oath on the Holy Gospels, in conformity with the Scriptures. This
oath, inserted in the proclamations, shall be worded as follows: "That they
did not select the three persons whom they have nominated in consideration
of any gifts or promises made to them; nor through friendship, nor induced
by any affection whatsoever, but for the reason that they knew that the
candidates whom they have chosen are steadfast in the Catholic Faith, and of
honorable life; that they have passed the age of thirty years, and have
neither wives nor children; and that they have had neither concubines nor
natural children, nor have any at present; and if any of them formerly had a
wife, he had but one, and she was neither a widow, nor separated from her
husband, and that his marriage with her was not prohibited, either by the
sacred canons, or by secular laws; that neither of the three candidates is
charged with the duties of any public office, that none of them is a
decurion, a taxeota, or a cohortal, or, if he is, he has, in
the capacity of a monk, passed fifteen years in a monastery."
The rules, whose
observance We have already ordered, shall be applicable to candidates, in
order that, from among the three who are nominated, the one who is the best
qualified may be selected by the prelate conferring the ordination. Before
this is done, however, the person to be ordained must sign a document
containing the declaration of faith as set forth in the sacred formula
employed in the celebration of the eucharist, the invocation repeated in
baptism, and the other prayers.
We also desire
that he who receives ordination shall swear upon the Holy Scriptures: "That
he has not given, nor promised to give anything whatsoever, either
personally, or through the agency of anyone else; and that, after his
ordination, he will not give anything to the prelate whose duty it is to
bestow it upon him, or to those who have asked that he be ordained, or to
anyone whomsoever on account of the ceremony." If a bishop should be
consecrated in violation of what is above laid down, We decree that he,
along with the
prelate who
dared to consecrate him in contravention of Our orders, shall be deprived of
the episcopate.
CHAPTER III.
Where anyone
brings an accusation, no matter on what ground, against a candidate for the
ordination of bishop, priest, deacon, or abbot, the ceremony shall be
postponed, and the charge shall be examined in the presence of the accuser,
who must prosecute it to the end. If, however, the latter should desist, and
delay to conduct the case to judgment, the prelate, whose duty it is to
confer the ordination, shall not, for that reason, fail to investigate the
accusation and the reasons therefor with the greatest care within the term
of three months, and if he finds the accused has violated the divine canons
or Our laws, his ordination shall be forbidden; but if the accuser, being
present, does not prove the charge; or if he absents himself, and is a
member of the clergy, he shall be deprived of his rank; and if he is a
layman, he shall undergo suitable punishment. When a prelate ordains anyone
who is accused, before the charge has been investigated, both of them shall
be expelled from the priesthood.
CHAPTER IV.
As what is laid
down in the canons relating to the episcopal synods, which should be held in
every province, is not observed, this is the first thing that should be
remedied. For the Holy Apostles and the Fathers have decreed that meetings
of three holy prelates should be held every year in each province, and that
ecclesiastical controversies should be brought before them, and decided in a
proper manner. They fix the meeting of the first synod during the fourth
week after Pentecost, and that of the second in the month of October; but as
the neglect to comply with these provisions of the Holy Fathers has afforded
an opportunity to many persons to commit sin, We order that one synod shall
assemble in each province in the month of June or September. All those who,
without having the right of consecrating other bishops, receive ordination
from the most holy patriarchs, shall meet in the houses of the latter; just
as the three holy metropolitans of each province shall summon to their
houses the bishops upon whom they confer consecration. We desire that
ecclesiastical questions having reference to the Faith, to canonical points,
and such as relate to the administration of church property; to demands made
upon bishops, priests, deacons, other members of the clergy, abbots and
monks, and to accusations relating to their conduct; and, finally, to all
matters which have need of correction, shall be debated and examined in each
synod, and We desire that abuses shall be disposed of in accordance with Our
laws and the sacred canons.
CHAPTER V.
We not only
order that cases of this kind shall be heard in the annual synods, but We
direct that priests, clerks, abbots, and monks,
against whom
charges are brought with reference to the Faith, scandalous conduct on their
part, or any violation of the sacred canons of which they may be guilty,
shall be tried there. Whenever a bishop is accused, the case shall be
decided by the metropolitan; and where a metropolitan is accused, the charge
shall be heard by the most blessed archbishop to whose jurisdiction he is
subject. But when the accused is a priest, a deacon, a clerk, an abbot or a
monk, the most holy bishop who has authority over him must examine the
accusation, and when it is proved, the guilty party shall suffer the
canonical penalties, in accordance with the nature of the offence.
We decree that
all the regulations above mentioned shall become operative, not only with
reference to bishops, clerks, and abbots who may hereafter be ordained, but
shall also be applicable to such as have already been ordained, and are
accused of having committed acts prohibited by the canons and Our laws. If
these provisions are observed, they will impart the laity a better knowledge
of the true faith, and will conduce to their improvement in the practice of
virtue.
CHAPTER VI.
In addition to
this, We order all bishops and priests to repeat the divine service and the
prayer, when baptism is performed, not in an undertone, but in a loud voice
which can be heard by the faithful people, in such a way that the minds of
the listeners may be induced to manifest greater devotion, and a higher
appreciation of the praises and blessings of God. For as the Divine Apostle
states in his First Epistle to the Corinthians: "But if you solely bless in
spirit, how, after your act of grace, can the layman, who does not hear what
you say, pronounce the holy word Amen; for if, while you are offering thanks
to God, he does not understand, he will not be edified." Again, in his
Epistle to the Romans, he says: "Even though one may sincerely trust in the
justice of God, confessions should be made with the mouth in order that
salvation may be obtained."
Therefore, it is
proper that the prayers made during divine service, and the other
supplications addressed to Our Lord Jesus Christ, God Our Father, and the
Holy Spirit, should be uttered in a loud tone, by the most holy priests and
bishops; and We notify all ecclesiastics that if they should violate any of
these provisions, they must render an account of their conduct on the
terrible Judgment Day of Our Lord and Saviour Jesus Christ; and that We,
when informed of these matters, shall not disregard them, and leave them
unpunished.
(1) We also
order that if the Governors of provinces should ascertain that any of the
rules which We have promulgated are not observed, they shall first compel
the metropolitans and other bishops to call the synods together, and do what
We have just prescribed; and when the bishops do not immediately obey, the
Governors must notify Us of the fact, in order to enable Us to promptly
punish those who refuse to convoke the synods; and We hereby warn the
Governors, as well as their courts, that if they do not see that what We
have decreed is executed, they shall be put to death.
We, however, by
this constitution, confirm the various provisions included in Our laws,
which have reference to bishops, priests, and other ecclesiastics, as well
as to the superintendents of houses for the entertainment of strangers, of
orphan asylums, and of all other religious establishments whatsoever.
EPILOGUE.
Therefore Your
Highness will, by means of notices posted in the usual places of this city,
hasten to communicate to all Our subjects the matters which it has pleased
Us to insert in the present law, as well as inform the Governors of
provinces of them.
Given at
Constantinople, on the tenth of the Kalends of March, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XXI.
INTEREST SHALL
NOT BE CALCULATED FOR AN AMOUNT MORE THAN DOUBLE THE PRINCIPAL.
ONE HUNDRED AND
THIRTY-EIGHTH NEW CONSTITUTION.
The Emperor
Justinian to Hermogenes, Master of the Offices.
We have
promulgated a law which annuls the right of action to collect a claim when
the interest paid by the debtor amounts to more than twice the principal.
Hence, where any of your creditors have received from you interest equal to
twice the amount of your indebtedness, and others have received less, those
who have paid double the sums which were loaned at different times cannot
molest you any further, and their claims having been satisfied they can, for
this reason, be compelled to remain silent. We decree if the others should
bring suit for what is due to them, they can recover the amount of interest
stated in their bonds; and when their claims are just, We decree that they
shall enjoy the benefit of the present law.
TITLE XXII.
CONCERNING THE
INDULGENCE GRANTED WHEN MARRIAGES ARE ILLEGALLY CONTRACTED.
ONE HUNDRED AND
THIRTY-NINTH NEW CONSTITUTION.
In the Name of
Our Lord Jesus Christ, the Emperor Caesar, Flavius, Justinian, Augustus, to
Florus.
PREFACE.
Your Glory has
informed Us that the inhabitants of the town of Syndics, and the Jews of the
Island of Tyre, are violating Our Constitution by contracting unlawful
marriages, without giving up the
fourth of their
property, in accordance with the laws enacted on this subject; and that many
of them, who have already passed the greater part of their lifetime, and
have children, are begging, in tears, not to be compelled to separate from
their wives, and that the latter, as well as their children already born,
and those who may hereafter come into the world, shall be their lawful
successors, without their having any reason to apprehend punishment for
their breach of the laws.
CHAPTER I.
Therefore, We
order by way of indulgence and remission of the penalties which they have
incurred that each of them shall pay ten pounds of gold (but this favor is
granted to them alone), and they shall have as their legal successors their
wives, their children both born and unborn, without, however, what We now
decree being considered a precedent for others, as everyone else who may ask
similar indulgence from Us is hereby notified that he will not obtain it; he
will lose his property; and, though no corporeal punishment will be
inflicted upon him, he shall be exiled for life. But none of those persons
to whom We grant this privilege, their wives, or their children who are now
living or who may hereafter be born, shall have their property interfered
with either by virtue of a judicial decree, or for any other reason
whatsoever.
EPILOGUE.
Therefore Your
Glory will see that the provisions which We have been pleased to insert in
this present law, which contains an act of Our special indulgence, is
carried into effect.
TITLE XXIII.
MARRIAGE CAN BE
DISSOLVED BY COMMON CONSENT. ONE HUNDRED AND FORTIETH NEW CONSTITUTION.
PREFACE.
None of the
affairs of mortals should be venerated as much as marriage, as, by means of
it children are born, and from it entire generations are derived, which
furnishes populations to countries and cities, and promotes the foundation
and continuance of good government. Hence We are so desirous that married
persons should be fortunate that We never allow matrimony to be committed by
violence, or husbands and wives to be separated without a just cause for
divorce. But as it is extremely difficult for all marriages to be happy (for
being so numerous, there must necessarily be found some where atrocious and
irreconcilable enmity prevents the parties from living together), We have
thought it proper to provide a remedy for this, and especially Where matters
come to such a pass that the hatred of the husband and
wife towards
each other cannot be appeased. In accordance with the ancient law, they were
allowed to separate by common consent, but there were many enactments which
treated of this subject, and several of them permitted a dissolution of
marriage, where the separation took place with the agreement of all the
parties interested. Some of these laws were written in the Latin language.
But a short time afterwards, the Most Holy Emperor, Our Father (who
surpassed all other sovereigns in piety and wisdom), taking into
consideration the blessings of matrimony, and also directing his attention
to the wretchedness of others, enacted a law which forbade marriages to be
dissolved merely by common consent, and it was Our original intention that
this law should be strictly observed and remain in full force and effect.
Many married
persons, however, who entertained for each other intense hatred and
aversion, and (what is greatly to be deplored, and is the fruitful source of
trouble and sorrow) by their mutual reproaches and recriminations maintained
incessant strife in their homes, requested Us to be permitted to dissolve
their marriages, although they were not able to advance any of the reasons
for which such a dissolution was authorized by law.
We have
postponed for some time the gratification of the wishes of such people for a
separation, either in order to give them advice, or to threaten them, with a
view to appeasing the unreasonable hate with which they regard each other,
as well as to conciliate them, and quiet their minds, but We have not
succeeded in doing so. For it is very difficult to reconcile those who are
influenced by violent hostility, as it often happens that married persons
will plot against each other, and make use of poison or other means of
producing death, to such an extent that even the children who have been born
to them cannot again unite them.
CHAPTER I.
Therefore, as We
think these matters to be unworthy of Our reign, We have framed the present
Imperial Law, by which We decree that, in conformity to the ancient rule, it
shall be lawful to dissolve marriages by common consent, and that the
penalties denounced, with the sanction of Our Father, against those who
terminate their marriages in this way, shall be abolished. For if matrimony
is brought about by mutual affection, it is certainly reasonable that a
contrary desire should annul it, where both parties agree to do so, provided
that this is sufficiently shown by the service of notice of repudiation.
But it is
perfectly clear that, so far as the other matters contained in Our laws, and
especially those set forth in the Imperial Constitutions of Our Father which
have reference to marriages, and the causes which authorize their
dissolution, or relate to separations where no cause exists, and to the
penalties to which the persons who effect them are liable are concerned,
they shall remain in full force. This rule, however, does not apply to
husbands and wives who are separated by common consent as prescribed by the
present law.
EPILOGUE.
Hence Your Glory
is hereby ordered to communicate the matters included in the present law to
all the residents of this Royal City, as is customary.
Given at
Constantinople, on the seventeenth of the Kalends of October, during
the first year of the reign of Our Lord the Emperor Justinian.
TITLE XXIV.
EDICT CONCERNING
THOSE WHO COMMIT THE CRIME AGAINST NATURE.
ONE HUNDRED AND
FORTY-FIRST NEW CONSTITUTION. The Emperor Justinian to the People of
Constantinople.
PREFACE.
As we are always
in need of the benevolence and kindness of God, and above all, at this time,
when we have provoked Him to anger in many ways, on account of the multitude
of our sins, and although He threatens us with the penalties we deserve, He,
nevertheless, manifests his clemency to us, and has deferred the exercise of
his wrath to some future time, expecting that we will manifest repentance,
for He is more desirous for Our conversion and salvation than for Our death.
Wherefore it
would not be just for us to treat with contempt His abounding kindness, His
tolerance, and His infinite patience, lest, avoiding repentance, our hearts
may become hardened, and We may accumulate His anger upon our heads, on the
day of His vengeance. But while we attempt to avoid committing wicked
actions, and cherishing improper desires, there are persons who are guilty
of abominable offences, which are deservedly detested by God. We have
reference to the corruption of males, a crime which some persons have the
sacrilegious audacity to perpetrate.
CHAPTER I.
We know, from
the study of the Holy Scriptures, that God, in order to punish such persons,
visited His wrath upon those who formerly inhabited the City of Sodom, and
caused its territory to be consumed, even to this day, by an
inextinguishable fire; and in this manner He informs Us that We should abhor
conduct of this description, which is contrary to the laws of nature. We
also know what the Divine Apostle said concerning it, and also what
provisions Our laws have promulgated with reference thereto. Wherefore it is
proper that all those who are influenced by the fear of God should abstain
from such impious and criminal acts which even are not committed by beasts,
and that those who have not yet perpetrated them may hereafter be deterred
from doing so. Hence those who are given to this
species of vice
must hereafter not only refrain from sinning, but also show that they are
penitent; prostrate themselves before God; confess their faults in the
presence of the Most Blessed Patriarch, and (as has already been stated)
they will reap the fruits of their repentance; so that the Almighty in his
indulgence, and on account of the wealth of His compassion, may render Us
worthy of His kindness; that We may all give thanks for the salvation of
those who are penitent; and that the magistrates, by prosecuting the guilty,
may conciliate God who is deservedly incensed against Us. And, indeed, We
consciously and wisely beseech to bring to repentance those who defile
themselves with filthy practices of this kind, so that there will no longer
be occasion for Us to prosecute such offences. We notify all persons who may
hereafter be guilty of this crime that if they do not cease to sin, and do
not confess their guilt to the Most Holy Patriarch or provide for their own
salvation, and propitiate God on the holy festival days, they will render
themselves liable to terrible chastisement, and will not, in the future, be
deserving of pardon. We shall not neglect to adopt severe measures against
such as do not manifest their repentance on the most holy festival days, and
who persist in their wickedness, for if We should show any negligence in
this respect, We will bring down the wrath of God upon Us, and by closing
Our eyes will become accomplices in a crime sufficiently atrocious to arouse
the anger of Heaven against all persons.
This Edict shall
be communicated to the citizens of Constantinople.
Given at
Constantinople, on the Ides of March, during the thirty-second year
of the reign of Our Lord the Emperor Justinian, and the eighteenth year
after the Consulate of Basil.
TITLE XXV.
CONCERNING THOSE WHO MAKE EUNUCHS.
ONE HUNDRED AND
FORTY-SECOND NEW CONSTITUTION. The Emperor Justinian to Marthana.
PREFACE.
The punishment
prescribed by Our predecessors against those who dare to make eunuchs are
sufficiently clear to everyone. Nevertheless, certain persons, not having
their own salvation in view, have recently ventured to commit this infamous
offence, on account of which certain of them have undergone the penalties
which they deserve, and others, after having been punished, have been sent
into exile. Still, however, because these impious acts have not ceased, but,
on the other hand, have multiplied, and out of the great number of those
upon whom this operation is performed only a very few survive, so that
certain of them have stated in Our presence that of ninety who have been
castrated, hardly three have escaped with their lives; what person in
authority could have so little regard for his salvation as to treat
a matter of this
kind with contempt and permit it to go unpunished? For if Our laws punish
those who strike others with a sword, how can We close Our eyes, and let
murders of this kind, which are both offences against God and the law, be
committed with impunity ? Hence We have considered it very necessary, by
means of this law, to relentlessly prosecute persons who are guilty of such
a crime.
CHAPTER I.
Therefore We
decree that any persons who, in any part of Our Empire whatsoever, have
presumed, or may hereafter presume to castrate anyone, or themselves submit
to the operation which they have performed upon others, and they survive,
shall have their property confiscated to the Treasury on the responsibility
of him who, at the time, discharges the duties of the magistracy of Your
Glory, and that they themselves shall be banished to the Island of Gypsum,
there to pass the remainder of their lives.
Where, however,
women are guilty of this offence, We order that they shall be punished, and
their property be confiscated to the Treasury, on the responsibility of the
magistrate whom We have just mentioned, and be sent into exile, and those
who expected or do now expect to profit by the commission of such an
atrocious act shall both be subjected to punishment, and lose their
property.
We decree that
persons of either sex who confine themselves to giving orders to make
eunuchs, or who furnish individuals to be operated upon in this way, or who
even provide houses, or any other place whatsoever for this purpose shall,
as participants in the same crime, suffer the same punishment.
CHAPTER II.
As persons
became free in ancient times when they were castrated, We order that those
who have undergone such an operation (no matter by whom it may have been
performed) in Our Empire, from the date of the tenth indiction of the
present month, shall be free, and cannot be reduced to slavery under any
circumstances, nor by virtue of any agreement; and any public or private
instrument which already has been, or may hereafter be executed with
reference to a matter of this kind, whether it was fraudulent or not, shall
be void. No investigation shall be made of the status of castrated persons,
and We order that all those who hereafter take any part in the execution of
contracts relating to castration shall undergo the penalty which We have
mentioned.
If a slave
should happen to be castrated on account of some illness, We order that he
shall obtain his freedom, for the law presumes that those are free in the
beginning, when attacked by the disease for which this remedy is employed.
Therefore We direct that castrated persons who have been made such in Our
Empire (no matter in whose house this may have been done) shall be
considered as emancipated
from the date We
have just fixed, shall become free, and shall never again be reduced to
servitude.
If, after the
publication of the present law, anyone should dare to retain castrated
persons in his house, We permit the latter who, under this Constitution, are
already entitled to their liberty, if they are in this city, to apply to the
Emperor, to the Most Holy Archbishop, and to the other high officials of Our
Most Glorious Empire; and if they are in the provinces, to the most glorious
bishops of their dioceses, and to the Governor; and they will, through the
efforts of all Our magistrates, and at the risk of the officers subject to
their authority be entitled to retain their freedom (both at Constantinople
and in any other portion of Our dominions) for We do not intend to allow so
many murders to be perpetrated under Our Government by means of castration.
And if the barbarians have heard and obeyed Our orders on this subject, how,
after so many enactments by Our predecessors, can We allow the crime which
We prohibit again to be committed and go unpunished in Our Empire?1
1 The
manufacture of eunuchs was, during the Middle Ages, a most lucrative
occupation, and was almost exclusively confined to the clergy. It was,
indeed, so congenial and profitable that the denunciation of the severest
penalties against it by both secular and ecclesiastical authorities was
productive of but little effect. The victims were usually boys of tender
age, which fact rendered the mortality much less than where adults were
selected for this purpose. Monks were the principal offenders, and the
operation, being performed in the seclusion of the monastery, rendered
detection almost impossible, and the disposal of the bodies of the children
who succumbed, a matter of little difficulty. Some of those subjected to the
outrage were sold by their parents, but most of them were kidnapped, and
disappeared forever from the eyes of their relatives.
The chief
markets for eunuchs were in Moorish Spain and Africa; but wealthy
Christians, and not a few eminent and godly prelates who, with more or less
publicity, maintained harems, were zealous patrons of this nefarious
industry. Complete ablation of the parts was ordinarily effected, and the
resulting hemorrhage, together with ignorance of all antiseptic precautions,
invariably resulted in appalling fatality.
According to the
Salic Law, the castration of a freeman was punished by a fine of two hundred
solidi. "Si quis hominem ingenuum castrauerit, Vill M din. qui fac. sol.
CC. culp. iud." (Lex Salica, IX, 9.)
The majority of
the ancient legislators adopted the lex talionis by way of penalty
for the offence, which was the case in England in early times, the rule
having been introduced by William the Conqueror. This, however, was not
afterwards considered strictly applicable to mayhem, "which signifieth a
corporall hurt, whereby hee loseth a member, by reason whereof hee is lesse
able to fight," since fine and imprisonment were usually imposed for its
perpetration, although it was designated by the old jurists homicidium
inchoatum.
Bracton classes
castration, whether performed for gain or indulgence in vice, with or
without consent, as a felony, to be punished by death, or exile and
confiscation of property. "Si quis alterius virilia absciderit, & ilium
libidinis causa vel commertij castrauerit, tenetur: sine hoc volens fecerit
siue inuitus, & sequitur poena, aliquado capitalis aliquando ppetuu exilium
cum omnium-bonorum ademptione." (De Legibus et Consuetudinibus Anglia}
III, 144.) Coke places it under the head of mayhem, which is still the law
in England and America. "Castratio vero, quam vis latens sit, adjudicatur
mahemium."
"By the ancient
law of England, he that maimed any man, whereby he lost any part of his
body, the delinquent should lose the like part, as he that took away another
man's life, should lose his own." (Institutes III, Page 118.) All serious
mutilations are now included in the definition of mayhem, and are punishable
by
EPILOGUE.
Therefore Your
Glory will cause the matters which it has pleased Us to incorporate in this
general Imperial Law to be published and observed, not only here but also in
the provinces.
Given on the
twenty-fifth of the Kalends of December, during the reign of Our Lord
Justinian, ever Augustus, and the Consulate of Basil.
TITLE XXVI.
CONCERNING A
WOMAN WHO SUFFERS HERSELF TO BE CARRIED AWAY.
ONE HUNDRED AND
FORTY-THIRD NEW CONSTITUTION.
The Emperor
Justinian, Augustus, to Areobindus, Most Glorious Praetorian Prefect,
Ex-Prefect of Constantinople and Ex-General of the Army.
PREFACE.
No one doubts
that the interpretation of the law belongs solely to the sovereign, since he
has the right to promulgate it. We remember to have formerly enacted a
constitution having reference to the rape of betrothed and married women,
unmarried females, and widows; and of having subjected to capital punishment
not only their ravishers, but also the accomplices of the latter, and all
other persons who were known to have assisted them at the time when the act
was committed. We have also, by the same law, permitted the ascendants of
the
statute.
(Vide Blackstone, Commentaries on the Laws of England IV, XV, 205;
Stephen, Commentaries on the Laws of England VI, IV, 66; Wharton, A Treatise
on Criminal Law II, Page 978.)
Spanish law
prescribes imprisonment for from twelve years and one day to life, where
anyone designedly castrates another. "El que de proposito castrare a otro,
sera castigado con la pena de reclusion temporal d perpetua." (Codigo Penal
de Espana, Art. 429.)
Penal servitude
for life is imposed in France, and if death ensues within forty days after
the commission of the crime, the culprit is put to death. "Toute personne
coupable du crime de castration subira la peine des travaux forces a
perpetuite."
"Si la mart
en est resultee avant I'expiration des quarante jours qui auront suivi le
crime, le coupable subira la peine de mort." (Code Penal de France, Art.
316.)
In Belgium, the
penalty is imprisonment for from five to ten years. (Code des Lois
Penales Beiges, Art. 400.) Imprisonment for a term of from six to ten
years is the punishment prescribed by the Swedish Code. (Sveriges Rikes
Lag., 14 Kap., Sec. 10.)
In Italy, the
culprit is imprisoned for from five to ten years (Codice Penale del Regno
d'ltalia, Arts. 372-2) ; in Portugal, for from two to eight years (Codigo
Penal, Art. 366); in Germany, for from two to ten years (Strafgesetzbuch
fur das Deutsche Reich, Arts. 224, 225); in Austria, for from five to
ten years (Allgemeines Strafgesetz, Art. 156) ; in Japan, for from
two to ten years (Criminal Code of Japan, Arts. 241-5). In all the legal
enactments above referred to proof of the intent to perpetrate the crime is
an indispensable requisite to insure conviction. ED.
women in
question, as well as their other blood-relatives and their guardians and
curators, to prosecute a rape; and We have especially punished the violation
of women already married or betrothed, because, under these circumstances,
both rape and adultery have been perpetrated. One of the penalties which We
prescribed was the right to claim the property of the ravisher, as well as
that of his accomplices, for the benefit of the woman concerned; and the
payment to the husband, out of the estate of the ravisher, of an amount
equal to the dowry brought him by his wife. We have especially added that no
woman nor virgin should be permitted to marry her ravisher, but if her
parents should desire to marry her to anyone (her ravisher excepted), We
have already forbidden him to marry her at any time; and in conclusion We
have decreed that if her parents should consent to a marriage of this kind,
they shall be deported.
We are, however,
surprised that certain authorities have attempted to hold that if the woman
who was violated, either with her consent or without it, should marry her
ravisher against the tenor of Our Constitution, she would be entitled to his
estate, either under the terms of the law, or by will, if one had been made.
Those who presume to entertain such opinions have not been able to
understand the meaning of the aforesaid law; for if We have prohibited
matrimony of this kind, even when the woman consented to it, and, on this
account, have subjected her parents to the penalty of deportation where they
had consented to the union, why should We honor women who have suffered
violation, and choose to marry their ravishers, by giving them rewards?
Therefore, rejecting this unfounded doubt, We have deemed it proper to
interpret the former law by the present one, and, with this end in view, We
decree that if the ravished woman, no matter what her status or age may be,
should desire to contract a marriage with her ravisher, and especially
without the consent of her parents, she shall not be entitled to the estate
of her ravisher, under any circumstances, either through the indulgence of
the law, or by testamentary provision; but his property, as well as that of
his accomplices, which Our law places at the disposal of the ravished woman,
shall, from the date of the perpetration of the crime, be transferred to his
father and mother, whether both, or only one of them be living, provided
they are not proved to have given their express consent to the marriage; and
the woman who did not hesitate to defile herself by marrying her ravisher
shall have no claim to his estate, which shall, as aforesaid, go to her
father and mother; but where the parents of the woman are already dead, or
gave their consent to an act of this kind, the property of the ravisher, as
well as that of his accomplices, shall be confiscated.
We order that
the present interpretation shall apply, not only to all future cases, but
also to those which have passed; just as if this Our law had, in the
beginning, with its construction, been communicated to you, Most Glorious,
Illustrious, and Beloved Prefect.
(1) Therefore
Your Highness will order what We have decreed by this Our law to be observed
and carried into effect.
TITLE XXVII.
CONCERNING THE SAMARITANS.
ONE HUNDRED AND
FORTY-FOURTH NEW CONSTITUTION. The Emperor Justinian to Diomedes, Praetorian
Prefect.
PREFACE.
We are
constantly occupied, as the Most Pious Emperor, Our Father was, in attempts
to turn the Samaritans from their heresy and their unreasonable errors to
lead them in a better path, and to cure their souls of the diseases with
which they are afflicted; but, in most instances, We have not succeeded in
accomplishing what We have long attempted. For several of them are so
devoted to their insane beliefs that, after having become worthy of being
baptized, they have again accepted the evil doctrines which they once
renounced; and have induced others to embrace the same heresy with equal
ardor. Therefore, it appears to Us to be advisable to amend the ancient law
enacted against the Samaritans by Our Father.
CHAPTER I.
Hence, We
prohibit them from becoming heirs, either by will or in case of intestacy,
from receiving legacies, or from acquiring anything by way of donation.
Neither the Samaritans, nor heretics in general, nor those who pretend to
profess the true faith of Christians, without actually believing in it, and
observing its rules, shall be entitled to any succession to which they may
be called ab intestato; nor can they execute a will, make a donation,
or bequeath a legacy; unless those who are entitled to receive them have
embraced the true religion, and have manifested their faith by their works;
for where none of them are persons of this kind, We order that, after their
death, their property shall belong to the Imperial Treasury. Wherefore the
rule which Our Father established through indulgence for the Samaritans, and
which, having the force of law, gave them the privilege of accepting and
transmitting estates, as well as the right to receive and bequeath legacies,
shall hereafter be void and have no force whatsoever.
If those who
adopt the insane belief of the Samaritans should show themselves to be
unworthy of the benefit of this constitution, they can blame no one but
themselves, since they have rejected the benevolence of God and Our Lord and
Saviour Jesus Christ; and they shall forfeit the privileges formerly granted
to them by Imperial Majesty, for the purpose of inducing them to entertain a
better frame of mind, and to prevent their perpetual adherence to this
perverse doctrine.
CHAPTER II.
We except from
the operation of the present law those who acquiesce in the dogmas of the
Samaritans, not through any favor to them, but from the fact that they
cultivate certain tracts of land
whose revenues
and tributes are paid into the Public Treasury, and for the reason that, on
account of their rusticity, they have been led astray in this respect. For
We permit them, even though they have embraced the Samaritan heresy, to
appoint as heirs or legatees both their ascendants, descendants, and
collateral relatives; if they should continue to cultivate said lands in
such a way that the owners thereof can obtain a better income, and may the
more readily be able to pay the taxes due to the Treasury. And for the same
reason, We enable them to succeed to the inheritance of one another, in case
of intestacy; and We also desire that when a tenant expires without leaving
any heirs, the owner of the land on which he died shall be entitled to his
property, and take the place of the Treasury in this respect, provided he
pays the public taxes instead of the deceased.
Moreover, We do
not permit a Samaritan to hold office, or discharge the duties of civil
administration, to bring suit in court, to be admitted to the Association of
the Rhetoricians, or to impart instruction to young persons. And if any
Samaritan, after having proved himself worthy to receive baptism, should
return to his former error and be detected in observing the Sabbath, or in
doing anything else which proves that he was only baptized through simulated
conversion, We order that he shall be proscribed, and sentenced to exile for
life. We subject to the same penalty those persons who, in opposition to the
Christian faith, have impiously given him protection. It seems to Us,
however, very proper that those who solicit the sacred rite of baptism
should not hastily be permitted to receive it, and We desire them to be
examined and the advice usually given at the time of initiation to be
communicated to them.
We also order
that those who can, in any way, be influenced by good doctrine shall, in the
first place, be instructed in the faith for two years, and become familiar
with the Holy Scriptures; and that they then be presented with the sacred
baptism, the symbol of redemption, and obtain the fruit of this sacrament,
after a sufficiently long repentance.
This provision,
however, shall not be applicable to the children of Samaritans who, on
account of their age, are unable to understand the doctrine of the Church,
for We allow them to be honored with baptism without this requirement. No
Samaritan shall hold a Christian as a slave, and if he should buy one, he
must be restored to freedom. When the slave of a Samaritan adopts the false
doctrine of his master, he shall be permitted to obtain Roman liberty
immediately, if he embraces the Christian faith.
EPILOGUE.
Therefore Your
Glory will cause what We have been pleased to enact by the present law to be
published in the usual manner, and carried into effect.
TITLE XXVIII.
NEITHER THE DUKE
NOR THE BIOCOLYTE OF LYDIA AND LYCAONIA SHALL HEREAFTER BE PERMITTED TO
INTERFERE IN THE AFFAIRS OF EITHER THE PROVINCES OF BOTH PHRYGIAS AND
PISIDIA.
ONE HUNDRED AND
FORTY-FIFTH NEW CONSTITUTION.
The Same Emperor
to Ariobindus, Most Glorious Praetorian Prefect.
PREFACE.
We, having
provided a suitable remedy for such abuses as are of frequent occurrence,
now direct Our attention to others which We intend to correct by the present
law. We have been informed that in Phrygia and Pisidia, many popular
tumults, as well as attacks of robbers, take place; and that the reason for
these disorders is that the civil administration has been abolished there,
and that We have placed over these two provinces, as well as those of
Lycaonia and Lydia, a military commander styled a duke, or biocolyte. The
inhabitants of the two Phrygias and Pisidia now ask Us that the crimes which
have, for a long time, been committed in their country, shall be suppressed;
stating that robberies are perpetrated there with impunity; that their
provinces are no longer sufficient to support the officials; that those
appointed by Us are not competent, and their subordinates are constantly
running over the provinces arresting persons, and committing damage; that
the country is so afflicted with military disturbances that it is becoming
uninhabitable; that the higher civil judges, who are appointed by the
commander-in-chief to dispense justice to the people, instead of maintaining
peace among them, make use of the guards attached to their office to arrest
innocent persons and oppress them.
CHAPTER I.
We, being moved
with sympathy for these unfortunate people, do hereby enact the following
law, by which We decree that the jurisdiction of the said provinces (We
refer to Salutary Phrygia and Pacatian Phrygia, and Pisidia) shall be
withdrawn from the magistracy to which they were formerly subject, together
with the Lyca-onians and Lydians; and, from this day, We forbid the judges
having jurisdiction of Lycaonia and Pisidia to interfere with the government
of the two Phrygias and Pisidia, or to send there any of their officers or
any other persons under their orders, for the purpose of making arrests. And
We also forbid the inhabitants of said provinces, under the penalty of a
fine of thirty pounds of gold, to have recourse to the Biocolyte of Lycaonia
and Pisidia, or bring either civil or criminal actions in which they
themselves are interested before him, and We also forbid this magistrate to
enter the two Phrygias and Pisidia, to issue any orders to those who reside
there, or to claim jurisdiction
over the affairs
of the said provinces; for We order him to be content with Lycaonia and
Pisidia, and to govern them alone, just as if, from the beginning, We had
restricted his jurisdiction to these two provinces, and as if We had never
given him any authority over the two Phrygias or Pisidia.
In this manner
We shall deliver the said provinces from all the evils with which they have
been oppressed up to this time; civil magistrates will dispose of both civil
and criminal matters, and they are hereby notified that if any theft,
robbery, or unlawful removal of property of any kind should occur there, and
they do not punish it, or do not recover what was stolen, they themselves
shall be required to make good the loss, not only while they remained in
office but after they have been removed.
If anyone
invested with the military command of Lycaonia and Lydia should himself,
hereafter, attempt to go into the provinces of Pisidia and Phrygia, or to
send any of his subordinates there, We hereby authorize the bishops of the
towns to forbid their entrance, and to drive away the officers which the
biocolyte despatched, as the present law prohibits this magistrate and the
officers subject to his authority, from entering the said provinces under
the penalty of thirty pounds of gold, and it also renders them liable to
lose their places and their estates.
EPILOGUE.
Therefore Your
Glory, having been informed of the matters contained in this Imperial Law,
will, in consequence, issue decrees, and address edicts and orders to the
Governors of provinces and the bishops of cities, in order that they may
publish them therein, and communicate them to all Our subjects.
Given at
Constantinople, on the sixth of the Ides of February, during the
fifteenth year of the reign of Our Lord the Emperor Justinian, and the
twelfth after the Consulate of Basil.
TITLE XXIX.
HEBREWS SHALL BE
PERMITTED TO READ THE SACRED SCRIPTURES ACCORDING TO THEIR LAW IN LATIN,
GREEK, OR ANY OTHER LANGUAGE. PERSONS WHO DO NOT BELIEVE IN THE LAST
JUDGMENT OR THE RESURRECTION, AND WHO SAY THAT THE ANGELS ARE CREATURES OF
GOD, SHALL BE EXPELLED FROM THEIR COUNTRY.
ONE HUNDRED AND
FORTY-SIXTH NEW CONSTITUTION. The Same Emperor to Ariobindus, Praetorian
Prefect.
PREFACE.
It is necessary
for the Hebrews who understand the Sacred Books not to adhere strictly to
their literal meaning, but to take into con-
sideration the
prophesies contained therein, which announce the coming of Jesus Christ, the
Saviour of the human race. As, however, they, by adopting incorrect
interpretations of the Scriptures, have, up to this time, wandered from the
true faith, and adduce arguments in their favor, We shall not permit this
controversy to continue any longer without being settled. For the reason
that they have frequently stated that, being only acquainted with the Hebrew
language, they wish to make use of it in the Sacred Books but have not
deemed it advisable to translate them into Greek, and, on this account, they
have, for a long time, been greatly embarrassed, We have decided that it
will be better to permit them to read them, not only in Greek, but in any
other language which will make them better understood by the hearers,
because of its being more familiar to them.
CHAPTER I.
Therefore We
order that the Hebrews (no matter in what Hebrew district they may be) shall
be permitted to read the Sacred Books in Greek, or in the language of the
country, before the persons assembled in their synagogues (that is to say,
Latin), or in any other language provided that it is not a different one
from that spoken in the placein order that the reading of the said Books
may be understood by all who are present, and that the latter may continue
to live in accordance with their precepts.
We do not,
however, allow the Hebrew translators to corrupt the text, and conceal their
fraud because of the ignorance of many persons. Those who read the Sacred
Writings in Greek shall make use of the Septuagint, which is considered the
most correct, and the best; as the authors, although separated from one
another and residing in different localities, nevertheless, all agreed in
the version which they made. And, indeed, who would not be surprised to
learn that these men, having lived a long time before the beneficent
appearance of Our Lord Jesus Christ, predicted the events mentioned in the
Sacred Books, just as if they had been witnesses of them, and had been
enlightened by the grace of prophesy?
Without
intending to exclude the other versions, We also permit the Hebrews to make
use of that of Aquilea, even though it is foreign, and does not in some
points agree with the Septuagint. We, however, absolutely forbid the use of
the one which the Hebrews call the second edition, for it does not form a
part of the Sacred Books, it was not handed down to Us by the prophets, and
is an invention devised by men who only speak of earthly things, and who had
in them nothing that was divine.
The Hebrews,
then, shall read the sacred words; they must reject the versions that have
not been approved, and not discard those which are genuine to make use of
foreign translations, transmitted orally, and devised for the perdition of
weak persons. But, in order that those who translate Greek or other
languages may not, in any way, be inconvenienced on account of the power
which We grant them, and which no one whosoever shall prevent them from
exercising, We for-
bid those whom
the Hebrews call great archipheretitas, or priests or masters, to
prevent perinoei or anathematismi from translating the Sacred
Writings, unless the former should desire to undergo corporeal penalties,
and, in addition, lose their property, for We order and desire what is best
and most pleasing to God.
CHAPTER II.
If, indeed, any
persons should presume to have atheistic writings in their possession, or
should deny the Resurrection, the Last Judgment, or the birth of God, or
should say that angels are creatures, We order that they shall be expelled
from every part of the Empire, that they shall be deprived of the power of
blasphemy, and that the punishment of death shall remove such false
doctrines from the Jewish Nation which does not acknowledge the true God.
CHAPTER III.
We, however,
beseech all who hear the Sacred Books in either Greek or Hebrew to make
allowance for the evil disposition of the translators, and not only consider
the literal sense of the terms, but also adopt the Divine meaning; so that
those who sometimes accept errors, and sin in matters which are most
important (We mean with reference to hope in God) may be instructed in the
true Faith, and live in peace. For this reason, We permit the Hebrews to
make use of all languages for the reading of the Sacred Books, so that in
the future they may become familiar with the precepts contained therein, and
make more rapid progress in better things.
EPILOGUE.
Therefore Your
Glory, as well as the persons attached to Your court, will see that the
matters which it has pleased Us to decree by the present law are observed.
The magistrate appointed by you will cause the said law to be executed, and
will not permit the Hebrews to violate any of its provisions; he will
inflict corporeal penalties upon those who attempt to violate it, and will
send them into exile, and deprive them of their property, in order to
prevent them from audaciously rising up against God and the Empire; and he
must also despatch orders to the Governors of provinces, directing them to
execute Our law, and the said Governors, after having had it communicated to
them, shall themselves publish it in every city; and they are hereby
notified that it must be observed by those who do not desire to suffer the
effects of Our indignation.
Given at
Constantinople, on the sixth of the Ides of February, during the
twenty-fifth year of the reign of Our Lord the Emperor Justinian, and the
twelfth after the Consulate of Basil.
TITLE XXX.
CONCERNING THE
REMISSION OF BALANCES DUE ON PUBLIC TAXES, AND THE ABOLITION OF CERTAIN
ACTIONS.
