THE CIVIL LAW
INCLUDING
The Twelve Tables, The Institutes of Gaius, The Rules of
Ulpian, The Opinions of Paulus, The Enactments
of Justinian, and The Constitutions of Leo:
Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern.
By S. P. SCOTT, A. M.
Author of "History of the Moorish
Empire in Europe," Translator of
the "Visigothic Code"
IN SEVENTEEN VOLUMES VOL. XVI.
CINCINNATI
THE CENTRAL TRUST COMPANY Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME XVI.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
FIRST COLLECTION. CONCERNING HEIRS AND THE FALCIDIAN PORTION.
TITLE I. PAGE
FIRST NEW CONSTITUTION ......................................... 3
PREFACE .............................................'........... 3
I. WHERE THE HEIR is UNWILLING TO PAY LEGACIES ............... 4
II. CONCERNING THE FALCIDIAN LAW AND THE INVENTORY ............ 7
III. CONCERNING THE EQUALIZATION OF LEGACIES ..................... 8
IV. LEGACIES MUST BY ALL MEANS BE PAID WITHIN A YEAR ........... 9
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 ........................................ 10
PREFACE ........................................................ 10
I. CONCERNING THE ABOLITION OF THE RIGHT OF CHOICE. ........... 12
II. CONCERNING THE ALIENATION OF A DOWRY OR OF A DONATION MADE
TO A STRANGER ON ACCOUNT OF MARRIAGE .................... 12
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 ..... 13
IV. CONCERNING THE ADMINISTRATION OF DONATIONS GIVEN IN CONSIDERATION OF MARRIAGE WHEN THE WOMAN MARRIES A SECOND TIME ................................................... 15
V. CONCERNING A DOWRY WHICH HAS BEEN PROMISED IN WRITING AND
HAS NOT BEEN COUNTED OUT OR DELIVERED. ................. 16
TITLE III.
CONCERNING THE NUMBER OF ECCLESIASTICS ATTACHED TO THE PRINCIPAL CHURCH AND THE OTHER CHURCHES OF CONSTANTINOPLE.
THIRD NEW CONSTITUTION ......................................... 16
PREFACE ........................................................ 17
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 ................................................. 18
PAGE
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 ................................... 19
III. OTHER ECCLESIASTICAL REVENUES SHOULD BE EXPENDED BY THE PATRIARCHS AND STEWARDS FOE Pious USES AND FOR THE RELIEF OF PERSONS IN WANT ..................................... 20
TITLE IV.
CONCERNING SURETIES, MANDATORS, BONDSMEN AND PAYMENTS.
FOURTH NEW CONSTITUTION ....................................... 21
PREFACE ........................................................ 21
I. CREDITORS SHOULD, IN THE FIRST PLACE, SUE THE PRINCIPAL
DEBTOR ................................................. 21
II. CONTINUATION OF 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. .................................. 22
III. CONCERNING PAYMENTS. WHEN THE DEBTOR HAS NOT THE MONEY WITH WHICH TO MAKE PAYMENT His PROPERTY SHALL BE ADJUDGED TO THE CREDITOR ................................ 23
TITLE V. CONCERNING MONKS.
FIFTH NEW CONSTITUTION ......................................... 24
PREFACE ........................................................ 24
I. CONCERNING MONASTERIES AND THEIR CONSTRUCTION ............ 25
II. CONCERNING NOVICES ........................................ 25
III. MONKS SHALL LIVE AND SLEEP TOGETHER. ..................... 27
IV. CONCERNING MONKS WHO ABANDON THEIR MONASTERY. ......... 27
V. CONCERNING A MAN OR WOMAN WHO DESIRES TO EMBRACE A
SOLITARY LIFE ......................................... 27
VI. CONCERNING MONKS WHO ABANDON THE MONASTERY. ........... 28
VII. CONCERNING MONKS WHO PASS FROM ONE MONASTERY TO ANOTHER ................................................ 28
Vill. MONKS SHALL NOT MARRY OR KEEP CONCUBINES. ............... 28
IX. CONCERNING THE ELECTION AND CREATION OF ABBOTS. THIS CONSTITUTION is APPLICABLE TO MONKS AS WELL AS NUNS. ..... 29
TITLE VI.
How BISHOPS AND OTHER ECCLESIASTICS SHALL BE ORDAINED, AND CONCERNING THE EXPENSES OF CHURCHES. SIXTH NEW CONSTITUTION ......................................... 30
PREFACE ........................................................ 30
I. CONCERNING THE MORALS, THE LIFE, THE HONOR, AND THE STATUS
OF ONE WHO is TO BE CONSECRATED A BISHOP. ............. 31
II. A BISHOP CANNOT BE ABSENT FROM His CHURCH FOE A LONGER
PERIOD THAN A YEAR. ................................... 33
III. BISHOPS SHALL NOT VISIT THE IMPERIAL COURT WITHOUT FIRST
OBTAINING LETTERS AUTHORIZING THEM TO DO so........... 34
IV. CONCERNING THE SELECTION OF ECCLESIASTICS .................. 35
V. ........................................................... 35
VI CANDIDATES FOR DEACONESSES WHO AEE UNDEE FIFTY YEARS OF
AGE SHALL NOT BE OEDAINED. ....................•••••••• o»
VII CONCERNING ECCLESIASTICS WHO ADOPT ANOTHER MODE OF LIFE.. 37 vill' CONCERNING THE EXPENSES OF CHURCHES AND THE PROHIBITION
OF INCREASING THE NUMBER OF THE CLERGY.... ............ 37
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 ...................................... 39
PREFACE ........................................................ 39
, I. CONCERNING THE PROHIBITION OF ALIENATING PROPERTY BELONGING TO RELIGIOUS HOUSES ................................ 42
II. CONCERNING THE GIFT OF IMMOVABLE PROPERTY TO A RELIGIOUS
HOUSE- BY THE EMPEROR ................................. 43
III. UNDER WHAT CIRCUMSTANCES THE EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY MAY BE PERMITTED. ...................... 44
IV. IN WHAT WAY THE USUFRUCT OF PROPERTY BELONGING TO THE
CHURCH is CREATED .................................... 46
V. To WHAT PENALTIES PERSONS WHO ALIENATE ECCLESIASTICAL
PROPERTY ARE LIABLE .................................. 46
VI. IT is LAWFUL TO ENCUMBER ECCLESIASTICAL PROPERTY BY A GENERAL BUT NOT BY SPECIAL HYPOTHECATION ................. 47
VII. To WHAT PENALTIES THOSE WHO MAKE A PERPETUAL EMPHY-
TEUTICAL CONTRACT ARE LIABLE .......................... 47
Vill. CONCERNING THE PROHIBITION OF ALIENATING SACRED UTENSILS .. 48
IX. CONCERNING HIM WHO PURCHASES THE PROPERTY OF THE CHURCH
BY VIRTUE OF A PRAGMATIC SANCTION ..................... 48
X. CONCERNING OFFICIALS WHO ALIENATE PROPERTY BELONGING TO
THE CHURCH ........................................... 49
XI. CONCERNING THE PROHIBITION OF ALIENATING MONASTERIES. ..... 49
XII. WHERE A STERILE FIELD COMES INTO THE POSSESSION OF A CHURCH 50
TITLE II.
