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