ONE HUNDRED AND
FORTY-SEVENTH NEW CONSTITUTION. The Same Emperor to Ariobindus, Praetorian
Prefect.
PREFACE.
Although We are
at present obliged to incur expenses which are in excess of the resources of
the Empire, still, through the goodness of God, We are enabled to obtain
what is necessary by means of tributes imposed upon barbarians, as We
provide for everything, and do not fail to display indulgence to Our
subjects on all occasions. How often do We release from unpaid tribute those
persons who, being in arrears, have presented petitions to Us, and have made
Us acquainted with their wretchedness? Not one of Our subjects shall
withdraw from Our presence without having obtained his wish, and We can even
refrain from saying this, as the Rescripts granted to those who have
received such benefits are sufficient proof of the fact. But it would be
contemptible and unworthy of Our government to grant favors only to those
persons who solicit them, and not to extend Our indulgence to the country as
well as to the towns, or to the provinces alone, without including all Our
subjects.
CHAPTER I.
Therefore We now
come to the bestowal of Our present favors, and decree that all Our subjects
shall be released from taxes for the entire cycle of the past indiction, and
for seven years of the cycle of the present one, so that the indulgence
which We extend to them shall continue for twenty-two years, during which
time no unpaid taxes can be collected. We adopt this rule whether the said
taxes are payable in gold, silver, wheat, or any other articles in kind, and
whether they should be contributed to the Imperial Treasury by Our subjects,
or the Prefecture of Illyria, either by way of revenue, or for any other
purpose. We extend Our liberality to all Our subjects, and forbid anyone
charged with the levy of tribute, or sent by magistrates to collect taxes in
arrears, as well as all public officials or bearers of orders or commands,
to subject them to any payment for time which has elapsed.
We also wish
that any of Our subjects who, during the time which We have just mentioned,
may have failed to obtain the supplies of grain which are gratuitously
furnished by the government, shall not be entitled to claim them. On the
other hand, We exclude from Our liberality, as one stricken with a
pestilence, any person who may venture to make such a demand, and We abolish
for the future all right of recovery of the same, not only against Our
subjects, but also against the government. As the property which forms part
of Our private domain, or Imperial patrimony, is entitled to the benefit of
the present
indulgence, it
is clear that tribute due for time which has expired shall not be demanded
of tenants, lessees, or emphyteutas, either by the collectors of public
taxes or by the Palatines themselves.
What We decree,
however, is only applicable to tributes which are already due, and have not
been paid by Our subjects; for if they have been paid, and are already in
the hands of decurions, receivers, substitutes, or the officials in the
provinces charged with keeping accounts, they shall be held and preserved
for the public; for it would be absurd for what has been given by Our
subjects instead of being collected by the Treasury to enure to the benefit
of others.
CHAPTER II.
We except from
the provisions of this law all that which has been acknowledged as due, or
for the payment of which security has been furnished the government by
accountants, cashiers, or secretaries; for We do not include such sums among
those whose collection is released by Our indulgence, because the Treasury
considers them as part of its assets, and has, to a certain extent, already
collected them. We also except the supplies which are owing to soldiers and
allies, because they have no relation to Our subjects, and it is permitted
to recover them from the receivers, to prevent their appropriation by them;
and, for a much better reason, We also except civil sums, and such as are
set .apart for public works and are now due, not only in this Most Fortunate
City, but in all the other provinces; because it is inequitable that, when
We disburse so much money for the maintenance of the government, officials
alone should profit unjustly, prevent the provinces from enjoying Our
liberality, and deprive them of what they are entitled to for
fortifications, or that the cities should not obtain the sums destined for
their adornment.
Although We
detest persons who are guilty of injustice, We cannot avoid being humane, so
far as they are concerned. Therefore We order that the exception which We
made in certain chapters shall become operative for all time before the
first indiction, that is to say, for sixteen years. We also release all Our
subjects in general, and without distinction, from the payment of any taxes
which remain due, and We grant them in this respect perfect security. In
bestowing this indulgence upon them, We have considered that We are only
showing reverence to Almighty God, who has inspired Us to< do so; and all
Our subjects should, in the name of the Empire, manifest their gratitude by
their conduct.
EPILOGUE.
Your Excellency
will be careful to see that what it has pleased Us to promulgate by this
Imperial Law is observed and carried into effect.
Given at
Constantinople, on the day before the Kalends, during the
twenty-eighth year of the reign of Our Lord the Emperor Justinian, and the
third after the Consulate of Basil.
TITLE XXXI.
CONCERNING THE
RELEASE FROM THE PAYMENT OF PUBLIC TAXES IN ARREARS.
ONE HUNDRED AND
FORTY-EIGHTH NEW CONSTITUTION. Antonius Contius, Translator.
PREFACE.
The foresight
which We have displayed in the affairs of the Empire from the beginning of
Our reign, and the solicitude which We entertain for the government which
God has entrusted to Us, is manifest to all Our subjects. For, having found
the public oppressed with many debts, and reduced to the direst penury, We
Ourselves have assumed much indebtedness; have released the State from all
kinds of charges; and have quieted the army, which was on the verge of
revolt because of lack of subsistence. We have repelled, as far as possible,
the insults and incursions of the barbarians, which threatened the existence
of the Empire, and, in short, what have We not done up to this time for the
relief of Our subjects? Now We desire, by means of this law, to make them
participate in still greater benefits, by releasing them from all the taxes
which they owe.
CHAPTER I.
Therefore,
extending this act of Our benevolence to all Our subjects, We release them
from everything which they owe to the government for the time that has
elapsed since the eighth indiction to that of the present cycle; and We
desire that, up to this date, no taxes shall be demanded of them, whether
the said taxes are payable to the general or private office of Your Glory,
to the magistracies of the Imperial Praetors of Illyria, to that of the Most
Glorious Justinianian Prefect of the soldiers stationed in Mysia and
Scythia, to the Imperial Treasury, to Our private Treasury, or to Our
Imperial Patrimony, or, finally, to the Most Magnificent Superintendent of
the Households. We release all our subjects from the taxes which they owe
either in gold, silver, or any other commodities, which have been incurred
since the aforesaid indiction, and such taxes shall not be collected from
tenants, lessees, emphyteutas, or even the possessors of property.
CHAPTER II.
We except from
the exercise of Our liberality all sums of money due to soldiers and allies,
for the reason that Our subjects will not profit by this, but the officials
alone, who are charged with the distribution of the public money, will do
so. Such property also will be exacted which, publicly subject to the order
of soldiers or allies, and consisting of gold, silver, or other articles,
has already been delivered by Our subjects to receivers, collectors, or
their representatives, for these things shall be transferred to the
magistracies entitled to them.
Nor do We accord
the benefits of the present law to other persons
who, having
obtained from Our subjects any sums in gold, or other property, since the
eighth indiction, and have not paid them into the Public Treasury (when this
should have been done) ; and We desire that the payment of the same shall be
made, for if, induced by humanity, We deem it advisable to release Our
subjects from liability for the taxes which they owe, We do not grant this
favor to persons who, having received the public money, desire to defraud
the Treasury, or those who are entitled to it out of the same.
But if, with a
view to anticipating Our munificence displayed in the remission of taxes,
any receivers have wrongfully exacted of Our subjects either bonds or
sureties, or have changed their public obligations into private ones, or
have planned or executed some other fraudulent act of this description, they
shall not derive any advantage from it, and must return the bonds to those
from whom they received them. All persons should give thanks to God and to
Us, some of them because, owing taxes, they have deserved Our indulgence;
and others for the reason that while they owe nothing more of this kind,
they have been relieved of all care, and will no longer (as frequently
happens) be harassed by receivers, on account of taxes previously due; and
will no longer be compelled to pay on property which has been lost through
their bad faith; but Our subjects shall enjoy perfect security up to the
beginning of the eighth indiction, and Our present liberality shall be
extended to them all.
EPILOGUE.
Your Glory will,
by means of edicts published in this Royal City, communicate to all persons
the provisions which it has pleased Us to include in this pragmatic law.
Given at
Constantfnople, during the nineteenth year of the reign of Our Lord the
Emperor Justinian, and the fourth after the Consulate of Basil.
TITLE XXXII.
BISHOPS, ALONG
WITH THE NATIVES AND RESIDENTS OF PROVINCES, SHALL NOTIFY THE EMPEROR WHOM
THEY DESIRE TO HAVE AS GOVERNORS. THE SAID GOVERNORS SHALL BE GRATUITOUSLY
APPOINTED, BUT WILL BE REQUIRED TO FURNISH A BOND TO THE TREASURY; AND WHERE
THE BISHOPS AND INHABITANTS OF PROVINCES NEGLECT TO ASK FOR A GOVERNOR, THEY
CANNOT COMPLAIN OF HIM WHO is SENT TO THEM IN THIS CAPACITY, NO MATTER WHAT
HE MAY DO WITH REFERENCE TO THE COLLECTION OF PUBLIC TAXES.
ONE HUNDRED AND
FORTY-NINTH NEW CONSTITUTION.
PREFACE.
While We are
conducting the affairs of the government entrusted to Us by God, We are
exerting Ourself to the end that Our subjects
may, under all
circumstances, enjoy the benefit of justice; and hence We have proposed to
Ourself, from the beginning, that whatever may have previously been
incomplete or diffuse, shall be amended and perfected by Us. Therefore,
being extremely desirous to take measures by which both the Treasury and Our
subjects may remain uninjured, and free from loss, We have decided that We
could readily accomplish this if We caused the Governors of provinces, who
have received their offices without compensation, to furnish proper security
to the Treasury that they will perform their public duties properly and in
accordance with law, and that they will abstain from all injustice, gain,
and every base and illegal act.
CHAPTER I.
Therefore, to
prevent foreigners from participating in the administration of provinces and
thereby committing injustice, and to prevent Ourself from being constantly
annoyed by complaints of them, We direct the most holy bishops and principal
inhabitants of each province to unite in sending a petition to Us,
mentioning persons who they think are qualified to govern their provinces.
We shall confer upon the latter the insignia of their office gratuitously;
they shall be charged with the preparation of the public and fiscal lists;
and must promise to exact nothing contrary to law, or commit any violence
against Our subjects, and furnish sureties for this purpose; and they must
also agree to be content with their employments; to diligently supervise the
levies of taxes; to treat with gentleness and kindness those taxpayers who
are prompt in paying what they owe, but to display severity towards such as
are wicked and refractory, and not use their offices for the purpose of
pecuniary profit. For, having their eyes constantly fixed upon the laws,
they must dispense equity and justice to all those who demand it, and,
instead of impoverishing litigants by expenses and protracted delays, they
must dispose of their cases quickly; they must prosecute those who commit
crime, and inflict upon them the penalties prescribed by the laws, and,
finally, they must, by all means, be upright.
CHAPTER II.
These provisions
not only relate to Governors; they also apply to the assessors and officials
of every magistrate, no matter who he may be. For if any of them should act
negligently in the collection of public taxes, or should cause Our subjects
loss, at the same time treating them with insolence, such an official shall
be deprived of his property and capitally punished. For, God willing, Our
only aim is that the provinces may be governed by good laws, and that
persons may reside there in safety, and enjoy the blessings of justice as
dispensed by the Governors, and that the public taxes may be collected
without any controversy; for when this is not done, it will be impossible
for the government to be preserved. It is because of the pay received by
them that soldiers are enabled to resist the enemy, and defend citizens from
the invasions and cruelty of the barbarians, and protect fields
and towns from
the attacks of robbers and others living a disorderly life. It is also by
means of taxation that the other cohorts receive what is allotted to them,
that walls are repaired, cities fortified, public baths warmed, and,
finally, the theatres intended for the diversion of Our subjects supported.
Thus the taxes paid by Our subjects are used and expended, partly for
themselves, and partly indirectly on their account, for We do not derive any
benefit from them, and are only charged with their administration; still, We
are fully rewarded for Our trouble by the infinite blessings which Our Lord
and Saviour Jesus Christ has bestowed upon Us through the greatness of his
clemency.
CHAPTER III.
Therefore,
through communicating these provisions, as it were by means of a public
crier, to all the people of the provinces, and thus affording them a proof
of Our benevolence and generosity, using every precaution to prevent injury
being sustained by Our subjects, We render God propitious and favorable to
Our designs. For if Our subjects, taking advantage of the privilege which We
grant them with reference to the selection of their Governors, should
entertain erroneous opinions, and their expectations not be realized, they
can blame no one but themselves. For when they postpone choosing their
Governors and presenting their names to Us, they cannot make any complaint
against those who are sent into the provinces, if they should not act justly
in the collection of public taxes; and We forbid them to file any charges
against them on this ground. Those who have obtained from Us the privilege
of selecting their Governorswho, having obtained their offices gratuitously
are charged with the collection of public taxesshall not be treated by them
with injustice, and whenever they do not exercise proper discrimination in
making their choice, they shall, under no circumstances, be given an
opportunity for reconsideration, or inform Us of their annoyances, or prove
them.
Moreover, none
of Our subjects whosoever, whether he be illustrious or obscure, and no
religious establishment, church, infirmary for the poor, or monastery, shall
be permitted, under any pretext, to postpone the payment of taxes which are
due. Nor do We release from responsibility those who administer the affairs
of the government, or receivers of taxes, or the officials charged with the
collection of public tribute; for We prefer the common welfare to the
private advantage of those who basely desire to defraud the Treasury.
EPILOGUE.
In order that
the excellent regulations which We have prescribed may become known to all
persons, Your Excellency will publish them in this Fortunate City and in the
provinces, as well as in the most frequented place in each town, in order
that no one may remain in ignorance of the benefits which the law enacted by
Us confers upon the Treasury and Our subjects.
Given at
Constantinople, on the fifteenth of the Kalends of February, during
the eighteenth year of the reign of Our Lord the Emperor Justinian, and the
third year after his Consulate.
TITLE XXXIII.
CONCERNING A WOMAN WHO MARRIES HER RAVISHER.
ONE HUNDRED AND
FIFTIETH NEW CONSTITUTION.
The present
constitution confirms the penalties prescribed by the former one, which sets
forth that a woman who allowed herself to be carried away cannot marry her
ravisher. If, however, she should marry him, she shall not succeed to his
estate, no matter what may be her religion or her age. If, on the other
hand, she should not marry him, she will be entitled to all his property. If
the father of the girl who permitted herself to be carried off consents for
her to marry her ravisher, he shall be sent into exile. If he should die
without having given his consent, the property of the ravisher shall be
confiscated, if the girl who was ravished should contract a prohibited
marriage with him.
TITLE XXXIV.
No DECURION OR
COHORTAL SHALL BE BROUGHT INTO
COURT OR
COMPELLED TO OBEY A JUDICIAL DECISION
WITHOUT AN ORDER
OF THE EMPEROR COMMUNICATED TO
THE PREFECTS.
ONE HUNDRED AND
FIFTY-FIRST NEW CONSTITUTION. The Emperor Justinian to Ariobindus,
Praetorian Prefect.
PREFACE.
Your Glory has
stated to Us in a letter that it is customary to bring decurions or the
attendants of officials before different tribunals of this city, or in the
other provinces, when they are engaged in litigation, either with the public
or with private individuals, and you have added that this is frequently
sanctioned by Our Imperial orders, and have requested it to be prohibited by
a pragmatic sanction that any decurion or attendant officer should be taken
from one province to another, or brought into this Royal City, to defend
himself in court; or, where this is authorized by an Imperial order, that it
should first be presented to the tribunal of Your Excellency, and then
carried into effect by means of suitable decrees.
CHAPTER I.
Therefore, as We
detest every production in court and appearance for judgment, unless
necessity requires recourse to be had to this
proceeding, We
forbid all Our magistrates, with the exception of Your Highness, to notify a
cohortal or a decurion to appear and de-lend himself in this city, unless an
Imperial order expressly authorizing him to do so is presented; and then
Your Highness shall do what is proper under the circumstances, and not
permit a decurion or an executive officer to be brought into court, except
by virtue of a decree issued by yourself; for in justice to the public this
must be done, to prevent such officials, when they are removed from the
place where they have charge of public money, from taking advantage of the
opportunity to commit some injury against the government.
EPILOGUE.
Your Excellency
will be careful to see that the provisions which it has pleased Us to
promulgate by the present pragmatic law are executed.
TITLE XXXV.
IMPERIAL ORDERS
RELATING TO PUBLIC MATTERS WILL BE OF NO FORCE OR EFFECT, UNLESS THEY HAVE
PREVIOUSLY BEEN COMMUNICATED TO THE MOST GLORIOUS PRJE-TORIAN
PREFECT, FOR THEN ONLY CAN THEY BE
EXECUTED.
ONE HUNDRED AND
FIFTY-SECOND NEW CONSTITUTION. The Emperor Justinian to John, Most Glorious
Praetorian Prefect.
PREFACE.
We, relying upon
Divine assistance and devoting Our attention to the proper administration of
the government confided to Us by Our Lord God, do hereby decree that no
order, issued with reference to public matters, to a duke, the Augustal
Prefect, or to the Governors of provinces, shall be valid, if it has not
previously been communicated to the tribunal of Your Excellency; and all
such orders as are not recorded shall have no force whatever. For it would
be absurd for any Imperial decree to be despatched to the provinces and
executed, without having previously been presented to Your Excellency.
CHAPTER I.
Therefore, if an
order has been issued to the detriment of the Empire, We order that it shall
be void, and any pragmatic sanctions having reference to public matters (as
We have just stated) addressed to the Augustal Prefect, to the duke, or to
the Governors of provinces, shall, by all means, be communicated to Your
Tribunal and despatched into the provinces, along with the orders issued by
yourself. Thus, Imperial decrees which are not detrimental to the public
interest shall be received and, accompanied by instructions sent by Your
Excellency
into the
different provinces, be executed there. But where any orders prejudicial to
the government have been obtained by artifice, and presented to Your
Excellency, they shall not be executed without notice previously given to
Us, in order that We may correct them. Hence, We desire that any pragmatic
sanctions whatsoever, having reference to public affairs, and which have not
been communicated to Your Excellency, shall, at no time, be considered
valid.
TITLE XXXVI.
CONCERNING CHILDREN WHO ARE EXPOSED.
ONE HUNDRED AND
FIFTY-THIRD NEW CONSTITUTION.
The Emperor
Justinian to Menna, Most Glorious Praetorian Prefect of Illyria.
PREFACE.
A crime so
revolting to human nature as to be incredible, and which is not even
committed by barbarians, has been brought to Our attention by Andrew,
Apocrisiarius of the Church of Thessalonica. Certain persons throw away
their children the instant they issue from their mothers' wombs, and leave
them in the holy churches, and after the said children have been brought up
by persons who perform works of benevolence, those who exposed them claim
them under the pretext that they are their slaves, and, not being content
with having, in the first place exposed them to death, they deprive them of
their freedom after they are grown up. Therefore, as a crime of this kind
itself includes many offences, including murder, calumny, and others easy to
enumerate, it is only just that those who perpetrate it should not only be
unable to avoid the punishments which Our laws provide, but that they should
also undergo the penalty of death, in order that guilty parties may
hereafter be made accountable.
CHAPTER I.
Hence, We direct
that children who are proved to have been exposed in the public streets, or
anywhere else, shall, by all means, be free, even though the persons who
have exposed them may be able to show clearly that they constitute part of
their property. For if it is set forth in Our laws that slaves who are ill,
and have been abandoned by their masters, who have refused to take care of
them because their diseases are supposed to be incurable, how much more
reason is there that We should not permit those who, at the very beginning
of their lives have been abandoned to the commiseration of others and
supported by their charity, should be delivered up to unjust servitude?
The Most
Reverend Bishop of Thessalonica, as well as the Holy Church of God, and Your
Glory, must afford relief to exposed children, and see that the persons who
are responsible do not escape the penalties prescribed by Our laws,
especially those who, with every indica-
tion of cruelty
and inhumanity, pollute themselves with homicide, which is all the more
horrible because it is committed against unfortunate and helpless victims.
EPILOGUE.
Therefore, Your
Glory, and all those subject to your authority, including the members of
Your Court, will take measures to observe and execute the provisions which
We have been pleased to enact by the present Imperial Law. Those who violate
them, as well as the magistrates who permit this to be done, shall be liable
to a fine of five pounds of gold.
TITLE XXXVII.
CONCERNING THOSE
WHO CONTRACT UNLAWFUL MARRIAGES IN OSDROENA.
ONE HUNDRED AND
FIFTY-FOURTH NEW CONSTITUTION. The Emperor Justinian to Florus, Count of
Private Affairs.
PREFACE.
An uncertain
rumdr has come to Our ears that the inhabitants of the provinces of
Mesopotamia and Osdrcena have dared to contract illegal marriages, thereby
violating the Roman laws and incurring both ancient and recent penalties, as
well as affording a bad example to neighboring and adjacent peoples. We do
not believe such rumors, for We do not think that there are any men in Our
Empire who would be bold enough to do anything of this kind, by which they
would dishonor their progeny and confound their names.
CHAPTER I.
Therefore, We
desire to investigate this matter and, if such acts have been committed, to
inflict the extreme penalty upon those who are guilty. But, for the reason
that crimes of this description have been perpetrated for a long time, We
think it best to consider them as never having taken place, and We grant the
inhabitants of the provinces of Mesopotamia and Osdroena remission of the
penalties which they have incurred by their conduct, and the reason why We
favor them in this way is because they are constantly exposed to the
invasion of enemies, and the said unlawful marriages are generally
contracted by peasants. In allowing these marriages to continue to exist, We
do not allude to those which have been wickedly contracted up to the time of
the promulgation of Our New Constitution, and We forbid the inhabitants of
the said provinces to be molested either in person or property on this
account. But when, after the publication of the law recently enacted by Us,
anyone has presumed, or hereafter may presume to commit an offence of this
kind, We desire that he shall be
liable to the
extreme penalty, and he is notified that We shall not limit Ourselves to the
imposition of fines, but that We shall prosecute his wife and his children,
also, and compel him to undergo capital punishment and the confiscation of
his property, as the effect of Our righteous indignation.
Nor shall We
spare anyone, whether of exalted or inferior rank, and no matter what his
status may be, even if (which is much more severe) he belongs to the
priesthood, for all shall be punished, and We must maintain the Roman laws
in their integrity. Those who are guilty shall not only be deprived of their
property as well as their lives, if We should ascertain that they have
contracted unlawful marriages, for no one who is guilty shall escape with
life, and the penalty shall immediately follow conviction. Men ought to vie
with one another in doing what is just and proper, and We forbid them to act
contrary to law and to attempt to excuse themselves on the ground that
others are given to the same vices.
These rules
shall be observed in the provinces of Mesopotamia and Osdroana; the military
magistrates will see that they are executed, and that punishment is
inflicted upon those who violate them. We desire this constitution to be
published in the provinces hereinbefore mentioned, by virtue of an order
issued by you, and through proclamations made by their respective
magistrates, and the latter will be liable to capital punishment, as well as
to the loss of their offices and their property, if they fail to cause what
We have decreed to be carried into effect.
EPILOGUE.
Therefore, Your
Glory will take pains to have this Imperial Pragmatic Sanction executed.
TITLE XXXVIII.
MOTHERS SHALL BE
REQUIRED TO RENDER ACCOUNTS OF THEIR GUARDIANSHIP.
ONE HUNDRED AND
FIFTY-FIFTH NEW CONSTITUTION.
The Emperor
Justinian to Belisarius.
Martha, a woman
of illustrious birth, has presented a petition to Us which sets forth that
Sergius, her father of magnificent memory, died while she was of extremely
tender age. Auxentia, her mother, who was also of high rank, after having,
in the Bureau of Public Records, taken the oath not to marry again, was
accorded the guardianship of her daughter, and administered her property.
But afterwards, just as if she had not taken the oath, Auxentia abandoned
the administration of her child's patrimony, and left it in a deplorable
condition, included very little in the inventory which she made, and married
a second time, appointing Peter guardian of her daughter. Having had issue
by her second marriage, she manifested very little affection for Martha, and
the guardian that she had given her having
relinquished his
administration when she had hardly reached her thirteenth year, she demanded
a curator. Her mother also induced her to surrender her receipts, and to
renounce all rights of action based on the rendition of accounts, which
could be exercised against her in accordance with law, and she exacted this
renunciation although her daughter was entirely ignorant of what had
occurred during her infancy. Being dependent upon her mother, who was
bringing her up, it was impossible for her to oppose anything which was done
to her prejudice, or to act in such a way as to prevent any injury to
herself which might cause the loss of her property. But when she had arrived
at an age when she could understand the advice which had been given her
contrary to her interests, she implored her mother not to make use of any
documents which she had fraudulently obtained, and to return to her the
property to which she was entitled. Her mother, however, being disposed to
favor the children of the second marriage, instead of rendering her
accounts, had recourse to Our Imperial Law which provides that one cannot
claim restitution in opposition to his own act, although this law did not
apply to mothers who contracted second marriages after having obtained the
guardianship of their children.
This is the
substance of the petition which Martha presented to Us, and she wishes to
have the spirit of Our Imperial Constitution explained, and that We remove
the doubts to which it gives rise, in order that Auxentia, her mother, may
not wrongfully have authority to appropriate to her own use the property
left to her by her father.
CHAPTER I.
Therefore, in
consideration of the petition of Martha, We issue the present Pragmatic
Sanction, by which We direct that as Our preceding law does not mention
women who, after having obtained the guardianship of their children,
contract second marriages, Auxentia shall not be allowed to take advantage
of it. But, for the aforesaid reasons, and because of the documents under
which she obtained the guardianship of her daughter, Martha, she, in
conformity to law, swore that she would not contract a second marriage, and
as she treated her oath with contempt and married another husband, and,
after having had children by him, exacted receipts from her daughter, in
order to escape liability, We permit Martha to bring suit for complete
restitution against her mother, above all, as she alleges that she has not
yet passed the twenty-fifth year of her age, and We forbid the constitution
by which We have prohibited children from demanding restitution against
their parents, or freedmen from demanding it against their patrons, to be
invoked in this instance, because the said constitution is not applicable to
women who have obtained the guardianship of their children.
And as, on the.
other hand, We afterwards promulgated another law, which prohibits parents
from accepting the guardianship of their children, unless, at the time of
their appointment, they stated in the Bureau of Public Records that they
would not leave their wards with-
out proper
defence, which law also requires the mother, who is a guardian, to state
that she will render her tutelary accountsa proceeding which renders her
responsible for her administration when she desires to appoint another
guardian in her steadit is proper, under all circumstances, that if Martha
can prove that the time during which she is allowed to bring a restitutory
action has not yet elapsed, she shall enjoy not only the benefit of entire
restitution, but also be entitled to any other relief granted by Our laws to
minors.
For if We desire
that children should manifest for their parents the respect, honor, and
obedience to which the latter are entitled, We also desire that parents
should do nothing to the detriment of their children. Moreover, We do not
think that it is consonant with religious duty to entertain contempt for the
children of a first marriage, nor that it is proper for mothers, their
second husbands, or the issue of a second marriage, to profit by the
acquisition of an estate left to children of the first marriage by their
father.
EPILOGUE.
Therefore, Your
Glory, along with the Most Blessed Archbishop of the Church of Antioch, will
see that the provisions which it has pleased Us to enact by this Imperial
Pragmatic Law are executed.
Given at
Constantinople, on the Kalends of February, during the reign of Our
Lord the Emperor Justinian, and the Consulate of ....
TITLE XXXIX.
CONCERNING THE
DIVISION OF CHILDREN AMONG PARENTS WHO ARE SERFS.
ONE HUNDRED AND
FIFTY-SIXTH NEW CONSTITUTION.
PREFACE.
Those who have
charge of the affairs of the Holy Church of Apamea have informed Us that
certain serfs belonging to others have formed a connection with female serfs
of the neighborhood, and have had children by them, and they ask that the
said children be adjudged to them as following the condition of their
mother, but those who make such a demand do not seem to comprehend the
meaning of the constitution which has recently been enacted.
CHAPTER I.
For when freemen
marry women who are serfs, their children will follow the condition of the
mother, in accordance with the reasons stated in this constitution; hence,
the said children will not obtain their freedom. When, however, the men are
serfs, this constitution does not apply and, as We have already decreed, the
children shall be distributed among the owners; thus, when their number is
equal,
they are equally
divided, and when it is not equal, or where there is only one child, the one
in excess follows the condition of its mother, as having had the greater
share in its creation. Therefore, We order that when only a single child is
born of such an union, it shall belong to the master of the woman, and when
there are three, two of them will belong to him, and one will be acquired by
the master of its father, so that (as We have previously stated) the odd
child will always follow its mother.
The
ecclesiastics of the Church of Apamea are hereby notified that the offspring
of serfs shall be divided in this way, and that this question, which has
been in controversy for a long time, is now disposed of by this Our law.
TITLE XL.
CONCERNING SERFS
WHO CONTRACT MARRIAGES ON THE PREMISES OF OTHERS.
ONE HUNDRED AND
FIFTY-SEVENTH NEW CONSTITUTION. The Emperor Justinian to Lazerus, Count of
the East.
PREFACE.
We have
ascertained from different sources that in Mesopotamia and Osdroena,
offences are committed which are clearly unworthy of Our time, for serfs
attached to different land are in the habit of contracting marriage with one
another. For this reason, the owners of the said lands compel them to
dissolve the marriages which they have contracted, and deprive them of their
children, and in consequence, the condition of the entire country is
rendered wretched, when, on the one hand, serfs are separated from their
wives, and, on the other, their children are taken from them. Wherefore, Our
efforts must be directed to the correction of this abuse.
CHAPTER I.
Hence, We order
that, for the future, the owners of estates shall keep their serfs in any
way they may wish, but that no one shall separate them from the women whom
they have married in accordance with ancient customs, compel them to live on
his own land, and deprive them of their children, under the pretext that
they are of servile condition. Where, however, any acts of this kind have
already been committed, Your Highness will take measures to remedy them,
whether the children have been taken from their parents, or female serfs
have been separated from their husbands, and anyone who hereafter presumes
to do anything of this kind will run the risk of being deprived of his land.
Therefore serfs need no longer apprehend the dissolution of their marriages,
and they shall retain their children through the benefit of the present law,
and, on the other hand, the owners of lands shall no longer seek technical
reasons for breaking the
union which
their serfs have contracted, and depriving them of their offspring, for
whoever ventures to act in this manner will run the risk of losing his
property, which will be transferred to him who endeavored to claim the
serfs.
EPILOGUE.
Therefore, Your
Magnificence will take measures to see that the provisions which it has
pleased Us to decree by this Imperial Pragmatic Sanction are carried into
effect, and he who, at any time, attempts to violate them, shall be liable
to a fine of three pounds of gold.
Given at
Constantinople, on the Kalends of May, during the reign of Our Lord
the Emperor Justinian, and the Consulate of Belisarius.
TITLE XLI.
*
THE RIGHT OP
DELIBERATION SHALL BE TRANSMITTED TO CHILDREN UNDER THE AGE OP PUBERTY.
ONE HUNDRED AND
FIFTY-EIGHTH NEW CONSTITUTION.
PREFACE.
A certain Thecla,
surnamed Mannus, has presented a petition to Us stating that another Thecla
died leaving a girl under the age of puberty, named Sergia, who only
survived her mother sixteen days, and who succumbed to the contagious
disease which has recently destroyed so many people. The petitioner informed
Us that she was a sister of the father of Sergia, and that Cosma, the
brother of Thecla's mother, claimed the estate, and has assumed the title of
heir in court.
She also alleged
that, after having been engaged in many controversies, she had applied to
John, an advocate of the provincial bar, well versed in the laws relating to
this subject, who had given her a written opinion that the estate of Sergia
should be transferred to her; and that, in consequence of this, she had
selected the said John as arbiter in the case, and that Cosma had, on his
side, chosen ^scula-pius, secretary of the Military Commander of the East.
John, however, rendered a decision which was contrary to his written
opinion, basing it on the law of the Emperor Theodosius, which provides that
a child who is not yet seven years of age cannot claim the estate of its
mother, if it did not have a guardian, and that the said estate ought to go
to the relatives to whom it would have belonged if the girl who died under
the age of puberty had not been called to the succession by law. John not
only cited the said law, but he also ordered the petitioner to comply with
his decision, and directed her to notify JSscula-pius, the arbiter of Cosma.
The petitioner
asked Us to take into consideration the injustice of which she was the
victim, and, especially, as there was a law in the Code bearing Our name,
which declares that a child who can speak is qualified to claim the
inheritance of its mother, and as We Ourself have enacted another law which
states that where anyone entitled to
an estate dies
before having claimed it, or of having manifested any intention to reject
it, the right to deliberation as to its acceptance is transmitted to the
heirs of the deceased. The petitioner also stated that the law We have
recently enacted, conferring upon agnates and cognates the same right to
succession, is not applicable to this case, for the reason that it precedes
its promulgation.
CHAPTER I.
Therefore, We
order that if Your Glory should ascertain that these allegations are true,
you must afford relief to the petitioner, and give her the benefit of Our
law conferring the right to deliberation, above all, as Sergia died before
the expiration of a year following the death of her mother, and you will
give her the opportunity of claiming her mother's estate. For no one can say
that the law of the Most Pious Theodosius, and the one which We have
enacted, are conflicting, for both of them are included in the same volume,
and We have expressly stated that they do not contradict each other. Our
law, however, shall prevail in the present controversy, and in all others
similar to it, and the one promulgated by the Most Holy Emperor Theodosius
shall apply to cases where the year appointed for deliberation has been
suffered to elapse.
It is also clear
that the measures taken by Cosma after the decision was rendered, have not
availed to acquire for him any advantage or right of action.
Given at
Constantinople, on the day before the Ides of July, during the reign
of the Emperor Justinian, ever Augustus.
TITLE XLH.
FIDUCIARY
RESTITUTIONS SHALL BE LIMITED TO AN ESTABLISHED DEGREE.
ONE HUNDRED AND
FIFTY-NINTH NEW CONSTITUTION.
The Emperor
Justinian to Peter, Most Glorious Praetorian Prefect, twice Consul and
Patrician.
PREFACE.
Our good will is
so great that We do not disdain, by means of Our laws, to dispose of certain
cases which appear to Us to be beyond the comprehension of magistrates. The
reason which induces Us to act in this way is, the fear that delay in
deciding cases may ruin litigants.
Alexander, a man
of distinguished rank, some time since submitted to Us the following case.
Hierius, his father, of glorious memory, made a will as follows, namely: "I
appoint as my heirs the illustrious Constantine, who shall have the
residence allotted to him, with all its appurtenances, as has already been
stated, together with the suburban estate called Coparia, and all the rights
attaching thereto, as well as the house situated at Antioch which was
purchased from Ammianus.
I also appoint
the most excellent Anthemius my heir to the suburban estate called Blacherna,
which was purchased from Eugenius and Julianus, of glorious memory, and the
suburban estate situated on the promontory of Sosthenia, which formerly
belonged to Ardiburius, of glorious memory. I also appoint that most
illustrious personage, Calli-pius, heir to the suburban estate called
Bytharium, or Philothea; and I appoint the most illustrious Alexander heir
to my suburban estate situated in Venetia.
"I forbid my
heirs to transfer to strangers by sale, donation, exchange, or in any other
way whatsoever, or to alienate from my name or that of my family the
residence and the five estates which I have just mentioned, and if any
offspring should be born to them (which God grant) and at the time of their
death they leave any legitimate or even natural children, I desire each one
to bequeath to them the suburban estate and the buildings belonging thereto,
which are situated in this Royal City and in Antioch. I am satisfied that my
heirs will not fail to carry out my present wishes with reference to their
natural children or grandchildren. If, however, all, or some of them, or
even only one, should die without issue (which is something that I detest),
I wish, and I direct that he who dies childless shall transfer to his
surviving brother or brothers the houses situated in this city, or in
Antioch, as well as the five suburban estates hereinbefore mentioned,
together with all the rights attaching thereto, all their appurtenances, and
all the persons belonging to them, without any exception whatsoever. I
forbid my heirs to furnish any security to insure the delivery of any trusts
or legacies. No one shall make a demand to have this done, and any of my
heirs who, in violation of my intention and paternal love, dares to require
it of their brothers, for the preservation of property whose alienation I
prohibit, shall forfeit the entire benefit of the trust."
After having
inserted these provisions in his will, Hierius executed a codicil, in which
he made use of almost the same language. "I declare most positively that I
have recently drawn up a will which embodies my complete wishes, and I
desire, and I order that its provisions shall remain in full force, subject,
however, to the changes which I shall make by this codicil, and to the
diminution of the legacies which I have bequeathed to each one of my heirs.
Therefore, I wish, and I order that my suburban estate called Coparia, which
was left by my preceding will to my most magnificent son Constantine, be
given in full possession and ownership to my most illustrious and most
glorious grandson Hierius, born to my most magnificent son Constantine; and
I desire that the said estate shall belong to him absolutely, together with
all the squares and stairways forming part of the same, and everything
appertaining thereto which is leased, both within and without the city, that
is the houses, the shops, the baths, the gardens situated within and without
the walls, the hippodrome with the garden belonging to it, the cistern, and,
in short, all the rights of every description to which I am entitled with
reference to said estate.
,
"I desire the
present legacy to be transferred to my said most illustrious grandson after
my death, as soon as he is released from paternal control, and becomes his
own master by emancipation; and my most generous grandson, and whoever
either by my own will or by his may succeed to the same rights, shall not be
permitted to disobey my wishes, or to divide, exchange, give, or alienate in
any manner whatsoever the said suburban estate, or any part thereof; it
being my wish that said estate, as well as the houses situated near the gate
of the wall of Ficulneum on the road leading to the sacred place of
martyrdom of St. Thecla, should remain absolutely and permanently in my
family, and never be separated from my name. Moreover, I wish, and I order
that if my most glorious grandson Hierius should die before or after he
arrives at puberty, without leaving any lawful issue, the possession and
ownership of the said suburban estate and houses bequeathed shall belong to
his most magnificent father, Constantine, under the same condition, namely,
that the said immovable property shall never be alienated from my family and
from my name."
The testator
died after having executed this codicil, but Hierius, of glorious memory,
afterwards sold to strangers the house at Antioch which had come to him from
the estate of his father, and he transferred to his son Constans, of
glorious memory, the residence situated in this city, as well as the
suburban estate which he received by virtue of the codicil, and which he was
also forbidden to alienate. Gonstans afterwards died, leaving his wife
pregnant, and provided by his will that if the child was not born, or if it
should be born, and died before reaching the age of puberty, its most
glorious mother, Mary, and his illustrious wife, who was also named Mary,
should be called to the succession.
Mary
subsequently gave birth to a daughter, who died at a tender age, and then
the estate of Constans, that is to say, the residence situated in this city,
and the suburban estate which, under the codicil, had been expressly left to
Hierius, of glorious memory, passed to the illustrious mother and wife of
Constans.
It is certain
that the latter had the right, by virtue of the will as well as the codicil,
to claim the house and the estate given to him, since he was the only one of
the children of Hierius, of glorious memory, who was living, and that he
held the first rank in the family. Those who represented the most glorious
mother and wife of Constans maintained that as Constans did not die
childless, it was not necessary to rely upon the provisions of the will of
Hierius, in order to afford a ground for the restitution of the houses; that
the most glorious Alexander could not, in accordance with law, raise any
question with reference to the suburban estate, since he himself had already
disposed of the one which had been left him, and of which their common
father had forbidden the alienation, as was the case with all the other
landed property, and as the other brothers had also sold the property
devised to them. The result of these different allegations is, that all the
heirs had failed to comply with the wishes of the deceased, and had violated
Our laws on this subject; that they were reciprocally released
from the
obligation of making restitution; and that they had mutually freed
themselves from all demands to do so in order not to expose themselves to a
number of judgments in the same case; and, in consequence of this, they
brought to Our attention the laws enacted with reference to this matter.
The most
glorious Alexander, however, alleged that, for his part, he had properly
brought suit to recover the houses, because in his codicil Hierius had
clearly shown that he desired that they should not be alienated from his
family; and he asserted that his right was much better founded, so far as
the suburban estate was concerned. In conclusion, he maintained that no
legal objection should be advanced to the alienation which he himself had
made, since he was authorized to make it by an Imperial order. The parties
on both sides made use of a great number of arguments in an attempt to
interpret the will of the testator, and cited such of Our laws as they
thought to be favorable to their claims.
CHAPTER I.
Therefore, as We
have in view both the interpretation of the laws and the construction of the
will, We are going to dispose of these matters not by a mere decision, but
by a law; in order, at the same time, to put an end to the present
controversy, and provide for others which may hereafter arise. Confining
Ourself strictly to the words of the will, We perceive that alienation is
forbidden to the children who might acquire the estate when they died
without issue, but that this right is not refused to their successors; that
the testator only forbade the children to alienate the property, and paid
'the greatest attention to the persons to whom it might pass if the former
should die without offspring and to the manner in which this should be done;
without, however, extending the prohibition to alienate said property beyond
the lives of the children. For the codicil subsequently executed with
reference to the suburban estate forbade alienation to even those who, by
virtue of the will of Hierius (We refer to the younger one of that name), of
glorious memory, might obtain the property by succession; hence it results
that the grandfather Hierius intended that the property should always remain
in his family. These are the points involved in the controversy.