JUDGES SHALL NOT OBTAIN THEIR OFFICES BY PURCHASE. EIGHTH NEW CONSTITUTION ....................................... 51
PREFACE ........................................................ 51
I. CONCERNING MAGISTRATES WHO SHOULD BE CREATED WITHOUT
EXPENSE ................................. ........... 53
II. CONCERNING THE VICEGERENT OF ASIA AND THE GOVERNOR OF PHRYGIA, AND THE TRANSFER OF THEIR OFFICES TO THE COUNT OF PACATIAN PHRYGIA .................................. 53
III. CONCERNING THE ABOLITION OF THE OFFICE OF VICEGERENT OF PONTUS, AND THE TRANSFER OF THE SAME TO THE COUNT OF GALATIA .............................................. 54
FAUE
IV. No MAGISTRATE SHALL BE PERMITTED TO APPOINT DEPUTIES. ..... 54
V. THE OFFICES OF COUNT OF THE EAST AND GOVERNOR OF ANTIOCH
ARE HEREBY CONSOLIDATED .............................. 54
VI. ALL PRIVATE INDIVIDUALS AND THE EXECUTIVE OFFICERS OF THE CITY OF CONSTANTINOPLE SHALL BE SUBJECT TO THE GOVERNORS OF PROVINCES ................................... 55
VII. CONCERNING THE OATH TO BE TAKEN BY GOVERNORS DECLARING THAT THEY HAVE NOT PAID ANY MONEY FOR THE PURPOSE OF OBTAINING OFFICE ................................... 55
Vill. GOVERNORS SHALL DILIGENTLY ATTEND TO THE COLLECTION OF
TAXES ................................................ 56
IX. GOVERNORS OF PROVINCES SHALL REMAIN FOR FIFTY DAYS IN THEIR FORMER JURISDICTION, AFTER THEIR SUCCESSORS HAVE ARRIVED ............................................... 57
X. ALL THE PEOPLE OF THE PROVINCE SHALL SHOW THEIR GOVERNOR
THE HONOR AND RESPECT TO WHICH HE is ENTITLED. ....... 58
XI. ALL PERSONS SHOULD RENDER THANKS TO GOD ON ACCOUNT OF
THIS LAW ............................................. 59
XII. IN WHAT CASES PERSONS DETAINED BY A GOVERNOR CAN HAVE NO
LEGAL RECOURSE AGAINST HIM ........................... 60
XIII. CONCERNING OFFICIALS DESPATCHED IN THE PURSUIT OF THIEVES. . 61
XIV. How, AND BEFORE WHOM, MAGISTRATES SHOULD BE SWORN, AND CONCERNING THE SECURITY WHICH SHOULD BE REQUIRED OF THEM ................................................. 61
EDICT ADDRESSED TO ALL Pious ARCHBISHOPS AND HOLY PATRIARCHS THROUGHOUT THE EARTH .......................... 62
XV. CONCERNING THE DEFENDERS OF CITIES. ........................ 63
EDICT ADDRESSED TO THE INHABITANTS OF CONSTANTINOPLE ...... 63
NOTICE OF PAYMENTS TO BE MADE BY MAGISTRATES APPOINTED TO OFFICE. No ONE SHALL BE ALLOWED TO EXACT MORE THAN is HEREIN SPECIFIED .................................... 63
THIS COPY OF THE LAW is ADDRESSED TO DOMINICK, MOST GLORIOUS PR.ETORIAN PREFECT OF ILLYRIA. .......................... 63
TITLE III. THE OATH TO BE TAKEN BY MAGISTRATES APPOINTED TO OFFICE ......... 64
TITLE IV.
THE ROMAN CHURCH SHALL ENJOY THE PRESCRIPTION OF A HUNDRED YEARS.
NINTH NEW CONSTITUTION ......................................... 65
TITLE V.
CONCERNING THE REFERENDARIES OF THE PALACE. NINTH NEW CONSTITUTION ........................................ 67
PREFACE ........................................................ 67
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 ..................................... 68
PREFACE ........................................................ 68
CONCERNING INCESTUOUS AND EXECRABLE MARRIAGES. PAGE TWELFTH NEW CONSTITUTION .................••••••••••••••••••••• 70
PREFACE ......................-••••••••••••••••••••••••••••••••• 70
I. CONCERNING INCESTUOUS AND WICKED MARRIAGES. ............... 70
II' LEGITIMATE CHILDREN SHALL BECOME INDEPENDENT WHEN THEIR FATHER is PUNISHED FOR CONTRACTING AN INCESTUOUS MARRIAGE, AND SHALL BE ENTITLED TO His PROPERTY. ............. 71
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. ...... 71
IV. CONCERNING NATURAL CHILDREN BORN BEFORE DOTAL INSTRUMENTS
HAVE BEEN EXECUTED .................................... 72
TITLE Vill.
CONCERNING PRAETORS OF THE PEOPLE. THIRTEENTH NEW CONSTITUTION ......................••••.•••••••• 73
70
' PREFACE .......................••••••••••••••••••••••••••••••••• I0
• i. ...................................-......-•••••••••••••••••• 74
n. ......................................................... II
m. ............................................................. H
iv. ...........:........-...............-..•••••••••••••••••••••• 75
V ...................................... 76
VL :::::::::::::::::...:.....................-..--•-•••-•••••••• ^
THIRD COLLECTION.
TITLE I.
CONCERNING PANDERS. FOURTEENTH NEW CONSTITUTION .......................••••••••••••• 78
PREFACE ...........................-••••••••••••••••••••••••••••• 7^
THIS LAW is ADDRESSED TO THE MOST GLORIOUS MASTER. .............. 80
TITLE II.
CONCERNING THE DEFENDERS OF CITIES.
FIFTEENTH NEW CONSTITUTION ......................••••••••••••••• 80
PREFACE .......................................••••••••••••••••• 80
I. No INHABITANT OF A CITY SHALL BE PERMITTED TO REFUSE THE
OFFICE OF DEFENDER ....................................... 81
II. ............................................................. 82
III. ALL DOCUMENTS SHALL BE REGISTERED BY DEFENDERS .............. 82
iv. ............................................................. 83
V .............................. 83
VL '.'.'.::;'.'.'..................................................... 84
TITLE III.
CONCERNING THE NUMBER OF CLERKS WHO SHOULD BE ORDAINED. PAGE SIXTEENTH NEW CONSTITUTION .................................... 85
PREFACE ........................................................ 85
I. ............................................................... 86
TITLE IV.
CONCERNING IMPERIAL MANDATES. SEVENTEENTH NEW CONSTITUTION .................................. 86
PREFACE ........................................................ 86
I. MAGISTRATES APPOINTED GRATUITOUSLY SHALL PERFORM THEIR DUTIES WITHOUT REWARD, AND REMAIN PURE IN THE SIGHT OF GOD, THE EMPEROR, AND THE LAW ..................... 87
II. MAGISTRATES SHOULD TAKE CARE TO PREVENT SEDITION, AND SEE THAT PUBLIC TRANQUILLITY is MAINTAINED BY PERSONS OF ALL RANKS ........................................... 88
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 ............................................ 88
IV. MAGISTRATES SHALL NOT PERMIT THEIR SUBORDINATES OR ATTENDANTS TO COLLECT ANYTHING FOR THE REPAIR OF HARBORS OR PUBLIC MONUMENTS. ........................... 89
V. CONCERNING CRIMES ...................................... 89
VI. PRIVILEGES INVOLVING THE PUBLIC FAITH OR SECURITY SHOULD
NOT BE INCONSIDERATELY BESTOWED ..................... 90
VII. THE RIGHT OF ASYLUM DOES NOT ATTACH TO HOLY PLACES IN
CASE OF HOMICIDE AND OTHER CRIMES. ................... 90
Vill. TAX-COLLECTORS MUST STATE IN THEIR RECEIPTS THE AMOUNT
OF THE PROPERTY SUBJECT TO TAXATION .................. 91
IX. JOURNEYS MADE BY GOVERNORS SHOULD NOT BE A SOURCE OF
ANNOYANCE OR VEXATION TO THE PEOPLE OF THE PROVINCES 92
X. .......................................................... 92
XI. GOVERNORS SHALL NOT OBEY ANY ORDERS HAVING REFERENCE TO RELIGIOUS MATTERS WHICH MAY BE COMMUNICATED TO THEM ................................................ 92
XII. WHERE PERSONS ARE CONDEMNED TO DEATH THEIR PROPERTY SHALL NOT BE CONFISCATED BUT SHALL PASS TO THE NEXT OF KIN ............................................... 93
XIII. CONCERNING THE PROHIBITION OF EXERTING UNJUST PROTECTION 93
XIV. No ONE SHALL PRESUME TO HARBOR SERFS BELONGING TO OTHER
CENSUS TENANTS ...................................... 93
XV. CONCERNING THE ASSERTION OF CLAIMS TO THE PROPERTY OF
OTHERS .............................................. 94
XVI. WHAT GOVERNORS SHOULD DO WHEN THEY FIRST ENTER THEIR
PROVINCES ............................................ 94
XVII. CONCERNING ARMS ........................................ 94
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 ............................ 95
PAGE
PREFACE .............................•••••••••••••••••••••••••• 95
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 ............................................ 96
II THE LEGAL SHARE OF CHILDREN OCCUPYING MUNICIPAL OFFICES
SHALL BE NINE-TWELFTHS OF THE ESTATE. ................ 96
III. WHERE A FATHER LEAVES His CHILDREN THE MERE OWNERSHIP
OF His PROPERTY AND His WIFE THE USUFRUCT OF THE SAME 96
IV. IN WHAT WAY CHILDREN DESCENDING IN THE FEMALE LINE CAN
SUCCEED IN CASE OF INTESTACY.......................... 97
V. CONCERNING CONCUBINES AND NATURAL CHILDREN, AND IN WHAT
WAY THEY CAN SUCCEED IN CASE OF INTESTACY. ........... 98
VI. CONCERNING COLLATION IN CASE OF DOWRIES OR ANTE-NUPTIAL
DONATIONS ............................................ 99
VII. WHERE A FATHER DESIRES TO DIVIDE His ESTATE AMONG His
CHILDREN DURING His LIFETIME. ......................... 99
Vill. WHERE ANYONE DENIES His OWN HANDWRITING. ............... 100
IX. CONCERNING DENIALS BY GUARDIANS AND CURATORS. ............. 101
X. CONCERNING EXCEPTIONS OF BAD FAITH PLEADED BY POSSESSORS. . 102
XI. IN WHAT WAY CONCUBINES OF A SERVILE CONDITION CAN BECOME
LAWFUL WIVES ........................................ 103
TITLE VI.
