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 necessitywhich is Unworthy of Our reignthrough the fear of lawful nuptials (even though they may be contracted a second time) of abstaining from such a marriage, and descending to forbidden unions, and perhaps even to the corruption of slaves, and, as they are not permitted to live chastely, to illegally indulge in debauchery. Hence We hereby declare invalid the Constitution that We inserted in the Fifth Book of the Code, which treats of the estates of children whom mothers, before contracting second marriages, have seen die; nor the one in the Sixth Book of the same work which appears under the title "Tertullian," and treats of women who have lost their children before contracting a second marriage; but the mother, along with the brothers of the deceased child, shall, by all means, be called to the succession, and shall unquestionably be entitled to her share; nor shall her claims be affected in the slightest degree by reason of her second marriage, and she shall obtain whatever, through consideration of the present case, has caused the enactment of this law, and shall succeed
to the estate along with her daughter, and, thus succeeding, shall incontrovertibly be entitled to her share, without any prejudice to her rights due to the expectation of a second marriage, but she shall, with her daughter, be the absolute owner of the estate. Hence the opinion which is best, as well as most praiseworthy and deserving of citation, is that wives should conduct themselves in such an honorable manner that, having once been married, they will preserve inviolate the pledge made to their dying husbands, so that We may consider a woman of this kind worthy of Our respect and not differing greatly from a virgin. But where a woman does not consent to this (when perhaps she is young and cannot restrain herself), or resist the passions of nature, she should not be molested on this account, nor should she be forbidden the benefits of the common laws; but she can honorably contract a second marriage, and abstain from every kind of licentiousness, and she shall enjoy the succession of her children. For just as We do not deprive fathers who marry a second time of the estates of their childrennor is there any law whatever which makes such a provisionso We do not deprive mothers of the estates of their children when they marry a second time, even though their children may die either before or after the second marriage. Otherwise, by the absurdity of the law, even though all the children should die first, without leaving either children or grandchildren of their own, the restriction will continue to exist, and their mother will not succeed them, even if they die without issue; but she will be inhumanly excluded from the succession, and she will have suffered in vain in having brought them forth and reared them, as well as be subjected to punishment because of the contraction of a lawful marriage; and heirs in a distant degree of cognation may succeed to their estates while their mother will be unreasonably excluded. Thus she herself will be entitled to inherit from her children, and so this indulgent and merciful law joins the mothers with their offspring.
Therefore, combining the different sections of this law We order that it shall be obeyed, as We class the mother (according to what We have previously stated) with the father, so far as the ante-nuptial donation is concerned; and We hereby order that she shall be subjected to the same penalties in this respect as the father is with reference to the dowry, and that both the father and mother shall, without any hesitation, be entitled to the estates of their children in accordance with their respective claims. Hence mothers shall be entitled to whatever the fathers have, whether they contract a second marriage or not; and a mother shall be called to the succession of her son whether she has already contracted a second marriage, or does so afterwards.
(1) A woman who marries a second time shall enjoy an antenuptial donation, not as the heir of her son, but on the ground that the donation is only a profit bestowed by the law, and not a part of the estate of her child; but it shall still retain the nature of an ante-nuptial donation.
This rule shall also apply to women who now, being widows, have succeeded to the estates of their own children, and have not yet con-
tracted a second marriage, although they may afterwards do so. What has been decreed in this instance shall prevail for all time.
CHAPTER IV.
CONCERNING THE ADMINISTRATION OF DONATIONS GIVEN
IN CONSIDERATION OF MARRIAGE WHEN THE WOMAN
MARRIES A SECOND TIME.
We think that it is proper to make an addition to the former provisions relating to ante-nuptial donations, where the woman marries a second time. For these laws give a woman who contracts a second marriage the choice of accepting the ante-nuptial donation in accordance with the marriage contract, provided she gives security to her children; or if she is unwilling, or refuses to give such security, the property composing the ante-nuptial donation shall remain in the hands of her children, who shall pay interest on the same to their mother at the rate of four per cent.