CHAPTER II.
But when We
consider the case with the attention which it deserves, We perceive that no
question should be raised with reference to the other property of which
Constantine, the son of the elder Hierius, of glorious memory, has certainly
become the owner, in accordance with the provisions of his father's will;
and that not only the most glorious Alexander should lose his suit to
recover the said property, but also all his family should do so, since the
will only prohibits the children from alienation, and the children of
Hierius, of glorious memory, through whom the grandchildren forming part of
the family claim the rights of Hierius, have, themselves, alienated many
things
which were
bequeathed to them, just as if all had mutually agreed to release themselves
from the obligation to transfer the property.
But so far as
the suburban estate of which it appears, according to the terms of the
codicil, that Hierius, of glorious memory, is the owner, is concerned, it
seems to Us to be very hard, after four generations, to raise the question
whether it can be alienated; especially when the most glorious mother and
wife of Constans, whom Our laws consider as forming part of the family, and
judge to be worthy of bearing its name, are living. Hence, the most
illustrious Alexander has, neither regularly nor legally, brought the action
to which We refer; and We cannot permit a case as old as this is to be
tried, above all after four generations have passed, and when the daughter
of Constans died while still a minor. For if Constans had not made a will,
the suburban estate would also have gone to his mother, not through his
minor daughter but by the provisions of the law itself, even though none of
the successors of Hierius, of glorious memory, had failed to comply with his
wishes. For even though Constans, when he drew up his will, made certain
substitutions, and his daughter died before reaching puberty, this will be
productive of nothing advantageous; for the reason that the law itself
grants the estate of the minor daughter to her mother, just as if the said
minor had died without her father having executed any will.
CHAPTER III.
Therefore We
order that neither the most glorious Alexander, nor his children, nor the
other children of the elder Hierius, of glorious memory, nor the remaining
members of his family, shall bring suit against the most glorious mother and
wife of Constans, to recover the property in their hands, of which Hierius
had forbidden the alienation. We prohibit them from suing the other persons
in whose possession the said property is at present, or who may hereafter
acquire it; and We also forbid them in the future to avail themselves of the
prohibition to alienate said property, as stated by Hierius, and, in this
way, to acquire any right to the same; for since some of the children of
Hierius, of glorious memory, have alienated what belonged to them, they
have, by doing so, to a certain extent, consented to the alienations made by
the others; and for this reason, as well as for those which We have already
given, and which are sufficient for Us to determine the case and amend the
legislation, We think that they, as well as their successors, should be
forbidden to bring such suits as may lie in their favor.
This decision
shall not only apply to the case under discussion, but also to all others in
which a similar prohibition may be found, where as many generations have
passed; and the last of the heirs, even though called to the succession by
the intervention of a child under the age of puberty, shall be entitled to
the estate. For then, by the operation of the present law, property may be
transmitted even to persons who do not belong to the family of him who
forbade it to be alienated.
This law shall
therefore apply to the present case and to all others where similar
prohibitions made hereafter by testators are involved. By its means We
dispose of the present controversy, and it is probable that We shall make
provision for all others in the future.
EPILOGUE.
Therefore Your
Glory will be careful to publish in this capital city, and cause to be
observed and carried into effect the regulations which We have been pleased
to promulgate by means of this Imperial law.
TITLE XLIII.
COPY OF THE
IMPERIAL PRAGMATIC SANCTION CONCERNING INTEREST.
ONE HUNDRED AND
SIXTIETH NEW CONSTITUTION. The Emperor Justinian to Papius.
PREFACE.
The most learned
Aristocrates, municipal magistrate of the Republic of Aphrodisia, together
with the owners of immovable property in that country, have presented a
petition to Us stating that the aforesaid city, etc. Thus, in the first
place, We have ascertained that a majority of the people understand Our laws
in a way which is by no means correct, and thereby obtain a pretext for
unjust actions. We have been informed by the municipal magistrate aforesaid
that x-large sums of money have been bequeathed to the Republic of Aphrodisia
by different persons, to prevent the destruction of the city; and that the
magistrates have invested it in such a way that the debtors pay a certain
amount to the city every year (which may either be called the consideration
of a contract, income, or interest), as is perfectly just and proper. But,
after We had promulgated Our last Constitution, those who borrowed the money
asserted that their creditor could not collect the principal, because they
had already paid as interest more than double the amount of the
indebtedness; the result of which is that the city has lost the legacy
bequeathed to it; the heating of the public baths, whose expense was
defrayed from this source, has ceased; and the public works have been
abandoned to decay on account of this construction of Our law; and the State
has been greatly injured in consequence.
CHAPTER I.
Therefore, in
order that such an abuse may no longer exist in Our government, We hereby
decree that persons who receive a sum of money, on condition of paying
annually a certain amount to the government, shall be compelled to pay
whatever they have agreed to, without being able to avail themselves of Our
Constitution enacted
with reference
to this matter; for We have only drawn it up to be applicable to the
creditors mentioned therein, and for such cases as it includes. It is not
relevant in the present instance, as the payment to which it refers rather
resembles an annual income than a loan at interest; and, besides, We should
have supervision over the revenues of cities, as well as over those of the
Imperial Treasury.
If, after the
promulgation of the present pragmatic sanction, anyone should attempt to
place a different construction upon the provisions contained in the
preceding law, and defraud the city of the money which it lost, he shall pay
for all time to said city an amount equal to that which he owes, and shall,
in addition, pay double the amount of the principal, and, in this way, be
justly rewarded for his malicious interpretation, and be punished; because,
when it was easy for him to show that he was a good citizen, he was
dishonorable enough to prefer to be guilty of injustice toward the place in
which he was born.
TITLE XLIV.
CONCERNING THE
GOVERNORS OF PROVINCES. ONE HUNDRED AND SIXTY-FIRST NEW CONSTITUTION.
PREFACE.
Laws should not
only be equitably enacted for the greatest good of the public, but those
which have already been promulgated should be carefully observed and carried
into effect, and the proper penalties inflicted upon persons who violate
them. For what advantage would be derived from the laws if they merely
consisted of words, and no benefit was conferred upon Our subjects by their
execution and effect?
We are well
aware how diligently Imperial Majesty has manifested its solicitude for
taxpayers, when it repeatedly declared that the Governors of provinces
should obtain their offices gratuitously; for which reason, when they use
their power honestly, dispense justice, and promote the welfare of Our
subjects, through the security of the latter an abundance of everything will
be found in the Empire. These blessings, however, have, to some extent, been
forgotten, on account of the immoderate avarice of the magistrates who have
bought, rather than received, their offices.
CHAPTER I.
Therefore We,
renewing the aforesaid laws, do hereby decree that those only shall
administer the government who are known to have a good reputation, and who
devote themselves especially to the dispensation of justice. We wish them to
receive their offices without the bestowal of any gift or donation; to
prevent tributaries from suffering any loss; and punctually to pay into the
Public Treasury all the taxes which they collect. We also decree that they
shall not, either in person or by their assessors, their chancellors, their
servants, or
any other
persons in their service, accept anything from Our subjects, unless they
desire (as stated in the laws) to pay fourfold the amount of what they have
received, but they must remain content with what they are allowed by the law
and the public. As soon as they have relinquished their office, they shall
remain in the provinces for fifty days, and appear in public, in order to
answer any one who may desire to bring suit against them.
Where, however,
an action brought against a magistrate is not terminated within the said
fifty days, and it is a civil suit, the magistrate may appoint an attorney
to represent him; but where the proceeding is a criminal one, the magistrate
must remain until final judgment has been rendered by the judges (whether
these are regular magistrates, or persons appointed by the prefects for this
purpose), and the said judges shall be fined ten pounds of gold, if, within
twenty days, they do not dispose of the case pending before them, which,
however, shall be determined in the way already provided.
But when
magistrates, influenced by a guilty conscience, either secretly take to
flight, or seek refuge in religious houses, they shall be deprived of their
property, which shall, in accordance with law, be divided among those who
have suffered injustice from them. Each party shall appear in court, as is
prescribed by Our preceding law which, having been enacted for the benefit
of payers of tribute, shall remain in full force, and the other regulations
having reference to Governors, and have very properly been set forth by
Imperial Majesty, shall also be observed. While We punish violators of the
law, We also sentence to quadruple restitution those magistrates who,
contrary to Our prohibition, accept anything from defendants under such
circumstances.
CHAPTER II.
We wish to
correct these matters by means of this law, for the peace and opulence of
Our subjects are more precious to Us than the revenues yielded by the
Empire. For when We abolished the gifts made by Governors, We also abolished
the amounts which they expended, which were paid into the Imperial Treasury,
and amounted to a very x-large sum of money; the result of which will be that
the government will become more prosperous and wealthy, through being freed
from the contributions devised by certain persons in former times. For Our
sole desire is that the provinces shall be governed by good laws; that they
can be inhabited in security; that they may obtain the benefit of the
justice of Governors; and that they pay the public tributes without
complaint. It would be impossible for the government to be maintained if
these pious contributions were not paid into the Public Treasury, since it
is by means of them that the military forces, whose duty it is to resist the
enemy and guard the fields and cities, are supported, and other orders of
the State compensated; walls and cities repaired; and, in short, everything
provided which relates to the common welfare of Our subjects.
EPILOGUE.
Therefore Your
Glory will publish throughout this city in the usual places, and despatch to
the provinces, the provisions which it has pleased Us to enact by means of
this Imperial Law, in order that all persons may be aware of the solicitude
which We display for the benefit of Our Empire and the security of Our
subjects.
TITLE XLV.
PRAGMATIC
SANCTION CONCERNING DIVERS MATTERS ADDRESSED TO DOMINICK, MOST GLORIOUS
PREFECT.
ONE HUNDRED AND
SIXTY-SECOND NEW CONSTITUTION.
Antonius Contius,
Translator.
Your Glory has
submitted to Us certain mooted questions which have arisen among the most
able advocates of the tribunal of Illyria, requesting Us to decide them, in
order that they may not hereafter be the subject of controversy.
CHAPTER I.
CONCERNING DONATIONS.
The first point
to be considered is the following. A certain woman, after the death of her
husband, demanded property that he had given to her during his lifetime, but
which had not been delivered; and she claimed the ownership of it not only
on account of the donation, but because her husband had not revoked it while
he lived. Those in possession of the said property specially excepted, on
the ground that although donated, it had not been delivered to the woman,
and that she could be allowed to claim it only when she had possession of
the same. This is the question in controversy.
In this
connection We call to mind Our former Constitution, which provides that the
donor is obliged to deliver the gift to the donee, even if he did not agree
to do so, because it is not proper to commit a fraudulent act, and write
words which have no force; as well as the ancient Lex Cintia (which
the government very properly, some time ago, removed from its legislation),
in which the point which is the subject of the present dispute was included
and discussed.
(1) We order
(where everything relating to the donation in question corresponds with what
We have just stated) that the said donation shall be perfectly valid not
only so far as the value of the article given is concerned, but also with
reference to the record; and We desire (in accordance with Our Constitution)
that it shall take effect from the very moment when it was made; so that, if
the husband has hypothecated or pledged the property after the donation, he
shall not be considered as having alienated it, when he did not revoke the
gift during his lifetime. And whether or not delivery was made to the woman,
she can always recover the property by means of the action
based on the
stipulation, if one took place, or by virtue of the law, through making a
demand in court for what was donated.
(2) We also
considered it just to decree that where donations have been recorded in the
beginning, they shall, by all means, be confirmed when the donor remained
silent concerning their revocation; but where they have not been recorded,
and their value is in excess of the amount required by law, they shall be
valid up to that amount.
We desire that
this provision shall be strictly observed, hence a donation will become
operative for the share authorized by law, and will be annulled if its
entire amount exceeds what can legally be given. Our preceding law
prescribed this rule with reference to donations in general.
These provisions
shall be applicable not only to husbands and wives, but also to all other
persons who are prohibited from receiving donations during marriage.
CHAPTER II.
We have been
interrogated by Your Excellency with regard to another point. After the
enactment of Our Constitution, which, because of the status of their mother,
renders the children born of a free woman and a serf also free; should it be
held, in accordance with the ancient law, that if the said children are not
serfs, they are, nevertheless, born such and therefore attached to the
glebe, for the reason that another of Our laws does not permit the children
of serfs to abandon the soil, but declares that they remain there in a
servile condition, and is there not all the more reason for this when such
children are born of parents who are serfs ? This is the second point of
your interrogatory.
We, however,
never intended to admit that a woman who is free
could bring
forth a serf; but, on the other hand, have desired that, in
conformity with
Our law, the sign and symbol of freedom should be
impressed upon
the offspring of a free woman. If, then, a child should
be born to a
free woman and a man who is a serf, it shall be entitled
to its freedom,
and shall not, under any consideration, be deprived
of the right of
free birth enjoyed by its mother. But as the law which
We have enacted
provides that those who inhabit the country and
cultivate its
fields shall continue to reside there, as if they were natives
of the same, and
as the very name of colonus implies this obligation,
We do not allow
children born of a serf and a free woman to abandon
their country
with the intention of residing elsewhere. Hence, it is
clear that the
children born of a woman who is a serf on an estate
shall themselves
be serfs, and be free if born of a free woman, and,
having obtained
their liberty, any property which they may acquire
will be their
own, and will not become the peculium of their masters;
but having
gained their freedom, they cannot abandon the estate to
which they are
attached, and will be required to till the soil without
being able to go
elsewhere, unless, when they become the owners of
lands, the
latter are not sufficient to keep them occupied and support
them, and they
are not permitted to cultivate those of their masters, or pass to the
estates of others. For if this is not the case, although enjoying their
freedom, they will remain attached to the estates of their masters; and this
is hereby decreed.
CHAPTER III.
The point which
you have submitted to Us seems to be worthy of adjudication. When a female
serf marries a male serf belonging to another master, the question arose
whether their children ought to belong to the owner of the man or the woman.
Under such circumstances, and in order that serfs belonging to different
masters may be able to marry one anotherthe status of their offspring not
being disputed, as they were not begotten by a father who was free, and are
born of parents who are both serfsWe do not give them all to their mother,
or to the owner of the latter; but when there is only one, the mother will
be preferred, and the child will belong to her master; where there are two
children, they shall be distributed by lot; where the number is unequal, the
mother will be entitled to the most of them; for instance, where there are
three, she shall have two, and the father one; and where there are five,
three of them shall belong to the master of the mother, and two to the
master of the father; and where there are more than this, the apportionment
shall be in the same ratio; so that when they can be divided equally this
shall be done, and when this is not possible, thex-large r number shall be
allotted to the mother by way of privilege; for she who has brought forth
and nourished a child is undoubtedly entitled to greater consideration than
he who begot it through an excess of pleasure.
EPILOGUE.
Therefore Your
Glory will hasten to apply this Imperial Pragmatic Sanction to the cases to
which it is adapted, for We have enacted it as a general law, believing that
the matters to which it refers require amendment.
Given at
Constantinople, on the fifth of the Ides of September, during the
reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE XLVI.
CONCERNING THE
RELEASE FROM PUBLIC TRIBUTE. ONE HUNDRED AND SIXTY-THIRD NEW CONSTITUTION.
PREFACE.
Justice and
benevolence are the most excellent attributes of mankind : the first grants
to each one that to which he is entitled, and does not desire the property
of others; the second encourages compassion, and delivers distressed debtors
from the burden of their obligations.
These two things
have a tendency to adorn and strengthen the Empire; to sustain the
government; and to render human life more admirable. Wherefore, when We
received the sceptre of empire from God, We were impressed with a desire
always to be conspicuous for Our good actions, and were convinced that We
should have Our reward in virtue and glory, in proportion to the extent that
We were useful to Our subjects. We are aware that loans, and other
obligations of this kind, have reduced men to great poverty, and their
possessions have depreciated to such an extent that they can no longer yield
an income to their owners, or afford them means to punctually pay their
taxes; nevertheless, extensive military operations, with their attendant
expenses, have rendered it necessary for Us to make frequent assessments.
We entertain
such solicitude for the welfare of Our subjects that We desire to afford a
remedy for their poverty, but as this duty is always before Us, We think
that it is preferable to display indulgence, to provide for the necessities
of taxpayers in a manner which may be agreeable to God, and to pay out of
the Public Treasury such expenses as may generally be required.
CHAPTER I.
Therefore, while
communicating Our desire to Our Lord Jesus Christ, and discharging Our duty
towards Him by making suitable efforts on this day of the salutary Passion
and Holy Resurrection, We offer to Him, for the benefit of the country, the
favor which We now bestow, by granting all cultivators of the soil in
general, as well as taxpayers (including the owners of estates), an entire
exemption from public tributes, to be divided into four terms, that is to
say, one-fourth of it in the new indiction, which will soon begin;
one-fourth in the tenth following indiction; one in the eleventh, and one in
the twelfth; thus diminishing, during each one of these indictions,
one-fourth of the ordinary taxes, labors, and contributions which, under the
head of tributes, are furnished in any way whatsoever.
CHAPTER II.
We also remit to
Our subjects the payment of any taxes which may be in arrears from the end
of the last fifth indiction; and We order that none of the contributions
which We now remit shall be levied, whether they are payable at the Grand
Imperial Prefecture of the East, or at that of Illyria, or at the capital of
the Islands, or at the military Prefectures of Scythia and Nicea, at the
Treasury of Our Imperialx-large sses, or at the seat of government of
any other magistracy; and We forbid all decurions, receivers, secretaries,
cohortals, palatines, collectors, and contractors of public works, who are
charged with the levy of taxes, or the construction of public buildings, to
make use of any fraudulent artifice toward farmers, tributaries, or even the
owners of estates, in order to extort from them any taxes the payment of
which We hereby remit; or, having this in view, to renew any obligations for
sums already due, to require sureties to be furnished
or to accept
acknowledgments. For We hereby annul every fraudulent act already committed,
or which may hereafter be committed, for the purpose of thwarting Our
munificence; and if anyone, in violation of Our wishes, should collect
anything which has become due since the fifth indiction, without paying it
into the Public Treasury, he shall be held strictly responsible for the
same. For if We are indulgent toward tributaries, and release them from a
portion of their indebtedness, this is in order that they may benefit by Our
liberality, and it is not intended that those who receive the public taxes
shall derive any advantage from it, or profit thereby; the expenditure of
the taxes (that is to say its annual disbursement by the collectors for the
purpose of meeting military expenses) shall, however, under no
circumstances, be diminished. For it is necessary that the entire amount of
grain and other supplies should be provided for and imported, as is
customary; but the value of the fourth of the taxes, from which We release
tributaries for four years, shall be estimated and disbursed by the Public
Treasury, together with other tributes in money.
What We hereby
decree shall be equally applicable to the provinces of Osdrcena and
Mesopotamia, so far as tribute payable in kind to meet secret and military
expenses is concerned. The same rule shall be applicable to contributions in
kind which are designated ploim.se, that is to say, transported by
ships, and are levied in Lazica, the Bos-phorus, and the Cheromesus; for the
said provinces shall receive the price of them from the Public Treasury, as
fixed in the Bureaus of the Prefects of the district from which the said
tributes are brought, in order that the inhabitants of the said three
provinces may profit by Our indulgence. It will by no means be safe to
neglect the delivery of such tribute, for there are inevitable expenses (as
We have already mentioned) which must be incurred for the maintenance of
government. We are satisfied that great benefit will result to the State
from this manifestation of Our generosity, and that God will render Us
fortunate on account of actions of this kind. Any persons who presume to
disobey the rules which We have prescribed for the welfare of Our subjects
will run great risk with regard to both person and property.
EPILOGUE.
Therefore Your
Glory will, by means of proclamations published in this City, and sent into
the provinces, communicate to all Our subjects the matters which We have
been pleased to decree, in order that no one may remain uninformed of Our
munificence.
TITLE XLVII.
CONCERNING
HEIRS.
ONE HUNDRED AND
SIXTY-FOURTH NEW CONSTITUTION.
PREFACE.
There is nothing
superior to God and justice, for without their aid nothing can properly be
accomplished, and especially is this the case
in Our Empire.
Hence it is only by loving God and dispensing justice that We can hope to
reign with equity, to secure the affection of Our subjects, and obtain from
them the greatest devotion. However, although We are occupied with many
things of importance, and as the Romans are constantly becoming greater
through their virtues, and conquered barbarians daily submit to their
authority; and as We have received from God and justice the sceptre of
Empire, We do not consider it unworthy of Us to direct Our attention to the
private interests of Our subjects. And, as We have placed matters which were
previously confused in a much better condition, We have deemed it proper to
decide, in a manner agreeable to God, some questions relating to successions
which have long been neglected. For We have ascertained that certain
vagabonds have been in the habit of interfering with the estates of deceased
persons; that they have opposed the execution of their wills; and have even
prevented the acquisition of intestate successions by placing seals upon
personal property, and attaching notices to that which is immovable, hoping
in this way to obtain it; conducting themselves, however, in a legal and
orderly manner. Therefore as it was impossible for Us to become perfectly
familiar with such a great number of cases, it seems to Us to be advisable
to make a general provision for them by the promulgation of a positive law.
CHAPTER I.
Hence We decree
that all Our subjects shall remain in the free enjoyment of their property,
and their rights, and transmit them to their heirs. No one, without
exception, shall interfere with the patrimony of others; injure the heirs of
a deceased person; or, in violation of Our laws, place seals or notices upon
any property which does not belong to him. For We confirm the order of
intestate succession to which everyone is called according to his degree,
and We do not render the last wills of dying persons void whenever they have
been lawfully executed. We exert every effort for the government of Our
tributaries by means of salutary enactments, and as We take the greatest
interest in their welfare, why should We not provide for them in this manner
also, and confer Our benefits upon them? For We are fully persuaded that
this course is pleasing to God, and We know that it is consonant with
virtue, and that by such actions Our Empire will be strengthened everywhere,
and rendered tranquil in the future.
This law of Ours
will be included among Our most praiseworthy deeds; Our subjects will be
freed from their former annoyances; and, having been rendered worthy of Our
indulgence, they will return thanks to God and to Us; they will propitiate
the Divinity with prayers; so that, after the enemy has been conquered, We
can obtain for them greater security.
EPILOGUE.
Therefore the
Stewards of the Imperial Households will see that the provisions which We
have been pleased to enact by the present law are observed; and officials
invested with superior or inferior mag-
isterial
jurisdiction, either in this city or in the provinces, will be liable to
capital punishment, if they violate them.
Your Glory will
cause this constitution to be posted in the most public places of this
Capital, and will, by means of orders issued for that purpose, transmit it
to the provinces.
TITLE XLVIII.
GENERAL LAW
HAVING REFERENCE TO THE VIEW OF THE
SEA, ADDRESSED
TO DOMINICK, MOST GLORIOUS PR^ETO-
RIAN PREFECT.
ONE HUNDRED AND
SIXTY-FIFTH NEW CONSTITUTION. Our mother has taught Us, etc. The view of the
sea, ordinarily limited to a hundred feet, shall not be intercepted by any
new work, either in the direct line or transversely; and this the present
law, while confirming the Constitution of the Emperor Zeno, adds, by way of
interpretation, to a Novel previously promulgated.
First
Ordinance of the Prefects. TITLE XLIX.
CONCERNING
ADDITIONS, THAT is TO SAY, CONCERNING
THE TRANSFER OF
TAXES FROM STERILE LANDS TO THOSE
THAT ARE
FERTILE.
ONE HUNDRED AND
SIXTY-SIXTH NEW CONSTITUTION.
Tenor of This
Constitution.
Where a deceased
person, during his lifetime, and for good cause, alienated a tract of land,
an estate, or a farm, and, at his death, left the remainder of his property
to his children, or to foreign heirs, and the latter sold a part of said
property, and the purchaser who acquired it subsequently abandoned a portion
of the same, so that there would be no ground for the transfer of the taxes
to other lands, belonging to the same estate, and which have the same origin
(see Books X and XII of the Code, On Abandoned Lands), the taxes on the
deserted estate shall not be borne by all the lands of similar character at
the same time, but must first be imposed upon any other real estate which
the possessor of the same purchased from the children or foreign heirs of
the deceased; and if the said purchaser should not be solvent, the taxes
shall be paid by the heirs of the decedent, that is to say, by the lands
(derived from the same estate) of which the said heirs are in possession;
and where said lands are not sufficient to pay them, they shall be
transferred to the other property of the deceased, which has passed into the
hands of other persons than his heirs. Thus the taxes will be transferred to
him who has bought a tract of land, or a farm of the deceased, as We stated
in the beginning.
The same rule
will also apply where these lands have been con-veyed to several successors.
For when the last, or most recent possessors of property are solvent, the
tax is not borne by the oldest of them in point of time, or, in other words,
the first possessors will not then be liable for the taxes on lands
abandoned by the last ones; and when there are several heirs of the same
degree and order to whom the tax should be transferred, it shall not be
distributed equally among them, but in proportion to the property in their
possession which was derived from the same estate.
Twenty-fourth
Ordinance of the Praetorian Prefect.
TITLE L.
GENERAL LAW OF
Bissus RELATING TO POSSESSION, AND IN WHAT WAY IT MUST BE ACQUIRED.
ONE HUNDRED AND
SIXTY-SEVENTH NEW CONSTITUTION.
Tenor of This
Constitution.
Possession
cannot lawfully be taken by virtue of the decision of a judge, where the
premises are not unoccupied, or the fact that they are vacant has not been
established in a city, by the evidence of executive officers; and in the
provinces, by that of those defenders of the people who are the nearest to
the locality.
Again, every
time that anyone in the provinces desires to take possession of property
under the terms of a contract, documents evidencing the delivery of
possession shall be drawn up before the defenders of cities, as soon as he
who makes the delivery, and the master of the serfs, or the person entitled
to the said documents, have agreed. When there are no defenders, the said
documents shall be executed in the presence of the Governor, or even before
the bishop, if the Governor should be absent from the place where delivery
is made.
Second
Ordinance of the Praetorian Prefect. TITLE LI.
CONCERNING
PERSONS WHO ARE IN POSSESSION OF DIFFERENT LANDS FORMERLY BELONGING TO THE
SAME
OWNER.
ONE HUNDRED AND
SIXTY-EIGHTH NEW CONSTITUTION. This constitution treats of lands, or of men
who have belonged to the same owner by reason of having been attached to the
glebe. Tracts which have been abandoned or deserted ordinarily accrue to the
owners in possession of property derived from the same estate, as We have
previously mentioned in Novels CXXVIII and CLXVI. For taxes on real property
are solely imposed upon rustic estates, for only impositions of this kind
and not those levied upon civil emoluments or
buildings are
referred to in the census. For this reason lands subject to the obligations
of the census are exclusively mentioned in the Digest under the Title, De
Censibus. By the term slaves (Book IV, Section, In Servis), I
only mean rustic slaves, who are attached to the glebe, as I stated in Novel
VII. What is set forth in Book III, relative to the capitation tax, only
applies to lands, and not to cities or villages (Book I, Code, De Cap.
Civ., Book Vill, Code De Exact. Trib.). Therefore the taxes on
lands are not imposed on urban estates, or on those yielding civil revenues,
for the reason that such lands are not of the same nature, or derived from
the same source.
END OF THE
NOVELS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
THE NEW
CONSTITUTIONS OF THE EMPEROR LEO.
PUBLISHED FOR
PURPOSE OF AMENDING THE LAWS.
HENRY AGYLAEUS,
TRANSLATOR.
INTRODUCTION.
The vicissitudes
of human affairs, the inconstancy and diversity of the various conditions of
life, have given rise to a great number of laws which, embracing matters of
every description, determine with reference to each what is good, and what
is otherwise, hence they act as guardians and physicians of Our lives; for,
as on the one hand they prevent evil from arising and spreading through
society, so, on the other, they correct what they were unable to foresee or
prevent, and as they extirpate every kind of vice, they do not permit it to
become confirmed. But as the course of human affairs resembles an ebb and a
flow, while it alters and overturns all legislation, and frequently
substitutes what is bad for that which has already been justly established,
and plunges some laws into oblivion, so they become as thoroughly unknown as
if they had never before been heard of, in this way it equally attacks all
legislation by enveloping some of it in profound silence, and by giving rise
to controversies respecting other enactments, either because those who
promulgated them, having had neither steadfastness nor uniform opinions,
contradicted themselves, or for the reason that their successors permitted
customs to be introduced or laws to be passed in opposition to what has
already been settled. Hence it happens that legislation becomes perplexed,
and no small amount of injury is inflicted upon mankind, some laws being
substituted for others, giving rise to the same confusion which results as
when darts are cast at random.
Therefore, being
of the opinion that it would be disgraceful to permit matters which are
vital to the safety of the Empire, and which should be decided and confirmed
in an invariable way, to remain in such disorder, We have deemed it
advisable to renew and examine the laws with the greatest diligence and
care. After having collected those which it has seemed to Us to be worthy of
preservation, We have sanctioned them by a decree, and have ordered that
actions at law shall be determined in conformity with their provisions.
Those, on the other hand, which We have decided to be of no value, We have
forbidden to be cited hereafter, and have stricken them from the list of
laws. So far as those which We have failed to mention are concerned, We.have
also repealed them by the mere fact that We have not alluded to them.
Finally, as among all customs which common usage has established, there are
some founded upon reason which a wise man should not reject, We have exalted
them from the condition
of customs to
that of laws, and have conferred upon them the same authority.
Everything
having been arranged by Us in this manner, all persons are hereby notified
that the laws which We have confirmed, and the customs to which We have
given legal force by means of Our Imperial power, shall be observed, and be
available for the disposal of all litigation; but, on the other hand, such
as are opposed to them, whether they have been explicitly repealed, or
whether We have kept silence concerning them, shall alike be rejected, and
be excluded forever from the jurisprudence of the Empire.
CONSTITUTION I.
EVERYONE WHO
EXERCISES THE PREROGATIVE OP JUDGING SHALL DECIDE IN ACCORDANCE WITH THE
LAWS WHICH WE HAVE COMPILED, AND SHALL NEVER HAVE RECOURSE TO THOSE WHICH WE
HAVE ANNULLED, IN ORDER THAT NO AMBIGUITY MAY ARISE UNDER SUCH
CIRCUMSTANCES.
In the name of
Christ, Our True God, who has introduced laws for the benefit of the entire
human race. The Emperor Csesar, Flavius, Leo, Pious, Fortunate, Renowned,
Victor and Triumpher, worthy to be revered in every age, Augustus and
Faithful King, to Stylianus, Most Illustrious Master of the Imperial
Offices.
Justinian, whose
name is so celebrated among sovereigns, must have been animated with a
spirit exceedingly favorable to the welfare of his empire, and most zealous
for its benefit, when, in spite of their 'number and the confusion in which
they were involved, he collected all the laws which had been enacted from
the foundation of Rome until his reign, and with an industry and labor
worthy of all admiration attempted to compile them in a single work, a task
which should have elicited the gratitude of all his subjects. He corrected
whatever was contradictory and unsuitable, and placed in one collection all
the laws which he believed had contributed to the prosperity and glory of
the State, arranging them in such a way that an easy method was afforded of
distinguishing what was just from what was inequitable.
But under all
circumstances, in order to obtain the greatest advantage, it is necessary
that there should not be a superfluity of anything. For, after having
succeeded in the compilation of a single body of laws, and having made an
excellent arrangement of the numerous and scattered materials of
jurisprudence; after having disposed of the innumerable conflicting statutes
which disturbed the harmony of legislation; after having enjoined upon all
magistrates to render their decisions in conformity with the recently
established rules of law, and having, by means of wise provisions, assured
the reconciliation of their various opinions, confident that they would
decide impartially and without any contention; still, not being content with
these achievements, and believing that he could advance the happiness of the
Empire to a great extent, he was imprudent enough to enact
new laws which
diminished the value of its former work, and, in this way, rendered himself
liable to censure, because of the controversies which he provoked, and the
contradictions which existed between former and subsequent legislation, for
in this way Justinian inflicted an injury upon himself.
And, indeed,
from that time to this, so many changes have taken place in legislation,
whether by the introduction of new laws, or by the adoption of customs whose
authority was solely based on the consent of the multitude, there is almost
as much uncertainty and disorder existing now as formerly, and all the
ordinary business of life is again thrown into confusion.
Wherefore,
although We are worthily employed with many other things, having paid
particular attention to this subject which could not dispense with Our care
and knowledge, and having thoroughly investigated the customs which have
been introduced with reference to different matters, We have endeavored to
reconcile the laws which were found to be conflicting, by repealing all such
as were in any respect subversive of their purpose. When we have encountered
any customs which were neither injurious nor unreasonable, We have ordered
them to be committed to writing, and have conferred upon them the force of
law. Finally, where any provisions have appeared to Us to be too severe, and
utterly regardless of justice, We have, by modifying them, rendered them
equitable, as was proper under the circumstances.
These matters
having been arranged and determined, We hereby notify all magistrates and
judges to consider as absolutely void, and to reject as such, all the
enactments which We have repealed; and, on the other hand, they must base
their decisions upon those which have-either been passed or compiled in the
first place by Our Father, of immortal memory, and subsequently by Us,
without anyone being permitted hereafter to have recourse to laws which We
have annulled, or to any customs which We have not established as legal,
notwithstanding the privilege which they enjoyed by reason of common usage.
CONSTITUTION II.
HE WHO IN OTHER
RESPECTS is PROVED TO BE WORTHY OP THE EPISCOPAL DIGNITY IN ACCORDANCE WITH
THE SACRED AND DIVINE CANONS OF THE CHURCH, EVEN THOUGH HE MAY HAVE CHILDREN
BORN IN LAWFUL MARRIAGE, SHALL NOT, FOR THIS REASON, BE PREVENTED FROM
OBTAINING THE OFFICE, OR WHERE ANYONE is WORTHY OF A HIGH SACERDOTAL
DIGNITY, HE SHALL NOT BE EXCLUDED FROM IT, MERELY BECAUSE HE HAS LEGITIMATE
CHILDREN.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
As the divine
canons and the other rules, having reference to the priesthood and the
creation of bishops, were drawn up in the best
manner possible
(and, indeed, why should they not have been perfect, as their authors were
influenced by Divine inspiration?), it may well be a cause for astonishment
that anyone has ventured to consider them as being imperfect, and having
been abolished, others have been promulgated in their stead. For although
the sacred canons, in describing the creation of bishops, state that he who
has children born in lawful wedlock is eligible to the first rank of the
priesthood, provided his life offers no other obstacle to his promotion,
legislators, having adopted the contrary opinion, hold that those who have
children, even though they are the issue of legitimate marriages, are not
eligible to the episcopal dignity on account of this impediment, on the
ground that perhaps the affection of the candidate towards his children
might be so great that he would be induced to use the property of the Church
for their benefit, for what else could anyone say? This, however, does not
seem to be a good reason. For the consequence would be that no one could be
created a bishop, if he had any brothers or other relatives living, as the
affection which he might entertain for those who are so nearly related to
him by blood might cause the same apprehensions to arise." Moreover, the
divine canons provided for this, and conferred upon bishops the authority to
relieve the necessities of their indigent relatives by employing the
property of the Church for that purpose. Therefore We, obedient to the
Majesty of God from whom Our power is derived, and thinking that the
provisions of the ancient canons are perfectly proper, do, in accordance
with them, hereby decreeat the same time repealing all laws in opposition
to the samethat any person, who is in other respects worthy of the first
dignity of the Church, shall not be excluded therefrom for the reason that
he has legitimate offspring, and that whoever may hereafter dare to violate
this law shall be condemned to everlasting silence.
CONSTITUTION
III.
PERSONS SHALL
NOT BE ORDAINED PRIESTS ACCORDING TO THE RITES OF THE CHURCH, EXCEPT UPON
THE CONDITION THAT THEY WILL LIVE IN CELIBACY THEREAFTER, AND IF THEY SHOULD
DESIRE TO CONTRACT MARRIAGE THEY MUST DO so PREVIOUS TO THEIR ORDINATION, OR
ONE CAN ONLY MARRY BEFORE ENTERING THE PRIESTHOOD.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Prefect.
As rules
relating to candidates for the priesthood have been established in a proper
manner from the beginning, those who observe the customs of the present time
do not (in My judgment) act as they should when they despise ecclesiastical
tradition; for while it directs that those who are to be ordained priests
shall promise to always live in celibacy, if they think they can fulfill
this promise, or, indeed, when they fear that they will violate it, they
must marry first, and then receive ordination, the custom prevailing at
present, on the contrary,
requires that
they be ordained before marriage, and permits them to marry for two years
afterwards.
But as all this
seems to Us to be improper, We order that, hereafter, ordination shall be
conferred in accordance with the ancient regulations of the Church, which
have been handed down to Us by tradition; for it is dishonorable for those
who are exalted by spiritual feeling, above the abject and base conditions
of the body, to again yield to the vile temptations of the flesh; and, on
the other hand, it is much better that they should be raised to this high
rank in order to avoid the effects of the degrading carnal passions.1
CONSTITUTION IV.
NOT ONLY PRIESTS
BELONGING TO THE CHURCH IN GENERAL BUT ALSO THOSE ATTACHED TO ANY PARTICULAR
EDIFICE DEDICATED TO CHRISTIAN WORSHIP CAN LAWFULLY CELEBRATE THE SACRED
MYSTERIES, AND PERFORM ALL THE RIGHTS OF DIVINE SERVICE IN A PRIVATE CHAPEL
WHEN THEY ARE SUMMONED FOR THAT PURPOSE.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
The ancients
decided that the sacrifices and communion of the Church could be celebrated
in private houses solely by priests who belonged to the general Church; but
that those who were attached to any other churches, or who, in any respect,
led a private life, could not discharge the duties of any ecclesiastical
office, or perform any religious rite whatsoever. They established this rule
for the purpose of preserving religion, as they wished (as may well be
conjectured) to prevent those who, having been priests, had adjured their
status, and concealing this guilty defection (with criminal intent), from
insensibly corrupting the true believers who called them to their
assistance.
1
Marriage of the clergy was universally recognized in the early ages of the
Church, and for the first three hundred years, no suggestion is to be found
of their incompatibility with the performance of ecclesiastical duties. It
was long authorized by the Canon Law, which directed candidates for
episcopacy to have but one wife, after baptism; a requirement which
necessarily implies that they were accustomed to have more, thus following
the Mosaic practice. "Post baptismum debet esse monogamus qui in
Episcopum est ordinandum." (Corpus Juris Canonici, Deer et, I, XXVI, 1.)
Matrimony was
not considered an impediment to promotion, but members of the priesthood
were enjoined to abstain from cohabitation with their wives at the time of
ordination, and when administering the sacraments. "Quicunque ergo
diligens inuentus fuerit in subdiaconali ordinatione, aut diaconali, aut
sacerdotali, hie nulla modo prohibeatur ad talem ascendere gradum pro vxoris,
suss legitimie cohabitatione. Nee etiam tempore ordinationis suse profiteri
cogatur; quod abstinere debeat a legali proprise vxoris familiaritate."
(Corpus Juris Canonici, Deer et I, XXXI, 13.)
The canon of the
Council of Nicea, while prohibiting intimacy with "subin-troduced women,"
was silent as to wives. The progress to sacerdotal celibacy was slow and
gradual, and the rule was finally adopted purely for material considerations
; partly with a view to prevent a division of affection and interest between
the
The object of
this precaution seems to be extremely praiseworthy, as those who employed
them were actuated by a desire for the welfare of the Church. It was not,
however, perceived that it was as necessary to confirm it as was supposed;
and, on the other hand, it is clear it weakened its firmest support by
interfering with the exercise of divine worship. It is, in fact, not
impossible for a priest whose depravity is not generally known to succeed in
corrupting the persons who summon him to their houses; but this would very
rarely happen, as there are few true believers so careless, or so frivolous,
as to invite priests with whose morals and religious principles they are
unacquainted, to come to their homes to conduct religious services.
Moreover, an
apostate priest who profanes the sacred rites of religion does not desire to
associate with those who are horrified by impiety. Hence, the rule referred
to does not accomplish what was expected. And then it has a tendency to
deprive a x-large number of believers of the benefits of religion, for, as
through Divine grace, not only almost all the wealthiest of Our subjects,
but also even the poorest of them, have private chapels in their houses, and
as the latter are not rich enough to furnish the sacred utensils and other
articles necessary for priests, the result is that they cannot enjoy the
benefits of private religious service, and that, at the same time, their
chapels cannot be used for the purpose for which they were designed.
Again, it is
very probable that when the memory of deceased persons requires'prayers to
be immediately offered up, the day when it should be done is often allowed
to pass without the performance of this duty, on account of the lack of
priests; something which is fully as disadvantageous to the living as to the
dead.