CONCERNING CHILDREN BORN AFTER THE EXECUTION OF THE DOTAL
CONTRACT. NINETEENTH NEW CONSTITUTION .................................. 104
PREFACE ............................................•••••••••••• 1°4
I. THE LAST CHAPTER OF THE TWELFTH NOVEL HAS REFERENCE TO CASES
WHICH HAVE NOT YET BEEN DECIDED OR COMPROMISED ......... 105
TITLE VII.
CONCERNING THE OFFICIALS CHARGED WITH PRESENTING APPEALS TO THE
EMPEROR. TWENTIETH NEW CONSTITUTION .................................... 105
PREFACE ........................................................ 105
I. THE OFFICIALS ATTACHED TO THE PRAETORIAN PREFECTURE SHOULD
ALONE BE EMPLOYED IN APPEALS .......................... 106
II. ........................................................... 106
III. ........................................................... 107
IV. ........................................................... 107
V. ........................................................... 107
VI . . .................................... 107
VII. ........................................................... 108
Vill. ........................................................... 108
IX. ........................................................... 108
TITLE Vill.
CONCERNING THE ARMENIANS.
TWENTY-SECOND NEW CONSTITUTION ............................... 108
I. ............................................................... 109
II. ........'"''.'.!................................................ 109
FOURTH COLLECTION.
TITLE I.
CONCERNING MARRIAGE. PAGE TWENTY-SECOND NEW CONSTITUTION ................................ 110
PREFACE ........................................................ 110
I. THIS CONSTITUTION SHALL BE OPERATIVE IN THE FUTURE,
BUT SHALL NOT APPLY TO ANYTHING THAT is PAST. .... Ill
II. MARRIED PERSONS CAN BY WILL RELEASE THEMSELVES FROM THE PENALTY IMPOSED BY THIS LAW UPON THOSE WHO CONTRACT SECOND MARRIAGES ........................ 112
III. IN WHAT WAY MARRIAGE is EFFECTED AND DISSOLVED. ...... 112
IV. CONCERNING DISSOLUTIONS OF MARRIAGE AND DIVORCES WHICH TAKE PLACE BY COMMON CONSENT AND IN OTHER WAYS ............................................. 112
V. CONCERNING MONASTICISM .............................. 113
VI. CONCERNING IMPOTENCE ................................ 113
VII. CONCERNING CAPTIVITY ................................. 113
Vill. CONCERNING PENAL SERVITUDE ........................... 114
IX. DISCOVERY OF THE SERVILE CONDITION. ................... 114
X. CONCERNING PERSONS WHO MARRY FEMALE SLAVES' SUPPOSING
THEM TO BE FREE................................... 115
XI. ....................................................... 115
XII. WHERE A MALE OR FEMALE SLAVE WHO is ILL is ABANDONED
BY His OR HER MASTER .............................. 115
XIII. ....................................................... 116
XIV. THE FIFTH MANNER OF DISSOLVING MARRIAGE BY COMMON
CONSENT, AND CONCERNING ABANDONMENT. ............ 116
XV. CAUSES FOR REPUDIATION ................................ 117
XVI. ....................................................... 118
XVII. CONCERNING SERFS WHO CANNOT MARRY FREE WOMEN. .... 119 XVIII. CONCERNING MARRIAGES CONTRACTED WITH DOTAL INSTRUMENTS ............................................ 119
XIX. CONCERNING REPUDIATIONS MADE BY SONS UNDER PATERNAL
CONTROL .......................................... 120
XX. ....................................................... 120
XXI. CONCERNING UNGRATEFUL CHILDREN ...................... 122
XXII. CONCERNING SECOND MARRIAGES .......................... 122
XXIII. WHERE A WOMAN MARRIES AGAIN AFTER THE YEAR OF MOURNING HAS ELAPSED, AND CONCERNING THE PROFIT OF THE DOWRY AND ANTE-NUPTIAL DONATION. ......... 124
XXIV. ....................................................... 124
XXV. ....................................................... 125
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.).. 125
XXVII. CONCERNING THE PROHIBITION OF ALIENATING MORE THAN A
SINGLE SHARE OF PROPERTY OBTAINED BY MARRIAGE ..... 126 XXVIII. .................'...................................... 127
XXIX. CHILDREN BY BOTH MARRIAGES SHALL RECEIVE RESPECTIVELY THE PROPERTY OBTAINED BY THE MARRIAGE OF WHICH THEY ARE THE ISSUE ................................ 128
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................................. 128
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 129
XXXII. CONCERNING THE USUFRUCT LEFT BY A HUSBAND TO His WIFE OR A DONATION MADE BEFORE THE MARRIAGE WAS CONTRACTED ........................................... 129
XXXIII. WHERE THE USUFRUCT OF PROPERTY is GIVEN BY WAY OF
DOWRY OR ANTE-NUPTIAL DONATION .................. 130
XXXIV. A FATHER DOES NOT LOSE THE USUFRUCT OF PROPERTY WHICH BELONGED TO THE MOTHER OR WAS ACQUIRED BY MARRIAGE ......................................... 130
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 ......................................... 131
XXXVI. WHERE A WOMAN HAS CONTRACTED A SECOND MARRIAGE SHE CANNOT TAKE ADVANTAGE OF THE RANK OR PRIVILEGES OF HER FIRST HUSBAND. ............................. 131
XXXVII. CONCERNING FREEDWOMEN WHO MARRY THEIR PATRONS. ... 131
XXXVIII. ....................................................... 131
XXXIX. WHERE A HUSBAND RETURNS THE DOWRY TO His WIFE DURING
MARRIAGE ......................................... 132
XL. WHERE A WOMAN WHO is ADMINISTERING THE GUARDIANSHIP
OF HER CHILDREN MARRIES A SECOND TIME. ........... 132
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 ................. 133
XLII. CONCERNING ECCLESIASTICS WHO CANNOT MARRY. (SEE
NOVEL' VI.) ....................................... 133
XLIII. WHERE A HUSBAND LEAVES PROPERTY TO His WIFE ON CONDITION THAT SHE DOES NOT MARRY AGAIN; AND CONCERNING THE LEX JULIA MISCELLA .................... 134
XLIV. ....................................................... 135
XLV. CONCERNING THE ADMINISTRATION OF DONATIONS MADE IN CONSIDERATION OF MARRIAGE. (THE SAME SUBJECT HAS BEEN TREATED IN NOVEL II, CHAPTER IV.) ............ 137
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. ....... 138
XLVII. ....................................................... 139
XLVIII. PARENTS SHALL ENDEAVOR TO PRESERVE EQUALITY AMONG
CHILDREN BY THE FIRST AND SECOND MARRIAGES ........ 140
TITLE II.
CONCERNING APPEALS, AND WITHIN WHAT TIME THEY SHOULD BE TAKEN.
TWENTY-THIRD NEW CONSTITUTION ................................. 142
PREFACE ........................................................ 142
I. ............................................................. 142
II. CONSIDERING CONSULTATIONS .................................. 143
III. CONCERNING APPEALS IN EGYPT, ASIA, PONTUS, AND ELSEWHERE. .. 143
IV. APPEALS FROM MAGISTRATES SHOULD BE BROUGHT BEFORE THOSE OF
HIGHER RANK ........................................... 144
CONCERNING MAGISTRATES TO WHOM APPEALS SHALL BE TAKEN WHEN THE VALUE OF THE PROPERTY INVOLVED DOES NOT EXCEED TEN POUNDS OF GOLD. I . . ........................................................ 144
II. .............................................................. 145
TITLE III.
CONCERNING THE GOVERNOR OF PISIDIA. TWENTY-FOURTH NEW CONSTITUTION ................................ 145
PREFACE ........................................................ 145
II. ............................................................. 146
III. ............................................................. 147
IV. ............................................................. 148
V. ............................................................. 149
VI. ............................................................. 149
TITLE IV.
CONCERNING THE PRAETOR OF LYCAONIA. TWENTY-FIFTH NEW CONSTITUTION ................................. 150
PREFACE ........................................................ 150
I. ............................................................. 150
II. ............................................................. 151
III. ............................................................. 152
IV. .............................................................. 153
V. ............................................................. 153
VI. ............................................................. 154
TITLE V.