We, being induced by the number of questions which have arisen on this point, and having found minors subject to risk when the antenuptial donation consists of money, some of them, having no resources, being compelled to sell the entire estates of their fathers in order to discharge the debt of the ante-nuptial donation; and, as this donation should certainly go to them in conformity with law, We have deemed it necessary to provide that, when anyone bestows movable property as an ante-nuptial donation, the mother shall have the use of the same, and shall accept and not reject it; but she cannot collect interest from her children at the above-mentioned rate, and she must take good care of the property, as the law directs, just as the owners themselves would do, and she can retain it in accordance with the ancient laws, during the lifetime of her children, or, if all of them should die, she must observe this present law, and the remainder of the donation shall be preserved for the benefit of her children's heirs.
If, however, the entire ante-nuptial donation should consist of money or other personal property, the mother will be entitled to interest at the rate of four per cent, if she furnishes the security already provided for; but she cannot collect the money itself from her children unless the estate of her husband is ample and includes gold, silver, clothing, or anything else which has been allotted to the mother. For, in this instance, We give the mother the choice of either taking the property and furnishing security, or of receiving what We have declared to be a reasonable rate of interest in accordance with former laws as well as the present one.
Where the estate consists of both real and personal property, and the ante-nuptial donation is composed partly of money and partly of land, the land shall, by all means, remain under the control of the mother, in order that she may obtain support therefrom; but the personal property shall be disposed of, as We have previously prescribed where the entire ante-nuptial donation consists of chattels.
CHAPTER V.
CONCERNING A DOWRY WHICH HAS BEEN PROMISED IN WRITING AND HAS NOT BEEN COUNTED OUT OR DELIVERED.
We think that it is necessary to plainly establish by law a point which has perhaps already been too harshly decided, and which rarely comes into court for determination; so that the rule may commonly be observed in practice and judgments, in accordance with the public welfare. Where persons are married, and written provision is made for dowries and ante-nuptial donations, and the husband bestows the ante-nuptial donation, and the wife agrees in writing to give a dowry, either to be furnished by herself, by her father, or by some stranger, and it afterwards appears that the dowry was not given to the husband at the time of the marriage, but that he paid all the expenses of the same, and that the marriage was dissolved by his death, it is absolutely unjustwhere the dowry was not given to the husband for the wifethat she should receive the ante-nuptial donation. If, however, she did not give the entire dowry, she can take a proportionate share of the donation, after having furnished a corresponding amount of the dowry. As We love equity and justice, and desire them to be observed in all things, and especially in those relating to marriage, for which reason, where a woman has given nothing at all as dowry, she shall receive nothing; and she who has given less than she promised, shall only receive a share proportionate to what she gave.
The advantage of the present law is that it decides many cases which are frequently in doubt, and which are now determined in a way appropriate to legislation. We desire it to be observed in the case to which it has given rise, as well as in all pending litigation and any which may hereafter take place.
EPILOGUE.
Hence Your Highness must hasten to carry into effect what We have decreed, and publish everywhere by proclamation, in every city, the contents of this Our ordinance, so that all persons may be informed of what We have prescribed.
TITLE III.
CONCERNING THE NUMBER OF ECCLESIASTICS ATTACHED
TO THE PRINCIPAL CHURCH AND THE OTHER CHURCHES
OF CONSTANTINOPLE.
THIRD NEW CONSTITUTION.
The Emperor Justinian to Epiphanius, Most Reverend and Blessed Archbishop of this Imperial City, and Universal Patriarch.
PREFACE.
Some time ago We addressed to Your Reverence and the other Most Holy Patriarchs a general law with reference to the ordination of the venerable bishops and most reverend clergy, as well as deaconesses, by means of which We reduced the number of those formerly ordained, a step which seems to Us to be just and proper, and worthy of ecclesiastical discipline. We address the present law, which establishes the number of ecclesiastics in this city, to Your Holiness. For the reason that what is very 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 worshipfor each of these three churches does not possess its own priest, but they are common to allthat is, not only to the Principal Church but to the others, and all of them going from one to another conduct the services of each in turn, and as a great number of persons, through the favor of God and Our Saviour Jesus Christ, have, by Our labors and exertions, been induced to abandon their ancient heresies, and been brought into the Most Holy Principal Church, it is necessary to set apart for the present service a greater number of ecclesiastics than was provided for in the first place.