Therefore We
have decided that not only priests of the Church in general, but also those
who are in the service of any of the Houses of God, can, when called upon by
true believers, go for the purpose of celebrating the sacred mysteries, and
perform all the religious rites in their private chapels.
Church and the
family, and partly to secure intact the immense sums bequeathed by wealthy
and contrite sinners to religious establishments, in the hope of obtaining
priestly intercession, and pardon for lives passed in wickedness.
Prohibition of marriage had, however, for many years but little effect, for
during the eleventh century, and even later, members of the ecclesiastical
order, including archbishops, lived openly with their wives, and provided
liberally for their children out of the revenues of the Church. This fact is
succinctly set forth by a mediaeval churchman
as follows:
"Coeperunt
ipsi presbyteri ac diacones (qui tradita sibi Sacramento, Dominica, mundo
corde castoque corpore, tractare debebant) laicorum more uxores ducere,
susceptosque filios hxredes testamento relinquere; nonnulli etiam
episcoporum, verecundia omni contempta, cum uxoribus domo simul in una
habita/re." (Desiderii Dialog, de Mirac, S. Benedict., Lib. III.)
In the end, when
deprived of this resource, the clergy, obeying the imperious dictates of
human nature, as might have been expected, found relief by indulgence in the
even more reprehensible practice of clandestine concubinage.ED.
CONSTITUTION V.
PERSONS WHO HAVE
EMBRACED A MONASTIC LIFE AND POSSESS PROPERTY ARE NOT PROHIBITED FROM
DISPOSING OF IT BY WILL ; AND IF THEY BROUGHT ANYTHING INTO THE MONASTERY AT
THE TIME WHEN THEY ENTERED IT, THEY SHALL BE AUTHORIZED TO DISPOSE OF WHAT
THEY HAVE SUBSEQUENTLY ACQUIRED, BY WILL, IN ANY WAY THAT THEY DESIRE. BUT
WHERE THEY BROUGHT NOTHING THERE IN THE BEGINNING, THEY SHALL ONLY HAVE THE
POWER TO DISPOSE OF TWO-THIRDS OF WHAT THEY MAY SUBSEQUENTLY OBTAIN, AND THE
MONASTERY SHALL BE ENTITLED TO THE OTHER THIRD, OR A MONK CAN, BY WILL,
DISPOSE OF THE PROPERTY WHICH HE HAS
ACQUIRED.
The Same Emperor
to Caesar, Most Holy Archbishop of Constantinople, and Universal Patriarch.
You whom the
origin of all light has placed in the great firmament of the Church as a
divine star, whose duty it is to illuminate the world, have, together with
the reverend bishops, often informed Us of your uncertainty with reference
to the question whether monks ought to be permitted, or forbidden to dispose
of the. ownership of property acquired by them after having embraced a
monastic life. You have, as We already stated, frequently urged Us on
account of your uncertainty to investigate with you this perplexing point,
as the doubts to which it has given rise obscure as with a cloud the light
of reason, without which no satisfactory conclusion can be reached.
Therefore, always deeply impressed with veneration for Your sacerdotal
dignity, We are about to take measures to comply with your request.
In the first
place, We shall mention what has been laid down by the ancient authorities
concerning those who desire to embrace a monastic life, that is, that before
entering the one which they desire to live, they must first dispose of all
their property by will, and when it has not been done they will be deprived
of this privilege, and everything they have will pass to the church in which
they have assumed the tonsure. This was decided with reference to such as
had already adopted a monastic life (with the exception of those who had
surviving children entitled to inheritance), and it was held that this was
the best thing that anyone could do, and that nothing ought to be added to
or taken from this provision. For he who, having been able to dispose of his
property before his change of status, does not make use of his privilege,
can then very properly be deprived of it, because he himself is responsible
for his disability, and he is, to some extent, considered to have renounced
it, and the strictest construction of the law is no longer opposed to its
being taken from him.
Again, since he
has wished to release himself from the anxieties of this world, would it not
be absurd for him any longer to support
its burdens and
submit to its annoyances? Therefore, when anyone has embraced a monastic
life, as We have already stated, this decree shall not be supplanted by
another, when the person in question has no children. But when there are any
children (as it would not be right for them to suffer from the silence of
their father), the monastic habit should not altogether deprive them of the
right of testation, but it is clear that he can make a will in their favor
disposing of the shares to which they are entitled by a just and legal
distribution, but so far as the share of the father is concerned, he has no
right to dispose of it by will, as all of it belongs to the monastery. But
if death, as frequently happens in the course of human affairs, should
suddenly prevent the distribution of his property, any provision which he
may have made for his children shall, by all means, take effect; but this
shall be done in the manner aforesaid, where what belongs to them by law
must be set apart for their benefit, and the remainder will go to the
monastery. This is the method of disposition of property which anyone may
employ before adopting a monastic life.
But with
reference to property acquired by the father subsequently, a"nd concerning
which Your Holiness has applied to Us for a decision, We have thought
that a distinction should be made. For anything which a monk was not
entitled to leave by will before entering a monastery he cannot dispose of
in this way afterwards; as he is then deprived of the right of testation,
because, while he was in the world, and the property was in his possession,
and he could dispose of it but did not do so, he himself is to blame for his
own legal disability; but after he has embraced a religious life, there is
no reason why anyone should be prevented from disposing of what is his,
either in person or by someone else. If, however, it should be said that for
the sole reason that he was a monk, the monastery should be entitled to his
entire estate, I do not know whether a decision of this kind is in
accordance with monastic regulations or not. For, in the first place, is it
proper for those who have professed contempt for the affairs of the world
and its riches, to desire to hold them under any excuse whatsoever? Then a
monk may have poor relatives, who are in need of a helping hand, and why
should he then display a spirit so foreign to humanity as not to relieve
their distress by giving them his estate; but should not only repulse his
friends and kinsmen as strangers, and retain everything himself for the
benefit of the monks; just as We see voracious and greedy men, while eating,
manifest reluctance to leave anything for their companions? Nor can a slave
be freed from the bonds of servitude; nor anyone entitled to commiseration
obtain it; nor a person destitute of the necessities of life hope for
relief, when all the property of the monk is transferred to his monastery.
Hence We have very properly decided that if anyone, at the time when he
embraced the monastic life, consecrated anything to the Church, whatever he
may have acquired thereafter he shall be at liberty to dispose of in any way
that he wishes; but any property that he brought into the monastery in the
beginning must be divided into three parts, two of which he can make such
disposition as he pleases, and the third will belong to
the monastery.
This is what We have decided with reference to the point which you have
submitted to Us.
Your Holiness
will communicate these matters which have been decreed to all the
metropolitans, and direct them to notify the bishops under their
jurisdiction, in order that the latter may inform the churches in their
dioceses; so that in this way, both now and hereafter, these provisions may
become familiar to all persons and be carried into effect.
CONSTITUTION VI.
ANYONE CAN
BECOME A MONK EITHER AT THE AGE ESTABLISHED BY THE SIXTH COUNCIL, OR AT THAT
FIXED BY THE DIVINE BASILIUS; BUT THE DISPOSITION OF His ESTATE, NO MATTER
WHEN HE ENTERED THE MONASTIC ORDER, SHALL BE GOVERNED BY THE RULES WHICH WE
ARE ABOUT TO PRESCRIBE, OR A BOY OF TEN YEARS OF AGE CAN BE ADMITTED INTO
THE MONASTIC ORDER.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
It is necessary
to determine the age at which those who desire to enter a monastic life can
do so, for the reason that different rules have been laid down by Our Holy
Fathers upon this subject; and, as many of them conflict, the differences
should be reconciled. Therefore We, together with Your Holiness and your
pious archbishops, have carefully examined the opinion of the great and
admirable Basil, namely, that persons can not assume the monastic habit
until they are sixteen or seventeen years old, and that of the Sixth
Council, which held that they could do so at ten. We have adopted both of
these rules and decided that anyone is eligible at either of these ages. So
far as the power of alienation of property is concerned, We have determined
that whoever assumes the monastic habit at sixteen or seventeen years of age
can dispose of the same as he pleases, for We think that the great Basil
fixed this age in order that it might not be an impediment to the exercise
of this power. When a boy at the age of ten years desires to change his
status by embracing a monastic life, it is clear that the Holy Council
established the age at which he could do this with a view to aiding him in
this respect; but We, nevertheless, do not grant him authority to dispose of
his property by will, and decide that he cannot enjoy this right until he
has reached the requisite age. If he should die before having done so, all
his slaves shall be entitled to their freedom, and his estate shall be
divided into three equal parts, one of which shall go to his relatives, and
the other two to the monastery. When he has no relatives, the monastery
shall be entitled to his entire estate.
CONSTITUTION
VII.
WHENEVER ANYONE,
THROUGH LACK OF REASON, ATTEMPTS TO RENOUNCE THE CLERICAL HABIT FOR THAT
WHICH is PROFANE, HE SHALL BE RESTORED TO His FORMER CONDITION, OR NO CLERK
CAN AFTERWARDS BECOME
A LAYMAN.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
Previous to this
time, whenever We were investigating the establishment and confirmation of
legislation, and the civil law appeared to be stronger and better founded
than the ecclesiastical, We gave the former the preference; and, for that
reason, thinking that it would be advantageous to ratify the rule of a
religious order by means of a decree issued by civil authority, We hereby,
in accordance with ecclesiastical discipline, direct that every clerk who is
so foolish as to abandon his religious habit, and assume a secular one,
shall be compelled to resume the former, even though he may no longer be
worthy of again being received in the place from which he escaped in this
dishonorable way.
CONSTITUTION
Vill.
WHEN ANYONE
FORMS THE DESIGN OF ABANDONING A HOLY MONASTERY AND REJECTING THE MONASTIC
HABIT, AND, IN ORDER TO DO so, ASSUMES THAT OF PROFANE PERSONS, HE WHO DARES
TO COMMIT SUCH AN ACT SHALL, EVEN AGAINST His WILL, BE COMPELLED TO RESUME
THE MONASTIC HABIT, AND BE RETURNED TO THE MONASTERY WHENCE HE WICKEDLY
FLED, OR CONCERNING MEMBERS OF THE CLERGY WHO ABANDON A MONASTIC LIFE AND
ARE ENROLLED AMONG THE ATTENDANTS OF GOVERNORS OF PROVINCES.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
At a time when
young persons desiring to live an irregular life, attracted by the elegance
of the manners of wicked persons, seek their company, and measures are taken
to prevent them from following their inclinations to pursue a vicious and
corrupt career, it is a matter of surprise that the ancient law permitted
those who had embraced a monastic life, and had ventured to abandon it to
accomplish their wishes, and, having resumed their secular habits, in the
language of the Holy Scriptures, like dogs returning to their vomit, again
tread the filthy paths of their former existence.
A law provided
that anyone who renounced the monastic life should be compelled to return to
it the first time that this happened,
but if it was
repeated he could not return, but must be enrolled in the provincial cohorts
of the army. But if it was decided to be proper that a monk who abandoned
his monastery could again assume a profane habit, why should he not have
been permitted to do so the first time that he fled, and, instead of this,
be compelled, even against his will, to resume the profession which he had
renounced? And if, on the other hand, the decision in a case of this kind
appeared to be just, why was it not adhered to, and why was it established
that, after his second desertion, the unfortunate monk should be compelled
to adopt a military life?
. This
regulation appears to Us absolutely void of propriety, and as We do not
approve that anyone who has been enrolled in the legions or the divine
soldiery should become one of the military force of Our Empire, We hereby
enact as a law the canon of the ecclesiastical order that anyone who,
disgusted with religious life, abandons his monastery several times, shall
not be permitted to resume the secular habit, for even though he is
compelled to return the first time that he leaves it, why should he not be
tempted again to depart, if he knows that by doing so he can regain his
profane status, and, under no circumstances, be forced to return to monastic
life?
CONSTITUTION IX.
CONCERNING
SLAVES WHO BECOME MEMBERS OF THE CLERGY WITHOUT THE KNOWLEDGE OF THEIR
MASTERS.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople.
Being always
desirous of enforcing the rules of ecclesiastical discipline, and the
provisions of the sacred canons, We have annulled those of Our laws which
are in opposition to them. Hence, in accordance with the will of the Church
of God, We decree that any slave who has assumed the revered dignity of the
priesthood, without the knowledge of his master, shall be deprived of this
honor, and restored to his former servile condition; and We hereby repeal
the law, declaring it shall be of no effect, which provides that when a
slave, without the consent of his master, becomes a priest, he shall be
liberated from servitude.
CONSTITUTION X.
CONCERNING
SLAVES WHO ADOPT A MONASTIC LIFE WITH THE KNOWLEDGE OF THEIR MASTERS.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
We are aware of
the supreme excellence of monastic life, and how worthy of reverence and
honor those are who assume this easy and fortunate yoke. Therefore, far from
blaming anyone who decides to do so, We think that he should be exempt from
all censure, for the more admirable and divine anything is, the more it is
entitled to respect; the dignity of the monastic profession should not be
made a cloak for ingratitude and immorality; and where a slave flees from
his master
and devotes
himself to an ascetic life, why should this be called dishonorable? For as
it has been decided by Our predecessors, with reference to runaway slaves
who enter monasteries, that if they should be proved to be fugitives within
three years, their master will have the privilege of stripping them of their
monastic habit, and regaining control of them; but where a slave remained
unrecognized for three years and was afterwards found out, he could not be
brought under the authority of his master, but afterwards became free in
spite of him; and, as at present, innumerable slaves have seized the
opportunity to escape from their masters, and enter the honorable monastic
profession, whose privileges they abuse for the purpose of concealing their
wicked designs (as it is very easy for a slave to remain hidden for three
years and in this way obtain his freedom), We hereby order that whenever a
slave becomes a monk with this end in view his master can, no matter when he
finds him, have him stripped of his monastic habit and again subject him to
his authority. For no one can allege that he has assumed it through motives
of piety, as this is only a pretense, for he has either deserted a good
master, and in this instance he is guilty of ingratitude, as well as of
dishonesty, or he has abandoned a wicked master for the reason that he was
not able to endure his abuse and ill treatment, and this being the case, how
can he exalt that government which desires its citizens to always bear in
mind the sufferings and death of Christ upon the cross ?
CONSTITUTION XL
CONCERNING A
SLAVE PROMOTED TO THE EPISCOPATE WITHOUT THE KNOWLEDGE OF His MASTER.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
We have decided
with reference to a slave, who has surreptitiously attained to the honors of
the episcopate, that the same rule shall apply as where one is admitted into
the priesthood under similar conditions, without the knowledge of his
master; that is to say, he shall be deprived of the honor which he has
clandestinely obtained, and be reduced to his former servile status. For if
We do not permit persons who have dishonestly or fraudulently taken property
from others to retain it, but punish them as malefactors, with much more
reason We should not permit those who are bold enough wrongfully to secure
an office of this kind, to live in peace, and through a perfidious act
obtain two most precious advantages, namely, their freedom and the
privileges of the sacerdotal order. Therefore, if any slave should be
created a bishop without the knowledge of his master, this shall, in no
respect, enable him to escape from servitude.
CONSTITUTION
XII.
CONCERNING THE
USE OF THE SHOPS OF THE GREAT CHURCH.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
Constantine, the
first Christian Emperor, who exalted the brilliancy and majesty of the
Imperial throne, thinking that it was not unworthy of his royal care and the
glory of his illustrious deeds to provide for the burial of poor persons who
did not, after their death, leave anything for their interment, devoted to
this purpose the income from a certain number of shops attached to the Holy
Church of this City. Then the emulation of the pious was exerted to obtain
the benefits resulting from this decree, and although the rents were
sufficient, their benevolence induced them to greatly increase the sums
obtained. But, at present, this praiseworthy duty is not discharged with the
diligence that this three and four times fortunate prince decided to be
necessary, for We are aware that the Church, after it collects these rents,
although it does not make use of them to defray the expenses of public
worship, to which they were devoted in the beginning, applies them to other
things; and, in consequence, We order that these sums should be used for the
purpose for which they were destined by Constantine, and that they can never
be used for anything else, but that the object of their disbursement shall
remain unaltered and inviolate. All the shops whose rents are set apart as
aforesaid are eleven hundred in number.
CONSTITUTION
XIII. CONCERNING PERPETUAL EMPHYTEUSIS.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
It has come to
Our ears that the officials having charge of houses consecrated to God, that
is to say churches, hospitals, and asylums intended for the support of
widows and orphans, are in the habit of fraudulently and illegally extorting
money from the tenants to whom they have leased these buildings. It is
stated that when the leases have expired and renewal is in question, instead
of being content with the fixed rent which is due to them, the said persons
exact sums to the amount which their avarice may suggest. Therefore, as
extortion of this kind is very burdensome to all lessees, and especially
cruel to the poor who are thereby reduced to dire extremity, We expressly
forbid it by this law, and prohibit Our officials, under such circumstances,
from collecting more than double the sum stated in the emphyteutical
contract; everything which they exact over and above the former rent shall
be set forth in the lease; and, moreover, they shall not make any change in
the building leased that is rather for their own benefit than for the
usefulness of the said building.
CONSTITUTION
XIV.
CONCERNING THOSE
WHO LEAVE A MONASTERY
UNFINISHED. To
the Same.
He who begins
anything precipitately and with too great eagerness, and even in .the very
beginning is deprived of the power and the
ability to
complete it, whether he is actually vicious, or has undertaken more than he
can accomplish, should be despised and considered worthy of censure. Our
Lord Jesus Christ, who always makes use of proverbs in his instructions,
mentions this in the Gospels when he speaks of the foundation and completion
of a city, and it is therefore reasonable that Our Sacred Laws and Imperial
Decrees should also employ the same language whenever they forbid the
foundation of a monastery, where the means are insufficient to complete it.
For it is only when some enterprise can be perfected that the name which it
is destined to bear can be given it, and so long as it is imperfect, it
would be absurd to designate it by the appellation that it can only have
when it is entirely finished. Therefore, as has already been stated, it is
only reasonable that both Our Sacred and Civil Laws should forbid the
foundation of a monastery, when sufficient funds are not available
for its
completion.
Still, as one
can not exactly know when a monastery should be considered finished, for the
laws have prescribed nothing definite in this respect, We have deemed it
advisable to promulgate an Edict which will render this matter clear and
certain. Hence We declare (as has been stated by Our Lord), "Where two or
three are gathered together in my name, there am I in the midst of them,"
the application of which is, that for any building whatever to be able to
assume the name of monastery, it must be x-large enough to accommodate at
least three persons; in which case, if considerable property should be added
thereto, it will be entitled to be designated a monastery. Thus, in order
for a monastery to be devoted to sacred uses, it will he necessary for at
least three monks to take part in the consecration. But as the greater
portion of the persons who apply themselves to undertakings of this kind die
before the latter are completed, We hereby decree that when they have made a
will, their monastery can ask to be released from the acceptance of the
legacies bequeathed to it; and if the founder should die intestate, which
frequently happens on account of the uncertainty of the time of death, the
monastery will be entitled to a fourth of his estate where he only left
three children, or if he left ax-large r number it can, in preference to all
charges and obligations, take out of their share a portion equal to that of
each one of them. When, on the other hand, the deceased had no children, but
left some ascendants, his estate shall be divided into two equal parts, one
of which shall go to his ascendants, and one to his monastery, and if,
instead of children or ascendants, he left only collateral relatives as
heirs, the latter, no matter what the number may be, will only be entitled
to one-third of the estate, and the other two-thirds will go to the
monastery; and finally, if, through forgetfulness, or for any other cause,
the testator, having lawful ends in view, made a will in opposition to these
provisions, the ecclesiastic in authority in the neighborhood will have the
power to take from the estate a sufficient sum to maintain the monastery,
and provide for the monks; and the other testamentary dispositions made by
the deceased shall be observed, so far as the remainder of the property is
concerned.
CONSTITUTION XV.
IT SHALL BE
LAWFUL TO CONFER THE SALUTARY RITE OF BAPTISM IN ANY PRIVATE CHAPEL
WHATSOEVER.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
A sacred canon,
issued by the Sixth Council, provided that the rite of baptism shall be
conferred only in temples consecrated for the use of the public, and not in
chapels attached to private houses, just as other canons promulgated by the
same Council forbid the divine sacrifices and mysteries to be celebrated in
private residences. As We have deemed it proper to remedy the latter rule,
We should also pay similar attention to the former one, as it relates to the
same subject. Therefore We decree that it shall be lawful to confer baptism
in every kind of private chapels, as We have already stated that the divine
mysteries can be celebrated therein. For it seems to me that when the
Council forbade this, it was with a view to preserve true believers from the
snares of depraved men who, although they bore the name of priests, were
still worldly, and polluted the candidates whom they conducted to the
baptismal font; and who, it appears, when called to the houses of persons
for the purpose of conducting religious services, did not discharge their
sacred duties, but wickedly attempted to corrupt those who were assembled
there. But while a provision of this kind may be divine, and contain many
things which are salutary, it still does not suffice to restrain men who are
full of impiety from practicing their vices; for malice is audacious, and in
order to accomplish its purpose can find a way even when places of prayer
are closed. Nevertheless, as with the aid of Divine favor, all perverse
opinions have been eradicated, I do not see any reason which renders it
necessary to preserve the law forbidding the rite of baptism to be
celebrated in private chapels.
CONSTITUTION
XVI.
ANYONE CAN BE
CREATED A SUBDEACON WHO HAS REACHED His TWENTIETH YEAR.
To the Same.
An ancient
proverb says that special attention should be given to those who speak of
things with which they are familiar; for where they discourse intelligently
in general, they discuss subjects of this kind with far greater facility.
But what is the application of this? The Civil Law has prescribed that no
one under the age of twenty-five years can become a subdeacon; the Canon
Law, on the other hand, declares that this can take place at the age of
twenty. As the Canon Law has decided with reference to a matter which it is
directly concerned, We think that it should have the preference; and in
conformity with it, We decree that a subdeacon can be created at the age of
twenty years, provided he has not rendered himself unworthy through his
conduct up to that time.
CONSTITUTION
XVII.
WOMEN IN
CHILDBED CANNOT TAKE PART IN THE CELEBRATION OF DIVINE MYSTERIES, AND THEIR
INFANTS CAN NOT BE BAPTIZED UNTIL AFTER FORTY DAYS, UNLESS SOME URGENT
NECESSITY REQUIRES THIS TO BE DONE.
To the Same.
Your Holiness is
better qualified to decide the question which you have proposed than We are,
for it is your province to render decisions relating to sacred things. But
as you state that it will be inconvenient to consult the Council with
reference to a special case, as its attention is only directed to general
matters; and, besides, as We can, without applying to the Council determine
the point which you have submitted to Us, after having duly considered it,
We promulgate the following constitution with reference to the same.
As Our Lord and
Saviour Jesus Christ, by whose glory those who walk in darkness are
illuminated, designed to clothe himself in our flesh and blood, it is, in my
opinion, contrary to His Divine Providence to hold that a woman who has
recently brought forth, and is in danger of dying before the expiration of
the time established for her to receive the sacraments (namely, the fortieth
day after the birth of her child), and that in spite of this, she should be
considered unworthy of being enlightened on religious subjects; and that, on
account of her physical impurity, she should be permitted to die impure,
that is to say without having been baptized, or allowed to participate in
the regeneration effected by the sacred rites of the Church. Those who hold
this opinion do not take into consideration the extent of the danger, and
the evil to which their inconsiderate and fatal belief exposes her, for it
is absurd to maintain that she does not need the aid of prayer. It would not
be permitted, or, in other words, it is horrible in the eyes of God who
grants salvation to all those who believe in Him, and are regenerated by the
spirit and by baptism, to abandon such a woman to perish in her unbelief and
her original corruption, and in this way to be responsible for her eternal
loss when her salvation could have been secured. Is not this a serious and
bitter course to pursue?
Therefore,
abolishing this unwise conclusion, We hereby decree that where a woman has
recently been brought to bed, and afterwards has a natural delivery, and is
not, in other respects, dangerously ill, she shall not, before the
expiration of forty days, either be baptized (if she has not yet received
this rite), or have the other sacraments of the Church administered to her,
if she has already received baptism; but that, where any dangerous disease
attacks her and threatens her life, she shall, by all means, be permitted to
participate in the sacred mysteries. For if persons, on account of the
enormity of their crimes, are deprived of communion for many years, why
should the natural corruption of her flesh be a reason for withholding these
rites from her, when the criminals above mentioned, if they fall dangerously
ill, are permitted to partake of the sacrament before the
time of their
excommunication has expired? If the ancient law prescribed a time during
which a woman should, under such circumstances, be excluded from communion,
it is not, as I believe, because of her present condition of impurity, but
for other reasons concealed by the policy of the law, and I think that the
principal one was to restrain the concupiscence of those who devote
themselves to sensual pleasures without moderation, just as many other
regulations have been established for the purpose of blunting the
indomitable desires of women.
I also think
that another reason was to prevent her health from being affected by her
confinement; for as everything which is superfluous in nature is useless and
conducive to decay, women, being subject to loss of blood in confinement,
are forbidden to place any obstruction to this flow during the time
prescribed by law; and, in order that they might not be tempted to arrest
it, were compelled to remain, during that period, temperate and free from
concupiscence.
So far as
children newly born are concerned, We hold that they also should not be
baptized before the said term of forty days has elapsed, unless
circumstances arise which are liable to result in death. For as a foetus,
while in the womb of its mother, does not assume its form, and is not
endowed with life until the term of forty days from its conception has
expired, so also, the spirit of life conferred by baptism should not be
imparted before the expiration of forty days. Still, there is nothing absurd
in baptizing a child at the end of eight days, if one does not desire to
wait longer, for Our Lord was circumcised eight days after his birth, and
baptism has been established to take the place of circumcision.
This rule is
applicable where no necessity which threatens death exists, for where there
is any danger of loss of life, every effort should be made to perform the
rite of baptism within eight days, in order that the child may not be
deprived of such a great advantage by death.
CONSTITUTION
XVIII.
THE PENALTY
INCLUDED IN THE CONTRACT OF BETROTHAL SHALL BE EXACTED.
The Same Emperor
to Stylianus, Most Illustrious Master of the Imperial Offices.
When a selection
is to be made between things and discourses, no one should be blamed for
choosing what seems to be the best. But in order to come to a conclusion on
this subject it is not necessary to adopt the opinions of those who act or
speak, but thoroughly to examine the source from which the deeds or
statements are derived. Therefore We think that We should adopt as a law the
custom which provides that where a promise of marriage is broken, certain
penalties shall be imposed; for I believe that the law relating to this
includes some very wise provisions, since while it only condemns him who
breaks his word to lose a betrothal gift, or to return twofold its value,
custom demands
that he pay the damages and interest set forth in the marriage contract.
And, indeed, it seems to me that this rule has a greater tendency to prevent
the violation of promises of marriage, as the simple loss of a
betrothal gift, by the person who gave it and afterwards broke his or her
promise, or the restitution of double its value to him or her by whom it was
given, is a punishment of such trifling importance that it only induces the
person who desires to violate the agreement to do so; while anyone will
hesitate to incur the risk of becoming liable to a penalty mentioned
therein. Hence, being convinced that the infliction of a penalty will
promote the observance of marriage contracts, We insert it in the present
Constitution. I only see in the forfeiture of the betrothal gift an easy
method of avoiding a marriage, but this is not the case where the payment of
a penalty is involved, for the expense is greater than that set forth in the
contract, and compels those who are unwilling, or are irresolute, to comply
with what they agreed upon at the time of the betrothal. Therefore what has
been confirmed by custom up to this time shall hereafter obtain the force of
law, suits shall be determined in accordance with it, and whoever violates a
betrothal contract shall be liable to the penalty.
CONSTITUTION
XIX.
CONCERNING THE
CONTRACT OF A FATHER BY WHICH A
SON BECOMES
ENTITLED TO A SHARE OF His ESTATE
EQUAL TO THAT OF
THE OTHER HEIRS.
The Same Emperor
to Stylianus, Most Illustrious Master of the
Offices.
It is not with
the intention of treating with contempt the acts of others, as We have
previously stated, nor because We are actuated by the desire to obtain
greater glory, that We devote Our attention to the amendment of the laws;
but in order that We may abolish what is not advantageous to Our subjects,
as far as this can be done, being aware that a just system of laws is the
greatest essential of a good administration, for he who declared that the
laws are the eyes of government, in my opinion, gave utterance to a
statement which was in no wise improper. For as it is absolutely necessary
for an animal to have eyes which are steady, so legislation must be just and
equitable. Therefore, bearing this in mind, and knowing that there was a law
in the Code which is so absurd that it has never been accepted by the minds
of men, but has no force or effect, as it is opposed to the natural equality
which should be displayed by parents with regard to their children,
authorizing them to be unjust to some of them, and enabling them to be
guilty of fraud and bad faith in case they wish to do so; and, as I have
stated, being aware that there is a law of this kind, although it was not
observed even before Our sanction was accorded it, We, nevertheless, are of
the opinion that it is Our duty to repeal its authority and use by means of
a decree. But what does it say? It provides that a father, when he gives his
son in marriage,
and promises to
make him the heir to his estate at his death, on the same footing with his
brothers, and leave him a share of the other equal to that of each of them,
can not break this promise even if he desires to do so, and give more to his
other children than to him. But as this law is never observed anywhere in
the Empire, We hereby repeal it absolutely, and decree that a father can not
change the promise that he made to his son when he was married, to give him
a share of his estate equal to that of each of his other children. Every
provision made by him which would have a tendency to violate his promise,
and diminish the share aforesaid, shall be considered void, and of no
effect; and his son shall, in every instance, succeed to the estate on the
same footing with his brothers, in accordance with the terms of the
contract. For, under no circumstances, shall falsehood be preferred to
truth, nor is it just or consonant with reason for an agreement to be
wickedly disregarded. But, on the other hand, it is far more worthy of a
father to keep his word, unless, substituting falsehood for truth and acting
in an irrational manner, he wishes to deprive those things which are founded
upon reason of their principal attribute.
Again, it is not
right for a parent not to manifest the same affection for all the children
born to him, and not make provision for their lives in an equitable manner,
but to bestow ax-large r share upon some than upon others, without showing due
consideration for the latter, although he knows that they will hereafter
live in want. But it is proper that all his children should be justly
provided for by receiving an equal distribution of his estate, and not that
more should be given to some than to others, in accordance with the degree
of affection with which he may regard them.
CONSTITUTION XX.
NEITHER HUSBAND
NOR WIFE SHALL, IN CASE OF THE DEATH OF ONE OF THEM, BE ENTITLED TO ANYTHING
EXCEPT THE DONATION GIVEN IN CONSIDERATION OF
MARRIAGE.
4
The Same Emperor
to Stylianus, Most Illustrious Master of the Offices.
As it was laid
down by the ancient laws, which treated of nuptial contracts, that at the
time of the contraction of marriage, as well as when it was dissolved by the
death of either of the parties, he or she would be entitled to an equal
share of the estate, I do not know for what reason other laws were
subsequently enacted which contained contrary provisions. For the more
ancient ones declared that when the marriage was contracted, what was
mutually given by husband and wife should be of equal value, and that at its
dissolution each should take what he or she had brought, unless there were
children, or it was stated in the agreement that the survivor should be
entitled to more. Where such an arrangement had been made, it was held
that at the time
of the death of either of the married persons, the survivor, having taken
what he or she had given, would be entitled to whatever it was stated the
survivor should receive out of the estate of the other, and that such
acquisitions must be of the same value for each, that is to say, if the wife
survived she would be entitled in the first place to her dowry, and
afterwards to her share of the property given in consideration of marriage,
or even to all of it if this had been agreed upon; and that if, on the other
hand, the husband survived, he could claim the ante-nuptial donation, and
could take either a part or all of the dowry of his wife, in accordance with
the terms of the contract. These are the provisions of the ancient laws
which were repealed by subsequent enactments. What the latter provided is
unjust, for they declared that at the time of the contraction of the
marriage the wife should bring a dowry ofx-large r value than the donation
made to her by her husband, and that, on the day when the marriage was
celebrated, she would acquire the ownership of the articles composing said
donation, even if she should contract a second marriage, as is frequently
the case.
The more recent
laws also provide that where the woman survives, she will be entitled to the
entire ante-nuptial donation, along with her dowry, and will take besides
out of the remainder of her husband's estate a share equal to the fourth of
the dowry and the donation combined, and if, on the other hand, she should
die first, her heirs would be entitled to both the dowry and the donation
without the husband being able to retain more than a fourth of the two
combined; and that this rule should be enforced without regard to any
agreement in this respect.
These laws were
extremely iniquitous, inasmuch as they provided that, where marriage was
dissolved by death, they assuaged the grief of the wife for the loss of her
husband by giving her part of his estate, and aggravated the husband's loss
by depriving him of all of that of his wife. But is not this unfair? Does it
not inflict great wrong under color of law? There is perhaps some reason
that, when the husband dies first, his wife should acquire a right to his
property, but when she dies first, and her heirs obtain it, the rule in
every respect is unjust and outrageous. Wherefore the above-mentioned
Emperor, to whom We owe Our origin and to whose power We have succeeded,
very properly and wisely held that in order to preserve the authority of the
ancient laws, the more modern ones by which they were annulled should be
repealed. But custom is refractory and contentious, and absurd opinions are
not easily extirpated when they are profoundly rooted in the minds of men,
and especially where the latter are not willing to take the time and trouble
to examine them. However frivolous a custom may be, people are unwilling to
abandon it in order to adopt a better one. Hence, the Constitution enacted
by Our Father whose memory should always be preservedfor the purpose of
renewing the ancient laws relating to marriage contracts, has been rejected
as absurd, and those which he decided should be abolished are now in general
use. What then should We do? As it seemed to be
better that
married persons should not bring equal shares of property to one another,
but that the dowry should be of greater value than the ante-nuptial
donation, this shall have the force of law. And if death should dissolve the
marriage, and the husband should die without leaving any children, and no
agreement was made with reference to this, the wife will be entitled to both
the dowry and the ante-nuptial donation, but to nothing more; and if, on the
other hand, death should remove the wife, her heirs will be entitled to the
dowry, and the husband will not be deprived of his property, but shall have
what belongs to him. For would it not be unjust for strangers to be enriched
at his expense, and that, in addition to the loss of his wife, he should be
deprived of his own property, or of the ante-nuptial donation which he gave?
CONSTITUTION XXI.
THE PROMISE OF A
DOWRY SHALL BE FULFILLED BY THE
DELIVERY OF
PROPERTY BELONGING TO THE FATHER'S OR
MOTHER'S ESTATE.
The Same Emperor
to Stylianus, Most Illustrious Master of the Offices.
Just as one can
make use of a balance to determine the weight of anything when the scales
are perfectly equal and do not incline more to one side than the other, so a
law is worthy of serving as a rule for the decision of litigation, when it
contains nothing which tends to the perversion or corruption of justice. The
use of the former is to preserve equilibrium, and of the latter to maintain
equity.
What is the
application of this? A constitution is included in the Code that contains
provisions which I do not think are in conformity with the law providing for
the enforcement of promises bestowing dowries and ante-nuptial donations.
For it declares that where a father promises a dowry or an ante-nuptial
donation for the benefit of his children, and he makes his promise in a
general way, he must himself fulfill it by giving his own property alone;
but if, on the other hand, he should make a distinction, and speak as
follows, "I shall fulfill my promise by taking the property out of my own
estate and that of my son," then, if he is poor, he can not comply with his
promise, but what he agreed to give shall be entirely taken from the estate
of his son; but when he is wealthy, he alone must do what he promised, and
his son shall contribute nothing for that purpose, even though he may have
stated that the latter must participate with him, and give up his property,
for the reason that it is thought to be unjust for the son to surrender
anything which he did not agree to donate.
We are of the
opinion that this rule is subversive of equity, for no matter how poor the
father may be, it is unjust for his son to be obliged to entirely fulfill
his promise; and, on the other hand, when the father is wealthy, it is not
proper for him to carry out the promise, without his son assisting in doing
so. It is for this reason that We have decided that the promise shall be
complied with in accordance
with the terms
in which it was set forth. Where the father limited it to himself, he alone
must execute it; if he made it conjointly with his son, the latter must
participate in its execution; and this shall be done equally when anything
has been provided in this respect, or each must pay his share in case what
each should give was stated. There is no violation of equity in this rule,
and, besides, it has in view the welfare of the children, which the
constitution included in the Code does not sufficiently provide for. Why is
this? Because a father who, above all things, considers the expense, by
waiting until his son is old enough to make a valid promise before drawing
up the matrimonial contract, often loses the opportunity of an advantageous
marriage. Therefore, for the benefit of both parties, as well as in the
interests of justice and to promote the welfare of the children, We hereby
abolish the decree of the Code, and enact as law what has already been
observed as custom. What has been prescribed shall be considered as law and
substituted for the enactment contained in the Code.
CONSTITUTION
XXII.
A WOMAN WHO DOES
NOT MARRY A SECOND TIME SHALL BE ENTITLED TO THE SHARE OF A SINGLE CHILD OUT
OF HER HUSBAND'S ESTATE, AND WHERE THE FATHER SURVIVES HE SHALL ENJOY THE
SAME PRIVILEGE.
The Same Emperor
to Stylianus, Most Illustrious Master of the Offices.
As We have
yielded to custom, in numerous instances, when it contained nothing absurd
or injurious, and have even given it the force of law when people accustomed
to its observance were reluctant to reject it, We think that We should also
adopt the provisions having reference to the grant of the ante-nuptial
donation to the wife when she survives, and, having children by a first
husband, does not marry again. The old law gave her this privilege, and
while granting her the usufruct of the property, it also allowed her the
share of one child in absolute ownership. A subsequent law permitted her to
take the said share, not only out of what composed the ante-nuptial donation
but also out of the remainder of the estate of her husband. Custom, however,
did not entirely approve of either of these enactments, but, partially
following both of them, decided that it was not proper to allow her a share
of one of the children, whether it was taken out of the ante-nuptial
donation or from other property belonging to the husband; and altering the
character of the said share, it allowed her to have a fixed amount of the
entire estate of her husband.
Since this
practice is in no respect injurious to the welfare of Our subjects, We deem
it advisable to adopt it as a law, as We have done in several other
instances, and confer upon it absolute legal authority, instead of that
which it derived from common usage.
Where all the
property of the husband was included in the antenuptial donation, the
mother, if she survives, can, along with her children born to said husband,
take the share to the full ownership of
which she is
entitled, and enjoy the usufruct of the remainder. But where the property of
the husband was not sufficient to constitute the donation, the share of the
woman will not be subjected to a reduction in proportion to what was
lacking, and the result will be the same as if what was thus bestowed had
not suffered any diminution, and the ante-nuptial donation had been
complete. Therefore, after the woman has received her share in this way, the
remainder of the estate will go to their children, who, in case their father
left nothing, will be obliged to indemnify her for the loss which she
sustains, and prevent her from suffering from poverty. This is the way in
which We have provided for the rights of the wife when she survives.
Where on the
other hand, the husband survives, he will neither gain nor lose anything
when there are no children, as We have elsewhere decreed in amending a law;
but when there are children, and he has no intention of marrying again,
then, in order to indemnify him for the expense of their education, and on
account of the honor and reverence manifested by him to his first marriage,
he shall be entitled to a share equal to that of one of his children, to be
deducted from the dowry.
CONSTITUTION
XXIII.
GOVERNORS SHALL
NOT CONTRACT MARRIAGES WITH t FEMALE MEMBERS OF THEIR HOUSEHOLDS WHILE IN
THEIR PROVINCES.
The Same Emperor
to the Same Stylianus.
By Hercules, it
would be more worthy of the human mind and the virtue of magistrates,
because they enjoy more glory and honor than many others, if, when they
assume the duties of office, they would exert themselves to observe and keep
the precepts of God religiously and carefully, and provide for the welfare
of Our subjects instead of grievously oppressing them. But for the reason
that there are many of these officials who have a cruel and unjust
disposition which leads them astray from the straight path of their duty,
and, inducing them to practice tyranny and indulge their avarice, instead of
devoting themselves to the cares of government, causes them to display a
savage temper, the ancient law, with a view to restraining them, provided
that Governors should not have the power to enter into marriage contracts or
betrothals while in their provinces, though when establishing this rule with
reference to their sons, grandsons, and other male descendants, it did not
forbid the marriage of their daughters. Therefore We, with the intention of
supplying what is deficient in an excellent law, have decreed that those who
obtain the governorship of provinces shall be forbidden to give their
daughters, or any other persons of the female sex, in marriage, in their own
provinces, just as they are not allowed to permit the marriages of their
sons, or any other male relatives, including the servants of their
households.
Why should this
prohibition apply to their sons and other relatives of the male sex, and
their daughters remain free from its observance,
especially when
the males can be useful in many ways, not only to themselves but also to
their wives, and to others who are related to them ? For they can obtain
offices, engage in trade, or undertake other things with a view to earning
their livelihood, while women are not fitted for anything of this kind.