CONCERNING THE PRAETOR OF THRACE. TWENTY-SIXTH NEW CONSTITUTION ................................. 155
PREFACE ........................................................ 155
I. .............................................................. 156
II. ............................................................. 157
HI. ............................................................. 157
IV. ............................................................. 158
V. ............................................................. 159
TITLE VI.
CONCERNING THE COUNT OF ISAURIA. TWENTY-SEVENTH NEW CONSTITUTION ............................... 160
PREFACE ........................................................ 160
I. .............................................................. 160
II. .............................................................. 161
TITLE VII.
CONCERNING THE GOVERNOR OF THE HELLESPONT. TWENTY-EIGHTH NEW CONSTITUTION ................................ 162
PREFACE ........................................................ 162
I. ........................................................... 163
II. ........................................................... 163
III. ........................................................... 163
IV. ........................................................... 164
V. ........................................................... 165
VI. ........................................................... 166
VII. ........................................................... 166
Vill. ........................................................... 167
TITLE Vill.
CONCERNING THE PRAETOR OF PAPHLAGONIA.
TWENTY-NINTH NEW CONSTITUTION ................................. 167
PREFACE ..................................... .................. 167
I. ............................................................ 167
II. ............................................................. 168
III. ............................................................. 169
IV. ............................................................. 170
V. ............................................................. 170
TITLE IX.
CONCERNING THE PROCONSUL OF CAPPADOCIA.
THIRTIETH NEW CONSTITUTION ..................................... 171
PREFACE ........................................................ 171
I. ........................................................... 172
II. ........................................................... 172
III. ........................................................... 173
IV. ........................................................... 173
V. ........................................................... 174
VI. ...............'............................................ 175
VII. ........................................................... 175
Vill. ........................................................... 177
IX. ........................................................... 178
X. ........................................................... 178
XI. ........................................................... 179
TITLE X.
CONCERNING THE DIVISION OF ARMENIA INTO FOUR JURISDICTIONS. THIRTY-FIRST NEW CONSTITUTION ................................... 180
PREFACE ........................................................ 180
I. ............................................................. 181
II. ............................................................ 182
III. ............................................................. 182
TITLE XI. PAGE
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 ................................ 183
I. ............................................................... 183
TITLE XII.
CONCERNING THOSE WHO MAKE LOANS TO FARMERS. THIRTY-THIRD NEW CONSTITUTION .................................. 184
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 ................................. 185
I. ............................................................... 185
TITLE XIV.
CONCERNING THE ASSISTANTS OF THE QUAESTOR. THIRTY-FIFTH NEW CONSTITUTION .................................. 186
TITLE XV.
CONCERNING THE SUCCESSORS OF THOSE WHO RESIDE IN AFRICA. THIRTY-SIXTH NEW CONSTITUTION .................................. 186
TITLE XVI.
CONCERNING THE CHURCHES OF AFRICA. THIRTY-SEVENTH NEW CONSTITUTION ............................... 187
TITLE XVII.
CONCERNING DECURIONS AND THEIR CHILDREN. THIRTY-EIGHTH NEW CONSTITUTION ................................ 187
I. ............................................................. 189
II. ............................................................. 190
III. ............................................................. 190
IV. ............................................................. 191
V. ............................................................. 191
VI. ............................................................. 191
EXCEPTION ...................................................... 192
TITLE XVIII. CONCERNING RESTITUTIONS, AND WOMEN WHO HAVE CHILDREN AFTER
THE ELEVENTH MONTH FROM THE DEATH OF THEIR HUSBANDS. THIRTY-NINTH NEW CONSTITUTION ................................. 192
PREFACE ........................................................ 193
I. WHERE A MAN APPOINTS ONE OF His CHILDREN OR A STRANGER His
HEIR .................................................... 194
II. CONCERNING A WOMAN WHO HAS A CHILD AFTER THE ELEVENTH
MONTH ................................................... 195
TITLE XIX. PAGE THE CHURCH OF THE HOLY RESURRECTION CAN ALIENATE BUILDINGS
BELONGING TO IT IN THE CITY IN WHICH IT is SITUATED. FORTIETH NEW CONSTITUTION ...................................... 196
PREFACE .........................••.••..•.••..•.•••••••......... 196
I. ................................................ .............. 197
TITLE XX.
CONCERNING QUAESTORS, THAT is TO SAY, PREFECTS OF THE ISLANDS. FORTY-FIRST NEW CONSTITUTION ................................... 199
TITLE XXI. CONCERNING THE DEPOSITION OF ANTHIMIUS, SEVERUS, PETER, ZOARAS,
AND OTHERS. FORTY-SECOND NEW CONSTITUTION ................................. 199
PREFACE ....................................................... 199
I. ............................................................. 200
II. ............................................................. 201
III. ............................................................. 202
TITLE XXII.
CONCERNING THE WAREHOUSES OR SHOPS OF THE CITY OF CONSTANTINOPLE, OF WHICH ELEVEN HUNDRED ARE SET APART FOR 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 ................................... 203
PREFACE ........................................................ 203
I. ....................................... ....................... 204
TITLE XXIII. CONCERNING NOTARIES WHO ARE REQUIRED TO PLACE PROTOCOLS AT THE
BEGINNING OF PUBLIC DOCUMENTS. FORTY-FOURTH NEW CONSTITUTION ................................. 206
PREFACE ......................................................... 206
I. .............................................................. 206
II. NOTARIES SHALL WRITE THE INSTRUMENT UPON THE SAME SHEET WHICH CONTAINS THE PROTOCOL, THE DATE, AND THE NAME OF THE CONSUL .............................................. 208
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 ................................... 209
PREFACE ........................................................ 209
I. ............................................................... 209
FIFTH COLLECTION.
TITLE I. PAGE
CONCERNING THE ALIENATION OF ECCLESIASTICAL LANDS, AND THEIR RELEASE WHEN PLEDGED.
FORTY-SIXTH NEW CONSTITUTION ................................... 211
PREFACE ........................................................ 211
I. ............................................................. 212
II. ............................................................. 212
III. ............................................................. 212
TITLE II.
THE NAME OF THE EMPEROR SHALL BE PLACED AT THE HEAD OF ALL PUBLIC DOCUMENTS, AND THE DATE SHALL BE WRITTEN PLAINLY IN LATIN CHARACTERS.
FORTY-SEVENTH NEW CONSTITUTION ................................ 213
PREFACE ........................................................ 213
I. .............................................................. 214
II. DATES WRITTEN IN LATIN SHALL BE PLAIN AND LEGIBLE. ........... 214
TITLE III.
CONCERNING THE OATH TAKEN BY A DYING PERSON AS TO WHAT His ESTATE CONSISTS OF.
FORTY-EIGHTH NEW CONSTITUTION ................................. 215
PREFACE ........................................................ 215
I. ............................................................... 215
TITLE IV.
CONCERNING THOSE WHO APPEAL; AND WHEN A COMPARISON OF THE HANDWRITING OF 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 .................................. 216
PREFACE ........................................................ 217
I. A CASE TAKEN UP ON APPEAL SHALL BE TERMINATED AT THE END
OF THE SECOND YEAR ...................................... 217
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 ......................................... 219
III. CONCERNING THE UNION OF THE OATH TAKEN TO OBTAIN DELAY
WITH THE OATH OF CALUMNY. ............................. 219
TITLE V.
CONSTITUTION ADDRESSED TO BONUS, QUAESTOR 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 ....................................... 220
PREFACE ........................................................ 220
TITLE VI. PAGE
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 .................................... 222
PREFACE ........................................................ 222
I. ............................................................... 222
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 .................................. 223
PREFACE ........................................................ 223
I. CONCERNING PLEDGE .......................................... 224
II. DONATIONS MADE BY PRIVATE PERSONS TO THE EMPEROR DO NOT
REQUIRE TO BE RECORDED .................................... 224
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 ................................... 225
PREFACE ........................................................ 225
I. CONCERNING DEFENDANTS WHO ARE SUMMONED FROM ONE PROVINCE TO ANOTHER ......................................... 225
II. CONCERNING THE BOND TO BE FURNISHED BY THOSE WHO SUMMON
DEFENDANTS TO APPEAR OUTSIDE OF THEIR OWN PROVINCE. .... 226
III. THE TERM OF TWENTY DAYS SHALL BE GRANTED TO THE DEFENDANT
AFTER SERVICE HAS BEEN MADE UPON HIM .................. 226
IV. CONCERNING JURATORY SECURITY ................................ 228
V. CONCERNING HYPOTHECATIONS CALLED EX-CASU MILITIARUM, AND WHAT PERSONS SHALL BE ENTITLED TO THIS RIGHT, AND WHEN THEY CAN EXERCISE IT .................................... 228
VI. CONCERNING A POOR WOMAN WHO is UNENDOWED. ................ 229
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 ................................. 230
PAGE
PREFACE ........................................................ 231
I. A CHILD BORN OF A SERF AND A FREE WOMAN SHALL BE FREE. ...... 231
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 ...... 231
TITLE X.