(1) Wherefore We order that not more than sixty priests, a hundred deacons, forty deaconesses, ninety sub-deacons, a hundred and ten readers, or twenty-five choristers, shall be attached to the Most Holy Principal Church, so that the entire number of most reverend ecclesiastics belonging thereto shall not exceed four hundred and twenty in all, without including the hundred other members of the clergy who are called porters. Although there is such a large number of ecclesiastics attached to the Most Holy Principal Church of this Most Fortunate City, and the three other churches united with the
same, none of those who are now there shall be excluded, although their number is much greater than that which has been established by Us, but no others shall be added to any order of the priesthood whatsoever until the number has been reduced, in compliance with the present law.
CHAPTER II.
ECCLESIASTICS SHALL NOT BE PERMITTED TO PASS FROM
AN INFERIOR CHURCH TO THE PRINCIPAL ONE THROUGH
PATRONAGE, AND CONCERNING THE INCREASE OF THE
NUMBER OF ECCLESIASTICS OF INFERIOR CHURCHES.
It should also be added that whatever has, up to this time, been improperly done, shall not in the future be repeated, that is to say, as many of the most reverend ecclesiastics, both here and in the provinces, have disdained to serve zealously the churches in which they were ordained, but have resorted to the Most Holy Principal Church, and have become attached thereto by means of patronage, We by all means forbid this to take place hereafter. For if, so far as monasteries are concerned, We forbid their inmates to go from one to another, We should be still more unwilling to permit the reverend ecclesiastics to do this, for We are of the opinion that this is attributable to the desire for gain, and that such persons are actuated by pecuniary and commercial motives. If, however, Your Holiness should hereafter think that such a transfer would be advantageous, it can take place; but not until the number of ecclesiastics has been reduced to that established by Us, so that the change may be made to fill a vacant position without exceeding the prescribed number. We permit this to be done without any intrigue, and for no other motive than that above mentioned. At present We are only concerned with the Most Holy Principal Church.
(1) With reference to all the other churches whose expenses are paid by the Most Holy Principal Church, We order that the ecclesiastics shall remain as they are at present, and likewise that others shall not be ordained until their number corresponds with the one originally established' by the founders of said churches. This applies to priests, deacons, deaconesses, sub-deacons, readers, choristers, and porters, nor shall the number of these in the meantime be increased. We shall take measures to see that this rule is enforced, and shall send priests for ordination, and none of Our judges who fear Our law shall do anything to violate it. The Most Blessed Archbishop and Patriarch of this Imperial City is hereby authorized to refuse ordination under such circumstances, even though the order may proceed from Our palace; for he who issues it and he who receives it shall both be liable to a fine under ecclesiastical law if it is executed.
So far as other churches whose expenses are not borne by the principal church are concerned, care must be taken that the number of ordained ecclesiastics does not hereafter exceed that established in the first place; lest, where an immense number are created and
divided, and the revenues provided by pious donors, these may not be sufficient for their support, and they may be reduced to the greatest penury.
If, however, ordinations in excess of the prescribed number should be "made, either in the Most Holy Principal Church or in the other churches, the bishop in charge of the Most Holy Church and the venerable stewards of the same, who have paid out sums from the revenues, shall themselves, along with the Most Blessed Patriarch who allowed these expenditures to be made, be compelled to make them good out of their own property. For they are hereby notified that, when anyone acts in this manner, We give permission to the Most Holy Patriarch who may subsequently be in authority, as well as the stewards and other reverend ecclesiastics who may succeed, to make a thorough investigation of these matters, to prohibit them, and give information thereof to the government, so that the latter, being informed of the facts, may order the Holy Church to be reimbursed the sums permitted to be expended by the archbishop, out of the property of the latter and that of the stewards.
In order that no confusion may afterwards result on account of the reduction of the number of ecclesiastics to the figure originally established, as soon as this reduction has taken place, it shall not be lawful to exceed that number, or for any deception to be practiced with reference to this matter. For We by no means permit anything to take place by means of which someone may have the right to confer ordinations without providing funds for the support of the incumbents. For this will again be productive of confusion, as a great increase of ecclesiastics and the foundation of new associations will result, and numerous fraudulent schemes will open other ways for the indulgence of avarice, in order to provide for the expenses of maintenance. We also, under ecclesiastical penalties, forbid ordinations to be made beyond the prescribed number, being of the opinion that it is highly desirable that the Most Holy Principal Church should neither be involved in debt, reduced to poverty, nor remain constantly without resources, but should always enjoy abundance.
who are suffering for the necessaries of life. Stewards, beloved by God, are notified, both now and for the future, that if they do not comply with what We have ordered, they will be subjected to Divine punishment, as well as be compelled to indemnify the Holy Church out of their own property.