CONSTITUTION
XXIV.
NATURAL CHILDREN
CAN NOT CONTRACT MARRIAGE WITH OTHERS WHO ARE ADOPTIVE.
The Same Emperor
to the Same Stylianus.
Many persons who
are accustomed to praise former times desire to give them the credit of
having enacted and established better laws; and I am well aware that in many
respects their laws are superior to those which have subsequently been
adopted; but I also know that in some instances they are inferior. There
are, indeed, not a few of them that are more beneficial, among which those
concerning adoption should be included.
Adoptions
formerly were devoid of pomp or ceremony, and took place without sacrifices
or any sacred melodies, and the law permitted those who desired to be
adopted to do so in an extremely informal manner. The result of this was
that the name of sister was frequently changed into that of wife; that of
daughter into that of daughter-in-law; that of son into that of son-in-law;
and then adoptive sons or daughters contracted matrimonial alliances with
their natural brothers or sisters, which could take place because the
service of the Church not being employed in adoption, no hindrance was
offered to them.
But although
marriage was, under such circumstances, considered to some extent
disgraceful, *there was nothing criminal about it, since adoption was
accomplished without any religious rites. But at present, as it is
accompanied with all due solemnity, as as the names of adoptive father and
son are bestowed during the holy sacrifice, there is no longer any reason
why marriage between natural and adoptive children of the same father should
be permitted. Hence, We decree that those who become brother and sister by
adoption can not change this relationship through matrimonial union.
CONSTITUTION
XXV.
CONCERNING
EMANCIPATION AND THE RESTITUTION OF THE DOWRY.
The Same Emperor
to the Same Stylianus.
Laws promulgated
by the ancient Emperors concerning emancipation were excellent and worthy of
being preserved from all innovation; and I do not know why they have not
obtained the respect to which they were entitled, for while they are not
altogether regarded with contempt, they are to a certain degree despised.
This is not just. For these laws declare that where slaves are given their
freedom, they
cannot
afterwards be deprived of this right, unless where they had been guilty of
one of the forbidden causes by which they could again be reduced to
servitude, and are convicted of having committed the offence maliciously, in
which case they can again be consigned to the servile condition; and all
persons religiously observed these laws and reverenced them. But where
children are once released from the control of their parents, and are
permitted in every respect to follow their own inclinations, this does not
seem to have met with public approval; and the general impression is that
this provision, being as it were dishonorable, should not be complied with.
But it is now clear that these decrees have been deprived of their force
without any good reason, for there is no new law which forbids it. And,
indeed, a certain judge has decided, and I wonder upon what grounds, that
emancipated children shall enjoy the privilege conferred upon them by this
ceremony, but that if they do not themselves have issue, their independence
will be abrogated, and they will begin to be subjected to paternal control.
Nor did the magistrate referred to confine himself to this, for he added
that if the emancipated child himself had children, and lost them, he would
not only be deprived of the free exercise of his will, but also would not
have testamentary capacity, or be permitted to administer the property
bestowed upon him by his parents.
This opinion
having been adopted by certain persons, their successors were the more
readily induced to accept it, so that the ancient legislation having been
rejected, these rules are in force at the present time.
Therefore We,
restoring the authority of the ancient laws which relate to this subject, do
hereby decree that no one of those who contests the restitution of a dowry
shall be dismissed without the case being fully heard. But what do the
ancient laws say? They declare that if an emancipated child should be
deprived of his offspring by death, any donation which his father may have
given him is revoked for the benefit of the latter; but the same rule does
not apply to a gift from his mother, or a stranger, unless it was expressly
stipulated that the revocation should take place in this instance also. Nor
does this rule apply to a donation made by his father, when he emancipated
him, for the laws provide that he shall be entitled to the property included
in it, and can dispose of it by will, unless the donation contains something
which prohibits this from being done. Therefore We have adopted these
provisions without exception, and do hereby decree that when an emancipated
child, who himself has no issue, makes a will, his father shall be entitled
to what is granted him by the Falcidian Law, unless he renounces his right
to the same while making the donation; but no other relatives, even though
they may have been called to the succession ab intestato, will have a
right to anything whatever, if they neglected to insert a clause with
reference to restitution in the agreement.
While
considering this subject, it is well to note that a child can only be
subjected to the authority of a person of the male sex; but, without
reference to the other methods of emancipation set forth in
these laws, it
is clear that a child can be emancipated verbally, either by his father or
his grandfather; and We add to these provisions that the child would be
emancipated whether the father conferred this privilege on him verbally or
not, but merely tacitly permitted him to go and live apart, and, even though
he may not be married, his independence must be approved and ratified. For
if slaves released from the yoke of servitude cannot again be reduced to
slavery so long as they behave themselves properly, why should it not be
unworthy for children, when they have been once emancipated, to again be
brought under paternal control, and not enjoy the right of always remaining
free which is conceded to slaves?
CONSTITUTION
XXVI. EUNUCHS CAN ADOPT.
The Same Emperor
to Stylianus, Most Illustrious Master of the Offices.
Marriage is the
greatest and most excellent gift which has been bestowed by God upon man,
for it not only repairs the losses which death inflicts upon nature, and
insures the perpetuation of the human race by not permitting it to perish,
but also, by means of the procreation of children, it confers inestimable
benefits upon life. For what, indeed, is more consoling to man than the
enjoyment by which he begets children; and what is more advantageous to the
affairs of humanity, especially during our old age, for We see that through
the ministry of our children, the annoyance of declining years is
diminished.
But as all those
who marry are not fortunate enough to have issue, the law has provided that
they should owe to its beneficence what was denied them by Nature. Still,
this was done in such a general way as to bestow its benefits upon everyone;
for in granting certain persons the privilege of obtaining children without
the aid of marriage, it has excluded many others from its enjoyment. It
would, however, have been proper for everyone to participate in the
advantages of laws intended to assuage the grief of parents who have been
bereft of their children, and to come to the relief of those whose marriages
have not given them any. But this was not the case, and it excludes from
this privilege those who are impotent, although they should only inspire
compassion. It states as a reason for this exclusion that the law should not
recognize persons whom Nature does not consider qualified for generation as
suitable for this function. Still, their impotence should be attributed to
the injury of man, and not to Nature. Hence, as We do not think that the law
should be as cruel as those who have inflicted this outrage upon them, it is
hereby decreed that if eunuchs should wish to adopt anyone, they shall have
the power to do so; but this privilege should only be exercised where its
necessity is perfectly clear.
The adoption of
children granted by law is above all necessary to eunuchs, and there is the
greatest reason for this, and for them to
become fathers
and enjoy the services of children, as it would be exceedingly inhuman to
deprive them of every means of having any, because they are incapacitated
from procreation. For as a person who is dumb can only express himself by
signs, and he who has not power to speak can only convey his meaning by
writing, so those who have no children, because they have been deprived of
their generative organs, should not be forbidden to obtain them in some
other way.
CONSTITUTION
XXVII. ALL PERSONS ARE EQUALLY PERMITTED TO ADOPT.
The Same Emperor
to the Same Stylianus.
As it is proper
for those who exert their industry in the invention of things beneficial to
human life to enable all men to enjoy them, instead of restricting their use
to certain persons, thereby depriving others of their advantages, it is much
more desirable that the benefit of the laws should be shared by everyone;
for just as the subjects of a sovereign should profit by all his virtues,
so, likewise, We should enjoy the common benefits of the law. But what is
the object of this introduction? When I remember that the legislator, with a
view to diminish the sorrows of those who have no children by conferring
upon them the right of adoption, and in this way enabling them to acquire
the appearance of a benefit that Nature refuses, has only bestowed this
privilege upon fathers and mothers who have lost their "off spring, and, on
the other hand, has denied it to eunuchs and to sterile women whom he did
not deem worthy, I cannot understand how he could establish rules so
unworthy of his consideration. For instead of increasing the misfortune of
eunuchs, who cannot become fathers, he should rather have permitted them to
indemnify themselves for this privation, just as he permits those who have
lost the members required for natural actions (such as the hands, the feet,
or any other part of the body) to use every possible means to supply this
defect. On the other hand, it is no more reasonable to deny to sterile women
the right of adoption. For why should this privilege be conceded to a mother
who has lost her children, and a woman who has none be excluded from it, to
live her entire life without any ? For if the chief advantage of having
children is that they may support their parents in their old age, it is none
the less just to grant them the right of obtaining them.
Adoption affords
persons who are poor the means of relieving their misery by means of the
assistance which they can expect from their children; and it will be not
less advantageous to those who are wealthy. An adopted child devoted to the
service of his adoptive mother will take the place of her son, just as she
will take the place of his mother; he will manage her property; he will
share her burdens, and procure for her a more peaceful and quiet existence.
Therefore, annulling the laws which deny the right of adoption to eunuchs,
and to women who have not now, nor ever have had children, We grant it
equally to both, not only on account of the benefits resulting therefrom,
but also because it contributes to the preservation of virginity. For as
many
women prefer to
remain virgins than to marry, and nevertheless frequently have a desire for
children, they should not be tempted to sacrifice their virginity, when they
can see that they can obtain them without having recourse to marriage. Nor
is it true that a woman should not be permitted to adopt a child for the
reason that she cannot have it under her control; for if this should be
admitted, the privilege must be refused not only to those who have never had
issue, but also to such as have been mothers. The law provides in a general
way that a women cannot have children under her control; but this rule has
reference to those children who leave their mother because they prefer to
live alone, and is not applicable to such as freely acknowledge her power,
and consider it their duty always to obey her. Hence the law does not
prohibit this obedience which is a species of voluntary servitude, although
it is a rare occurrence, and a woman is not deprived of parental authority,
except where her commands are not obeyed. If this is the case, why is it
that many mothers, who are widows, keep their children with them, retain
them under their control for their entire lives, die in their arms, and when
dying, give them their blessing, and leave them their property?
We also decree
for the general welfare of Our subjects that hereafter they shall not only
be permitted to adopt by authority of the Emperor (as was provided by the
ancient laws), but also by that of any official who is entrusted with the
government of the district.
CONSTITUTION
XXVIII.
AT WHAT AGE AND
TO WHOM THE ADMINISTRATION OF THEIR PROPERTY SHOULD BE GRANTED TO MINORS.
The Same Emperor
to the Same Stylianus.
Legislators have
very properly decided that curators should be given to minors in order to
take the place of their parents, protect the weakness of their age, and, by
their diligence, preserve their estates unimpaired; but We have thought it
to be just and proper to make an addition to these provisions. What is this
defect? It is that when the curatorship is terminated, minors cannot receive
the management of their property from the hands of the Emperor, nor obtain
it except at a certain fixed age, that is to say, males at twenty years, and
females at eighteen; and when they have arrived at this age the law provides
that they shall have full power over their estates.
But as all
persons do not become competent at the same age, and it was not possible to
state in a general way that all of them could receive the management of
their property at a specified time, it was necessary to consider, in
accordance with the ability of each one, when it would be proper to grant
him or her the administration of their property. For must it be admitted
that a certain person is competent merely because he has reached the
established age, when his judgment is not yet formed; and that another is
incompetent because he has not yet reached that age, when in fact he has the
requisite wisdom and
capacity? Thus
as men do exhibit great differences from one another in both moral and
physical respects, and one before the established age is already endowed
with all the force of reason, and another, even after having attained that
age, has only a weak mind, the law which prescribes this is defective.
But there are
also other parts of this legislation which are imperfect. In the first
place, it is extremely difficult, not to say impossible, for everyone to
profit by its provisions. For how can those who are separated from the
Emperor by a great expanse of land or sea, without mentioning other
impediments which may arise in the course of life, such as illness,
apprehension of the treachery of enemies, broken limbs, accidents which
frequently prevent persons from appearing in the place where the Emperor is
residing, and which with good reason prevent the undertaking of a long
voyage; how, I ask, can young people, when opposed by such obstacles, and by
six hundred others which constantly beset Our lives, succeed in obtaining
from the Emperor in person the authority to administer their property ?
Hence, desiring
to dispose of this defect of the law (as previously stated), We hereby
decree that minors, that is to say, males of twenty years and females of
eighteen, shall have the right to manage their own estates, as being endowed
at that age with all the discretion necessary to do this. If, however, they
should not yet seem to be competent, and when they undertake the management
of their affairs, are conscious of their incapacity, even though they may
have passed the age at which they are entitled to be independent, this
privilege shall not be granted them, for if they cannot accomplish the
object of the law, and manage their property judiciously, why should
authority to do this be conferred upon them, even though they may have
reached the age at which they are entitled to it ? And, for this reason, it
should not be refused to those who have not yet attained the prescribed age,
provided they are able to conduct their business properly.
There is only
one thing required by the law, which is that the property should be well
administered, and when this is assured, it is unnecessary to take the age
into consideration. Moreover, not only the Emperor, but also the magistrate
of the district where the minor resides, can grant this right of
administration, and in this way the wisdom of the legislator provides for
all who can enjoy the benefit of the law, and the latter can be much more
easily executed.
CONSTITUTION
XXIX.
THE CHILDREN OP
FEMALE SLAVES BORN UPON THE LAND OF ANOTHER BELONG TO THEIR MASTERS.
The Same Emperor
to the Same Stylianus.
As We know that
this discourse is true and just, and is not contaminated with the perversity
of falsehood, in like manner, We should consider as equitable a law which is
not tainted with inequity. Therefore, where this rule is not observed, a
legislative enactment is not a law, even though it may be considered worthy
of the name.
This is a law,
for instance: "Let everyone be given what belongs to him;" for how can a
rule of action be legal which does not enjoin this? Among such laws, one of
the most remarkable is that which provides that where a female slave, who
has been taken from her master by theft, or in any other way, brings forth a
child while absent, instead of being returned to him along with her
offspring when the crime is detected, she alone shall be surrendered and her
child shall belong to the person in whose possession she was when it was
born. We, considering this provision to be extremely unjust, have deemed it
proper to correct it, hence We decree that the child shall follow its mother
and be delivered up to her master; for, as the mother must be returned to
him as prescribed by this law, it does not follow that he should be deprived
of her child, to the advantage of the person on whose premises it was born,
for the latter is sufficiently recompensed through having been able to
profit by the services of the mother.
Perhaps it might
be alleged that if the person in whose possession she was ought to be
reimbursed, that the best way to do this is for him to keep the child. But
if such a reason can be advanced for retaining it, it is evident that he
would only have to increase the sum to which he had a right by way of
indemnity, in order to keep the mother also, and is it not more just that he
who has suffered the annoyance of having lost her should be indemnified by
the benefit of the increase, than that this benefit should be accorded to
one who had not lost anything, as he can be indemnified for what the mother
cost him, and, in addition to this, has profited by her services ?
Therefore, as We
have already stated, he cannot keep the child, and it shall be restored with
its mother to her master; but whether he who committed the theft is wealthy
enough to make good to him the price paid for his female slave, or whether
he is dead, or in poverty, and not able to return the purchase-money, it is
always more equitable for the owner who has lost his slave to be indemnified
for this misfortune by recovering both her and her child.
CONSTITUTION XXX.
CONCERNING A
WOMAN WHO CONTRACTS ANOTHER MARRIAGE DURING THE LIFETIME OF HER HUSBAND.
The Same Emperor
to the Same Stylianus.
If a desire for
the public welfare has induced Us to substitute good laws for those which
are worthless, it must also impel Us to enact such as may contribute to the
happiness of Our subjects, instead of others that are bad and injurious, and
especially where two of them are conflicting with reference to the same
subject. Would it then be in accordance with reason that, when, from the
generals and magistrates who are most eminent and best qualified, those who
are the most competent and considered to be best adapted to govern Our
subjects are selected; on the other hand, one should choose among the laws,
whose authority is not temporary like that of the officials who administer
them, not the
best but the worst, and even those whose very existence was not known,
should be accepted as rules of conduct? But for what purpose have these
things been mentioned by Us ?
The Emperor
Justinian, who adorned his reign as much by his piety as by his solicitude
for the public welfare, while considering the dissolution of marriage, after
having decided that if a wife, during the lifetime of her husband, should
marry another man, her union with the latter will be regarded as void, and
she shall be separated from him on the ground of having been guilty of
perfidy; then decreed by a subsequent law that under such circumstances the
first marriage did not bring about the annulment of the second. We, however,
believing that it is more conducive to general prosperity to ratify his
first provisions, since they have a tendency to strengthen the ties of
marriage, do hereby direct that the former law shall be observed, and the
latter repealed. Therefore, when it is ascertained that a woman, during the
lifetime of her husband, has formed the intention of marrying another man,
and has accomplished her infamous design, she shall be taken from him with
whom her marriage must be dissolved, and rigidly condemned to the pecuniary
penalties to which those who abandon their husbands in any other way are
liable. For it is proper that she who formed one flesh with her husband, and
instead of lavishing her affection upon him, not only showed that she was
his enemy, but also insulted her Creator who joined her to him by uniting
herself with another man, shall be compelled to renounce her second
marriage, if she has violated her former vows; for what greater indication
and evidence of hostility can she show to her husband than to desert him and
bestow her affection upon another?
CONSTITUTION
XXXI.
A WOMAN WHO
THROUGH HATRED TO HER HUSBAND PRODUCES AN ABORTION UPON HERSELF MAY BE
REPUDIATED BY HIM.
The Same Emperor
to the Same Stylianus.
God, who created
man from clay, and formed woman from one of his ribs, joined her to him as
one of his members, that she, being aware of her origin, might learn from
this to preserve her kindness and affection uncontaminated for her husband.
Therefore she who is animated by such feelings, and who reserves all her
love for her husband, is, indeed, a support for him, and does not violate
the intention of her Creator. One, however, who entertains contrary
sentiments, not only seems to be ignorant of the end of her existence, but
cannot be considered as joined to her husband, although by marriage she is
deemed only to form a single being with him. Hence two laws have been
enacted, one against a woman who, through dislike to her husband, takes
pains to produce an abortion upon herself, and accomplishes the death of her
unborn child, and another enacted against the husband requiring him to
repudiate a woman who has been guilty of such an
outrage; but We think it advisable to adopt that which authorizes divorce,
as being much more advantageous.
It is
unreasonable and absolutely wicked for a woman who displays such decided
hatred towards a husband as to destroy in her womb the germ of his posterity
(without taking into consideration the violation of Nature's law), to still
have the right to cohabit with him; for if We avoid as a malefactor a person
who injures the work of another, how can a husband retain near him as a
member of his family, instead of repulsing her as a dangerous enemy, a woman
who has attempted to destroy a work of such excellent character, and one so
necessary as procreation, when he experiences the greatest injury from her
act? What more conclusive evidence of the hatred she entertains for him
could she disclose? Is it not clear that it is his part to establish the
fact that she has prevented the child begotten by him from coming alive in
the world?
Thus, as We have
previously stated, the law which decrees their separation under such
circumstances shall be the only one observed, and a husband can leave his
wife if he learns that she has been guilty of a crime of this description.
For if the law permits a marriage to be dissolved because the wife has
passed a night away from home, or is proved to have attended a banquet in
the company of men with whom it is not proper to associate, which
circumstances do not show the same aversion for her husband, and do not
always even establish her disgrace, why should he not be separated from her
when she has committed a crime which is an outrage both against Nature and
himself, but be obliged to live with a woman who may plot against his life?
CONSTITUTION
XXXII. CONCERNING PERSONS TAKEN IN ADULTERY.
The Same Emperor
to the Same Stylianus.
The crime of
adultery I think to be one of those for which a most severe and horrible
penalty should be exacted, and, indeed, one not less appalling than that for
homicide. For a murderer frequently only takes life with his bloody hands,
but the execrable adulterer attacks the life of many persons, as by breaking
the bonds of marriage, he destroys at once the husband, his children, their
relatives, and others. This offence was, in former times, punished with
death, Ibut subsequently it was deemed advisable to substitute for this
penalty one which is less harsh, and, giving preference to the latter, We,
along with those who established it, decree that both the guilty parties
shall have their noses amputated as a punishment for the crime; and as the
husband must be indemnified for the injury which he has suffered We hereby
order that he shall be entitled to the dowry of his wife. Moreover, We
forbid the latter to marry again, and that the punishment inflicted upon her
may not be, to a certain extent, a reward, she shall, by no means, be
permitted to associate hereafter with persons of licentious manners.
We also direct
that she shall be confined in a convent, where, by repentance, she can
lessen the severity of the penalty, just as if she
had been sent
into exile. And if she, desiring to embrace a monastic life, should do so,
all her property, with the exception of her dowry, shall be divided among
her children and the convent; and if she has no children, her ascendants
shall take their place, and when there are none of these, her other cognates
shall share in the distribution. But if she should die without having
embraced a monastic life, as she will have testamentary capacity, her
property, with the exception of the dowry, shall be disposed of in
accordance with her wishes.
CONSTITUTION
XXXIII.
THE WIVES OF
CAPTIVES SHALL NOT BE PERMITTED TO MARRY OTHER MEN.
The Same Emperor
to the Same Stylianus.
If I had thought
that those who formerly promulgated laws had been of the opinion that they
did not need any amendment and were unwilling for them to be changed, I,
perhaps, never would have changed them, for I never should have attempted to
alter enactments even where they were unjust; since, although influenced by
solicitude for the public welfare, I would have hesitated to amend them, in
order to avoid condemning the work of former legislators. But as, if they
were living at the present time, they certainly would not be displeased when
an attempt was made to amend their laws, and I even think that they would
return thanks to persons who believe that this should be done (for it is not
only for their own glory, but also for the benefit of the public that
legislation takes place), and being convinced that what is conducive to the
general welfare would not be distasteful to the ancient legislators
themselves, We, with God's assistance, and after careful consideration, have
taken measures to provide remedies for these laws, in the same manner as
medicines are administered. by physicians.
In addition to
other matters, when they made provision for captives, they declared that
where the husband was in the hands of the enemy, but his wife was at
liberty, or vice versa,, there was good cause for the dissolution of
the marriage; since under such circumstances, where one of the parties was
in servitude, the inequality of status did not permit the equality existing
at the time of the marriage to continue. We, however, being more inclined to
benevolence, have decreed that so long as either the husband or the wife
survives, the union shall not be considered as dissolved, nor can either of
the parties marry again, unless he or she desires to be considered to have
acted wantonly, and become liable to the penalty of losing either the
ante-nuptial donation or the dowry.
These are the
rules which the ancient legislators adopted with reference to the marriage
of captives. The cause does not, however, seem to Us sufficient to authorize
the annulment of marriage, as it is not consonant with either reason or
humanity, and, while it affords a means of dissolution, it inflicts
punishment; for if, as is alleged, the inequality of their legal position
does not permit the matrimonial
state to
continue to exist; if the captive should recover his liberty, and be
restored to his former condition after the marriage had been dissolved and
both parties are living in freedom, should it not again become valid? What
sincere feeling of humanity can that be which causes injury by the
separation of two persons who are attached to each other, and how can this
be compensated for by the substitution of others? And again, while all the
possessions of the captives, even to articles of trifling value, are
estimated in accordance with their condition, can it be believed that the
parties interested would have been willing to expose the dearest portion of
themselves to the same accidents as their property, and is it not clear that
it would be a great misfortune for either of them to be deserted by his
companion?
What then should
I do? I have determined that when one of the parties is in captivity, and
the other, being free, marries again, after the one who was a captive
returns, he can, if he desires to do so, take back his wife with whom his
marriage will always continue to exist, notwithstanding the second which may
have been contracted; for if anyone should hold that the second marriage
ought not to be dissolved, is it "not even more just to assert that the
first ought to be reestablished? If anyone should allege that the one who
married a second time ought not to be separated from his or her new consort,
is it not consonant with reason to reply that, as they had been separated,
he or she should be reunited to his or her former spouse? It might perhaps
be added that the captive husband receives an indemnification under these
circumstances, as his wife is obliged to pay him a penalty on account of the
second marriage which she had the rashness to contract. I answer that, not
only a reason of this kind cannot be advanced, but that it does not even
appeal to the mind; for what wretchedness and penury of spirit would he not
experience who exchanges his wife for a sum of money!
We therefore
decree that the husband or wife who remains free cannot marry again, and
should be obliged to wait for his or her consort as long as he or she
remains in captivity, whether they write to each other or not; and if
anyone, in violation of this law, should be tempted to break his or her
former ties in order to form new ones, and should do this without observing
the special provisions of the One Hundred and Seventeenth Novel concerning
the wives of those who are absent on military expeditions, they will render
themselves liable to the penalties prescribed by this law, and, in addition,
as We have already stated, the captive husband can, if he regains his
freedom, claim and take back his wife.
CONSTITUTION
XXXIV.
CONCERNING A
GUARDIAN WHO CORRUPTS His FEMALE
WARD.
The Same Emperor
to the Same Stylianus.
It is a most
abominable thing for those who are considered reliable on account of their
position, and who have already shown themselves
to be worthy of
trust in the eyes of persons who have formed this good opinion of them, to
manifest hatred and perfidiousness instead of virtue and fidelity.
Therefore, when guardians, instead of considering the welfare of female
wards placed in their care, prove to be their destroyers, their offence is
much more serious because of the confidence which has been reposed in them.
This occurs where a father is convinced that the guardian to whom he
entrusts his children, including his daughter, will treat them with paternal
solicitude. Legislators have very properly decided that when a guardian
corrupts a female ward under such circumstances, when he should have acted
as her father and protector, he must be punished; for they subjected him to
deportation and the loss of his property. But their regulations are not,
strictly speaking, applicable to all cases, for they do not seem to have
taken into consideration the outrage undergone by the ward, as they ordered
that all the guardian's property should be confiscated to the Treasury,
without noticing that they did not avenge the injury as they intended to do.
For how can it be said that it was avenged, when the wrong which the girl
was said to have suffered was not atoned for, and the law did not afford her
any means of avoiding the evils resulting from the injury? For what refuge
is there for the girl when she not only obtains no compensation for her
wrongs, but sees that calculation has been made for the profit that may be
obtained from her dishonor and infamy as she grows older? Therefore, in
order that by means of this law We can, as it were, remove all ^cause
for censure from this law, We abolish the provision that the I property of
the seducer shall be confiscated to the Treasury; and We / decree that it
shall be given to her for whose injury and misfortune ^~~He was responsible.
CONSTITUTION
XXXV.
CONCERNING THE
PUNISHMENT OF THE RAVISHER OF A VIRGIN AND His ACCOMPLICES.
The Same Emperor
to the Same Stylianus.
It is not for
the purpose of opposing ecclesiastical canons, or merely to contradict civil
enactments, that We have rendered the following decision against the
ravisher of a virgin, but because We have noticed that it is more
advantageous that the ecclesiastical law, through its mildness, as it were,
encourages the evil, while the civil law, as We admit, is too severe in its
suppression. The latter provides that not only one who has carried away and
ravished a young girl shall be put to death and deprived of all his
property, but also that his accomplices in the crime shall be subjected to
the same penalty, and that it makes no difference if the girl voluntarily
submitted to her ravisher.
Moreover, the
law declares that if the father knew of the rape, he shall be punished by
deportation, and even if he was not aware of it at the time it was
committed, but learned of it afterwards, and attached very little importance
to the violation of his daughter, and
pardoned the
guilty party, or even gave his daughter to him in marriage, he will be
equally liable to deportation as a penalty for his neglect. These are the
rules adopted by the ancients.
But Our Father,
of eternal memory, paying less attention to the rape itself than to the
circumstances with which it was accompanied, regulated his opinion
accordingly, and decreed that if the offence was committed with arms, that
is to say with swords, or any other lethal weapons, the culprit should be
punished with death, because when they were employed, the act implied
homicidal intent. So far as those who aided in its perpetration, or harbored
the criminal, are concerned, he decided that they should have their noses
cut off, be scourged, and shaved.
If, on the other
hand, the rape was committed without weapons, the ravisher was not punished
with death, because he did not have any intention to inflict it, but he
would be condemned to have his hand amputated, and those who assisted him,
or had any share whatever in the commission of the crime, were condemned to
be scourged, shaved, and deported.
So much for the
corporeal punishment; and with reference to the pecuniary penalty, no change
is made in former laws, which shall remain in full force. These are the
matters which Our Father decreed, and which We approve, and order that they
shall always preserve their authority and effect.
CONSTITUTION
XXXVI. THE SON OF A CAPTIVE SHALL BE His HEIR.
The Same Emperor
to the Same Stylianus.
As the laws are
the support and the foundation of government, in order that the latter may
be preserved, it is necessary for legislation to remain unimpaired. But who
can say that the soundness of the law consists of anything but equity?
Therefore We, exerting Ourselves to see that the laws of Our Empire are
just, have noticed that the one which excludes the child of two married
persons who are in captivity from the succession of one of them when he or
she dies in the hands of the enemy, cannot be called equitable, We have
desired to render it so. It is not difficult to ascertain in what respect it
is unfair, for what influence ought the nature of the place to have over the
appointment of a son as heir? Nor indeed, should anyone advance as an
objection that when a father is a captive, his son is disinherited on
account of his servile condition. For how can the Civil Law which, when a
captive has been released, recognizes him as free, not permit his freeborn
son to be his heir, while it grants the administration of the property of
one who is in the hands of the enemy to a person who is alleged to be a
slave? To whom is it thought that the property of a captive should belong?
Should it pass to his cognates? And why should the servile status not
prevent them from entering upon the estate, and why should it not be granted
to those who, not long before, were the heirs? Or should it be given to the
Treasury? And why is
this not an
obvious injury? For if it is not consonant with reason for the children of
captives to obtain relief from the public, why should it not be a manifest
wrong for the son of a captive to be deprived of his property, and it be
transferred to the Treasury? And as fathers are frequently punished with
death for the commission of serious crimes, and their children are not
prevented by law from acquiring their estates, what reason is there, when
their parents have done themselves credit through their pious intentions
(and, indeed, having shed their blood in testimony of their faith, they have
often elicited the admiration even of impious persons, on account of their
courage and magnanimity), that their children should not be permitted to
become the owners of their estates ?
This
Constitution does not seem to Us to be worthy of Our Majesty, and therefore
We decree that hereafter a child, whether it was born while its father and
mother were in captivity, or when its mother was free, shall be the heir of
the estates of its parents, whether both of the latter recover their
freedom, or after one has been liberated the other dies in the hands of the
enemy, or even when both of them die before being liberated; for in all
these instances their heirs shall be those appointed by will, so that their
son will be entitled to the third of their estates, as his lawful share of
the same.
CONSTITUTION
XXXVII.
A SLAVE WHO is
MANUMITTED BY THE WILL OF His
MASTER HAS
TESTAMENTARY CAPACITY, EVEN IP HE DOES
NOT KNOW THAT
His MASTER is DEAD AND THAT His
ESTATE HAS BEEN
ENTERED UPON.
The Same Emperor
to the Same Stylianus.
We correct the
present law, which is imperfect, by adding a suitable amendment thereto. It
declares that when a slave is not aware that he has obtained freedom under
the terms of his master's will, and he receives it without knowing in what
way this has been accomplished, he shall not be deprived of it in spite of
his ignorance, but shall live in freedom, yet will not have the right to
make a will as if he was free, for this law appears to regret having allowed
him to enjoy the liberty which it conferred upon him in perpetuity.
But if he has
not the power to dispose of his estate by will as a freeman, why does he not
return to his former condition of servitude? Therefore We decree that when
the law gives him liberty, it must also bestow upon him all the privileges
attaching thereto; for is it necessary to forbid him what a freeman is
allowed to do, when the law has decided that he is worthy of freedom; and if
he is worthy of it, why should he not be considered competent to enjoy its
privileges? Hence, a slave who has received his liberty shall actually be
free, and can, in whatever way seems to him proper, dispose of anything
which his master gave him, no matter how valuable it may be; for it is not
just for one who has publicly received the benefit of freedom to be exposed
to disgrace, and deprived of testamentary capacity, on account of some
ill-founded suspicion.
CONSTITUTION
XXXVIII.
THE SLAVES OF
THE EMPEROR CAN DISPOSE OF ANY
PROPERTY
BELONGING TO THEM IN ANY WAY THAT THEY
MAY DESIRE.
The Same Emperor
to the Same Stylianus.
Although the
following provision is apparently plausible, and has been legally enacted,
still, it seems to me to exceed the bounds of equity; for it declares that
slaves shall not be permitted to dispose of their property, and, even though
it may have been obtained by their arduous labors, and with many privations,
their masters shall be entitled to it. And, indeed, it is surprising that
the law originally enacted on this subject was not drawn up with more
moderation and justice, and that those responsible for the same adopted it,
just as if it had been framed by others.
Moreover, I do
not approve of this law and I shall not permit it to apply to my slaves;
but, on the contrary, I grant them full authority to manage their own
estates, and, hereafter, the slaves of the Emperor shall be the actual
owners of their property; so that, when they are in health, or ill, if they
think that they are in danger of death, they shall not be deprived of the
power of disposing of their property in any way that they may desire, and
the ownership of whatever they possess shall not be taken from them under
the pretext of servitude. Therefore, this law shall be applicable to
Imperial slaves. Magistrates, and the remainder of the people, however,
shall have the power to observe the ancient statutes having reference to the
property of slaves, when they are not willing to acquiesce in this Our
decree.
CONSTITUTION XXXIX. A SPENDTHRIFT CAN DISPOSE OF His OWN PROPERTY.
The Same Emperor
to the Same Stylianus.
No mortal is so
perfect as not, occasionally, to involve himself in difficulties; nor is
anyone, if I am not mistaken, so lacking in intelligence as not frequently
to do things to his own advantage. God does not permit anyone, who is always
confident in his ability, to act in such a manner as to be free from blame;
and He, on the contrary, as He is the Curator of His own creatures, permits
persons of weak minds to fail, through imprudence, in everything that they
attempt. I have mentioned these matters, having in mind the rule which
forbids a spendthrift under any circumstances to plan or execute anything
with reference to his own property. This law is, however, of too general a
character, and it is necessary, after examining the actions of the
spendthrift, to hold that all that he has done which is useless is void, and
everything that redounds to his benefit is valid. The law, however, does not
prescribe anything of this kind, but absolutely deprives the spendthrift of
the power of transacting his own business. We, however, thinking that this
is unreasonable, and having repealed the law, do hereby decree that
everything that a spendthrift
may do which is
unreasonable, and which tends to establish his wastefulness, shall not be
considered as worthy either of approval or confirmation ; but that, on the
other hand, everything that he does which is advantageous, shall be accepted
as proper and not be reproved. For if spendthrifts either leave their
estates to their necessary heirs, or distribute them among the poor, or
deliver their slaves from the cruel restraints of servitude, what course
shall be pursued; and because the testator is a spendthrift, must it be held
that he ought not to be permitted to perform such acts? And if he should
have an unprofitable tract of land, and someone else, who wishes to correct
his vice, purchases said land for more than it is worth, and prevents him
from suffering loss, shall his character as a spendthrift prevent him from
consulting his own interest, and taking advantage of a good bargain? I do
not see any reason for this. As I have already stated, the capacity of the
spendthrift for transacting business must be ascertained; and if he does not
display the habits of a prodigal, whatever he has done shall be ratified;
but if, on the contrary, he does not attend to his affairs with ordinary
prudence, his administration of them should neither be approved nor
confirmed.
CONSTITUTION XL.
CAPTIVES HAVE TESTAMENTARY CAPACITY.
The Same Emperor
to the Same Stylianus.
Those who
formerly exerted themselves for the purpose of directing human affairs in a
proper manner by the promulgation of laws, and have left abundant evidence
of their good will in the measures which they adopted for the purpose of
preserving order in the State, I do not know for what reason, when treating
the subject of captives, did not manifest the same indulgence by authorizing
them to dispose of their estates. The legislation relating to wills contains
a clause of an excellent and beneficial character, for it was provided that
whenever there was a lack of witnesses the will could be signed by a smaller
number, and that, even where there were no witnesses present at all, a will
was frequently considered valid, like that of a soldier who had fallen in
battle, which is a conclusive proof of benevolence.
Nothing of this
kind, however, was enacted with reference to captives, nor is there any
indulgence manifested in this respect, for they are not allowed to dispose
of their property, and are not shown any commiseration whatever, but their
captivity is treated in an entirely different way. For are they not captives
in a double sense? Why should their misfortune and profound sadness be
increased, and as they did not die of sorrow, why should they not only be
condemned to expire in captivity, but also, if they had any property at
home, should it be taken from them as if it was not theirs, and they be
deprived of what they have obtained by their labor, and for the increase of
which they have exposed themselves to the perils which resulted in their
captivity? Why, when a captive has relatives, for instance, children, a
wife, brothers, or others whom the law calls to his succession, should
they, perceiving
that they can obtain his property on the ground of intestacy, make attempts
to have him released when they expect to be his heirs? We are acquainted
with the dispositions of men, and are well aware that if there are very few
persons who entertain any true affection for those who are unfortunate, and
desire to assist them solely for the pleasure of doing so; on the other
hand, there are many who are inclined to go to their relief through hope of
reward. Therefore, what would induce a husband, or anyone else, to undertake
something for the benefit of a captive? If the latter had the power to
dispose of his property, such persons, convinced that any steps that they
took could not cause him any loss, would not then manifest indifference, for
they would think that if their efforts were successful, and the captive
recovered his liberty, they would be rewarded for their care and labor, or
if death would put an end to their exertions, the captive would bequeath by
his will a much greater share of his estate to one who had exerted himself
to release him than to another who had neglected to do so, for he would not
forget him, nor would his efforts be considered of no value.
The result of
this would be, as I have already stated, that certain persons would
zealously devote themselves to the ransom of captives. But where the latter
have no power to make a will, and their heirs can obtain their estates ab
intestato, I do not know where anyone can be found who would be willing
to exert himself for their liberation, as the hope of obtaining the
captive's estates on the ground of intestacy, and the fear of laboring
ineffectually for their release, in case, for instance, they died before it
was obtained, would cause them to be slow in acting, or in other words, they
would have no inclination to take the necessary steps for this purpose;
which, however, would not occur if the law did not declare the testaments of
captives to be void.
And, indeed, if
everyone could make use of his property in order to purchase his freedom,
would not a captive be subjected to gross injustice, when, in forbidding him
to dispose of his property, he is precluded from using a part of it to
secure his release?
Moreover, if the
law is absurd in this respect, it is still more so in another, inasmuch as
it deprives captives of testamentary capacity, and, by so doing, frequently
transfers their estates to their worst enemies, and to men upon whom, if
they were living, they could not even bear to look. Can anything more
detestable be imagined? Therefore We, being convinced that matters should no
longer be left in this condition, have determined to correct these
regulations in the interests of good government as We have done in other
instances, so far as God has given Us ability. Hence We decree that captives
who have been forbidden to make wills shall no longer be subject to this
restriction, and that they shall be allowed to make their testamentary
dispositions either orally or in writing, in the presence of five witnesses,
if this is possible, or, at least, in the presence of three; on condition
that the latter make oath that this is really the will of the testator, and
that the latter, if he had any children, called them to his
succession, or
if he had none, that he appointed other heirs. We do not think that it is
just for all those who bear the name of citizens of the same state, and are
judged to belong to the same nation, not to enjoy these rights under its
laws; for example, that such as are free should have the power to dispose of
their property, and, on the other hand, that those who are in captivity
should not enjoy the same privilege, just as if they had been guilty of
crime by having lost their freedom while fighting for their compatriots.
But if a
captive, either of his own accord, or compelled by those to whose authority
he is subject, should make a will in favor of enemies, it should not be
confirmed, and shall be declared void, as not being in accordance with the
proprieties which should be observed in the execution of testaments under a
Christian government. These provisions are hereby ordered to be applicable
to such captives as have executed wills before their death. But when the
last moment of life comes suddenly upon a man and he dies intestate, then,
where there are any ascendants or descendants entitled to his estate, it
shall pass to them. But if there are no relatives of the dead captive, who
are entitled to the succession (I refer to such as are neither ascendants
nor descendants recognized as such by the family of the deceased), it must
first be determined what he owes, and then a sum sufficient to satisfy the
indebtedness having been set apart, the remainder shall be divided into two
parts, one equal to one-third, and the other to two-thirds of the same; the
first of which shall be devoted to prayers for the deceased, and the second
shall be transferred to the Treasury without, however, any slaves being
included in either; for We wish all of them to obtain their freedom, unless
there are not enough assets to discharge the indebtedness. The same
distribution shall take place when there are no debts, or where the deceased
left no heirs, as has already been stated.
We have, by
means of this law, effected the amendment which We had in mind with
reference to the legislation imposing restraints upon captives. Your
Magnificence will communicate it to Our subjects, in order that as soon as
what We have decreed becomes known to all, including such as are in
captivity, they will have power to dispose of their property in any way they
may desire.
CONSTITUTION
XLI.
IN CITIES FIVE
WITNESSES, AND ON A JOURNEY AND IN THE COUNTRY THREE, SHALL BE SUFFICIENT TO
ESTABLISH THE VALIDITY OF A WILL.