CONCERNING THE PROHIBITION OF FRAUDULENTLY EXCHANGING ECCLESIASTICAL PROPERTY FOR THAT OF 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 EMPHY-TEUSIS SHALL NOT BE TRANSFERRED TO A PRIVATE PERSON. FIFTY-FIFTH NEW CONSTITUTION ................................... 233
PREFACE ........................................................ 233
I. .............................................................. 233
II. CHURCHES SHALL BE PERMITTED TO MAKE PERPETUAL EMPHYTEUTICAL
CONTRACTS WITH ONE ANOTHER. ............................ 234
TITLE XL
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 ................................... 234
PREFACE ........................................................ 235
I- ............................................................... 235
TITLE XII.
THE SALARIES OF ECCLESIASTICS WHO ABANDON THEIR CHARGES SHALL BE GIVEN TO THOSE WHO ARE SUBROGATED 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 ................................. 235
PREFACE ........................................................ 236
I. CONCERNING ECCLESIASTICS WHO SHOULD BE SUBROGATED TO MEMBERS OF THE CLERGY WHO HAVE ABANDONED THEIR CHURCHES .. 236
II. FOUNDERS OF CHURCHES SHALL NOT BE PERMITTED TO ACTUALLY APPOINT ECCLESIASTICS FOR SAID CHURCHES, BUT MERELY TO PRESENT THEM FOR APPOINTMENT. .......................... 236
TITLE XIII.
SACRED MYSTERIES SHALL NOT BE CELEBRATED IN PRIVATE HOUSES. FIFTY-EIGHTH NEW CONSTITUTION .................................. 237
PREFACE ........................................................ 237
TITLE XIV.
CONCERNING THE FUNERAL EXPENSES OF DECEASED PERSONS.
FIFTY-NINTH NEW CONSTITUTION ................................... 238
PREFACE ........................................................ 239
PAGE I ................................. 239
u.'.'.'.'.'.'.'.'.'.'..!!!!!!!!!!!!!!'.!!................................. 240
HI. ............................................................. 241
IV...................... ........................................ 241
V ........................................................... 242
VI''..........................................................-. 242
VIL ;.........................................................-.. 243
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. ...................................... 244
PREFACE ......................•••••••••••••••••••••••••••••••••• 244
I. CONCERNING CREDITORS WHO THREATEN THEIR DECEASED DEBTORS.
(AFTER JULIANUS.) .................••••••••••••••••.••••••• 245
II. NEITHER COUNCILLORS NOR ASSESSORS SHALL TAKE COGNIZANCE OF
CASES IN THE ABSENCE OF MAGISTRATES ...................... 246
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 OF THE WIFE, UNLESS HE HAS SUFFICIENT PROPERTY TO AFTERWARDS SATISFY HER CLAIM ; AND THE SAME RULE SHALL ALSO APPLY TO DOWRIES. SIXTY-FIRST NEW CONSTITUTION ............................•••••••• 248
PREFACE ..............................•••••••••••••••••••••••••• 248
I. IMMOVABLE PROPERTY COMPOSING AN ANTE-NUPTIAL DONATION CAN UNDER NO CIRCUMSTANCES BE EITHER HYPOTHECATED OR ALIEN-
ATED .............................•••••••••••••••••••••••• 24S
TITLE XVII.
CONCERNING CONSULTATIONS. SIXTY-SECOND NEW CONSTITUTION .........................••••••••• 25°
TITLE XVIII.
CONCERNING NOTICE OF A NEW WORK WHICH OBSTRUCTS THE VIEW OF
THE SEA. SIXTY-THIRD NEW CONSTITUTION .......................•••••••••••• 251
PREFACE .....................................•••••••••••••••••••• 251
I. ......;.............................•••••••••••• 251
TITLE XIX.
CONCERNING THE GARDENERS OF THE CITY OF CONSTANTINOPLE. SIXTY-FOURTH NEW CONSTITUTION .................................. 252
PREFACE ...............................•••••••••••••••••••••••••• 252
I ....................... 252
IL '.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'.'............................•.. 254
TITLE XX. PAGE
LANDS, HOUSES, OR VINEYARDS WHICH HAVE BEEN LEFT TO THE MOST HOLY CHURCH OF MYSIA FOR THE EEDEMPTION 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 ................................... 254
PREFACE ......................................................... 254
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 .................................... 255
PREFACE ......................................................... 255
I. ............................................................... 256
TITLE XXII.
No ONE SHALL BUILD HOUSES OF 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 OP IMMOVABLE ECCLESIASTICAL PROPERTY.
SIXTY-SEVENTH NEW CONSTITUTION ................................. 258
PREFACE ......................................................... 258
I. ............................................................. 259
II. PERSONS WHO BUILD CHURCHES MUST PREVIOUSLY PROVIDE THE REVENUES FOR THEIR MAINTENANCE, THEIR CONSECRATION, AND THEIR PRESERVATION ..................................... 259
III. CONCERNING THE BISHOPS WHO DO NOT RESIDE IN THEIR OWN
CHURCHES. AFTER THE EPITOME OF JULIANUS. ............... 259
IV. CONCERNING THE ALIENATION OP IMMOVABLE ECCLESIASTICAL PROPERTY .................................................... 260
TITLE XXIII.
THE CONSTITUTION OF THE MOST HOLY EMPEROR CONCERNING THE SUCCESSION TO PROPERTY OBTAINED BY MARRIAGE, WHICH TREATS OF WHAT ARE CALLED AP.^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 .................................. 260
PREFACE ......................................................... 261
L ............................................................... 261
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 .................................. 262
PREFACE ...............................••••••••••••••••••••••••••• 262
I. ...........................................•••••••••••••••••• 262
II. CONCERNING DEFENDANTS WHO APPEAR. ........................ 263
III. CONCERNING DEFENDANTS WHO ARE ABSENT. ................... 264
IV. CONCERNING THE ABOLITION OF THE PRESCRIPTION OF THE PLACE ... 265
TITLE XXV.
THE ORDINARY URBAN PREFECTURES AND THE Two PRAETORIAN PREFEC-TURES AT PRESENT IN EXISTENCE SHALL HAVE AUTHORITY TO GRANT RELEASES FROM CURIAL REQUIREMENTS, BUT HONORARY PREFECTURES SHALL NOT POSSESS THIS POWER. SEVENTIETH NEW CONSTITUTION .................................... 266
PREFACE .....................•••••••••••••••••••••••••••••••••••• 266
I ...........................................••.••••••••••••••••• 267
TITLE XXVI.
ILLUSTRIOUS PERSONS AND THOSE WHO ARE OF HIGH RANK MUST UNDER ALL CIRCUMSTANCES BE REPRESENTED BY ATTORNEYS IN PECUNIARY CASES, AND IN THOSE RELATING TO CRIMINAL INJURY. THOSE WHO ARE KNOWN AS CLARISSIMI SHALL BE PERMITTED TO APPEAR IN PECUNIARY CASES EITHER IN THEIR OWN PROPER PERSON OR BY ATTORNEYS.
SEVENTY-FIRST NEW CONSTITUTION ................................. 268
PREFACE ..............................••••••••••••••••••••••••••• 268
I. ..........................................•••••••••••••••••••• 268
SIXTH COLLECTION.
TITLE I.
THOSE TO WHOM THE PROPERTY OF MINORS HAS BEEN HYPOTHECATED, OR WHO ARE THEMSELVES INDEBTED TO MINORS, SHALL NOT HAVE THEM UNDER THEIR CONTROL. CURATORS SHALL UNDER NO CIRCUMSTANCES ACCEPT ASSIGNMENTS AGAINST THOSE WHOSE AFFAIRS THEY ARE ADMINISTERING, OR WITH WHOSE CURATORSHIP THEY ARE INVESTED. THESE PROVISIONS' SHALL BE GENERALLY APPLICABLE TO EVERY SPECIES OF CURATORSHIP, AND TO ALL PERSONS TO WHOM THE LAWS GRANT CURATORS. CONCERNING THE ADMINISTRATION OF SUMS OF MONEY BELONGING TO THOSE WHOSE BUSINESS is TRANSACTED BY CURATORS, AND UNDER WHAT CIRCUMSTANCES THEY SHOULD BE PLACED ON DEPOSIT OR LOANED, AND WHAT SHOULD BE DONE WITH THE INCOME FROM SAID SUMS OF MONEY. SEVENTY-SECOND NEW CONSTITUTION ........................•••••••• 269
PREFACE ....................................••••••••••••••••••••• 269
I. WHO CANNOT BE EITHER THE GUARDIANS OR CURATORS OF MINORS
OR YOUTHS ................................•••.••••••••• 270
II. A CURATOR SHALL BE ADDED TO A GUARDIAN WHEN THE LATTER
HAS BECOME EITHER THE DEBTOR OR CREDITOR OF His WARD. . 270
III. No ONE SHALL BE RELEASED FROM THE DUTIES OF GUARDIANSHIP OR CURATORSHIP UNDER THE PRETEXT OF A DEBT, UNLESS HE CAN PROVE IT. .......................................... 270
PAGE
IV. WHERE A GUARDIAN OR CURATOR, WHO is EITHER THE DEBTOR OR CREDITOR OF A MINOR, DOES NOT MENTION THIS IN THE BEGINNING ............................................... 271
V. CURATORS SHALL NOT ACCEPT TRANSFERS OF ANY KIND CONTRARY
TO THE INTERESTS OF MINORS ............................. 271
VI. CONSIDERING THE CARE OF MONEY BELONGING TO WARDS OR MINORS 272 VII. ............................................................ 272
Vill. ............................................................ 273
TITLE II.