EPILOGUE.
We direct Your Holiness who, in the beginning and at a very early age, has been admitted to all the clerical orders, who is in charge of the Most Holy Church, and who is descended from a pious race, to continue to observe this law, as you are aware that Our solicitude is not less concerned with those things which are profitable to the most holy churches than for the welfare of Our own soul.
Given on the seventeenth of the Kalends of April, during the Consulate of Belisarius.
TITLE IV.
CONCERNING SURETIES, MANDATORS, BONDSMEN AND PAYMENTS.
FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Prefect of the Imperial Praetors.
PREFACE.
We deem it advisable to revive an ancient law long since established, and, for some reason with which We are not acquainted, fallen into disuse; which has reference to matters that are always delicate and necessary, and render it applicable to the present age. We do not, however, restore it as it was originally (for a portion of this law was not sufficiently clear), but We, with the assistance of God, have added to it what is suitable under the circumstances.
CHAPTER III.
OTHER ECCLESIASTICAL REVENUES SHOULD BE EXPENDED
BY THE PATRIARCHS AND STEWARDS FOR Pious USES AND
FOR THE RELIEF OF PERSONS IN WANT.
Having in this manner provided for the expenses of churches, it is now proper to direct that the Most Holy Patriarch and reverend stewards shall see that other expenses for pious uses, agreeable to God, are paid out of the ecclesiastical revenues, and bestowed upon persons who are really in need, and have no other means of subsistence. For it is pleasing to Our Lord God that the expenditures of the Church should not be made for the protection of, and in accordance with the desires of men, and lavished upon the rich to the exclusion of the poor
CHAPTER I.
CREDITORS SHOULD, IN THE FIRST PLACE, SUE THE PRINCIPAL DEBTOR.
When anyone loans money and accepts a surety, a mandator, or a bondsman, he should not first proceed against the said mandator, surety, or bondsman, nor should he negligently annoy those who are responsible for the debtor, but he should in the first place have recourse to him who received the money and contracted the debt; and if he collects what is due to him, he must refrain from suing the others, for what can he obtain from them after the indebtedness has been discharged by the debtor? If, however, he should not succeed in collecting part or the whole of the claim from the debtor, he can then have
recourse to the surety, the bondsman, or the mandator, for the amount that he has not been able to collect, and can obtain from him the balance due; and this rule will apply when both the principal and surety, mandator, or bondsman are present. But where the surety, the mandator, or the person who rendered himself liable by a promise is present, but the principal debtor is absent, in this instance, it would be hard to send the creditor to collect his money elsewhere when he can at once recover it from the surety, mandator, or bondsman. It is necessary for Us to provide for this matter, as no remedy was afforded by the ancient law, although the eminent Papinianus was the first to suggest one. Therefore, the creditor can have recourse to either the surety, the bondsman, or the mandator, but the judge having jurisdiction of the case shall grant time to the surety, the bondsman, or the mandator if he wishes to make the principal debtor a party to the suit so as to force him to comply with his agreement and recourse be had to himself in the end, and the judge must assist the surety, the bondsman, or the mandator under these circumstances; for it has been decided that other persons of this kind can be released from liability in the meantime, and the principal debtor can be produced in court, when they have been subjected to annoyance on his account. If, however, the time granted the surety (the duration of which should be fixed by the judge) should have elapsed, then the surety, mandator, or bondsman shall be discharged; and the debt shall be collected from him in whose behalf he became responsible either as surety, mandator, or bondsman, and he will be subrogated to the creditors whose claims have been settled.
CHAPTER II.
CONTINUATION OP THE PRECEDING CHAPTER. PROPERTY WHICH HAS BEEN TRANSFERRED TO A THIRD PARTY CANNOT BE RECOVERED BEFORE A PERSONAL ACTION HAS BEEN BROUGHT AGAINST THOSE WHO ARE LIABLE.