The Same Emperor
to the Same Stylianus.
As all the
concerns of human life which require the presence of witnesses necessarily
derive their force therefrom, this is especially true where arrangements are
made in contemplation of the last moments of our lives, and which demand
confirmation of this kind; for there is no other way to determine what is
right under such circumstances, except by means of witnesses. Hence, since
it is abso-
lutely necessary
for the dispositions of men about to depart from life to be valid, there is
the more need to have these established by testimony. But as what the law
strictly requires cannot always be accomplished, and its demands must be
brought within the bounds of possibility (for when what is absolutely
prescribed cannot be accomplished, the best means available must be
adopted), it has seemed to Us proper to fix the number of witnesses who must
be present at the execution of wills. This opinion was also entertained by
Our Father, of worthy memory, but what he enacted concerning it was not
found to be perfectly applicable. For while the ancient legislators held
different views on this point, as one thought that seven witnesses should be
called, and another that five were necessary (that is to say, seven in
cities, where, on account of the number of people there would be no
difficulty in obtaining them; and five in the country, and on the highways,
because fewer men could be depended upon and be found in such places) ;
when, I say, this rule was established, Our Father, without taking into
consideration the greater facility of procuring witnesses in cities, decreed
that both there and in the country five would be sufficient to establish the
validity of a will. I think he came to this conclusion because he remembered
how extremely lacking in virtue men are in these days.
This conclusion,
however, has already been stated as not entirely responsible, for anyone
might say that the same number of witnesses is not required in cities and in
the country, and that in the country as well as on the highways the number
available is certainly less. Hence, not desiring to make the same mistake,
We hereby decree that five witnesses must be called in the cities, and three
on the highways, in the country, and in other inhabited places, to establish
the validity of a will.
CONSTITUTION
XLII.
WHERE THERE is A
SUFFICIENT NUMBER OF WITNESSES
THE WILL SHALL
BE VALID, EVEN THOUGH THEY MAY
NOT HAVE
ATTACHED THEIR SIGNATURES OR SEALS TO THE
INSTRUMENT.
The Same Emperor
to the Same Stylianus.
The obscurity of
terms affects much of that to which they relate, and, as it were, by
enveloping them in a thick cloud, it removes the power of comprehension from
the,mind, and prevents giving the administration of affairs a proper
direction. Therefore, as We have observed that this obscurity is especially
prevalent in those constitutions which have reference to wills, and involves
matters in no small perplexity, We have thought it advisable to amend them,
and to explain in what way wills should be proved, and how this may be
effected by a law which is not ambiguous and can readily be understood. Our
predecessors, who have treated of wills, have divided them into two kinds,
and have informed Us that they could be either written or unwritten.
In addition to
this, they have described how, under these circumstances, a will must be
executed in order to render it valid, and have stated that, in order for its
validity to be established, all the witnesses must sign and attach their
seals to it during the life of the testator, if it was written; but in the
case of a nuncupative or verbal will, seven credible witnesses must declare
that they heard the testator enumerate with his own lips the provisions
embraced therein. This having been settled, they add that if a written will
does not include everything necessary to render it perfect, that is to say,
the signature of the witnesses which confirms the truth of what they say,
and their seals which prove their signatures; if the will does not, as I
say, contain all this, which must take place before the testator's death, it
will be absolutely void and worthless, either as a written or nuncupative
testament. This rule, which bears marks of insufficient consideration
without calling it defective, is the cause of much confusion and ambiguity.
Some authorities hold that such an instrument should be considered as
absolutely void; that other persons should not be entitled to the estate of
the deceased, and that the latter should not obtain any benefit from it
(just as if a dead person could be benefited from anything), meaning that
after his death any disposition which he may have made of his property
restores, so to speak, life to others. These, as I have stated, are desirous
that the testator should not derive any advantage from his own estate.
Others, indeed, whose opinion is not so intolerant, think that where the
witnesses have not attached their seals to the will, even if it is not valid
as a written testament, it should, at least, have the force of an unwritten
or nuncupative one.
Therefore We,
being aware that such perplexity is very injurious to human affairs, adopt
the last opinion, and convert the darkness and doubt of the ancient law into
clearness and certainty; and We hereby decree that, under such
circumstances, the will shall be imperfect, so far as the matters which a
written testament should contain are concerned; but that, on the other hand,
if the evidence required by a nuncupative will is forthcoming, it should be
valid as such; and that when this is not the case, as there is nothing to
establish its genuineness, it shall be considered void. And, indeed, is it
reasonable, or rather is it not actually absurd and foolish, to deem
witnesses worthy of confidence who have not corroborated their evidence by
writing, and not consider, as such, those whose evidence is confirmed in
this manner? Is not this a shameful and detestable betrayal of equity? What
if a will was committed to writing, and its contents communicated to
credible witnesses, and the notary who drew it up should become ill, or die
suddenly; and the testator should also die soon afterwards, as frequently
and unexpectedly happens to men; should those whom he, when dying, thought
worthy of his bounty, having been deprived of it on this account, suffer
such a wrong?
The most
unworthy part of this opinion is that the testator, even after his death,
experiences its bad effects, and, by annulling his will, it causes him to
lose his claim to divine compassion, which, after his decease, his
benevolent dispositions ought to give him good reason to
expect.
Therefore, We decree clearly and formally that where witnesses merely
identify the will as that of a certain person it shall not be rejected, but
shall be confirmed and ratified; even though the said witnesses may have
failed to attach thereto their seals as well as their signatures.
CONSTITUTION
XLIII.
WILLS CAN BE
WITNESSED BY PERSONS WHO DO NOT KNOW How TO WRITE.
The Same Emperor
to the Same Stylianus.
In enacting the
following law, We do not wish to find fault with Our predecessors for having
carefully provided for the interests of the general public, but rather for
the purpose of confirming their wise enactments; to regulate matters which
are not affected by their judicious legislation; and, by providing for this
as far as possible, prevent them from being removed from the condition in
which they should remain. But what do I mean? It was decided by the ancient
authorities, when treating of wills, that their validity must be established
by the evidence of seven witnesses, or at least by that of five. They were,
however, not content with having done this, but added that where wills were
executed in cities where there is no lack of educated men, persons should
not act as witnesses who did not know how to write, but that no attention
should be paid to this where the same facilities did not exist, and that
witnesses might be called there, whether they were able to write or not.
Thus what had been decreed with reference to localities where there are very
few who know how to write, custom and time extended everywhere, even to
cities, although there are many educated persons there; and this custom
seems to Us to be worthy of being enacted into law. Hence We decree that in
all places, even in cities, wills can be witnessed by persons who are unable
to write, provided their morals are such as render them worthy of
confidence. Moreover, not only do We restrict the number of witnesses to
five, but We also desire three to be sufficient where they are difficult to
find; without anyone being able to call their testimony in question.
CONSTITUTION
XLIV. BY WHOM WILLS OUGHT TO BE SIGNED.
The Same Emperor
to the Same Stylianus.
If all the acts
and affairs of mankind which have been reduced to writing required
confirmation by any evidence whatsoever, this rule should certainly prevail
with reference to wills which men execute at the end of their lives, and in
which they set forth their feelings and their wishes when about to depart
from life. For the defects of an instrument executed by living persons, even
though it may have been signed, can be detected by a careful examination of
the language of the person who wrote it, and the subjects to which it has
reference; but it is impossible to ascertain whether the dispositions which
a testator has committed to writing are absolutely certain, where the
evidence of witnesses is not available. An excellent rule was formulated by
the legislator
on this point, when, in order to avoid, as far as possible, having recourse
to the oath of witnesses to a will, he ordered that the seal of the Master
of the Census should be attached to the document, in order to establish its
genuineness. For in this way, by imparting an official character to wills of
doubtful authenticity through the imposition of the seal of a public
magistrate, he did not afford too ready an opportunity to have the witnesses
sworn, and the abuse of oaths was restrained, which is a most wise and
admirable precaution. This was formerly the rule. It was, however,
afterwards changed by custom, and it was settled that, in addition to
witnesses, the Quaestor should affix his seal to wills for the purpose of
confirming them, which appeared to Our ancestors to be the best method of
doing this; and We, following their example, and desiring to render
testaments perfectly valid, do hereby order that, hereafter, the seal of the
Master of the Census shall no longer be attached to wills, or impart to them
any validity, for the reason that this official is no longer charged with
the administration or observance of the laws, and has no right to confirm
wills, but that the Quaestor shall seal such documents in his stead. Nor do
We assign this duty exclusively to him, but Our Most Magnificent Master and
Patrician, the Urban Prefect, as well as those magistrates who preside over
courts, shall, by means of their seals, attest the authenticity of such
instruments. This duty shall be discharged by magistrates in the Capital, in
other cities by the prefects, and in the provinces by the Governors of the
same.
CONSTITUTION
XLV.
JUDGES MUST
COMMIT THEIR DECISIONS TO WRITING AND SIGN THEM WITH THEIR OWN HANDS.
The Same Emperor
to the Same Stylianus.
As We are
anxious for decisions which have been rendered to remain inviolate, and no
suspicion or controversy to attach to them, We have determined that those
magistrates whose duty it is to decide and dispose of litigation by means of
pronouncing judgment in cases brought before them must commit their
decisions to writing, and sign them with their own hands, lest, if a
decision should subsequently be found to have been rashly given, the
magistrate cannot deny that he rendered it, and also in order that no
fraudulent or forged written opinion may be produced, and then presented to
any magistrate. Therefore, anyone who is honored with the dignity of judge
must hereafter comply with the provisions of this law, and when he renders a
decision must commit it to writing, and sign it with his own hand.
CONSTITUTION
XLVI.
ABROGATION OF
CERTAIN LAWS ENACTED WITH REFERENCE TO CURLE AND DECURIONS.
The Same Emperor
to the Same Stylianus.
Just as certain
other matters are adopted in the common affairs of life on account of the
benefits which they confer, and as We approve
everything which
is useful, and despise things which are of no value, so, in the enactment of
laws, it is absolutely necessary to accept and ratify all provisions whose
employment may be, in any way, advantageous to the State; and, on the other
hand, abolish such laws as are unreasonable or evil. We make these
statements for the reason thatf in former times, certain laws
relating to curise and decurions imposed some very inconvenient and
grievous burdens upon the latter, while they permitted the former to appoint
certain magistrates and govern cities by their own authority. And as all
civil institutions are at present changed, and all matters are entrusted to
the care and administration of the Emperor, We, by this Our decree, do annul
these provisions as having no legal force.
CONSTITUTION
XLVII.
ABROGATION OF
THE LAW AUTHORIZING THE SENATE TO APPOINT PRAETORS, AND DECURIONS TO APPOINT
PREFECTS.
The Same Emperor
to the Same Stylianus.
As the condition
of the State was formerly different, in like manner, a distinction existed
in the order of things. Everything was not submitted to the deliberation of
the Emperor, for there were some matters which the Senate was required to
consider and dispose of, and these were always decided by it. Thus three
Praetors were appointed at Rome for the administration of affairs, and their
acts were authorized by law. This practice was not confined to Rome; in
other cities the decurions, as they were called, were permitted to elect
certain prefects, who, however, were not the same as those who occupy the
prefecture at present, but were of higher rank than the latter, and
discharged additional duties. Therefore, as matters were regulated at that
time in a different way, common usage required the enactment of this law.
But now, when everything is committed to the supervision of the Emperor, in
order that, with the aid of God and his own wisdom, he may dispose of the
questions brought to his attention, and as this law cannot any longer be of
advantage to him, We think that it ought to be annulled, as many others
already have been. For just as necessity requires laws to be enacted, so,
when they are no longer of any use, they should be abolished.
CONSTITUTION
XLVIII.
WOMEN SHALL NOT
ACT AS WITNESSES IN THE EXECUTION OF CONTRACTS.
The Same Emperor
to the Same Stylianus.
I do not know
why the ancient authorities, without having thoroughly considered the
subject, conferred upon women the right of acting as witnesses. It was,
indeed, well known, and they themselves could not fail to be aware that it
was dishonorable for them to appear frequently before the eyes of men, and
that those who were modest and virtuous should avoid doing so. For this
reason, as I have pre-
viously stated,
I do not understand why they permitted them to be called as witnesses, a
privilege which resulted in their frequently being associated with great
crowds of men, and holding conversation with them of a character very
unbecoming to the sex. Did they think that in public matters the statements
of women should be heard, when they had been admitted to give evidence as
men do; like the Scythian women who We know were in the habit of arming
themselves in company with their husbands, for the purpose of making war?
And, in addition to the monstrous absurdity of such a practice, is it not
clear that it brings about confusion of the sexes, by rendering the
qualities which distinguish them common to both, and thereby causes
perplexity, as well as the destruction of their distinctive attributes; for
do not such customs violate the modesty and the virtue peculiar to women,
who should always assemble in their own houses with decorum, and never
dissolutely or familiarly ?
And, indeed, the
power to act as witnesses in the numerous assemblies of men with which they
mingle, as well as taking part in public affairs, gives them the habit of
speaking more freely than they ought, and, depriving them of the morality
and reserve of their sex, encourages them in the exercise of boldness and
wickedness which, to some extent, is even insulting to men. For is it not an
insult, and a very serious one, for women to be authorized to do something
which is especially within the province of the male sex?
Wherefore, with
a view to reforming not only the errors of custom, but also of law, We
hereby deprive them of the power of acting as witnesses, and by this
constitution forbid them to be called to witness contracts under any
circumstances. But, so far as matters in which they are exclusively
interested are concerned, and when men cannot act as witnesses, as, for
instance, in confinements, and other things where only women are allowed to
be present, they can give testimony as to what is exclusively their own, and
which should be concealed from the eyes of men.
CONSTITUTION
XLIX. SLAVES SHALL NOT BE PERMITTED TO GIVE TESTIMONY.
The Same Emperor
to the Same Stylianus.
As the right to
give evidence is of great importance, and necessary for the maintenance of
the integrity of public documents upon which the existence of society
depends, those only shall be authorized to act as witnesses whose status is
not ignominious; therefore the laws have made this distinction with the
greatest show of reason, and do not permit all persons to testify.
Nevertheless, because certain statutes have permitted men of servile
condition to be witnesses, under certain circumstances, We have come to the
conclusion that this exception should be extended; so that while persons who
are not free should not generally be admitted to testify, the law as set
forth in the new constitution should be confirmed, and, in every instance,
should be referred to where the legality of evidence relating to wills, or
any
other documents,
is in question. For if those who enjoy liberty but do not lead lives worthy
of freemen, and fail in certain respects to manifest a greatness of soul
superior to servitude, but are subjected to the domination of their illegal
acts, are not permitted to give evidence, those who it is proved are not
free should, by no means, be allowed to do so. For although this is a
different kind of servitude, still it is one which renders the person
unworthy of enjoying the dignity of freedom.
CONSTITUTION L.
DONATIONS WHICH
HAVE NOT BEEN REDUCED TO WRITING SHALL ONLY BE VALID WHERE SUMS UP TO FIVE
HUNDRED AUREI ARE INVOLVED.
The Same Emperor
to the Same Stylianus.
As many persons
induced either by gratitude or through disinterested benevolence make
donations, it has seemed to Us proper to decide under what circumstances
they should, or should not, be valid. The ancient authorities, when
discussing this question, came to the conclusion that every donation in
excess of five hundred aurei, which had not been entered upon the
public registers, should be void; even though the donee produced evidence
that it had been written down in the donor's own hand. I do not know why
this peculiar provision was adopted. For when a donation has been reduced to
writing, and thereby is proved to be genuine, I do not see what can be added
to it in order to render it more certain.
We, therefore,
in enacting the following provision, which We are aware does not apply
solely to donations, decree that every gift in excess of five hundred
aurei, where it has been reduced to writing, shall be valid, but shall
be void for any sum in excess of that amount if it is not in writing, even
though the donee may have received the article given in the presence of
witnesses. For every donation estimated at five hundred aurei is good
in law where it is proved by the statements of three witnesses; hence it
must, in this manner, be determined whether the donations are valid or of no
force or effect.
CONSTITUTION LI.
To WHOM TREASURE TROVE SHOULD BELONG.
The Same Emperor
to the Same Stylianus.
Everything would
be satisfactory and advantageous if We acted in accordance with the
beneficent laws of God, and We would have no reason to have recourse to
those of men if, directed by the light of the former, We pursued Our journey
safely; for then no necessity for human legislation would exist. But as it
is extremely difficult for all persons to leave the filth and mire in which
they are engulfed, and raise their souls to the consideration of the Divine
precepts, they are compelled to seek safety in human wisdom. It is for this
reason that it has been found necessary to enact a law against those wealthy
persons who, in spite of the duty enjoined upon them by heaven to be
charitable and
assist the unfortunate, and, without evincing any gratitude towards Our Lord
and Saviour, or any compassion for suffering humanity, instead of lending a
helping hand to the poor, retain their riches, and bury them in the earth,
as if they hated the light which rendered them visible.
This law
was passed in former times, and afterwards, avarice, which destroys the most
excellent institutions, deprived it of its force, but We now restore all its
authority. It provided that when anyone found a treasure on land belonging
to the sovereign or on any other public property, he must share it equally
with the Treasury. Where the land on which it was found was not public, and
did not belong to the sovereign but to someone else, he was compelled to
share it in the same way with the owner; and, finally, in case the premises
belonged to him, he could keep the entire treasure. These are the provisions
of this law.
Subsequently, a
perverse cupidity having nullified them, I do not know how, caused the law
to cease to be observed, and very unjustly made the Treasury the beneficiary
of the treasure. The consequence of this was that when any persons knew of
the existence of the concealed treasure, being well aware that others would
profit by their labors as they would employ them in vain, and, on the other
hand, that they would render themselves liable to rigorous investigation if
they neglected to acquire the treasure and allowed it to remain perpetually
concealed, they kept silent; while if they had produced it, it would have
been of great advantage to everyone.
Therefore We
order that, hereafter, judgment shall be rendered in conformity with the
ancient law, and whenever any treasure is found, if this takes place on
public land, or on that belonging to the Empire, the finder of the same
shall share it with the Treasury; but when it is found upon the premises of
anyone else, the finder and the owner of the land upon which it is found
shall divide it between them. But if the finder should be dishonest, and
fail to produce all that he obtained, but keeps some of it fraudulently and
deceitfully, he shall reap no benefit from his efforts, and shall, as a
malicious concealer and thief of the property of others, acquire none of the
treasure whatever; but all of it shall belong to the owner of the land.
CONSTITUTION LII.
MONEY COINED BY
ANCIENT AS WELL AS MODERN SOVEREIGNS SHALL BE CURRENT, PROVIDED IT is OF
LEGAL WEIGHT AND OP PROPER MATERIAL.
The Same Emperor
to the Same Stylianus.
If a x-large
amount of money of good quality and weight imparts great power to the State,
the ancients were perfectly right in providing against its scarcity; just as
if they would avoid a dangerous illness which would tend to deprive them of
all their strength, by directing that every kind of coins, even those issued
by sovereigns, should be accepted as legal. But I do not know for what
reason their
successors were
unwilling to let this wise rule stand; and, just as if they had envied the
prosperity of their subjects, forbade the use of all coins bearing effigies
of former emperors, and only permitted their own to be available in business
transactions. They did not seem to consider what confusion might result, or
what losses would be sustained in commercial affairs from the enforcement of
this rule, especially among the poorer classes, who are more in need of
assistance and protection than others. It is certain that if traders of
small resources, and those who only live by manual labor, as well as all
peasants, could no longer purchase the necessaries of life with the old
money which they had made use of up to that time, they must have been
reduced to great distress.
Therefore,
abolishing this modern regulation, and adopting the ancient one in its
entirety, We hereby decree in accordance with the rule of the old priests,
which is not only beneficial, but convenient for all, that every kind of
coins (provided neither the form nor the material of the same has been
changed and they are of proper weight), whether they bear the effigy of an
ancient or a recent sovereign, shall be "equally good and current in
business transactions, and the penalty of such as do not acquiesce in this
law shall be that they shall be scourged, shaved, and, in addition, be fined
three pounds of gold.
CONSTITUTION
LIII.
ANYONE SHALL BE
PERMITTED TO BURY THE DEAD WITHIN CITIES AS WELL AS OUTSIDE THE SAME.
The Same Emperor
to the Same Stylianus.
It is my opinion
that civil laws which provide for matters relating to the ordinary life of
Our subjects are not sufficient, and that it is proper that other suitable
ones should be enacted with reference to persons who have ceased to exist.
Such laws, however, should not include provisions which may expose the
bodies of the dead to insult, and by means of which dishonor and baseness
may attach to the common fate of mankind. But does not the law which permits
bodies to be buried only outside of cities dishonor human nature? If, when
making this provision, it had solely included those whose wealth gave them
the means of burial, there would have been a reason for the rule; although,
in this instance, it was proper to concede something to the grief of their
friends and relatives, as it would be a great consolation to be able to
embrace their tombs and shed tears upon them, which duties are not easily
performed when interments take place beyond the city Walls.
Still, if this
law had only been enacted for such persons, some reason would exist for its
severity, but as its provisions are general and extend to all, its absurdity
is clearly manifest; and it is clear that such an enactment is a reproach to
human nature, for how can those who, when living, were poor and abandoned,
be buried after they are dead ? And why, if their burial cannot take place
speedily on account of their poverty, and they, being without interment for
many
days should
remain exposed, presenting a wretched and horrible sight, dishonoring
humanity by their wasting and decay? And, in addition to this, as deceased
persons are styled the servants of God, and honored on account of their
celestial glory, does it not leave their bodies unburied, and thereby even
expose them to expiation ?
Therefore, We
order that this law shall, by no means, be included among other civil
enactments, and We abolish it by this Our decree, just as it has previously
been very properly disregarded by custom; and hereafter, everyone shall have
the right to bury deceased persons either inside the city or without, as he
may desire.
CONSTITUTION LIV.
ALL PERSONS SHALL ABSTAIN FROM LABOR ON SUNDAY.
The Same Emperor
to the Same Stylianus.
To attempt to
communicate useful precepts to mankind is certainly a most laudable
undertaking, and those princes who do this, and devote all their attention
to the welfare of their subjects, deserve to have their love for the State
made a subject of praise, and the laws which they enact religiously
observed. It is much more equitable, however, to show reverence to rulers of
this kind who, acting to some extent as the legislators of the entire world,
experience solicitude of a much more exalted character for the safety of the
human race not only on account of the excellence of their opinions, but also
because they have drawn up their decrees with the assistance of God.
A law was in
force among the disciples of these distinguished men which directed that
every kind of labor shall be suspended on the day of the Resurrection. There
is, however, another which contradicts this, and provides that all persons
shall not be prevented from working upon that day, but that some should be
indulged in this respect; for it declares that judges, the inhabitants of
cities, and all artisans should rest on this venerated day, but that persons
residing in the country can freely engage in the cultivation of their
fields, which exception is not founded upon reason. For although, in this
instance, the pretext that the crops must be saved can be alleged, this
excuse is of no weight, and indeed is futile, as when God gave Us the fruits
of the earth he intended that they should be preserved by the effect of the
sun, to which, rather than to the industry of the cultivators of the soil,
is due the abundance of the crops, and should be so attributed; and as the
existence of a law of this kind dishonors the worship of the Lord, and is
contrary to what was prescribed by those who, with the assistance of the
Holy Spirit, obtained a victory over all their adversaries, We hereby
decree, in accordance with the wishes of the Holy Spirit, as proclaimed by
Jesus Christ and His Apostles, that, during the sacred day when Our
redemption is celebrated, everyone shall desist from labor, and neither
farmers nor anyone else shall be allowed to perform any unlawful work. For
if those who observed only the shadow and semblance of the laws had so much
respect for the Sabbath as to
strictly abstain
from every kind of labor, how can those who are enlightened by divine grace,
and cultivate the truth, fail to exhibit the same reverence for the one day
out of seven which has been consecrated to the glory of God, and on which he
has honored Us, and delivered Us from death? And when one day of the seven
has been dedicated to Our Lord, does it not evince contempt for religion to
refuse to be satisfied with working during the other days and not preserve
this one sacred and inviolate for God, nor make a distinction between it and
the others by using it for the same purpose?
CONSTITUTION LV.
JEWS SHALL LIVE
IN ACCORDANCE WITH THE RITES OF CHRISTIANITY.
The Same Emperor
to the Same Stylianus.
Those who
formerly were invested with Imperial authority promulgated various laws with
reference to the Hebrew people, who, once nourished by Divine protection,
became renowned, but are now remarkable for the calamities inflicted upon
them because of their contumacy towards Christ and God; and these laws,
while regulating their mode of life, compelled them to read the Holy
Scriptures, and ordered them not to depart from the ceremonies of their
worship. They also provided that their children should adhere to their
religion, being obliged to do so as well by the ties of blood, as on account
of the institution of circumcision. These are the laws which I have already
stated were formerly enforced throughout the Empire. But the Most Holy
Sovereign from whom We are descended, more concerned than his predecessors
for the salvation of the Jews, instead of allowing them (as they did) to
obey only their ancient laws, attempted, by the interpretation of prophesies
and the conclusions which he drew from them, to convert them to the
Christian religion, by means of the vivifying water of baptism. He fully
succeeded in his attempts to transform them into new men, according to the
doctrine of Christ, and induced them to denounce their ancient doctrines and
abandon their religious ceremonies, such as circumcision, the observance of
the Sabbath, and all their other rites. But although he, to a certain
extent, overcame the obstinacy of the Jews, he was unable to force them to
abolish the laws which permitted them to live in accordance with their
ancient customs.
Therefore We,
desiring to accomplish what Our Father failed to effect, do hereby annul all
the old laws enacted with reference to the Hebrews, and We order that they
shall not dare to live in any other manner than in accordance with the rules
established by the pure and salutary Christian Faith. And if anyone of them
should be proved to, have neglected to observe the ceremonies of the
Christian religion, and to have returned to his former practices, he shall
pay the penalty prescribed by the law for apostates.
CONSTITUTION LVI.
CONCERNING THE SHORES OF THE SEA.
The Same Emperor
to the Same Stylianus.
The law which
abolishes the common ownership of maritime lands, that is to say, those
situated on the shores of the sea, and compels the owner of such lands to
pay damages in an action brought against him for forbidding persons to fish
thereon, does not seem to Us to be just. For when We acquire property by
means of a good title, for instance, by succession, by Our own labor, or in
any other way whatsoever, why should We not have the management of it; and
why should not the benefits derived from possession of the same be Ours,
rather than belong to someone else? Hence no law is equitable which grants
the profit of anything to a person who has no right to it, and at the same
time deprives another of its possession who is entitled to the same either
through the right of relationship, or because he has paid for it, or for any
other reason. For if the owner of a tract of land situated on the seashore
is required to pay an annual tax, is it not absurd, as well as unjust, for
him not to be able to prevent one who, against his will, desires to enjoy
the advantages of this property, and if he succeeds in doing so, be
compelled to pay him damages? What steps should be taken if he himself
fished there? Would he be obliged to remain quiet, and allow strangers alone
to enjoy the benefit of fishing; or, if he did not wish to remain idle, must
he go and fish upon the lands of others, as he cannot use his own for that
purpose? I do not see any reason for holding this opinion.
Therefore, We
hereby decree that everyone shall be the actual owner of his land on the
seashore, and that no one shall be permitted to enjoy the advantages thereof
without his permission, or interfere With said land in any way. For as it is
a rule of law that the ownership of a house extends equally to its court and
vestibule, this rule, it seems to Us, should also apply to real property on
the shore of the sea. And as no one is permitted to gather the fruits of a
tract of land against the will of the proprietor, as otherwise, he will be
obliged to pay a fine regulated by the custom of the neighborhood, We order
that this rule shall also apply to maritime lands.
CONSTITUTION
LVII.
How FAR FROM ONE
ANOTHER SHOULD FISHING NETS BE PLACED?
The Same Emperor
to the Same Stylianus.
Several laws
contain provisions with reference to fishing, but as they do not settle
anything with reference to what is called roXV> because at the
time when they were enacted this practice was not known; We desire to
publish a constitution on this subject. Therefore We establish as a law the
custom which was formerly observed, namely, that nets ought to be stretched
at a distance of three hundred and sixty-five paces from each other, because
this space seems to Us
to be suitable.
And, indeed, since without regard to this custom, the general welfare
suggested that this should be the case, We do not hesitate to render it
legal, in order that it may have, more force and hereafter be more strictly
observed. Hence We decree that a space of three hundred and sixty-five
paces, a distance which has already been established by common usage, shall
be left between nets; and this must be done in such a way that the space
shall be equal on both sides, that is to say, that there shall be a hundred
and twenty-two and a half paces on one side, and the same on the other from
the intermediate point which divides maritime lands.
This is the rule
which We adopt to regulate the stretching of nets in the future, but the
provisions of this law shall make no alterations in those which have been
stretched before its promulgation, which shall remain in the same place
where they were in the beginning.
CONSTITUTION
LVIII. FOOD SHALL NOT BE COMPOSED OF BLOOD.
The Same Emperor
to the Same Stylianus.
In former ages,
God ordered Moses not to make use of blood as food, and it was afterwards
declared by the Apostles that persons ought to abstain from nourishment of
this description. And although in ancient as well as in modern times such
food was considered vile and execrable, the obstinacy and perversity of men
induced them to pay no attention to the provisions of the law; but, on the
contrary, some of them being influenced by the desire for gain, and others
by their appetites, boldly violated the law, and fed upon blood, although
its use had been prohibited. It has been brought to Our ears that they now
stuff entrails with blood, and use them as their daily food. As We do not
think that this should be tolerated, the Divine precepts disobeyed, and the
State disgraced by the use of such nutriment, which is a wicked invention
due to the gluttony of mankind, We hereby forbid all persons either to use,
or to sell it; and We give notice that, if anyone should, in contempt of the
Divine Law, he found to have prepared blood as food, whether he sells it or
buys it, he shall have all his property confiscated, and, after having been
severely scourged, and disgracefully shaved, shall be exiled for life.
Again, as magistrates of cities would have been able to prevent this crime
if they had been sufficiently vigilant, they shall, for the reason that they
have been remiss in the performance of their duty, be sentenced by the same
judgment to pay a fine of ten pounds of gold.
CONSTITUTION LIX.
REPEAL OF THE
LAW WHICH PERMITS A FREEMAN TO SELL HIMSELF.
The Same Emperor
to the Same Stylianus.
The law which
does not punish a freeman who is so base and abject in mind as to dishonor
the dignity of freedom, and share in the
execrable profit
of the price obtained by selling himself into slavery, is certainly one of
those which are the least worthy of approval and execution. Nor do We think
that the one which has been enacted concerning such persons, and which
permits an act due to insanity, and so far from imposing any penalty upon
those who take part in it, does not even condemn such an infamous
transaction, accomplishes the purpose of legislation, and is unworthy of the
reverence which should be accorded to the laws. For if laws bear the same
relation to citizens as a father does to his children, that is to say,
authorizes only what is beneficial and salutary for them, how can an
enactment properly be considered legal which permits persons through madness
to commit such an improper and injurious act? Hence We do not wish such a
law to be included among those of the Empire, and We hereby decree that if
anyone should be so demented as to sell himself, thereby sacrificing his own
freedom, such a contract shall not be valid; both parties to it shall be
scourged with rods, and the status of the one who sold himself shall remain
the same as before.
CONSTITUTION LX.
IN WHAT WAY
PERSONS WHO CASTRATE OTHERS SHOULD BE PUNISHED.
The Same Emperor
to the Same Stylianus.
Man is deprived
of the faculty of procreation, which was conferred upon him by God, with the
same audacity as if the act was not subject to divine retribution, when,
indeed, it should be severely punished; and although the ancient legislators
were careful to suitably provide for this offence by law, and desired that
the State should be free from its commission, I do not know why their
statutes were not obeyed; and, just as if some benefit could be obtained
from this mutilation of nature, men were constantly deprived of their
generative organs, and transformed into entirely different beings than when
they came from the hands of their Creator.
Therefore, We,
not desiring to allow a crime of this kind to go unpunished, do hereby
prescribe a penalty by which We intend, if possible, to suppress the
boldness of those who deform their fellow-creatures, without even alleging
the excuse of religious custom.
The laws of
former legislators prescribed the penalty of retaliation, and provided that
persons who mutilated others in this way should themselves be placed in the
same condition, a provision which seems to Me not to be inequitable,
although it is, indeed, far from decorous; and it does not seem proper for
anyone who ventures to attempt to change the work of God to be punished by
imitating what he has done, and mutilating him in the same way. Still, as I
have just stated, such a penalty is not inappropriate, so far as the crime
itself is concerned. A different punishment was established for those who
were audacious enough to commit this wicked act, for their property was
confiscated, they were banished for life, and when the person who sustained
the injury was a slave, he obtained his freedom. These
were the ancient
laws on this subject. We, however, deciding with reference to this same
matter, do hereby forbid the Lex Talionis to be enforced against such
as are guilty of the crime of castration; and We wish them to be liable to
the other penalties prescribed for this offence, although it is Our
intention to be indulgent to them. Hence We decree that if anyone summons a
practitioner of this detestable calling, he shall, in the first place, if he
is in the Imperial service, have his name stricken from the list of those
employed therein, and then, after having paid a fine of ten pounds of gold
into the Treasury, he shall be exiled for ten years. The one, however, who
actually commits the crime, shall be scourged with rods, stripped of all his
property, and banished for the same time. When the person upon whom the
injury was inflicted is of servile condition, he shall be free for the rest
of his life; but if he is a freeman, he shall be considered to have
voluntarily submitted to the operation, and shall be responsible for what he
has suffered. Moreover, if he who was castrated was compelled to undergo the
mutilation for the benefit of his health, as is often the case, he shall not
be held to have done anything reprehensible either in Our eyes or in those
of the law; for, under such circumstances, the object is not to cause a
deformity of nature, but is an attempt to correct it.
CONSTITUTION LXI.
WHAT PENALTY
SHALL BE INFLICTED UPON THE COLLECTORS OF TAXES WHERE THEY DEMAND MORE THAN
is
DUE.
The Same Emperor
to the Same Stylianus.
If men were
always willing to tread the path of equity, there would be much greater
happiness and prosperity everywhere, as there would be no need for
legislators to manifest such severity, and the avenging laws would not
expose anyone to difficulty and danger. For although the path of equity is
convenient and salutary, most persons are not willing to follow it, but
avoid it as being laborious and rough, and offering great hardships to
travellers. For there are those, who, I say, delight in everything that is
most wicked, who avoid the way of justice, and with alacrity and eagerness
betake themselves to that of iniquity, although it is covered with thorns,
and by it travellers are conducted to perdition.
The ancient
legislators, also, thinking that it was necessary for the rashness of such
persons to be restrained, attempted to prohibit it by law, as by the use of
a bridle. But what means did they employ to repress iniquity, and, on the
other hand, inculcate the practice of justice; and who, I ask, will not
approve what We have undertaken? We, however, refuse to confirm a decree by
which punishment is inflicted upon delinquents, without taking into
consideration the seriousness of the offence. For a law is just when the
penalty which it imposes is in proportion to the crime which it is intended
to chastise; but when too much severity is used it is much more unjust than
equi-
table.
Wherefore, We refuse to sanction the law which the ancients promulgated, and
by which they impose an excessive penalty, that is death, upon those who are
appointed to collect the public taxes (who were ordinarily designated
"managers"), when they attempted to collect more than they had a right to
do; for We think that, by all means, they should not be subjected to such
severe punishment; hence We decree that anyone who is convicted of this
crime, provided he has only perpetrated it once, shall pay double the amount
of the surplus which he exacted; and if he does this again, he shall
reimburse fourfold the person who suffered the injury, and be ignominiously
deprived of his office. This penalty shall hereafter be inflicted for this
offence, and a fraudulent act of this kind shall never subject the person
who commits it to the risk of losing his life.
CONSTITUTION
LXII.
CONCERNING THE
PENALTY INCURRED BY ONE WHO SELLS ANY PUBLIC PROPERTY WHATSOEVER.
The Same Emperor
to the Same Stylianus.
It is right for
persons who are guilty of public wrongs to suffer penalties adapted to
restrain their inclinations to injure others, and to prevent such acts from
being committed. But it is not right for them to be punished with excessive
severity, nor for the law to pass beyond its proper bounds, and, by a
species of legal vengeance, as it were, cause injustice. For when the person
who perpetrates an offence is punished, the penalty imposed upon him is
just; but it ceases to be so if it is out of all proportion to the crime,
and I think such a provision should not be observed. Therefore Our Majesty
being aware that the ancient authorities prescribed penalties which are too
harsh in cases where persons have sold public property, We hereby decree
that hereafter such prosecutions shall be conducted with less severity. For
how can it be just to inflict an irreparable misfortune upon anyone who has
caused the Treasury a trifling loss, by depriving him of life, when he sold
some article of public property ? For such a crime is not worthy of being
punished capitally, nor do We permit those who have been convicted of it to
be treated in this way. Anyone, however, who is proved to have disposed of
public property, We think will be sufficiently punished if he is compelled
to return fourfold his value.
CONSTITUTION
LXIII.
CONCERNING THE
PENALTY TO WHICH THOSE ARE LIABLE WHO TRANSFER FORBIDDEN THINGS TO THE
ENEMY.
The Same Emperor
to the Same Stylianus.
This crime,
also, being similar in character, was punished by the ancient jurists in the
same way; and We, abolishing this unreasonable penalty (that is to say,
death), intend to substitute for it a milder one, as previously stated.
It was
established by the ancients that nothing should be delivered to the enemy
which could increase his strength, and render him more formidable, and they
sentenced those who violated this law to lose their lives. But We,
prescribing a more moderate penalty for such a crime, even though it
deserves exemplary chastisement, do hereby decree that if the guilty party
who delivered the goods in question to the enemy is the owner of the vessel
which served to transport them, and did not communicate his intention to his
sailors, he alone shall be punished, and unless it will reduce him to
absolute poverty, he must surrender to the Treasury, in addition to the
cargo of his ship, half of all his other possessions. But where his sailors
were the only ones who participated in this offence without permitting their
evil designs to become known, which is something that they often do, the
owner will be released from liability, and they alone shall suffer the
penalty. They shall, in the first place, be whipped and shaved, and then, if
they are wealthy, they shall pay fourfold the value of what they
transported; but if, on the other hand, they are poor, they shall still be
whipped and ignominiously shaved, and, in addition to this, shall forfeit
their freedom, and be reduced to a servile condition, for this is, indeed, a
very moderate punishment for the crime of having caused others to be
enslaved. These measures shall be taken when the offence was not perpetrated
by common consent. But when this was done with the knowledge of all
concerned, the participants in the offence shall together undergo the
penalties which We have hereinbefore prescribed.
CONSTITUTION
LXIV.
CONCERNING THE
PENALTY TO BE IMPOSED UPON THOSE WHO SUPPRESS INFORMATION OF A SHIPWRECK.
The Same Emperor
to the Same Stylianus.
I do not
understand why persons who conceal property which has been thrown upon the
shore by the wreck of a ship should seem to have committed a crime deserving
the penalty of death. Anyone who cheats people out of their property, and
thereby deprives those who are deserving of the pity of others of the means
of subsistence, and the only consolation which they have, when, on the other
hand, he should endeavor to aid them in the unfortunate condition to which
they are reduced by the loss of their possessions, is guilty of an offence
of no little atrocity, and this, indeed, is clearer than light. But I am
unwilling for those whose foolish cupidity has impelled to commit this crime
to be put to death, as how can what they have taken be compared in
importance with the life which they are condemned to lose? He who attempts
to profit by an act of this kind must certainly be an extremely wicked and
sacrilegious person, like one who despoils the dead, which is sometimes
done. Still, his crime does not deserve such severe punishment, for it is
not just to deprive him of his immortal soul, by way of retribution for the
removal of something that is material and easily destroyed. For if, even
with reference to ma-
terial things,
the penalty should not be greater in value than the injury, why should he
who conceals property belonging to persons who are shipwrecked be subjected
to punishment so out of proportion to his crime that words are lacking to
express it? Therefore, We order that, for the future, this penalty shall not
be imposed, but that he who conceals property under such circumstances shall
be condemned to pay fourfold the value of what he appropriated.
CONSTITUTION LXV.
CONCERNING THE
PENALTY TO WHICH ENCHANTERS ARE
LIABLE.
The Same Emperor
to the Same Stylianus.
Those who assert
that wine should be condemned on account of the evil disposition, and the
irrational behavior which it causes drunkards to exhibit, and who think that
its use as a beverage should be prevented for this reason, attempt to render
something wicked which, in itself, is not of that character. But remembering
that one of the laws promulgated by the ancient legislators, which sometimes
punishes enchantments because it regards them as crimes, and again, on the
contrary, authorizes and approves them on the ground that they are not an
evil, taking into account the intentions of those who practice such arts,
even though by their very nature they are vicious, and, as it were, reeking
with filth and stench, I would not say that the said legislators are worthy
of censure, but in order that no one may have reason to criticize this law,
I am of the opinion that it ought to be repealed. For it provides that
enchantments shall be punished because they are instrumental in removing all
innate modesty, and are productive of an amorous fury which causes loss of
reason; and, on the other hand, it approves of them because they are
supposed to aid in the production of grains and fruits, and apparently
supply Us with other benefits. Thus this law honors as advantageous
something which it thinks should be punished as productive of injury.