CONCERNING THE SECURITY AND RELIABILITY OF INSTRUMENTS, AND IN THE FIRST PLACE CONCERNING DEPOSITS, LOANS, AND OTHER PRIVATE TRANSACTIONS WHICH TAKE PLACE EITHER WITH OR WITHOUT WITNESSES; AND CONCERNING INSTRUMENTS PUBLICLY EXECUTED, AND THE COMPARISON OF THE HANDWRITING OF INSTRUMENTS EXECUTED BY ILLITERATE PERSONS, OR THOSE OF SLIGHT EDUCATION; CONCERNING VERBAL CONTRACTS AND THOSE IN WHICH AMOUNTS UP TO A POUND OF GOLD ARE INVOLVED; AND CONCERNING AGREEMENTS MADE IN THE FIELDS; CONCERNING THE APPLICATION OF THIS LAW TO DOCUMENTS AND CONTRACTS THAT ARE TO BECOME OPERATIVE AT SOME FUTURE TIME.
SEVENTY-THIRD NEW CONSTITUTION ................................. 274
PREFACE ......................................................... 274
I. CONSIDERING THE SECURITY OF AND THE CONFIDENCE TO BE EEPOSED IN WRITTEN INSTRUMENTS; AND, IN THE FIRST PLACE, CONCERNING DEPOSITS, AND IN WHAT WAY THEY CAN BE MADE WITH SAFETY .......................................... 275
II. IN WHAT WAY AN INSTRUMENT EVIDENCING A LOAN OR A DEPOSIT
CAN BE DRAWN UP WITHOUT THE PRESENCE OF A NOTARY. ... 275
III. WHERE A DISCREPANCY EXISTS BETWEEN THE CONTENTS OF A WRITTEN INSTRUMENT AND THE STATEMENTS OF THE WITNESSES ................................................ 276
IV. CONCERNING INSTRUMENTS EXECUTED WITHOUT SECURITY. ....... 276
V. How NOTARIES SHOULD DRAW UP INSTRUMENTS THAT WILL BE
SECURE ................................................ 276
VI. CONCERNING THE COMPARISON OF NOTES ....................... 277
VII. CONCERNING THE COMPARISON OF HANDWRITING ................. 277
Vill. IN WHAT WAY PERSONS IGNORANT OF LETTERS CAN SAFELY MAKE
CONTRACTS ............................................. 278
IX. CONCERNING CONTRACTS ENTERED INTO WITHOUT WRITING. ...... 278
TITLE III.
IN WHAT WAY NATURAL CHILDREN MAY BECOME LEGITIMATED AND INDEPENDENT, IN ADDITION TO THE METHODS PRESCRIBED BY FORMER CONSTITUTIONS.
SEVENTY-FOURTH NEW CONSTITUTION ............................... 279
PREFACE ......................................................... 279
I. CONCERNING VARIOUS WAYS OF LEGITIMATING NATURAL CHILDREN, AND CONCERNING LEGITIMATION BY MARRIAGE OR WHERE MARRIAGE is CONTRACTED WITH THE MOTHER OF NATURAL CHILDREN BY THEIR FATHER. ........................................ 281
II. CONCERNING LEGITIMATION BY WILL. ........................... 281
III. CONCERNING LEGITIMATION BY ADOPTION ........................ 282
PAGE
IV. WHO CANNOT CONTRACT MARRIAGE WITHOUT THE EXECUTION OF
DOTAL INSTRUMENTS. (JULIANUS No. 243.) .................. 282
V. WHERE ANYONE SWEARS UPON THE HOLY GOSPELS THAT HE WILL
MAKE A WOMAN WHO is IN His OWN HOUSE His WIFE. ....... 284
VI. WHO ARE LEGITIMATE CHILDREN, WHO ARE NATURAL CHILDREN, AND WHO BELONG TO NEITHER CLASS, THAT is TO SAY, ARE THE ISSUE OF A PROHIBITED UNION .............................. 285
TITLE IV.
CONCERNING APPEALS TAKEN IN SICILY.
SEVENTY-FIFTH NEW CONSTITUTION ................................. 286
EPITOME OF THE SAME NOVEL, FROM JULIANUS ....................... 286
TITLE V.
THIS CONSTITUTION INTERPRETS A PREVIOUS ONE WHICH TREATS OF THOSE WHO ENTER MONASTERIES AND THEIR PROPERTY, AND FROM WHAT DATE THE AFORESAID CONSTITUTION SHALL BECOME OPERATIVE. SEVENTY-SIXTH NEW CONSTITUTION ................................. 286
PREFACE ......................................................... 286
I. ............................................................... 287
TITLE VI.
MEN SHALL NOT COMMIT THE CRIME AGAINST NATURE, NOR SWEAR BY GOD'S HEAD, OR ANYTHING OF THIS KIND, NOR SHALL THEY BLASPHEME GOD. SEVENTY-SEVENTH NEW CONSTITUTION .............................. 288
PREFACE ......................................................... 288
I. ............................................................... 288
TITLE VII.
FREEDMEN SHALL NOT HEREAFTER REQUIRE A GOLD RING TO BE RESTORED TO THEIR ORIGINAL NATURAL CONDITION OF LIBERTY. CONCERNING THE EXECUTION OF DOTAL INSTRUMENTS WITH REFERENCE TO FREED-WOMEN. SUCH A MARRIAGE AND THE CHILDREN BORN FROM IT SHALL BE LEGITIMATE, AND IF THE WIFE WAS ORIGINALLY A FEMALE SLAVE, SHE SHALL BECOME FREE WHEN THE DOTAL INSTRUMENT is DRAWN UP, AND HER MARRIAGE SHALL BE LEGAL, AND THE ISSUE OF IT LEGITIMATE. SEVENTY-EIGHTH NEW CONSTITUTION ............................... 290
PREFACE ......................................................... 290
I. CONCERNING THE RIGHT TO WEAR A GOLD RING GRANTED TO ALL
FREEDMEN IN GENERAL. ................................... 291
II. CONCERNING THE REVERENCE AND RESPECT WHICH SHOULD BE MANIFESTED BY FREEDMEN TO THEIR PATRONS, ETC. ................ 291
III. WHERE A PATRON DESIRES TO MARRY A FREEDWOMAN ............. 292
IV. WHERE ANYONE HAS CHILDREN BY His FEMALE SLAVE ............ 292
V. REASON FOR THE ENACTMENT OF THIS CONSTITUTION. ............ 293
TITLE Vill.
BEFORE WHOM THE CASES OF MONKS AND ASCETICS SHALL BE TRIED. SEVENTY-NINTH NEW CONSTITUTION ................................ 294
PREFACE ......................................................... 294
I. WHERE ANYONE ATTEMPTS TO SUMMON A MONK OR AN ECCLESIASTIC
TO COURT ................................................ 294
II. CONCERNING THE ENFORCEMENT AND OBSERVANCE OF THIS CONSTITUTION AND THE DETERMINATION OF THE LEGAL CONTROVERSIES IN WHICH MONKS ARE CONCERNED .......................... 295
III. CONCERNING THOSE WHO VIOLATE THIS CONSTITUTION ............ 295
TITLE IX.
CONCERNING QUAESTORS. EIGHTIETH NEW CONSTITUTION ..................................... 296
PREFACE ......................................................... 296
I. CONCERNING THOSE WHO COME TO CONSTANTINOPLE ............. 296
II. CONCERNING FARMERS ....................................... 297
III. ............................................................ 297
IV. ............................................................ 297
V. CONCERNING STURDY BEGGARS ................................. 298
VI. CONCERNING FEES .......................................... 298
VII. CONCERNING FORGERY ....................................... 299
Vill. CONCERNING THE SALARIES OF THE QUAESTOR AND His SUBORDINATES ................................................. 299
IX. CONCERNING MAGISTRATES AND GOVERNORS ..................... 299
X. ............................................................ 300
TITLE X.