A creditor cannot bring suit to recover the property of debtors which is in the hands of other persons, before bringing a personal action against the mandators, sureties, or bondsmen, having first brought suit against the principal debtor, or those in possession of the property; and if his claim should not be satisfied by this means, then he can have recourse to the property of the sureties, mandators, or bondsmen, or, where they themselves have anyone indebted to them, or who are liable to hypothecary actions, these may be held liable.
We grant the creditor permission to proceed against the principals and their property (whether he prefers to make use of personal or hypothecary actions or both), which permission has already been given by Us, and We direct that he can avail himself of this right against the other persons who are liable under all circumstances. And We not only establish this rule with reference to creditors, but also if anyone should purchase property from another and take a surety (who is called a confirmator), and suit is afterwards brought against
the vendor for the purpose of contesting the sale, the purchaser cannot proceed at once against the confirmator, nor, on the other hand, against whoever holds any property of the vendor; but he must first sue the vendor, and then have recourse to the bondsmen, and, in the third place, proceed against the party in possession. We order that, under the same circumstances, the rule which We have previously established in the case of sureties, mandators, and bondsmen shall, in case of either the presence or absence of debtors, also be observed by creditors in the collection of their claims. In like manner, this same rule shall apply to other contracts in which sureties, mandators, or bondsmen have been accepted, as well as to the principals on both sides and their heirs and successors, and shall benefit Our subjects because of the justice and order for which it provides.
CHAPTER III.
CONCERNING PAYMENTS. WHEN THE DEBTOR HAS NOT THE MONEY WITH WHICH TO MAKE PAYMENT His PROPERTY SHALL BE ADJUDGED TO THE CREDITOR.
Even though what follows may, perhaps, not be agreeable to some creditors, still, for the sake of clemency, We decree that relief shall be granted to persons in financial distress. If anyone should lend money, believing that the borrower is solvent, and the latter has not the means to pay the debt in money, but has real estate, and his creditor insists upon payment in cash, it will not be easy for the debtor to discharge the obligation where he has no personal property, for We grant the creditor permission to accept land instead of money if he is willing to do so; but if no purchaser of the land can be found and the creditor prevents the purchase of the property and keeps buyers from being present by spreading it abroad that the property of the debtor is encumbered to him, then the judges in this Most Fortunate City of Our Glorious Empire, according to the extent of the jurisdiction which has been granted to them by the law and by Us, and in the provinces, the Governors, shall see that a correct appraisement of the property of the debtor is made, and afterwards possession of the land shall be given to the creditors in accordance with the amount of their claims, with such security as the debtor can furnish. When a transfer of the property is made in this way, the best part of it, whatever that may be, shall be given to the creditor, and what is of inferior value shall remain in the hands of the debtor, after the indebtedness has been discharged; for it would not be just for anyone to lend money and afterwards receive property that is not worth the amount of the loan; and where a creditor who is compelled to take possession of real property does not obtain the best of what belongs to the debtor, he is still indemnified, because, while he does not receive money or other personal property, he acquires possession of something which is not useless to him, for this is an example of the indulgence of the law.
Creditors will recognize the fact that if We did not promulgate this law, necessity would compel the same thing to be done, for if the debtor does not have the money with which to pay the debt, and no purchaser of his real estate can be found, he can do nothing else than surrender it, and it will be transferred to the creditor, who would not otherwise receive what he was entitled to. Thus, having settled a question which might be productive of recrimination and bitter feeling to both creditor and debtor, and having decided at the same time mercifully and legally, thereby affording relief to unfortunate debtors, We shall not appear harsh to exacting creditors by permitting them to have recourse to a measure which, even if they did not consent, they would, nevertheless, finally be compelled to adopt. Hence, if a creditor is ready to provide a purchaser, the debtor will be obliged to sell the property, after furnishing such security as the judge may determine, and which it is possible for him to give; as provision must by all means be made for the indemnification of the creditors in such a way that debtors may not be oppressed.
(1) In compliance with the ancient laws, We consider as a creditor everyone who has a right of action against another, even though their right may not be founded on a loan, but on some other contract, thus in the usual course of business sustaining the obligations of bankers for the benefit of contractors.