We, however, are
convinced that enchantments of this kind are pernicious, and We cannot be
induced to believe that they are productive of any advantage whatever; and,
indeed, if they appear to be the source of any good (as seems to have been
the opinion of those who rendered them legal), We believe that they are not
an actual benefit, but merely an attractive and dangerous snare set for
those to fall into whom, with the prospect of the greatest benefit, it
entices to the greatest of evils. For We are aware that those who devote
themselves to these matters instead of to worship of the Creator, Our Lord,
invoke malevolent and cruel demons, and those who have recourse to them by
means of a certain pleasant exterior, receive wounds in their souls; just as
timid men who, in order to avoid a blow which threatens their hands, allow
it to be inflicted on their heads or their bellies; therefore anyone who
employs incantations for the restoration or preservation of his health, or
for the purpose of avoiding calamities
which threaten
his harvests, if convicted, shall undergo the punishment of an apostate and
suffer death.
CONSTITUTION
LXVI. CONCERNING THE THEFT OF SLAVES.
The Same Emperor
to the Same Stylianus.
In order that
the scales of justice may not incline more to the side of compassion than it
is proper, a more serious penalty should not be imposed upon delinquents
than their offences demand. For if too great commiseration is manifested by
the law it would give rise to contempt, and encourage evil deeds; and if, on
the other hand, a more severe penalty than is merited should be imposed,
then the ends of justice will not be accomplished, and when the laws appear
to do something which is equitable, they really effect what is absolutely
unjust. But with what object in view has this statement been made? Because
there is a law which punishes with death (but I do not know in what way),
although it has been decided that anyone who appropriates the slave of
another is liable to it, in which instance the penalty is certainly not in
proportion to the crime. For if what cannot be recovered is not lost, it is
unjust to impose the death penalty upon one who has sold a slave, and
thereby inflict upon him irreproachable injury; therefore, since this is the
case, and persons undeservedly are subjected to such severe retribution, and
as custom has disregarded this law to such an extent that it does not
deprive those who steal slaves of life but punishes them in a different
manner, We, excluding the said law from all constitutions, do hereby confirm
as legal what has been established by usage; and We order that the
delinquent shall be compelled to surrender a slave, and pay an amount equal
to his value, as well as to give up everything which he had acquired by the
industry of said slave, and, in addition to this, pay the owner of the
latter all that he would have been able to obtain if the slave had not been
stolen; and after this has been done, the delinquent shall not suffer any
other punishment.
Thus, he who
loses the slave will be sufficiently indemnified, and the person who
appropriated him will be suitably punished, for the former will recover the
slave together with all the accessions which he had been instrumental in
obtaining, and by doing so will enjoy the same advantages as if he had not
been taken from him; and the latter will be obliged to give him up, and at
the same time pay his value, and will profit in no way whatever by his
services.
CONSTITUTION
LXVII.
CONCERNING THOSE
WHO GO OVER TO THE ENEMY AND VOLUNTARILY RETURN.
The Same Emperor
to the Same Stylianus.
Too much
harshness and severity, and unreasonable and excessive lenity and indulgence
are alike unproductive of what is advantageous.
For he who is
inordinately harsh, and is unwilling to mingle gentleness with severity,
whether he has control over but one person, or over a family, or a state,
always conducts himself to the injury of those subject to his authority.
Anyone who wishes to govern with justice must manifest in his actions the
same mixed qualities as appear in a salubrious and temperate atmosphere, and
not display either too much rigor, or too much lenity which resembles
weakness, for such characteristics will expose him to contempt, and render
him absolutely unfit for government. What We state with reference to the
atmosphere is especially applicable to the laws, for since the Empire is
governed by them, they should maintain the wise proportion which I have just
mentioned, and evince neither excessive sternness nor immoderate indulgence,
as by means of moderation in everything those whom they control will always
remain secure. We allude to these things because of their applicability to
the rigorous law which has been enacted against persons who go over to the
enemy. It provides that if a deserter should, at any time, be influenced by
repentance, and return to his own people, expecting his crime to be
forgotten, he shall either be thrown to wild beasts to be devoured, or be
impaled. This rule seems to me to be productive of great injury to the
State, and, instead of contributing to the public welfare, it produces the
contrary effect, for it compels deserters to retain no further memory of
their country, and forbids them to have any desire to return to it; for
there is no one who would not prefer to live among enemies, when he knows
that he will be liable to such a cruel death at home.
Wherefore We,
desiring to abolish a law of such severity, not to say injustice (for it is
not unjust to punish with such barbarity a delinquent, who voluntarily
attempts to make reparation for his crime?), do hereby decree that if a
deserter should return to his country, he shall be pardoned, if he has only
deserted once; if he repeats the offence he shall be sold as a slave, and
remain in that condition for the term of three years; and if he deserts a
third time, and returns to his country, he shall be reduced to servitude for
life, as so unreliable and inconstant a man is unworthy of the freedom which
he enjoys. But if a deserter should not return of his own accord, but having
been arrested, is brought back to his country by others, then it will be
neither unjust nor cruel for him to be punished as an enemy, especially if
he has previously stained his hands with the blood of his fellow-citizens.
CONSTITUTION
LXVIII.
MONKS AND OTHER
MEMBERS OP THE CLERGY CAN BE
APPOINTED
GUARDIANS, BUT THEY SHALL BE DEPRIVED
OP THE CONTROL
OF THEIR WARDS AS WELL AS OF THE
ADMINISTRATION
OF THEIR PROPERTY.
The Same Emperor
to the Same Stylianus.
It seemed
advisable to the ancient legislators, probably because in their time
guardianship was uniform and simple, and the name
of guardian was
only given to those who were entrusted with the defence of minors, to
establish the rule that monks and all other members of holy orders could not
act as guardians; and, indeed, this was very proper, for they believed that
those who had devoted themselves to the service of God should be free from
the occupations and anxieties attaching to all other pursuits. No one is
ignorant of the fact that the responsibility of rearing and governing
children distracts the mind to such an extent as to prevent those who
undertake it from discharging the duties incumbent upon them. Therefore, as
this subject presents no little difficulty, and especially on account of the
length of the time required by the trust (for guardians are usually occupied
during almost their entire lives through the serious responsibilities
involved), they were right, as I have already stated, in enacting such a
law. But as their predecessors did not exclusively apply this name to those
who administered guardianships, they also extended it to the persons in whom
testators reposed sufficient confidence to entrust them with their
testamentary dispositions, and charge them with their execution; and,
indeed, it was doubtful whether monks or other members of holy orders could,
in conformity with this law, be appointed guardians and undertake the
performance of their functions.
We hereby
establish a distinction, and decree that those must absolutely be excluded
from the exercise of guardianship who were excepted by the law formerly
enacted, and that it will be lawful for them to act under the one
subsequently passed, for the reason that the requirements of the trust are
not sufficiently serious to divert them from their religious duties and
consume all of their time. Moreover, there is the greater certainty that
they will faithfully carry out the intentions of the testator, and that they
will live more regularly and piously than those whose attention was
exclusively directed to profane matters and to impure and terrestrial
affairs.
CONSTITUTION
LXIX. BLIND MEN CAN MAKE WILLS SECRETLY.
The Same Emperor
to the Same Stylianus.
A doubt
occasionally arises as to how blind men can execute wills, and this doubt
has given origin to laws which contain provisions which conflict with one
another, as well as with the custom at present observed; and I have
considered it neither inopportune nor inconsistent with My purpose to
explain and settle this question. There is a law which prohibits a blind man
from making a will in secret, and provides that such a will shall not be
valid, any more than where witnesses allege that they heard the testator
mention orally the dispositions which it contains, when the instrument alone
does not, of itself, confirm their testimony. On the other hand, another law
permits women and illiterate persons to make secret wills, and does not
require of the latter any other formalities than that where the testator is
unable to write, his signature must be proved, and if he cannot write at
all, someone else can sign his name for him. These two laws
are evidently
conflicting, for if women and illiterate persons who hardly know what they
want can make secret wills, why should not a blind man be permitted to do
so? And, indeed, custom as well as law is contradictory in this instance,
for custom has established that the wills of women, persons ignorant of
letters, and the blind, when executed in secret, are destitute of all
validity. Since this is the case, We order that the secret wills of blind
men and all other persons shall be absolutely valid; and We add to this
provision that, before the witnesses make oath, those who have drawn up the
will shall attach their signatures thereto, and shall state that they have
written it at the dictation of the testator; and if it should subsequently
be ascertained that they have committed forgery, if they are wealthy, they
shall be deprived of their property; and if they are poor, they shall be
severely scourged, and sent into exile as a penalty for their crime. We also
add that if, in order to confirm a will, it becomes necessary to have anyone
sworn, as frequently happens, whoever wrote it must agree with those who
make oath as to the genuineness and truth of the instrument.
CONSTITUTION LXX. CONCERNING ROBBERY.
The Same Emperor
to the Same Stylianus.
You are aware
that persons who are united by a common condition generally entertain the
same sentiments. Thus those who are associated in business divide its
profits and losses equally with one another, just as travelling companions,
whenever they happen to find anything, even though all of them did not see
it at the same moment, share with one another the ownership of the same. And
companions-inarms also, even if they may not all evince the same ardor and
impetuosity against the enemy, still participate equally in the rewards of
victory. Hence, when an ancient legislator held that where certain persons
with malicious intent combined to undertake something for which a penalty
was prescribed by law (as, for instance, if a rape, or a parricide or any
other kind of a homicide should be perpetrated), even though all of them did
not simultaneously take part in it, they will nevertheless be liable to the
same penalty.
We, also, for
the same reason, approving of the laws formerly enacted against those who,
with a view to robbery, combine to attack men, have decreed that all of
them, no matter where they may have been, shall undergo the same punishment,
even though they all did not cooperate to the same extent in the commission
of the offence. For if one of them did not actually exert himself for the
purpose of inflicting death, he could not, on that account, be considered as
immune from punishment; for if he did not use his own hands, still, he was
instrumental in inducing and strengthening those of another to commit
murder; for, indeed, it is well established that the act of homicide was, in
this instance, instigated by the common perversity of mankind, since if the
assistance of others had not been afforded, it is
not certain that
the crime would have been perpetrated. Therefore, as has already been
stated, it frequently happens that although death resulted from the blow of
one person, and others present were not actively engaged in the disturbance,
We decree that all shall be liable to the same punishment.1
CONSTITUTION LXXI.
CONCERNING THOSE
WHO INTEND TO BUILD UPON TILLABLE LAND OR IN VINEYARDS.
The Same Emperor
to the Same Stylianus.
We have deemed
it advisable to sanction by legal authority that most excellent and
equitable rule established by Our Father, of eternal glory (as it was not
inserted in the body of legislation) ; namely, how much space from the field
of a neighbor should be left by those who intend to construct houses upon
cultivated land or in vineyards, for the purpose of devoting the same to
public uses? Therefore, We decree that where anyone desires to erect a new
building in a field which is ready to be sowed, he shall, if the size of the
place per-
1
This doctrine was incorporated almost verbatim into the Common Law. "Nullus
dicitur felo principalis, nisi actor, aut qui prxsens est abettans, aut
auxilians actorem ad feloniam faciendam." (Coke, Institutes III, 64,
138.)
"Principals are
of two kinds: principals in the first degree, which actually commit the
offense, principals in the second degree, which are present, aiding and
abetting of the fact to be done." (Hale, Pleas of the Crown I, LV, 615.)
In England,
anyone indicted as principal in the first degree cannot be convicted as
being responsible in the second; and if accused as principal, he cannot be
convicted as accessory; a distinction worthy of the niceties of special
pleading, the illegal act being considered from one point of view as
indivisible, and from another as separate: "Accessories sequitur naturam
sul principalis." (Coke, Institutes III, 64, 139.) By the English law,
all are principals in both treason and misdemeanors; a rule which in some
States of the Union is extended to every offence, the difference between
principal and accessory not being recognized. (Vide Wharton, A
Treatise of Criminal Law I, IX, 239.)
French law, in
general, punishes accessories and principals in the same way, but when the
principal is sentenced to death, the accessory is condemned to perpetual
penal servitude. (Code Penal, Arts. 59, 63.)
The Spanish Code
makes a distinction between principals and accessories, but punishes them
alike, except when the accessory after the fact is a near relative of the
culprit, and does not profit by the crime, or aid him in doing so. (Codigo
Penal,
Arts. 11, 13,
16, 17.)
In Italy,
likewise, principals and accessories, or accomplices, are on the same
footing, so far as guilt and its punishment are concerned. (Codice Penale
del Regna
d'ltalia,
Art. 63.)
Germany
establishes several minute and subtle characteristic differences between the
actual perpetrators of crime and their accessories, whom it designates as
abettors and assistants. The delinquency of the accessory after the fact is
clearly defined. The accessory to a minor offence cannot be prosecuted. The
penalty is usually less severe than that of the principal, but cannot be
more so. (Strafgesetz-buch fiir das Deutsche Reich, Arts. 47, 48, 49,
257.)
The Austrian
Penal Code places principals and accessories in the same category. (Allgemeines
Strafgesetz, Art. 5.)
Portuguese law
on this subject is, in many respects, the counterpart of that
of Spain.ED.
mits this to be
done, be obliged to build it, in accordance with the said constitution, two
arrowshots from the boundary of the neighboring land, or one arrowshot, if
the distance between the two tracts is too small to admit of this; and,
moreover, he shall not be permitted to erect a new structure within the
limits of the space above mentioned; the reason for which provision is so
manifest that there is no need to mention it, for the nearer the building is
to the land of another, the more damage it is liable to cause to the crops.
CONSTITUTION
LXXII.
CONTRACTS SHALL
BE VALID EVEN WHERE NO PENALTY is ATTACHED TO THEIR VIOLATION.
The Same Emperor
to the Same Stylianus.
We see persons
sometimes criticize the law which provides that an agreement without a
consideration does not confer a right of action, but merely authorizes an
exception.1 For as they hold that every agreement is void which
is not rendered effective by a penalty, they despise and reject as invalid
every agreementincluding such as have been committed to writingin which a
penalty is not provided for, even when the parties thereto have affixed the
sign of the Holy Cross with their own hands, and have invoked the name of
the Holy Trinity. They are wrong in entertaining this opinion, and they by
no means prove that human affairs should have the preference over those that
are divine; for what advantage can the stipulation for a penalty have in the
eyes of a reasonable man, and what superior power can thereby be given to
agreements to enable this to be compared to the effect imparted by the
sacred sign of the Cross, and the invocation of the name of God? Therefore
We decree that every contract which has been confirmed by divine formalities
shall be considered valid, and of legal force, even though no penalty may
have been provided for its violation.
CONSTITUTION
LXXIII.
No ONE SHALL
LIVE WITH WOMEN IN HOUSES ATTACHED TO CHURCHES.
The Same Emperor
to the Same Stylianus.
A detestable act
was formerly committed before it was forbidden by law, and, indeed, even
after this prohibition, persons were frequently bold enough to perpetrate
it; that is to say, certain individuals were in the habit of living with
women in those houses attached to churches which are ordinarily called
x^x1/**, ana" this is something that it is not
proper to disregard, nor indeed shall it be neglected by Us hereafter. This
wrong was tolerated up to the time of the Sixth Council, and remained
unpunished, I do not know for what reason, but this Council strictly forbade
it, and decreed that any priests who indulged in this practice should be
expelled from their holy order,
^"Nuda
pactio obligationem non parit, sed parit exceptionem."ED.
and that laymen
who were found guilty of it should be excluded from communion. But the
sacerdotal decree enacted for the suppression of this custom was not
effective, as it continued to exist up to the time that Our distinguished
father, the Emperor, came to the throne, and he was obliged to enact laws
and exert his power to remove this abuse from religious houses.
And, as We are
desirous of accomplishing the same thing, We hereby order that no one
whosoever, whether he be a member of the priesthood or a layman, shall live
with women in said houses; and if anyone should be found to have defiled a
religious establishment in this way, he shall be ignominiously driven from
it by Imperial authority; and whoever has afforded him an opportunity to
reside there (whether he be a priest, or anyone else) shall be deprived of
his office, on account of the contempt which he has manifested for the law,
and his profanation of sacred things.
CONSTITUTION
LXXIV.
. No NUPTIAL
BENEDICTION SHALL BE CONFERRED UPON PERSONS WHO ARE BETROTHED BEFORE THE
TIME WHEN THEY CAN BE MARRIED.
The Same Emperor
to the Same Stylianus.
The provisions
having reference to marriage, included in the ninety-eighth canon of the
Sixth Council, appear to conflict with certain rules of the Civil Law; for
the Council declares in a general way that a woman shall not marry a second
time during the lifetime of her husband; and if she does so, she shall be
considered as having committed adultery. On the other hand, the Civil Law
does not state that she commits a serious offence by such a separation, but
if she receives the nuptial benediction before the time when she has a right
to marry it condemns her to the loss of the betrothal gift, as well as to
the payment of the penalty stipulated in the marriage contract; and as a
strict construction reveals an apparent inconsistency in this connection
(that is to say, that the marriage may be dissolved after the nuptial
benediction, for it is only then that a dissolution can take place), We
hereby decree that the nuptial benediction cannot be bestowed before the
marriageable age, namely, before the age of fifteen in the case of boys and
twelve in the case of girls. Under these circumstances this benediction will
not be granted too soon, and if the parties should dissolve the marriage, as
this will then be done legally, the rule established by the Civil Law will
not conflict with the canons of the Church.
CONSTITUTION
LXXV.
A PERSON WHO HAS
REACHED THE AGE OF TWENTY YEARS CAN BE CREATED A SUBDEACON.
The Same Emperor
to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
If the authority
of the canonical decrees is sometimes enforced in civil matters, and has
frequently more effect when applied to the latter than the civil laws which
treat of the same subject can exert, how much greater precedence should they
enjoy over civil enactments when their own interests are directly involved?
Why do I say this? The Sixth Council declared that a subdeacon could be
ordained at the age of twenty years, but the Civil Law contradicted this,
and ordered that he should not be ordained before he had reached the age of
twenty-five. We, however, thinking that the ecclesiastical order should
observe its own rules, do hereby direct that those who are worthy of the
subdeaconate shall obtain that office when they are twenty years old.
CONSTITUTION
LXXVI.
CONCERNING THE
PENALTY IMPOSED UPON PRIESTS WHO COMMIT PERJURY.
The Same Emperor
to the Same Stylianus.
Various
ecclesiastical laws were enacted by the Holy Apostles, with reference to
priests who had been convicted of having sworn falsely, which prescribed
that they should be deprived of their sacred office. The Civil Law, however,
when providing for such cases, established a distinction with reference to
the crime of perjury; and, where anyone was convicted of having sworn
falsely in a criminal proceeding, he was dismissed from his sacred order;
whereas he who had been guilty of perjury in a case where money was involved
was relegated for a certain time, but was not absolutely expelled. Hence, We
decree that where any priest commits perjury, either in a criminal or a
civil case, he shall be expelled from the priesthood, but if he did not give
his testimony under oath, when he attempted to conceal his false statements
under the appearance of truth, he shall be relegated to some monastery for
the term of three years, or shall be subjected to a more rigid mode of life,
and after having atoned for his offence he shall be restored to his former
condition.
CONSTITUTION
LXXVII. CONCERNING THE PENALTY FOR FORGERY.
The Same Emperor
to the Same Stylianus.
Obscurity is
reprehensible in many instances, but is especially so in the interpretation
of laws; for there, as well as elsewhere, it is certainly proper to avoid
strained and involved constructions, and seek for perspicuous expression.
For the laws ought not to be mysteries which are beyond the comprehension of
the public, but they should, on the contrary, be, as far as is possible, so
clear that men, women, and children can easily understand them; for this
will be conducive to better legislation and be productive of the greatest
advantage to society.
Therefore,
having directed Our attention to that unintelligible provision of the law,
where the legislator seems to have desired to conceal his meaning, and which
is as follows: "A forger who is guilty
of the greatest
degree of this crime shall be punished with death," and as it is not
apparent what kind of forgery was referred to, it seems advisable to explain
the meaning of these words. Hence We order that anyone who has committed a
forgery which would have been sufficient to condemn to death the person
against whom he perpetrated it, shall undergo the same penalty which he
attempted to inflict upon another.
CONSTITUTION
LXXVIII.
No DECREE OF THE
SENATE SHALL BE ENACTED
HEREAFTER.
The Same Emperor
to the Same Stylianus.
As We have taken
measures to abolish as superfluous all laws which do not contribute to the
public welfare, so We think that We should also repeal the one empowering
the Senate to enact decrees. And, indeed, the authority of the Senate in
this respect was abolished as soon as the supreme power was acquired by the
Emperor, and it would be absurd and unprofitable to consider it as still in
existence.
CONSTITUTION
LXXIX.
CONCERNING THE
PENALTY TO BE IMPOSED UPON PRIESTS,
DEACONS, AND
SUBDEACONS WHO MARRY AFTER HAVING
BECOME MEMBERS
OF THE ECCLESIASTICAL ORDER.
The Same Emperor
to the Same Stylianus.
It is well
established that when anything has once been dedicated to God, it cannot
hereafter be devoted to some other purpose; and this rule not only ought to
be observed with reference to gifts, but it is also applicable to men who
have been consecrated to divine service by means of the ecclesiastical
order; and still more when they have fallen from virtue, and sin has induced
them to abandon the calling which they adopted for the purpose of living an
honorable life. Hence as We do not approve the ancient rule by which former
legislation permitted a priest, deacon, or subdeacon, who married, to
renounce the ecclesiastical habit, and return to profane life, We hereby
repeal this law, and decree that members of the priesthood shall be liable
to no other penalty than to be dismissed from the office which they had
obtained before being married; and that they shall retain the clerical
habit, and be authorized to discharge all the religious duties which they
are not forbidden to exercise.
CONSTITUTION LXXX.
CUTTINGS AND
PIECES OF PURPLE CLOTH CAN PUBLICLY
BE SOLD.
The Same Emperor
to the Same Stylianus.
I do not know
for what reason former Emperors, who were all clad in purple, established
the rule that nothing of this kind should be sold, and did not even allow
anyone to either purchase or sell stuffs
of this color.
And, indeed, if they had forbidden the sale of entire rolls of purple cloth
they would not have been thought to have acted unreasonably, but to prohibit
the alienation of any cuttings, or small pieces, whose use would be
productive of no inconvenience either to the vendor or the purchaser, they
could have no other reason for . doing this than jealousy of their subjects.
For what evil could result, even if everyone wore purple, and the
distinction of Imperial Majesty was thereby, to a certain extent, impaired ?
As We do not
approve of this law, We hereby decree that the sale of small fragments and
scraps of purple cloth, which afford means of ostentation to Our subjects,
shall not be prohibited; for it is not becoming to the Emperor, who
contributes so much to the welfare of his subjects, to envy the magnificence
which they may desire to exhibit.
CONSTITUTION
LXXXI.
THE MANUFACTURE
OF ANY ARTICLE OUT OF GOLD OR PRECIOUS STONES is, IN GENERAL, PROHIBITED.
The Same Emperor
to the Same Stylianus.
As the law
forbidding women to wear jewelry made of gold or precious stones, with the
exception of their rings, was enacted with the same end in view as that
having reference to stuffs dyed with purple, We likewise place it in the
same category. For it is not necessary to absolutely forbid any article to
be made of gold, but merely to enumerate the things which cannot be
manufactured of this material; for to unqualifiedly prohibit anything to be
manufactured of gold or precious jewels is to manifest a desire of being
superior to all other persons.
Moreover, is it
not a great wrong to condemn anyone who has been convicted of having, in
some respect, violated this provision, to pay a fine of a hundred pounds of
gold, without taking into consideration the additional penalty (I allude to
capital punishment), and if this law is not thought to confer the greatest
immunity, why should it be evaded? Hence, while We do not strictly forbid
gold or jewels to be worn, We do prohibit anything which is especially
reserved for Imperial Majesty to be employed by others, either for the
purpose of display or from necessity; and when anyone wishes to erect a
monument, or to do anything else which is not above his dignity and rank, he
is hereby fully empowered to do so.
CONSTITUTION
LXXXII. CONCERNING OPENED WILLS.
The Same Emperor
to the Same Stylianus.
Numerous
occurrences, at the first glance, appear to be crimes, but, after having
been carefully examined, We declare that this should not be classed as such.
What do I mean by this? It very frequently happens that a person is injured
by the cast of a stone, which act
was not
intentional but accidental; and when the matter is investigated, the person
who threw the stone is decided to be innocent, and after diligent inquiries
no good reason is found for holding him guilty. Wherefore it is proper to
consider the circumstances of an occurrence, rather than the nature of the
case itself, in order to determine whether it is fortuitous or not. Why have
these matters been mentioned here? Because sometimes a person having been
compelled to open a will, it is afterwards left in this condition, and then
time destroys the impression, and the instrument is deprived of the effect
it had when it was sealed, so that doubt may arise with reference to its
validity.
It has seemed to
Us proper that wills should remain good under such circumstances, and We
order, even though the seals may not remain unbroken, that the signature
shall be sufficient to establish their validity. For just as signatures
prove a will that has not yet been opened, even though the seals may not
have been preserved, as may readily happen; so, We consider it just that
when a will has been opened, but has not been closed again, and its seal has
been destroyed by lapse of time, it shall still remain valid, provided the
signatures are
legible.
We also direct
that if the judge should fail to have a new seal attached to a will, he
shall be subjected to a fine of twelve pounds for his carelessness.
CONSTITUTION
LXXXIII.
A LOAN OF MONEY
BEARING INTEREST AT FOUR PER CENT CAN LEGALLY BE MADE.
The Same Emperor
to the Same Stylianus.
If mankind would
permit themselves to be governed by divine laws in such a way that they
would not need human ones, this would be most admirable and salutary, but as
everyone cannot raise himself to the level of the Divine Spirit and obey its
rules, and as the number of those whose virtue leads them to adopt such a
course is very small, there are a great many who still live only in
accordance with the laws of man. Divine precepts universally prohibit the
loan of money at interest; hence Our Father, a sovereign of eternal memory,
being well aware of this, thought it advisable to enact a law forbidding
interest to be received when anything was loaned. This law, however, on
account of the general poverty, did not effect the improvement which the
legislator proposed to accomplish; but, on the other hand, made matters
worse; for those who previously had been induced to lend money with the
expectation of collecting interest, after this law was enacted, for the
reason that they could obtain no advantage from the loans, became inexorable
and cruel towards those who were in need
of cash.
Again, this
afforded a convenient occasion for taking oaths, and the inevitable result,
that is to say, the commission of perjury, followed. In short, on account of
the extraordinary perversity of human nature, this law was not productive of
any benefit, but in fact had a contrary
effect.
Therefore, although We do not regard it as actually bad, which, indeed, it
was far from being, still, since human nature (as We have previously stated)
is not capable of such perfection, We decided to abrogate it; and We now
decree, in opposition thereto, that money loaned shall draw interest in
accordance with the rate established by Our predecessors, namely four per
cent per annum.
CONSTITUTION
LXXXIV.
MAGISTRATES OF
CITIES SHALL BE PERMITTED TO TRANSACT BUSINESS, TO CONSTRUCT BUILDINGS, AND
TO ACCEPT
DONATIONS.
The Same Emperor
to the Same Stylianus.
Certain
regulations were established by former magistrates of this Royal City
forbidding them to purchase any property either movable or immovable, or to
erect any building without the authority of the Emperor; and, in addition to
this, providing that donations made to said cities during their term of
office would not be valid unless the donor confirmed them when they had been
completed, or subsequently allowed five years to elapse; and although (as I
have previously stated) these rules were adopted with the beneficent
intention of preventing any violence from being committed by magistrates;
still, for the reason that this abuse can be hindered by other means, they
seem to be unnecessary. Therefore We desire that they shall be abrogated,
and especially because, being set at naught every day, and this violation
remaining unpunished, they ceased to have any effect even before Our decree
was promulgated. But why are they not necessary? For the reason that
everyone who has been imposed upon, whether he be poor or rich, can petition
the Emperor to nullify the act of the magistrate; and this method of relief
is extremely expeditious for the inhabitants of this city, so that it is no
more necessary for anyone to avail himself of these provisions in this
Capital, where there is abundance of assistance, than there is in the
provinces, where nothing of the kind exists.
Hence, in
accordance with the present condition of affairs, We decree that magistrates
can purchase property, build houses, and accept donations voluntarily made,
without rendering themselves liable to a criminal accusation; because all
those against whom any violence is intended can, in every event, avoid its
execution by petitioning the Emperor.
We also think We
should order, with reference to provincial magistrates, that no prefect
shall, during his term of office, purchase anything, erect any building for
his own use, or accept any gift. So far as inferior magistrates are
concerned, they must refer all these matters to the prefect, who will
determine whether they should be removed from office, or continue to
discharge its duties.
CONSTITUTION
LXXXV.
FATHERS WHO DO
NOT MARRY A SECOND TIME WILL BE ENTITLED TO A SHARE EQUAL TO THAT OF ONE OF
THEIR
CHILDREN.
The Same Emperor
to the Same Stylianus.
As We have not
established any rule concerning donations made in consideration of marriage
where a wife dies leaving a husband with children, and as custom makes
provision for a wife who predeceases her husband, We do not think that this
custom should be changed; but We have decreed that the ante-nuptial donation
shall be given to the wife, as hitherto provided by the laws, and that the
husband shall not be permitted to receive anything if he marries a second
time; but, on the contrary, if he respects his former marriage, he shall be
remunerated for this honorable resolution, and a share of his wife's estate,
equal to that of one of his children, shall be set apart for him; and if
this share should equal, or exceed in value the antenuptial donation,
thereby affording him a profit, or at least not causing him any loss, he
must remain content with it; but if, on the other hand, this allowance does
not equal, but is less than the ante-nuptial donation, the husband shall not
surrender any of his property, nor shall he be entitled to anything from his
wife's estate.
CONSTITUTION
LXXXVI.
CONCERNING THE
PENALTY TO BE IMPOSED UPON BISHOPS, PRIESTS, AND OTHER MEMBERS OF THE CLERGY
WHO DEVOTE THEMSELVES TO THE PRACTICE OF LAW, TO THE NEGOTIATION OF
MARRIAGES, TO THE REDEMPTION OF SLAVES, AND TO OTHER MATTERS OF THIS KIND.
The Same Emperor
to the Same Stylianus.
It is proper
that those who have been selected by Divine beneficence for the service of
the altar should not only be free from the baseness of sin, but also should
not engage in the ordinary affairs of life and be subjected to its
annoyances. For as it is not lawful for the monuments of divine worship to
be profaned and contaminated through being handled by everyone, so those who
are living ornaments of the Holy Sanctuary should not be defiled by engaging
in pursuits which are common to all mankind, but should devote themselves to
those duties for which their pure consecration destines them.
A decree of the
Holy Apostles very properly deprives of office any bishop, priest, or other
ecclesiastic who takes it upon himself to act as advocate, who arranges
marriages, redeems slaves, or occupies himself with any transactions of this
kind; for those who, in this manner, dishonor the dignity conferred upon
them by the Holy Spirit, and, as far as is in their power, show their want
of appreciation of the glory of Divine favor, and the magnitude of its
benefits, are considered unworthy of the places they occupy, and shall be
deprived of them.
Still, as
mankind at the present time are too weak to attain to the elevated life to
which these divine legislators desired to restrict them, I do not believe
that they will be displeased if I should be a little more indulgent
to an offence of this description, inasmuch as it is not absolutely
unpardonable; for, indeed, I do not intend to oppose their
regulations, but rather to enforce them, and to afford no excuse to those
who are disobedient.
Therefore, We
decree that if any bishops or ecclesiastics of an inferior rank, or, indeed,
any other members of the clergy, should be so regardless of the dignity of
their order as to defend lawsuits, negotiate marriages, or perform any other
acts of this kind, they shall be excommunicated, and suspended for a time
from the celebration of all religious rites; and when they have paid the
penalty merited by their offence, and have promised that they, as far as
they are able, will abstain from engaging in purely secular transactions,
they shall again be permitted to discharge their religious duties; but if
they should be found to have polluted themselves in this way a second time,
they shall be absolutely excluded from the exercise of all sacred functions
as being unworthy and profane.
CONSTITUTION
LXXXVII.
CONCERNING THE
PENALTY TO BE INFLICTED UPON ECCLESIASTICS WHO INDULGE IN GAMES OF CHANCE.
The Same Emperor
to the Same Stylianus.
Men in holy
orders who indulge in games of chance are deserving of no slight penalty.
Why is this? For the reason that while they should, with a calm mind and
spirit, deliver themselves up to the contemplation of divine things, as far
as is possible for human nature to do, they, on the contrary, eagerly devote
themselves to the amusements of youth. A precept of the Divine Apostles
provides that persons of this kind shall be expelled from the priesthood.
As, however, it mitigates this sentence to a certain extent by stating that
they shall undergo the said penalty if they do not desist from the practice,
We have decreed that ecclesiastics who disgrace their sacred calling by
engaging in games of chance shall be confined in a monastery (where they
shall remain for three years), and when they seem to have sufficiently
expiated their offence, they shall be restored to their former condition.
If, however, they should afterwards waste their time in such frivolous
pursuits, they shall, by way of punishment, be absolutely expelled from the
priesthood.
CONSTITUTION LXXXVIII.
INSTITUTION OF
CERTAIN FESTIVALS IN HONOR OF MEN CELEBRATED IN THE CHURCH.
The Same Emperor
to the Same Stylianus.
By the terms of
a venerated decree of the Holy Apostles, which was promulgated for the glory
and honor of the festival days when
We worship God
as well as those dedicated to the memory of the said illustrious
commentators themselves, and other victorious champions of the Faith, who,
by their death, put impiety to flight, these days were consecrated; and with
the intention of honoring with the same solemnity the memory of the Divine
orators who have subsequently adorned the Church, and who, by their learning
and their acts, have enlightened and strengthened it, We, adding to their
decree a provision which resembles it, and of which it is worthy, do hereby
order that the days hallowed by the following names shall be observed with
suitable ceremonies, namely: Athanasius, eminent among the principal priests
of God; Basil, the royal honor of the Church; Gregory, surnamed the
Theologian; John, of the elevated mind and mouth of gold, Gregory, the
gentle and illustrious fountain of ecclesiastical knowledge; and along with
these, Cyril and Epiphanius, who are equal to each other in glory and
illustrious deeds.
CONSTITUTION
LXXXIX.
MARRIAGES SHALL
NOT BE CONFIRMED WITHOUT THE SACRED BENEDICTION.
The Same Emperor
to the Same Stylianus.
Just as
antiquity neglected the general formalities of adoption, which it considered
an important act, although it allowed it to take place without the offering
of prayer and the celebration of sacred rites, so also, it appeared to have
neglected the most important part of marriage, since it permitted it to be
consummated without the bestowal of the nuptial benediction. But while the
ancients may, perhaps, have had good reason for doing this, We, aided by
Divine grace, have preferred to adopt a mode of life much more honorable and
holy, and have not failed to observe the things above mentioned.
Therefore, as We
have directed that prayers shall accompany the act of adoption, We desire
that marriage shall likewise be confirmed by the bestowal of the holy
benediction, so that if anyone should be married without it, he cannot be
said to have entered the matrimonial state, or to enjoy its rights. For
there is no medium between marriage and celibacy which should not be
considered reprehensible. Have you a desire to embrace conjugal life? If you
do, it will be necessary for you to observe the laws relating to marriage.
Do the annoyances of the marriage state deter you? You may live unmarried,
but do not disgrace matrimony, and conceal your faults under the mask of a
spurious celibacy.
CONSTITUTION XC.
PERSONS WHO
CONTRACT A THIRD MARRIAGE WILL INCUR THE PENALTY OF THE SACRED CANONS.
The Same Emperor
to the Same Stylianus.
It was necessary
for Us to have been formed by the hands of God, and endowed with
intelligence and reason, in order not to appear
inferior to
certain animals. For that weakness which is not free from blame, or not
properly subject to just reproaches, is as reprehensible as the wisdom of
human nature is superior to brutal instinct. It was as requisite for men to
possess greater matrimonial chastity than brutes as to be above them in
other respects. For there are many kinds of animated beings which, after the
death of their mates, remain in perpetual widowhood, and are unwilling, as
it were, to cover their former unions with earth. But as our nature, not
considering this weakness to be base, although it is exceedingly so, is not
content with a single marriage, but proceeds to contract a second one
without any manifestation of shame; and even when it should go no farther,
but then desist, it still does not do so, and, in spite of having been
forbidden by the Holy Law, it hastens from a second marriage to a third,
thereby treating with contempt the penalty established for such an offence,
for the reason that it is not inflicted, and above all, because the Civil
Law, I do not know why, not approving of the Decree of the Holy Spirit which
promulgated it, frees persons from censure who after one marriage are
unwilling to abstain from contracting another, We, in accordance with the
Decree of the Holy Spirit, do hereby order that persons who contract a third
marriage shall be liable to the penalty denounced against them by the sacred
canons.
CONSTITUTION XCI.
IT SHALL NOT BE LAWFUL TO KEEP A CONCUBINE.
The Same Emperor
to the Same Stylianus.
The law which
authorized men who did not blush at such a connection to keep concubines was
conducive to neither modesty nor virtue. Hence We do not permit the error of
former legislators to disgrace Our government, and We hereby repeal this law
forever. For, in accordance with the precepts which We have received from
God, and which are becoming to Christians, We prohibit such a practice as
being injurious not only to religion but also to nature. And, indeed, if you
have a spring and the Divine law invites you to drink from it, do you prefer
to resort to a muddy pool, when you can obtain pure water? And even though
you have no such a spring, you still should not make use of what is
forbidden. It is not difficult to find a consort for life.
CONSTITUTION
XCII.
CONCERNING THE
PENALTY TO WHICH A PERSON is LIABLE WHO INTENTIONALLY BLINDS ANOTHER.
The Same Emperor
to the Same Stylianus.
Although We have
prescribed a different punishment from that imposed in ancient times upon
one who maliciously and purposely tears out the eyes of another with his
hands, We nevertheless, never intended to confirm this as law. For, indeed,
it is through motives of piety that We have arrived at this conclusion,
which is perfectly clear; for as the vision of a person who has lost it
cannot be restored, I have
not thought that
it was proper to subject the guilty party to blindness, although he may
appear to have merited the same affliction. I have, however, sometimes
imposed this serious penalty, in order that he who deprived another of sight
might bear the evidence of his crime; and that he who had had his eyes put
out might find a solace for his calamity in the sufferings of him who
reduced him to that condition. My purpose, as I have just remarked, has
never been to enact these regulations into laws. However, as the Master of
Our Imperial Offices has asked Us to invest them with this character, on
account of their mildness, and in order that, in the future, if anything of
this kind should occur, it may be decided as in this instance, We accede to
his request, and We promulgate as laws the decisions which We have rendered.
Therefore, if
anyone should injure the sight of another, for example, if he should tear
out one of his eyes, We order that he shall undergo the penalty of
retaliation, but if he should destroy both of his eyes, as, under these
circumstances, the infliction of the same penalty would be of no benefit to
the person who has lost his sight (for what advantage can a blind man obtain
from the fact that another is also blind), and as the penalty of
retaliation, while deserved, would be too cruel, since nothing is so
pitiable as blindness, We decree that the offender shall not be subjected to
it; but that he shall be punished in some other way, so that he who has been
injured by him, may, to some extent, be indemnified for his misfortune.
Hence We promulgate the following law.
Where anyone has
deprived another of both of his eyes, he shall lose one of his own, and
although he deserves to have the hand with which he committed the crime cut
off, he shall, instead of this, be fined a sum equal to half his property,
which shall be transferred to him who was deprived of his eyes, as a
consolation for the bitterness of his life. And if the blind man in this way
receives what he can use for the purpose of meeting his living expenses, he
will experience a certain slight mitigation of his calamity, and he who
committed the deed will be punished by being deprived of one of his eyes, as
well as of his property, as already mentioned, instead of having his hand
amputated.
Punishment
should be inflicted in this way when the accused person is wealthy. Where,
however, he is extremely poor and in very reduced circumstances, and can
offer no compensation to him who has been reduced to utter wretchedness by
his violent act, he shall be condemned to undergo a similar misfortune, and,
deprived of both his eyes, shall pass the rest of his existence in absolute
blindness.