CONCERNING EMANCIPATION. A CONSTITUTION WHICH RELEASES FROM PATERNAL CONTROL A SON WHO is INVESTED WITH OFFICE AND THE EPISCOPACY.
EIGHTY-FIRST NEW CONSTITUTION .................................. 301
PREFACE ......................................................... 301
I. ............................................................. 302
II. PERSONS WHO ARE RELEASED FROM PATERNAL CONTROL BY REASON OF THEIR OFFICE SHALL RETAIN THEIR LEGAL RIGHTS UNIMPAIRED .................................................. 302
III. A SON SHALL BE RELEASED FROM PATERNAL CONTROL BY THE
BISHOP .................................................. 303
TITLE XL
CONCERNING JUDGES, AND THE FACT THAT NO ONE CAN RE SELECTED A JUDGE WHEN AN OATH is TAKEN TO ABIDE BY His DECISION. JUDGES SHALL RECEIVE ALL APPEALS AND THEY SHALL NOT STOP IN THE MIDST OF THE TRIAL OF A CASE IN OBEDIENCE TO A PRAGMATIC SANCTION DIRECTING THEM How TO DECIDE. EIGHTY-SECOND NEW CONSTITUTION ................................. 303
PREFACE ......................................................... 303
I. CONCERNING JUDGES SELECTED BY JUSTINIAN .................... 304
II. ONLY JUDGES APPOINTED BY THIS LAW SHALL BE PERMITTED TO
DELEGATE CASES ........................................ 305
III. CONCERNING THE ORDER AND THE TIME IN WHICH JUDGES SHALL
SIT .................................................... 305
IV. CONCERNING APPEALS ...................... ................ 305
V. CONCERNING THE JURISDICTION OF ORDINARY JUDGES ............. 306
VI. PARTIES SHALL BE ENTITLED TO THE TERM OF Two MONTHS IN WHICH TO FILE AN APPEAL, BUT AFTER THE LAPSE OF THAT TIME NO CORRECTION OF A DECISION CAN BE MADE. .......... 306
VII. THE SCHEDULE OF FEES INTRODUCED BY THE LAW OF JUSTINIAN
SHALL BE PRESERVED ..................................... 306
Vill. ANOTHER JUDGE SHALL BE APPOINTED BY THE EMPEROR TO TAKE
THE PLACE OF ONE WHO HAS BEEN REMOVED. .............. 307
IX. ORDINARY JUDGES SHALL BE ENTITLED TO Two AUREI AT THE BEGINNING OF A CASE AND TWO AT THE END. ................. 307
X. THE JUDGE MUST EXAMINE THE BILLS OF COST. ................. 307
XI. ARBITERS SHALL BE CHOSEN BY COMMON CONSENT AND NOT UNDER
OATH .................................................. 308
XII. CONCERNING APPEALS AND THE REQUIREMENT IMPOSED UPON MAGISTRATES TO RECEIVE THEM ............................... 309
XIII. CONCERNING DIFFERENT LETTERS ADDRESSED TO JUDGES ........... 309
XIV. CONCERNING REFERENCES .................................... 309
TITLE XII. MEMBERS OF THE CLERGY SHALL FIRST BE SUED BEFORE THEIR OWN
BISHOPS AND AFTERWARDS BEFORE CIVIL JUDGES. EIGHTY-THIRD NEW CONSTITUTION ................................. 310
PREFACE ......................................................... 310
I. ............................................................... 311
TITLE XIII.
CONCERNING FULL AND HALF BROTHERS. EIGHTY-FOURTH NEW CONSTITUTION ................................ 311
PREFACE ......................................................... 311
I. .............................................................. 312
II. .............................................................. 313
TITLE XIV. CONCERNING ARMS. EIGHTY-FIFTH NEW CONSTITUTION .................................. 313
PREFACE ......................................................... 314
I. ............................................................. 314
II. ............................................................. 314
III. ................'............................................. 314
IV. ............................................................. 315
V. ............................................................. 316
TITLE XV.
THE DIFFERENT JUDGES SHALL BE COMPELLED BY THE BISHOPS TO HEAR THE ALLEGATIONS OF THOSE WHO APPLY TO THEM, AND WHEN ANY SUSPICION OF A JUDGE is ENTERTAINED THE BISHOP OF THE CITY SHALL HEAR THE CASE WITH HIM ; AND CONCERNING OTHER PRECAUTIONS WHICH THE BISHOP MUST BY ALL MEANS TAKE. EIGHTY-SIXTH NEW CONSTITUTION .................................. 316
PREFACE ......................................................... 316
I. ............................................................ 317
II. ............................................................ 317
III. ............................................................ 317
IV. ............................................................ 318
V. ............................................................ 318
VI. ............................................................ 318
VII. ............................................................ 318
Vill. ............................................................ 318
IX. ............................................................ 318
TITLE XVI.
CONCERNING DONATIONS MORTIS CAUSA MADE BY DECURIONS. EIGHTY-SEVENTH NEW CONSTITUTION ............................... 319
PREFACE ......................................................... 319
I. ............................................................... 319
TITLE XVII.
CONCERNING DEPOSITS, NOTICES TO TENANTS, AND THE SUSPENSION OF
THE PUBLIC DISTRIBUTION OF PROVISIONS. EIGHTY-EIGHTH NEW CONSTITUTION ................................ 320
PREFACE ......................................................... 320
I. .............................................................. 321
II. CONCERNING THOSE WHO OPPOSE THE PUBLIC DISTRIBUTION OF PROVISIONS OR THE PAYMENT OF RENT. .......................... 321
SEVENTH COLLECTION.
TITLE I.
IN WHAT WAY NATURAL CHILDREN BECOME LEGITIMATE, AND CONCERNING THEIR SUCCESSION TO THEIR FATHERS EITHER UNDER THE TERMS OF A WILL OR IN CASE OF INTESTACY.
EIGHTY-NINTH NEW CONSTITUTION ................................. 322
PREFACE ......................................................... 322
I. CONCERNING NATURAL CHILDREN .............................. 323
II. CONCERNING THE FIRST METHOD OF LEGITIMATION, THAT is TO SAY,
BY AN OFFER MADE TO THE CURIA .......................... 324
III. CONCERNING THE SUCCESSION OF DECURIONS. ................... 326
IV. ........................................................... 327
V. .................".......................................... 327
VI. ........................................................... 327
VII. ........................................................... 328
Vill. CONCERNING THE SECOND METHOD OF LEGITIMATION BY MEANS OF
DOTAL INSTRUMENTS .................................... 329
IX. CONCERNING THE THIRD METHOD OF LEGITIMATION BY MEANS OF
IMPERIAL RESCRIPTS ..................................... 330
X. CONCERNING THE FOURTH METHOD OF LEGITIMATION BY MEANS OF
THE WILL OF THE FATHER CONFIRMED BY THE EMPEROR. ..... 331
XI. ........................................................... 331
XII. CONCERNING THE SUCCESSIONS OF ALL NATURAL CHILDREN. ...... 332
XIII. ........................................................... 334
XIV. ........................................................... 334
XV. THE OFFSPRING OF INTERCOURSE PROHIBITED BY LAW SHALL NOT
BE ENTITLED TO SUPPORT BY THEIR PARENTS ................ 335
TITLE II.
CONCERNING WITNESSES. NINETIETH NEW CONSTITUTION ..................................... 336
PREFACE ......................................................... 336
I. WITNESSES SHALL NOT BE ADMITTED TO TESTIFY UNLESS THEY ARE
OF UNBLEMISHED REPUTATION, OR JUDICIAL WITNESSES ...... 337
II. WITNESSES TO THE PAYMENT OF A PECUNIARY DEBT EVIDENCED BY A WRITTEN INSTRUMENT SHALL NOT BE SELECTED BY CHANCE ; AND CONCERNING WITNESSES TO DOCUMENTS IN GENERAL. .... 337
III. TESTIMONY SHALL BE REDUCED TO WRITING, AND WHY THIS is
DONE .................................................. 338
IV. WITNESSES SHALL NOT BE PRODUCED A FOURTH TIME WHEN WHAT THEY TESTIFY TO is ALREADY KNOWN; OR, IN OTHER WORDS, How MANY WITNESSES SHALL BE PRODUCED, AND IN WHAT WAY THIS SHOULD BE DONE .............................. 339
V. WITNESSES SHALL ONLY BE EXAMINED IN THEIR OWN PROVINCE
AND IN THE LOCALITY WHERE THEY ARE CALLED. ........... 340
VI. THE TESTIMONY OF A WITNESS WHO is ALLEGED TO BE A SLAVE SHALL BE RECEIVED, AND CONCERNING THE STATUS OF WITNESSES ................................................. 341
VII. WITNESSES SHALL BE EXCLUDED FROM TESTIFYING ON ACCOUNT OF
THEIR ENMITY; AND CONCERNING HOSTILE WITNESSES. ...... 341
Vill. MEDIATORS SHALL NOT TESTIFY UNLESS WITH THE CONSENT OF
THE PARTIES, AND CONCERNING THE EVIDENCE OF BROKERS .... 341
IX. THE PRODUCTION OF WITNESSES SHALL NOT TAKE PLACE EXCEPT IN THE PRESENCE OF THE ADVERSARY, AND AT WHAT TIME WITNESSES SHALL BE ADMITTED TO TESTIFY ................. 342
TITLE III.