EPILOGUE.
Your Highness having been informed of what has been decreed by Us, with reference to the protection of Our subjects, will cause this law to be published by formal proclamation here as well as in all places subject to Our authority, so that Our subjects everywhere may ascertain how great has been Our solicitude for their welfare.
Given on the seventeenth of the Kalends of April, during the Consulate of Flavius Belisarius.
TITLE V.
CONCERNING MONKS.
FIFTH NEW CONSTITUTION.
The Emperor Justinian to Epiphanius, Most Holy and Blessed Archbishop of this Royal City, and Universal Patriarch.
PREFACE.
Monastic life is so honorable and can render the man who embraces it so acceptable to God that it can remove from him all human blemishes, declare him to be pure and submissive to natural reason, enriched in knowledge, and superior to others by reason of his thoughts. Hence, where anyone who intends to become a monk is lacking in theological erudition and soundness of discourse, he becomes worthy of obtaining both by his change of condition. Therefore, We think
that We should explain what should be done by such persons, and lay down rules which they must follow in order to pursue a holy life; and it is Our intention after having treated of the most holy bishops and reverend ecclesiastics in this law to omit nothing which concerns monks.
CHAPTER I.
CONCERNING MONASTERIES AND THEIR CONSTRUCTION.
It must be stated before anything else that, where someone wishes to build a sacred monastery at any time or anywhere, he shall not have permission to do so before having applied to the bishop of the diocese, who shall extend his hands to Heaven and consecrate the place to God by prayer, placing upon it the sign of Our salvation (We mean the adorable and venerated sign of the cross), and then the building shall be erected, for this constitutes, as it were, a good and suitable foundation for the same. The construction of venerable monasteries should begin in this way.
CHAPTER II. CONCERNING NOVICES.
The condition of individual monks must now be considered by Us, and what must be done to enable slaves as well as freemen to be admitted to the order. Divine grace considers all men equal, declaring openly that, so far as the worship of God is concerned, no difference exists between male and female, freeman or slave, for all of them receive the same reward in Christ. Hence We decree that those who, following the sacred rules, desire to embrace a religious life, shall not immediately receive the monastic habit at the hands of the most reverend superior of the monastery; but, whether freemen or slaves, they must wait for the term of three years before assuming the monastic habit, but they shall, while studying theology, wear the tonsure and dress of those who are called the laity, and the most reverend abbots shall require them to state whether they are freemen or slaves, and for what reason they desire to embrace the monastic life, and, after having learned from them that no unworthy motive has induced them to take this step, they shall be received among those who are still taught and admonished of their duties; and their patience and sincerity shall be ascertained by experiment, for such a change of life is not easy, but is undergone at the expense of great mental exertion. (1) After the novices have been subjected to probation for the term of three years, and have convinced the superiors and other monks of their excellent dispositions and patience, they can assume the monastic habit and tonsure; and if they are free, can remain without molestation, and if they are slaves, they can by no means be subjected to annoyance, as they are consecrated to the common Master of all men (that is to say the One in Heaven), and become free. For, as in many instances, this takes place by operation of law and liberty is granted them, why should not Divine grace also avail to release them from their bonds ?
If, however, within the aforesaid term of three years, anyone should appear and attempt to remove any one of the said novices, on the ground that he is a slave, the same decision should be rendered as in a case which Zosimus of Lyciaa man most renowned in his order and who had almost reached his one hundred and twentieth year, but still enjoyed the use of all his mental and physical faculties (to such an extent was he honored by the favor of God) referred to Us. If then, as We have stated, anyone should, during the said term of three years, attempt to reduce a novice to servitude, who still desires to become a monk, and should declare that the latter took refuge in a monastery because he had stolen certain property, We order that he shall not be immediately surrendered, but let it first be established that he is a slave, and afterwards that he has committed theft, or has led a wicked life, or is given to the practice of the worst vices, and that, on this account, he has been induced to conceal himself in a monastery. If it should be established that the accuser told the truth, and it appears that the novice has embraced the monastic life for any reason of this kind, or that he has done so because of the baseness of his former life, and that he intended to assume the monastic habit without sincerity, he shall be restored to his master along with anything which he may have stolen, provided the property is in the monastery, and he who has been proved to be his master swears that he will receive him and take him home, and do him no harm.