Where any
persons have assisted him in the perpetration of this horrible crime, and
have taken an active part in depriving the victim of his sight, they shall
be punished in the same way; and if they did not participate in the offence,
but prompted it, or in some other manner contributed their aid, they shall
be scourged, shaved, and sentenced to pay a fine equal to one-third of their
property, and those who actually caused the blindness shall be subjected to
the penalties aforesaid.
CONSTITUTION
XCIII.
WHERE A WOMAN is
FOUND TO BE PREGNANT BY SOMEONE ELSE THAN HER HUSBAND, THE MARRIAGE CAN BE
ANNULLED.
.The Same
Emperor to the Same Stylianus.
As the ancients
who treated of marriage did not enact any very definite laws on this
subject, why, I do not know (whether because they did not desire to include
in the number of causes for which it can be dissolved the one which We are
now about to formulate, or whether the reason which renders this decision
necessary did not at this time exist), We are going to add to their
legislation what is lacking in this respect. An old constitution authorizes
a dissolution of marriage for several causes, for example, a difference of
religious opinion, where one of the parties becomes insane, and in many
other instances; and it is sufficient for one of these causes to exist to
enable the marriage to be dissolved.
What We are now
about to consider is not enumerated among them, either for the reason that
it did not then, or it was not supposed that it could exist; or there may
have been other motives for passing it by in silence. We now come to this
cause. Sometimes, during marriage, a woman having had a secret intrigue with
some other man than her husband, is discovered to be pregnant. This is not
mentioned in any of the ancient laws, but We, supplying the deficiency, do
hereby decree that marriage shall be dissolved not only on account of a
difference of religious opinion, and because of insanity, or for other
reasons, but also for the one which We have just stated, because nothing is
more adverse to marriage than this; since, under these circumstances,
husband and wife are only united nominally and not in fact. For how can true
matrimony exist in an union where there is nothing genuine or natural, where
licentiousness, which is a source of discord and hate, and an alienation of
minds prevail (a condition which has great influence in inducing women to
seek intercourse with strangers) ? How can matrimonial concord and pure
conjugal love be maintained under such circumstances? Moreover, reason does
not permit anyone to have a child belonging to another under his control.
Nor is it just that he who has taken a wife into his house, in the
expectation of the enjoyment of a chaste and honorable marriage, should be
obliged to recognize as such a woman who has deceived him; who insults the
laws of marriage, and delivers herself without hesitation to the lascivious
embraces of another?
CONSTITUTION
XCIV. ABROGATION OF THE LAW RELATING TO THE CONSULATE.
The Same Emperor
to the Same Stylianus.
As Our legal
reforms have for their object not only the annulment of laws which are
detrimental, or which have in the course of time
fallen into
desuetude and hence are useless, and, as it were, on account of their decay,
do not seem to be available for public purposes, the result of this is that
We are about to remove from the statute books whatever relates to the
consulate, together with other useless provisions. In former times, indeed,
the consular office was treated with great respect, and caused those who
attained it to be eminently distinguished objects of reverence, and the
donors of magnificent gifts to the populace, and therefore those who
obtained it, desiring that the people should be remunerated on account of
the honor acquired through their agency, gifts were liberally showered upon
them.
In the
beginning, every consul was allowed to display his munificence in accordance
with his judgment, but it was afterwards established by a legal decree that
this should be restricted within certain limits. This rule appears to have
prevailed as long as the dignity of the consulate was known to the
government; but now, as the course of time changes everything, it has
transformed the consular office from its former glory and greatness into a
mere abject formality, and as those who attain to it have hardly sufficient
for their own necessities, they are unable to expend anything for the
benefit of others. Therefore We, by this Our decree, annul this law relating
to the consulship, which has fallen into disuse because of protracted
silence, along with other useless legislation, as We have already stated,
for it has no right to be included among other legal constitutions.
CONSTITUTION XCV.
CONCERNING THE DISPLACEMENT OP SOIL.
The Same Emperor
to the Same Stylianus.
Custom, which
precedes all laws, originally gave rise to them. For legislators who are
concerned with the ordinary affairs of life, carefully examining everything
separately, established rules in accordance with the requirements of Nature.
Therefore, since these matters relating to the common concerns of life (as
We have already stated) give occasion for the birth of laws, and where a
case which was provided for by the ancient enactments presents itself, it
becomes necessary to formulate a new rule, so that when there is need of it,
a legal decision may be rendered in accordance with circumstances: We are
about to enact the following law. And what is the character of this
law?
Where two fields
are contiguous, and belong to different owners, one of them being situated
upon an elevated spot, and the other lower down, and part of the upper
field, either with or without trees, becomes detached and covers the lower
tract, the owner of the latter can not absolutely and unceremoniously
appropriate the soil which has slipped down, nor can the owner of the other
tract extend the boundaries of the same to the point to which his own ground
has been carried, but the former will be compelled to permit the latter to
remove the soil if he desires to do so, no matter whether it contains trees
or not, so that he will have an opportunity to recover the
soil if he
wishes to take it back to its original place, or to renounce all right to it
if he does not desire to do this, by abstaining from any claim to the tract
on which it was deposited, and in no way prejudicing the title of the owner
of this land.
Again, where two
houses are adjacent, and one of them is higher than the other, and the
latter falls upon the former, the owner of the first house can remove his
materials, and, if he does not do so, they shall be lost, so far as his
rights to them is concerned, nor can he annoy the owner of the second
building on account of them. This is the rule which should be observed in
cases of this kind.1
CONSTITUTION
XCVI. CONCERNING THE VIOLATION OP SEPULCHRES.
The Same Emperor
to the Same Stylianus.
Crimes which are
committed solely through mental depravity can, under no circumstances, be
excused on the ground of necessity, or pardoned; nor should any escape from
punishment for their perpetration be granted. Those, however, which do not
wholly result from a malicious disposition, but whose violence is of a mixed
character, and are attributable to special circumstances or to the
impetuosity of Nature, should not be considered unpardonable. Therefore I
think that the Civil and the Canon Law do not conflict, so far as those who
violate tombs are concerned. The Civil Law, indeed, in treating of this
offence, only considering the wicked intent of the guilty party, refuses to
pardon him, and directs him to be punished; but, on the other hand, the
Canon Law, if I am not mistaken, merely taking into account that poverty
which causes the wretchedness of our lives and often impels persons in want
to commit crime, did not provide any penalty for delinquency in cases of
this kind.
Therefore We,
adapting Our decree to both of these laws, and attempting to reconcile, as
far as possible, the harshness of the one with the lenity of the other, do
hereby order that those who have only ventured to commit this offence once
shall be treated with indulgence and compassion; but such as have taken
advantage of Our clemency to offend a second time, and who, not having
become more wise, still show their malice, shall suffer the penalty without
any attention being paid to their supplication. This penalty shall consist
in having the head shaved and being scourged.
1
Definite information upon this subject seems to be lacking in both the
English and American authorities, but it is reasonable to presume that the
general rule governing sudden accessions on the seashore and the
determination of riparian rights will prevail under such circumstances;
which is in perfect accordance with the doctrine of the Civil Law. "In the
case of avulsion, the soil still belongs to the first owner, unless he shall
have suffered it to remain in its new position, until it cements and
coalesces with the soil of the second owner, in which case the property in
the soil will be changed, and no right to reclaim it remain." (Washburn, A
Treatise on the American Law of Real Property, III, II, 4.)ED.
CONSTITUTION
XCVII.
PARTIES LITIGANT
SHALL BE SWORN WHEN ISSUE is JOINED IN A CASE, AND MAGISTRATES SHALL TAKE AN
OATH WHEN THEY ASSUME THE DUTIES OP THEIR
OFFICE.
The Same Emperor
to the Same Stylianus.
Although the law
which directs magistrates, before entering upon their judicial duties, and
parties litigant, when they appear in court, to be sworn, may appear
contrary to the Divine command which forbids persons to swear at all, still,
where anyone understands the meaning of the words, it can be seen that this
is not a violation of the command, but, on the other hand, by ordering the
oath to be taken, it has the same end in view as the Divine law had in
forbidding it; for the latter intends to prevent falsehood, in prohibiting
an oath, just as the former wished to do in having recourse to it.
Therefore,
paying less attention to the letter than the spirit of the law, We do not
think that the civil rule should be rejected as being opposed to the Divine
precept, but rather that it should preserve all its force as being devised
to accomplish the same object. Moreover, We think that the command of God
was not only intended to be applicable to the transactions of ordinary life,
but was promulgated in order to enable persons to attain to a more elevated
rank in a better world, and He has left us many other precepts of similar
character which are contained in the same law, for example: "Do not permit
your hearts to be sad, because you are poor, and do not conceal your
treasures in the earth," etc., for these things are only intended for
persons who wish to be perfect. Therefore, as We have already said,
maintaining the Civil Law in full force, We do hereby order that magistrates
who are about to assume the discharge of judicial functions, and parties
litigant who are on the point of contesting a case, shall swear that they
will prefer truth to falsehood, and will, under no circumstances, leave the
straight road to follow the crooked path of fraud. .
CONSTITUTION
XCVIII.
CONCERNING THE
PENALTY TO BE INFLICTED UPON EUNUCHS IF THEY SHOULD MARRY.
The Same Emperor
to the Same Stylianus.
The object of
the laws is the establishment and maintenance of good government, as well as
at times to offer assistance to Nature when it suffers injury. Therefore, it
now becomes advisable for a law to be enacted on the subject as to whether
eunuchs can marry. But before We discuss this point, a careful examination
should be made, and it be ascertained whether an union of this kind can
properly be called a marriage; and also whether the various matrimonial
ceremonies (that is to say the prayers, the communion, the carnal pleasure,
and the other matters which form part of the matrimonial
condition)
should take place in this instance. The priest, in imitation of the Creator,
pronounces the sacred words of benediction when he unites persons of
different sexes for the purpose of perpetuating the human race. The pleasure
and joy of the human heart is manifested in the nuptial embraces, and are
increased with the hope of offspring. The parents of those who are married
looking forward to grandchildren, and the newly made husband and wife
entertaining the hope of successors, are overwhelmed with the greatest
delight. Under these circumstances, however, nothing of the kind occurs, for
how can they experience any satisfaction, and what sacrifice can render
their union permanent? For as it is devoid of all pleasure, and is not
capable of consecration, communion, or benediction, how can the name of
marriage be applicable to it? Why should it not be considered a crime, and
therefore punishable by law? Thus it may succinctly be stated that such a
condition can not, even in the first place, be designated as a matrimonial
one, and further discussion renders its indignity still more apparent. When
the Creator of all things united the male and female, He did so for the
purpose of increasing the numbers of the human race. Moreover, the object of
Nature which, as His slave, observes the precepts promulgated by Him, as
far as it is able to do sois that persons are married in order to have
offspring, and as far as God permits this to be done, it makes use of His
agency for that purpose. If, then, the marriage of eunuchs accomplishes the
ends of the Author of Nature and of Nature itself, what We have thought
should be prohibited ought not to be forbidden; but if, on the contrary, and
this is certain, it offers no means of accomplishing the will of God (and is
not acknowledged by Nature), why should We not absolutely prohibit it?
If some
contentious person should state that if eunuchs are excluded from marriage
on account of their impotence, a x-large number of other persons should also
be excluded for the reason that all those who marry are not capable of
generation, We would immediately reply that whenever the latter have no
children, they did not marry in order to be childless; but, on the other
hand, there is no doubt that they were impelled by the desire of having
progeny, and their hopes have not been realized. But the same thing cannot
be said with reference to eunuchs, who, being well aware of their
incapacity, marry with the certainty of not being able to have issue, hence
are, to a certain extent, plotting against Nature. And, indeed, in cases of
this kind, both husband and wife are worthy of aversion; the wife, for
having selected a man who is impotent when she. could have obtained one who
was virile, if she wished to be married; and the husband, for the reason
that his weakness rendered the blessing of God of no effect.
Moreover, where
anyone devastates and leaves uncultivated a tract of land on which another
could reap a harvest, should We not entertain a feeling of detestation for
such a malevolent person, and should We not suppress an abuse of this kind
if it can be done? For why should We permit him to keep land unproductive,
and render it of
no use, when,
with proper tillage, it would prove fertile, just as if he had committed
nothing improper? And why, indeed, should anyone object? But it may be
remarked that St. Paul thought that it is wiser to marry than to burn; and
hence, taking into consideration the tortures endured under such
circumstances, marriage should not be forbidden. You, however, who praise
St. Paul, listen to the words he utters. When he speaks of marriage in the
place referred to, he has in mind sexual intercourse with a wife. If, then,
union with a woman is worthy of the blessing to which persons who enter the
matrimonial condition are entitled, call it marriage; but if it does not
deserve even the slightest benediction (for how can an act contrary to the
law of God and which thwarts the intention of Nature be blessed or
consecrated?), who do you invoke the authority of St. Paul for the purpose
of supporting an unfruitful and extraordinary marriage of this description?
So far as those
who deprive themselves of the power of procreation are concerned, for the
purpose (which God condemns, and is a species of rebellion against him) of
being no longer able to show themselves to be men, but hereafter not to be
susceptible of sensual pleasure, and to become faithful guardians upon whom
no suspicion can fall (which, indeed, the sound of their voices seems to
disclose), why should not this arouse indignation against them not only
because it is unnatural, but also for the reason that they are hostile to
persons who desire to render them useful, as it seemed to them, even though
it was maliciously done; and, finally, because in their new and strange sex
they did not accomplish the object of the one to which they formerly
belonged, nor of the latter which they themselves adopted?
Hence We decree
that, if an eunuch is convicted of contracting a marriage, he will be liable
to the penalty prescribed for rape, and any priest who dares to perform a
ceremony of this kind by a profane sacrifice shall be divested of his
sacerdotal dignity.
CONSTITUTION XCIX.
HE WHO TENDERS
AN OATH MUST HIMSELF FIRST SWEAR THAT HE Is NOT ACTUATED BY MALICE.
The Same Emperor
to the Same Stylianus.
It is my
intention, as far as possible, to enact such laws as relate to the
observance of good morals, or will restore to full force the ancient
enactments which had the same purpose; therefore, it is proper to revive the
ancient rule which compels a litigant, who tenders the oath to his
adversary, himself previously to swear that his act was not prompted by
fraud, or with a view to injure him, but only to remove the doubts which
obscured his reason, and to ascertain the truth; for although the ancients
may very justly have approved of this, and the security which it offers, it
is at present neglected, and the party to whom the oath is tendered is
obliged to take it, without requiring anything from his opponent.
Therefore, We
decree that the law adopted by the ancient legislators with reference to
such an oath shall be obeyed, and that he who wishes to have his adversary
sworn shall first give the solemn assurance that he does not tender him the
oath from any fraudulent motive, but for a necessary and indispensable
reason; for I think that when both the parties are thus compelled to be
sworn, either the truth will become more apparent from their oaths, or they
will be less likely to proceed hastily and unadvisedly in tendering them.
%
CONSTITUTION C.
CONCERNING
SLAVES WHO MARRY PERSONS WHO ARE
FREE.
The Same Emperor
to the Same Stylianus.
As legislation
usually proceeds from good judgment, its wisdom and moderation are of great
assistance even in disputes which do not frequently take place. If, however,
their beneficence is so great, why should it not be generally applicable to
the ordinary affairs of life? For when a physician fails to administer
remedies to persons who are ill and only treats such as are slightly
indisposed, will not the cure of the latter always be attributed to his
science and skill? Therefore, desiring to increase the dignity and majesty
of the laws, We include among their provisions what custom has established
up to this time with reference to two persons of unequal social rank, who,
influenced by love, desire to marry (that is to say, where one is a slave
and the other free), and We hereby order that when a freeman desires to
marry a slave woman, he can only do so under two conditions, that is, he
must either become a slave like herself, or purchase her freedom; and the
price which he pays shall be considered a species of betrothal gift for the
purpose of insuring the union with a person of servile status which he is
about to contract.
We also order
that the owner of the female slave shall not act inhumanly in this matter,
and if the person who marries her prefers to become a slave, they shall both
be liberated at the death of their master, but if he does not wish to do
this, and has not sufficient property to immediately purchase the freedom of
the slave he marries, he shall be obliged to forfeit his own liberty. Still,
where he serves the same master, he shall be entitled to an annual salary of
two solidi, and his servitude shall only last until he has earned
enough to pay the price agreed upon for the freedom of his wife, for his
master shall then have no other good reason to retain him in slavery.
CONSTITUTION CI.
WHERE ONE OF Two
SLAVES WHO WERE MARRIED OBTAINS His OR HER FREEDOM.
The Same Emperor
to the Same Stylianus.
It is not only
when marriage is originally contracted between a free person and a slave
that various ambiguities and questions arise,
for the reason
that such matters have not been settled by law, but the following point is
often discussed, namely, where two slaves marry, and one of them is given
freedom by his or her master, and the other remains in servitude, thus
causing an inequality of status. Therefore, as it is proper for such matters
to be legally decided, We have enacted the following law with this end in
view. What is this
law?
We order that
where two married persons are slaves, and one of them is liberated, but
desires to remain united to the one still in servitude, the marriage will
not continue to exist without being subject to the same rule which regulates
the matrimonial union of free persons with slaves. The individual upon whom
freedom is bestowed must refuse to accept it, and undergo the yoke of
servitude with the other who is still deprived of freedom until the death of
their master; or if he should be unwilling to do this, he must bind himself
to pay the price of his companion. When, however, he neglects to do so, and,
taking advantage of his own liberty, attempts to release his wife who is
still in bondage, not only shall this insolent design fail of its object,
but he himself shall forfeit his own freedom, and must again be reduced to
servitude for having been unappreciative of the kindness and generosity of
his master, and, by his opposition, shown contempt for his good intention,
which should be reciprocated and honored.
CONSTITUTION CH.
CONCERNING
MARITIME LANDS WHERE THE SPACE is
NOT SUFFICIENT
FOR THE PLACING OF SEPARATE NETS,
ALL PERSONS,
EVEN AGAINST THEIR WILL, MUST UNITE
FOR THIS
PURPOSE.
The Same Emperor
to the Same Stylianus.
A community of
property, when established with reason and justice, is productive of great
benefit to the lives of mortals. For where a strong man unites his strength
with that of another who is equally powerful, their exertions, when united,
become much greater, and advantageous to both of them. And when opulent men
combine their wealth, it obtains for them a muchx-large r amount of pleasure;
and, finally, those who are oppressed by poverty, by laboring in unison,
mitigate the wretchedness of their condition. But no matter how convenient
and useful common property and association may be in the ordinary affairs of
life, a wicked and extraordinary depravity often takes possession of the
minds of men, and not only presents an impediment to utility, but also
renders them hostile to the interests of others, and induces them to injure
them in their business, rather than to obtain any profit by making a
division with their neighbors.
We have
ascertained that something of this kind has happened with reference to
certain persons who, being the owners of maritime lands, which, of
themselves, are almost absolutely unproductive, but would yield enormous
revenues if they were joined with those of
others in the
vicinity, through perversity refuse to unite them, although this is the sole
means of obtaining any benefit therefrom, but prefer to suffer actual loss,
provided they can injure their neighbors. But as they are not willing to
acknowledge the wrong which they commit, and conduct their affairs badly by
spitefully neglecting their only advantage, in the attempt to injure those
residing near them, We do not permit this malicious spirit to be maintained
in ordinary life, and no matter how unworthy of Our notice such persons may
be, We shall not fail to go to their relief.
Therefore,
directing Our attention to them, We hereby decree that if the maritime lands
referred to are not sufficiently extensive on the side of the sea to permit
these persons to stretch their nets, they shall be compelled to place them
along with those of their neighbors, in order to acquire the right of
obtaining in this way some advantage from their property, and if any one of
the said owners is not willing to use his nets in this manner, he shall be
compelled to do so in spite of himself; for to oblige anyone to participate
in a benefit is, We are convinced, an act of benevolence. And, indeed, there
is a great deal of kindness in the law which enables a man to enjoy a
privilege which he does not recognize, and which also causes him who was
unjustly deprived of it to become aware of its benefit.
CONSTITUTION
CIII.
CONCERNING THOSE
WHO MAKE USE OF THEIR MARITIME LANDS IN COMMON FOR THE PURPOSE OF STRETCHING
NETS.
It is customary,
in partnerships, for him who contributes the most to be entitled to the
x-large st share of the profits; and, indeed, those who make such an
arrangement transact their business justly and properly. Still, in the
partnership which has reference to maritime lands, it is not equitable that
the one who has thex-large st tract should derive more profit than he whose
premises are smaller. Thus, for example, if one tract of land extends for a
hundred paces along the shore, and another is of much inferior dimensions,
it is in accordance with reason that each owner should be entitled to an
equal share of the profits, without taking into account the size of the
different tracts. Why is this? Because in other transactions of this kind,
that is, in an ordinary partnership, whether money, cattle, or even
real-property is placed in the common stock, what each contributes can only
produce a certain revenue, but this is not the case with maritime lands,
since a specified portion of such lands, considered by itself, cannot yield
a separate income, as fish are not always found in the same place; and,
moreover, a great extent of shore is unavailable where it is not joined to
some other that is of less extent; for how can anything which is imperfect
be made use of, and what advantage can be derived from it? But if this
imperfection disappears when a small extent of shore is joined to a greater
one, and the first renders the second useful when it could not
alone yield any
revenue, it is only consonant with reason that the owners should share the
profits equally.
Hence We enact a
law which shall hereafter regulate this matter with justice; and We hereby
decree that where there are maritime lands, some of which are of x-large
dimensions and the others restricted in extent, they shall be united for the
purpose of enabling nets to be stretched, and the owners of said lands shall
divide the profits equally between them.
CONSTITUTION CIV.
CONCERNING
FISHING NETS BETWEEN WHICH NO SPACE is REQUIRED BY LAW.
The Same Emperor
to the Same Stylianus.
Whenever the
space required by law is not left between the nets of fishermen, this
frequently gives rise to disputes and litigation. Hence We have decreed with
reference to these controversies that where the defendant is legally
defeated, and the space will permit, he shall,- in conformity with law, be
compelled to remove his nets as far as possible; but if space is lacking to
enable him to do this, it must be ascertained from what time the nets were
set in the place which is in dispute; and if the plaintiff was present, and
asserted no claim, and ten years have passed since the nets were first
stretched there, they shall remain undisturbed. But where the plaintiff has
been absent, the expiration of ten years will not be sufficient to have them
removed, and it will be necessary for twenty years to elapse.
This rule shall
be applicable to private individuals, but as title by prescription is
acquired against churches, monasteries, and other religious houses, as well
as the Treasury, only after the lapse of forty years, the removal of the
nets can be demanded by them during this period. Nevertheless, in
establishing this rule, We declare that the plaintiff shall not be deprived
of the income of his land for the reason that his claim was not allowed on
account of lapse of time.
CONSTITUTION CV.
WHERE A
MAGISTRATE is CONVICTED OF HAVING PLUNDERED THE TREASURY.
Legal penalties
are praiseworthy because they correct disorder and evil inclinations, and
prevent persons from indulging in them by restraining them against their
will. These things, I say, are praiseworthy, when he who imposes them
observes that clemency which is becoming to the law, and does not exceed it,
nor show himself to be cruel under the pretext of administering punishment.
For a father who chastises his son with moderation deserves to have his
wisdom lauded at the same time as his severity, but no one will approve of
the cruelty of a parent who, abandoning all paternal feeling, instead of
correcting his son as a father ought to do, inflicts an atrocious
castiga-tion upon him.
And, indeed, if
the laws are the parents of the State, which is true, it is proper for them
to prescribe penalties in proportion to crimes, and by no means to inflict
punishment of extreme severity, which is much greater than the nature of the
offence deserves. For where anyone who is not convicted of having caused
death is punished capitally, can this be considered a proper remedy, and one
adapted to the purpose?
Physicians do
not order a sound limb to be amputated, and as the law has much more
consideration for Our misfortunes than physicians have (for the benefits of
medicine are only intended for the body, but those of the law are prescribed
for the mind as well as the body), shall it display such harshness towards
those whom it desires to cure ? Having these things in view, We have decreed
that the law imposing the death penalty upon a magistrate convicted of
having despoiled the Treasury, as well as against his accomplices, shall no
longer be included in the number of Our laws, and shall not even be cited,
but must be banished from the Empire as being superfluous, and foreign to
human reason and the spirit of judicious legislation. Hereafter, when
magistrates are convicted of having robbed the Treasury, they shall be
deprived of office, and pay double the amount which they have appropriated.
So far as their accomplices are concerned, if they are wealthy, they shall
undergo the same penalty, and if they are poor, they shall be scourged
ignominiously, shaved, and sent into exile.
CONSTITUTION CVI.
CONCERNING THE
AMOUNT TO WHICH WOMEN WHO ARE
UNENDOWED SHALL
BE ENTITLED OUT OF THE ESTATES OF
THEIR DECEASED
HUSBANDS.
We think that We
are doing something which is both proper and valuable, by amending a
provision that is, to some extent, absurd, and which appears to be opposed
to equity. What is this provision? Poor women who are married to wealthy men
(which is something that is not unusual) do not, after their death, receive
the share of their estates to which they are entitled, that is to say, a
fourth when they have less than four children, and a portion equal to one
child's share when they have four or more. But they can not claim absolute
ownership of this and the right to dispose of it by will, but only the
usufruct of the same for their support; and when they die, their share vests
in their children, nor while they are living do they enjoy the privilege of
using it as they please; and, moreover, when they are childless, this
misfortune enables them to acquire the full ownership of the said share; so
that I do not know whether a woman would prefer to have children, or would
rather be guilty of the indignity of praying to God not to give her any, in
order that she might enjoy the ownership of the property which she will
receive out of the estate of her husband.
Therefore, in
order to remedy this absurdity, We do hereby decree that a woman shall not
be deprived of the ownership of the share aforesaid, but that she can
dispose of it in any way that she may desire,
and that her
children shall only be entitled to what is granted to them by the terms of
the Falcidian Law. She must not, however, forget her first marriage, and
treat the bed of her deceased husband with contempt by introducing a second
one therein; for if this should take place, she will forfeit the ownership
of the property bestowed upon her by this law, and it will then go to her
children.
CONSTITUTION
CVII.
A PLAINTIFF
MUST, BEFORE JOINDER OF ISSUE, AND
WHEN HE FILES
His COMPLAINT WITH THE JUDGE,
PROVE THAT HE
DOES so IN GOOD FAITH.
If whatever is
honorable and beneficial to human existence would never grow old, or lose
its usefulness, but would remain forever green, this would be an extremely
excellent thing. Wherefore, although it sometimes happens (and, indeed, this
is very frequently the case) that the usefulness of a measure is lost
because of neglect, those who are charged with maintaining the common
welfare should be careful to restore it, in order that what is so generally
advantageous may not be wasted. Hence We, restoring the force of a law,
which was formerly beneficial but which subsequently fell into desuetude, do
now remove the inconvenience attaching to its antiquity, and enable it to
again enjoy the utility which it formerly possessed. It relates to persons
who bring legal actions, and provides that before joinder of issue they must
establish their good faith in court, by stating in writing that they do not
desire to take any improper advantage of their adversaries; that they have
not been convicted of a criminal offence; that they know that they have not
been prohibited from engaging in litigation; and that they have no intention
of injuring their opponents. These are the provisions of this law; they are
wisely conceived and impose a penalty upon anyone who violates them, and
they are applicable not only to parties litigant but also to advocates.
Therefore, as We
have already stated, We invest this law, which has fallen into desuetude and
has become useless, with full force, and replace it in the number of
Imperial enactments; and We decree that persons who, hereafter, may desire
to institute legal proceedings, shall, before beginning litigation, observe
what is prescribed.
CONSTITUTION
CVIII.
CONCERNING ONE
WHO DOES NOT APPEAR IN COURT AFTER HAVING BEEN NOTIFIED THE FIRST TIME.
There is a
matter which it is not well to leave uncorrected, although it has, up to the
present time, been neglected and treated with contempt, for being of great
benefit to human affairs it is very advisable that it should be remedied.
Therefore We, being resolved to amend this, just as We have also amended the
law prescribing a certain form for those who desire to institute legal
proceedings, do hereby decree
that anyone who
does not appear after a first summons has been served upon him, either
personally, or upon someone authorized to represent him, shall be notified a
second time; and if he does not appear, he shall then be notified a third
time; and if after the plaintiff, having waited with so much patience only
to have the third summons treated with contempt, and the defendant, without
having been prevented by any good reason, still does not put in an
appearance either in person or by a representative, he shall have judgment
rendered against him, even though he may be absent, and shall not afterwards
be allowed to revive the case, or avoid the consequences of the decision.
These provisions are applicable to both parties, whether the defendant fails
to appear; or the plaintiff, after his adversary has come into court,
desists in order to annoy him and prolong the litigation. Hence if he does
not appear after three citations have been served upon him, he shall be
condemned even in his absence; provided, however, as I have already stated,
he can allege no good excuse for his nonappear-ance.
CONSTITUTION CIX.
A BETROTHAL
CANNOT TAKE PLACE BEFORE THE PARTIES HAVE REACHED THEIR SEVENTH YEAR, NOR
CAN A MARRIAGE BE CELEBRATED BEFORE MALES HAVE ATTAINED THEIR FIFTEENTH YEAR
AND FEMALES THEIR THIRTEENTH.
A wise man has
said that there is a time for everything, which maxim is acknowledged and
approved by persons who are of sane mind, and is of general application.
Therefore, in all Our actions, it is most desirable to observe the proper
time, and while there are matters with reference to which this is not
indispensable, marriage certainly is not one of them; for, as it is
essential for the preservation of the life of all persons, it should take
place with due prudence and caution. Hence, in accordance with what the
ancients who have enacted a very wise law on this subject have provided, We
decree that, under no circumstances, can a betrothal take place before the
age of seven years, or a marriage be consummated by females before attaining
the age of twelve years, or by males before they reach the age of fourteen.
So far as the
public welfare is concerned, this shall be the law. But as it frequently
happens that the Emperor, by means of a decree when forming a new family,
permits persons to be betrothed and married before the prescribed age, it
shall not be considered a violation of the law by those to whom the
government of the world (which resembles a great family) has been entrusted,
to allow marriages to be celebrated without reference to the rules which
govern their subjects in this respect.
CONSTITUTION CX.
A WOMAN AFTER
HER MARRIAGE HAS BEEN DISSOLVED SHOULD DRAW UP AN INVENTORY CONTAINING HER
DOWRY, THE ANTE-NUPTIAL DONATION, AND ALL THE REMAINING PROPERTY OF HER
HUSBAND; AND HAVING PRODUCED IT, CAN ASK TO BE INDEMNIFIED FOR ANY Loss TO
HER PROPERTY WHICH SHE HAS SUSTAINED AT THE HANDS OF HER HUSBAND, BUT IF SHE
FAILS TO FILE SUCH AN INVENTORY, OR OFFER CONVINCING PROOF OF HER
ALLEGATIONS, SHE CAN NEITHER CLAIM NOR RECOVER ANYTHING.
Among many other
judicious provisions enacted by the ancients with reference to marriage,
they have done well to establish the following rule, namely, that a woman,
after the dissolution of her marriage, cannot arbitrarily take and hold her
husband's estate, but if any controversy should arise concerning said
estate, she must, in the first place, publish an inventory of her dowry, of
the donation made in consideration of marriage, as well as of all the
property belonging to her husband found after his death; and then if it
should be proved that he has used up a part of said dowry, she can recover
it out of his estate. As all this, I say, has been justly and equitably
settled by the ancient authorities (although their regulations are no longer
in force), and as Our intention is to profit by their wisdom, We absolutely
renew the said rule, and decree that, hereafter, the widow shall make an
inventory of her dowry, of the ante-nuptial donation, and of all the
property of her deceased husband, in order that, if suit should be brought
against her on account of said property and she should wish to be
indemnified for any loss which she may have sustained, the evidence of the
justice of her claim can be found in this inventory, and she may be
authorized to retain the estate of her husband; provided it is established
that the value of her property as shown by the inventory has been diminished
by his expenditures; and if she does not do this she cannot present any
claim, or obtain anything which she may demand. We finally decree that the
said inventory shall be drawn up within three months, and if this is not
done, that the fine prescribed by the ancient authorities against guardians
shall be collected in such cases.
CONSTITUTION CXI.
IF A WIFE SHOULD
LOSE HER MIND AND THIS is DUE TO THE MALICE OF HER HUSBAND, OR WITHOUT
ANYONE ELSE HAVING CAUSED IT BY WITCHCRAFT WITH HER HUSBAND'S KNOWLEDGE, AND
HER AFFLICTION SHOULD LAST MORE THAN THREE YEARS, THE MARRIAGE MAY BE
DISSOLVED, AND THE HUSBAND SHALL BE AT LIBERTY TO MARRY AGAIN.
The Same Emperor
to the Same Stylianus.
There is nothing
so necessary for the preservation of the human race as marriage, for it is
the support of a chaste man, as the Creator
who founded it
teaches and as Nature itself proves in the Holy Scriptures. And since this
is the case, it was but just and proper to enact a law concerning matrimony
which would insure the happiness of husband and wife for their entire lives,
would accomplish the end of marriage, and not cause the conjugal relation to
be a source of affliction, perpetual misery, and grief.
Therefore, if
the marital union should be of this character (as, indeed, it certainly
should be), the law which imposes upon the husband the obligation of always
retaining his wife when she becomes demented, and of tolerating her acts of
insanity, does not seem to me to be worthy of acceptance. For how can it be
approved, or be considered consonant with reason, and worthy of the object
of marriage, for a husband to be always bound to a crazy woman, and be
subjected to her irresponsible vagaries? For if there is no man so cruel as
to shut up another, even for a moment, with wild beasts, how can the law,
which should manifest benevolence, direct a husband to pass his life with a
wife suffering from insanity? Some persons hold that husband and wife,
through their marriage, constitute but one body, and that each of its
members should be affected with the diseases experienced by the other; and
the Divine law says: "what God has joined together let no one put asunder."
The word of God is undoubtedly of great authority, but in this instance what
He asserts has not received the proper construction, nor one in accordance
with the Divine intention. For if marriage always preserved its original
state, and anyone should separate the parties to it, he would certainly be
considered wicked, and could not escape condemnation. But when a woman has
become insane, and no longer possesses any human attributes, not even that
of speech, and does not permit her husband to enjoy any of the pleasures or
joys of marriage, why should not this frightful and horrible union be
dissolved ?
Therefore, We
decree that if a woman should become insane during marriage, her husband
must tolerate this misfortune for three years; and if she is not free from
it, and does not recover her senses within that time, then the marriage
shall be dissolved, and the husband released from the endurance of this
intolerable calamity. We add to this regulation that the cause of her
insanity shall be investigated, and it be ascertained whether the husband,
either in person, or through the agency of his relatives, has not made use
of witchcraft and fraud to induce this condition; and if this should be
found to be the case, and the husband himself is accused of witchcraft, We
decree that he shall be transformed into a monk and confined in a monastery,
whether he consents or not, in order to pay the penalty for his wickedness,
and have the remedies prescribed by the Divine canons applied for the
purpose of healing his soul. Where, however, the misfortune was caused by
his relatives or other persons, with his knowledge . . .
CONSTITUTION CXII.
WHERE THE
HUSBAND BECOMES INSANE DURING MARRIAGE IT CANNOT BE DISSOLVED UNTIL AFTER
THE EXPIRATION OF FIVE YEARS; BUT AFTER THIS PERIOD HAS ELAPSED, IT MAY BE
DISSOLVED IF HE STILL REMAINS DEMENTED.
It is not Our
intention either to repeal or criticize the rule of ancient jurists by which
it was established that insanity presented an impediment to marriage, but
was not a proper cause for its dissolution, after it had once been
celebrated; but I limit myself to the consideration of the reason which
induced them to arrive at such a conclusion, which I neither assent to nor
confirm, because it appears to Me unworthy of approbation. For how can the
opinion be adopted that if insanity is an impediment to marriage before it
takes place, it cannot afterwards have this effect, when it has once been
contracted? For if the conjugal relation is for the benefit of both parties
concerned, how can he who does not consent to the dissolution in the
beginning, because it would not have the desired effect, be unwilling for
this to be done after it had been solemnized, when the same condition exists
? Must precautions only be taken to preserve someone from affliction, and if
it should come upon him subsequently, should he be refused all relief, and
not be entitled to pity on account of the calamity which he suffers? It is
just as if a physician should administer remedies to prevent disease, but
let the patient die without assistance when he becomes ill.
Still, in saying
what I did, I had no intention whatever to criticize the ancient jurists,
but, on the other hand, I am very far from agreeing with them, above all
when I see that they have established so many other causes authorizing the
dissolution of marriage, none of which can justly be compared with the evil
of insanity. For how can the wastefulness of a husband, his sexual
impotence, difference of religion, or any other cause sufficient to effect
divorce, for example, where the woman is of a servile condition, or where
she is unable to pay all that was promised in a marriage contract; how, I
repeat, can these causes and others like them, by which a marriage can
legally be dissolved, be compared to the misfortune of insanity?
Hence We decree
that if the husband should become insane, the marriage shall continue to
exist for five years without power being granted to dissolve it; for if We
think that it would be cruel to hold that it never can be dissolved and even
though the insanity promises to be perpetual, it still seems to Us necessary
to wait this time. If, however, after so long a period, the evil does not
cease, and the insane person does not recover, the marriage shall be
dissolved, whether this may be beneficial to one of the parties, or not. We
do not enact this provision for the purpose of finding fault with the
ancient legislators, but that We may discharge Our duty to Our subjects. But
where insanity develops upon the very day of marriage, even after it has
been confirmed by participation in the Holy
Communion, it shall be dissolved, just as if the condition had manifested
itself before the ceremony.
Certain
authorities may, perhaps, hold that it is unreasonable for marriage to be
annulled after consecration, because after the sacrament uniting the two
parties into one body has been administered, it is impossible to separate
them; and besides, the husband is the head, that is the principal member of
this new body, and when the principal members are attacked by any disease it
is not customary to amputate them. Those who advance this objection arising
from the intimate union of husband and wife and attempt to maintain it, seem
to Me to be ignorant of the object of the nuptial benediction, for it is
presumed that marriage will be a source of happiness, that it joins the
parties in a species of indissoluble bond, and sanctifies marital joys and
the reproduction of the human race. But, I ask, how can the condition of
insanity accord with these opinions? How can modesty be preserved when
reason is absent, or stifled under the weight of wretched ignorance? How can
any hope be entertained that children will be born of a union where an
unfortunate woman only sees in the condition of her consort, who is more
unfortunate still, a horrible spectacle, and can have no sexual relations
with him? Finally, how can it be said that the parties are united by love,
when the husband is distracted by madness, and does not even preserve the
form of humanity? And, certainly, if there should be any issue of such a
marriage, as Nature always causes the fruits of everything to resemble what
produces it, this will be detrimental to humanity.
Therefore,
taking all these things into consideration, it seems to Me only just and
consonant with reason to decree that insanity shall be a cause for the
dissolution of marriage, without this rule being contrary to the nuptial
benediction, or having in any respect the appearance of crime. Still, if
anyone should find this conclusion, to a certain extent, reprehensible, let
him subject himself to the experience of a similar matrimonial union, and he
will soon acknowledge to how much weight his opinion is entitled.
CONSTITUTION
CXIII.
GALLERIES,
COMMONLY CALLED BALCONIES, SHALL BE CONSTRUCTED AT
A DISTANCE OF TEN FEET FROM A NEIGHBORING
BUILDING, AS THIS HAS BEEN PROVIDED BY
LAW WITH REFERENCE TO
OTHER STRUCTURES.
Whatever the ancient authorities provided with reference to the erection of houses and other structures is extremely judicious, and they were right in directing that a distance of ten feet should be left between neighboring buildings. But as their laws on this subject do not make any provision for galleries or balconies as they are designated, which were devised for the purpose of providing protection from the light, and receive their name from the sun (for they are called solar porticoes), and nothing was enacted with reference to them, We have deemed it necessary to promulgate the present law to prevent the litigation to which they undoubtedly will give rise.
Therefore, We
decree that between such structures, as between all others, a space of ten
feet shall be left, for if this distance has been prescribed between
buildings in order to prevent the violation of privacy, the same reason
exists for establishing it between constructions of this kind, and it seems
even stronger in this instance as they are more exposed. For it is certain
that anyone who is seated or employed in the interior of his house can
easily escape the observation o his neighbors, because there are walls
between them; whilst the galleries or balconies to which We allude are open
on all sides.
Hence We order
that no one shall place such balconies nearer than ten feet from the
adjoining buildings; and We add that anyone who desires to change the facade
of his house, and cover it with marble, cannot do so unless the space of ten
feet still remains between his building and that of his neighbor, unless
some right authorizing him to do so exists; or the time established by law
for acquiring title by prescription has elapsed after the work has been
completed; or a house has been erected by virtue of an agreement; as, under
such circumstances, it shall remain in the same condition, even though the
prescribed distance of ten feet from the adjacent building has not been
maintained.
END OF THE
CONSTITUTIONS OF LEO.