WHEN THE PAYMENTS OF THE DOWRIES OF THE FIRST AND SECOND WIVES ARE BOTH DUE, THE FIRST WIFE, OR THE CHILDREN WHO ARE THE ISSUE OF THE PRIOR MARRIAGE, SHALL BE PREFERRED; AND IF THE WIFE, OR SOMEONE WHO HAS PROMISED A DOWRY FOR HER, WAS WILLING TO PAY IT TO THE HUSBAND, AND THE LATTER NEGLECTED TO RECEIVE IT, THE WIFE CANNOT, AT THE DISSOLUTION OF THE MARRIAGE, EXACT THE PAYMENT OF THE ANTE-NUPTIAL DONATION. NINETY-FIRST NEW CONSTITUTION .................................. 343
PREFACE ......................................................... 343
I. .............................................................. 343
II. WHERE A HUSBAND is TO BLAME FOR NOT HAVING THE DOWRY PAID
TO HIM .................................................. 344
TITLE IV.
CONCERNING IMMENSE DONATIONS MADE TO CHILDREN. NINETY-SECOND NEW CONSTITUTION ................................. 345
PREFACE ......................................................... 345
I. ............................................................... 345
TITLE V. PAGE CONCERNING APPEALS.
NINETY-THIRD NEW CONSTITUTION .................................. 346
PREFACE ......................................................... 346
I. ............................................................... 347
TITLE VI.
MOTHERS WHO ARE EITHER THE DEBTORS OR CREDITORS OP MINORS MAY ADMINISTER THE GUARDIANSHIP OF THE LATTER, AND SHALL NOT BE REQUIRED TO SWEAR THAT THEY WILL NOT CONTRACT SECOND MARRIAGES. NINETY-FOURTH NEW CONSTITUTION ................................ 347
PREFACE ......................................................... 348
I. .............................................................. 348
II. .............................................................. 348
TITLE VII.
CONCERNING MAGISTRATES. NINETY-FIFTH NEW CONSTITUTION .................................. 349
PREFACE ......................................................... 349
I. ............................................................... 350
TITLE Vill.
CONCERNING PERSONS WHO MAKE A BUSINESS OF BRINGING LAWSUITS,
AND CONCERNING THOSE WHO ARE SUED ONE OR MORE TIMES. NINETY-SIXTH NEW CONSTITUTION .................................. 351
PREFACE ......................................................... 351
I. CONCERNING THE SUMMONS TO COURT, AFTER WHICH THE PLAINTIFF MUST BE CAREFUL TO HAVE JOINDER OF ISSUE TAKE PLACE WITHIN Two MONTHS ............................................. 352
II. CONCERNING THOSE WHO ARE SUED ONE OR MORE TIMES. .......... 352
TITLE IX.
CONCERNING THE EQUALITY OF THE DOWRY AND THE ANTE-NUPTIAL DONATION, AS WELL AS THE INCREASE OF THE DOWRY AND ANTENUPTIAL DONATION, AND THE PRIVILEGE OF THE DOWRY WHICH TAKES PRECEDENCE OF OTHER PRIVILEGES; AND How CREDITORS ARE EXCEPTED FROM THIS PRIVILEGE WHEN THEY HAVE FURNISHED MONEY FOR THE PURCHASE OF AN OFFICE; AND CONCERNING THE RETURN OF THE DOWRY TO THE FATHER, AND ITS GIFT A SECOND TIME IN BEHALF OF THE SAME DAUGHTER ON HER MARRIAGE TO ANOTHER HUSBAND; AND CONCERNING THE COLLATION OF THE DOWRY WHEN THE HUSBAND DIES INSOLVENT.
NINETY-SEVENTH NEW CONSTITUTION .............................. 353
PREFACE ......................................................... 353
I. CONCERNING THE EQUALITY OF THE DOWRY AND THE ANTE-NUPTIAL
DONATION ............................................... 354
II. CONCERNING THE INCREASE OF THE DOWRY AND THE ANTE-NUPTIAL
DONATION ............................................... 354
III. CONCERNING THE PRIVILEGE OF THE DOWRY, AND THAT OF CREDITORS
WHO HAVE ADVANCED MONEY FOR THE PURCHASE OF AN OFFICE 356
IV. CREDITORS WHO HAVE LOANED MONEY FOR THE PURCHASE OF AN
OFFICE SHALL BE EXCEPTED FROM THIS PRIVILEGE. ............ 356
j^rtAjrj
V CONCERNING THE DOWRY WHICH RETURNS TO THE FATHER, AND is AGAIN GIVEN IN BEHALF OF THE SAME DAUGHTER TO HER SECOND HUSBAND .....................•••.•••••.••••••••••••• 357
VI. CONCERNING THE COLLATION OF THE DOWRY WHEN THE HUSBAND
DIES INSOLVENT .......................................... 358
TITLE X.
THE HUSBAND DOES NOT ACQUIRE THE OWNERSHIP OF THE DOWRY, OR THE WOMAN THAT OF THE ANTE-NUPTIAL DONATION, BUT THEY ARE RESERVED FOR THEIR CHILDREN; AND, PROVIDED THE PARENTS DO NOT CONTRACT A SECOND MARRIAGE, THEY WILL ONLY BE ENTITLED TO THE USUFRUCT OF THE PROPERTY; AND WHERE THEY MARRY A SECOND TIME AFTER REPUDIATION HAS TAKEN PLACE, AND OBTAIN EITHER THE DOWRY OR THE ANTE-NUPTIAL DONATION, THE OWNERSHIP WILL STILL BE PRESERVED FOR THEIR CHILDREN, AND THEY WILL BE COMPELLED TO EMPLOY THE USUFRUCT FOR THE SUPPORT OF THE LATTER. WHERE, HOWEVER, THE MARRIAGE is DISSOLVED BY COMMON CONSENT, AND THE PARENTS RETAIN SOMETHING FRAUDULENTLY, WHICH MAY CAUSE Loss TO THEIR CHILDREN, THEY SHALL BE DEPRIVED OF SUCH PROPERTY, AND IT SHALL BE KEPT FOR THE BENEFIT OF THEIR OFFSPRING. NINETY-EIGHTH NEW CONSTITUTION ................................ 360
PREFACE ...............................••••••••••..•••••••••••••• 360
I. THE OWNERSHIP OF THE DOWRY AND DONATION GIVEN IN CONSIDERATION OF MARRIAGE SHALL BE PRESERVED FOR THE CHILDREN .... 361
II. WHEN A MARRIAGE is DISSOLVED BY REPUDIATION OR BY COMMON CONSENT, ANY PROPERTY OBTAINED BY EITHER THE HUSBAND OR WIFE SHALL BE PRESERVED FOR THEIR CHILDREN; AND CONCERNING THE OBLIGATION OF PARENTS TO SUPPORT THEIR OFFSPRING .................................................. 362
TITLE XI.
CONCERNING PERSONS JOINTLY LIABLE.
NINETY-NINTH NEW CONSTITUTION ................................. 363
PREFACE ......................................................... 363
I. ............................................................... 363
THE ENACTMENTS OF JUSTINIAN.
IV,
THE 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 Prsetorian 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 the largest 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 a larger 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 necessity—which is Unworthy of Our reign—through 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 children—nor is there any law whatever which makes such a provision—so 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 unjust—where the dowry was not given to the husband for the wife—that 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 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 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 worship—for each of these three churches does not possess its own priest, but they are common to all—that 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 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 Lycia—a 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 ordained—whether they be either widows or virgins—to 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 price—and 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 money—and this is so necessary that if it is not borrowed they cannot comply with their contracts—or 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 provinces—as 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, Praitorian 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 presence—and if We should be absent, in the presence of Your Highness and the Officials who administer your See, the Count of Our Sacred Largesses, 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.
appointments—and 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 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 restriction—especially 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 skillful—whom, 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 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 still larger 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 desire'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.
(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 enure 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 the larger 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