(2) Where, however, he who alleges that he is his master does not prove this, and he who is accused under such circumstances shows by his conduct that he is honest and kind, and can establish by the testimony of others that while he was with his master he was obedient and a lover of virtue, even if the term of three years has not elapsed, he shall, nevertheless, remain in the monastery and be released from the control of those who wish to remove him. But when the term of three years has once expired, as he is then judged to be worthy of monastic life, he shall remain in the monastery. Nor do We, under any circumstances, permit his former life to be investigated, but whether he is a freeman or a slave We desire that he shall continue to be a member of the order; for even though formerly his life may have been stained with vices (for human nature is, to a certain extent, inclined to the practice of evil), still three years probation is sufficient for the increase of his virtues and the expiation of his sins. Any property which he may have stolen, no matter in whose hands it may be found, shall, by all means, be returned to its former owner.
(3) Where, however, having escaped the danger of servitude, the novice attempts to leave the monastery in order to adopt another mode of life, We permit his master to remove him and include him among his slaves, if he can prove that this was his original condition; for, having again been reduced to slavery, he will not suffer as great an injury as he would have inflicted by abandoning the worship of God.
These are the rules which We establish with reference to those who wish to embrace a monastic life.
CHAPTER III. MONKS SHALL LIVE AND SLEEP TOGETHER.
We must now consider and show in what way these exponents of monastic philosophy should live and employ their time. In no monastery established under Our rule, whether it be composed of many or few members, do We wish the monks who reside therein to be separated from one another and have their own private rooms; but We direct that they shall all eat together, and that they shall all sleep together in the same place, each one, however, occupying his own pallet, in the same house; or if a single building should not be sufficient to accommodate the number of monks, they shall be apportioned among two or more, not separately and by themselves, but in common, in order that they may be witnesses of one another's honor and chastity, and that they may not sleep too long, and may only reflect upon what is good; for fear of incurring the blame of those who see them, unless indeed some individuals desiring to live in contemplation and perfection may lead solitary lives apart (these are called anchorites, that is to say, persons who seclude themselves, and Hesychastes, or those who live in peace, holding themselves aloof from society in order to improve their morals) ; otherwise, We wish all other monks who are assembled together to reside in convents, that is to say, places devoted to life in common; for in this way their zeal will increase their virtue, and especially will this be the case with those who are young when they are associated with their elders; for intercourse with the latter will materially contribute to the perfection of the education of youth. Monks living together in this way shall be obedient to their own abbot, and must strictly observe the rules of their order.
CHAPTER IV. CONCERNING MONKS WHO ABANDON THEIR MONASTERY.
Where anyone has once professed himself a monk and has assumed the monastic habit, and afterwards wishes to leave the monastery and lead a private life, he is-notified that he must satisfy God for so doing, and that any property which he may have had when he entered the monastery will belong to the latter, and that he can claim none of the same.
CHAPTER V.
CONCERNING A MAN OR WOMAN WHO DESIRES TO EMBRACE A SOLITARY LIFE.
We also decree that any person who desires to enter a monastery shall, before he does so, have permission to dispose of his property in any way that he may desire; but the property of one who enters the Monastery shall by all means accompany him, even though he who brought it there may not expressly state that this was his intention; and he shall not afterwards be considered the owner of said property.
When, however, he has any children, and he has already given them anything either as an ante-nuptial donation, or by way of dowry, and what was given would amount to the fourth of his estate if he had died without making a will, his children shall have no right to the remainder; but where he has either given them nothing or less than a fourth, and, after having renounced the world, he should be admitted among the monks, the fourth of his property shall be due to his children, or enough to make up that amount if they should already have received something from him. When he has a wife and leaves her to enter the monastery, she shall be entitled to the dowry and whatever has been agreed upon in case of her husband's death (which We have prescribed in another of Our constitutions).
All these rules which We have laid down regarding monks shall be applicable to women who enter monasteries.
CHAPTER VI. CONCERNING MONKS WHO ABANDON THE MONASTERY.
If a monk should leave a monastery for the purpose of entering the army, or to adopt some other mode of life, his property shall remain in the monastery (in accordance with what We have previously stated), and he himself shall be attached to the service of the illustrious Governor of the province; and the result of the change will be that he shall serve an earthly tribunal, as being one who has evinced contempt for the sacred ministry of the Church.
CHAPTER VII.
CONCERNING MONKS WHO PASS FROM ONE MONASTERY TO ANOTHER.
When a monk, having left the monastery where he lived in common with his companions, betakes himself to another, his property shall remain in the hands of and be claimed by the first monastery to which he took it after having renounced the world. Anyone who commits an act of this kind should not be received by the most reverend abbot, for a monastic life of this kind is improper, and should not be tolerated, as it does not indicate a constant and determined state of mind, but shows an irresolute disposition, which constantly seeks change. Bishops, and those ecclesiastics called archimandrites, shall prevent this, in order to preserve monastic honor in accordance with the sacred canons.
CHAPTER Vill. MONKS SHALL NOT MARRY OR KEEP CONCUBINES.
Where anyone leading a monastic life proves worthy of being ordained a priest, he shall continue to observe the rule of his order
absolutely. If, however, having become a priest, he should abuse the confidence reposed in him, and presume to marry, although there are certain ranks of the clergy who are allowed to do this and to enter the matrimonial state (We refer to the orders of choristers and readers, but have forbidden the marriage of all others in accordance with the rules of the Church, as well as the entertainment of concubines, or the passage of their lives in debauchery), he shall, by all means, be dismissed from the priesthood by reason of his having mingled his former solitary life with that of the world, and shall hereafter become a private person; nor shall he be eligible to service in the army, or to any other employment, unless he wishes to render himself liable to the penalties already prescribed by Us. He himself, then being abandoned to his own resources, will become aware of the satisfaction that he owes to God for what he has done.
CHAPTER IX.
CONCERNING THE ELECTION AND CREATION OF ABBOTS. THIS CONSTITUTION is APPLICABLE TO MONKS AS WELL
AS NUNS.
We do not wish the ordination of abbots (where at any time a monastery happens to be without an abbot) to be made in accordance with the seniority of the most reverend monks, and that the one who comes directly after the abbot in rank should be selected; or that the second or the third should be chosen (which is also provided by another of Our laws), but the bishop of the diocese shall go over the names of all of them in succession; and he must not limit himself to their priority of ordination by which their rank is determined, but must choose the one among all the monks who appears to be the best fitted for the place, and worthy of becoming the head of the monastery. The reason for this is that human nature is such that abbots cannot all be taken from among the oldest or most recent monks, but the examination must be conducted by the bishop according to rank, and he who appears to be best qualified of those successively examined shall be created abbot, as possessing the dignity and virtues requisite for the position. For it is necessary to choose those who can distinguish what is best from what is worst, since it is one thing to be unfitted for administration, and another to have the inclination to become competent, and, through proper instruction, to acquire, little by little, the faculty of presiding over a monastery.
(1) The rules formulated by Us in the preceding laws, as well as in the present one, with reference to priests, monks, and monasteries, We hereby declare to be applicable to both males and females, as well as to convents and hermitages; for We do not distinguish between men and women for the reason that, as We have already stated, they compose but one in Christ.
The Most Holy Patriarchs will communicate these matters to the metropolitans under their jurisdiction, and the latter will bring them to the attention of the bishops, and the bishops will communicate them to the different monasteries under their control, to the end that the worship of God may everywhere remain pure. The most severe punishment shall be inflicted upon those who disobey the present law (We refer to celestial penalties which it is necessary to impose upon those who show contempt for the rules of their spiritual guides). When the judges of Our Empire are informed of any breach of this law, they should use every effort enjoined by the rules of the Church to cause it to be observed and carried into effect; for if they should be guilty of negligence, they shall not escape punishment. Wherefore it is proper for Your Holiness to conform to the preceding regulations, and communicate them to the Holy Metropolitans under your jurisdiction.
Given at Constantinople, on the fourteenth of the Kalends of April, during the Consulate of the Illustrious Belisarius.
TITLE VI.
How BISHOPS AND OTHER ECCLESIASTICS SHALL BE ORDAINED, AND CONCERNING THE EXPENSES OF CHURCHES.
SIXTH NEW CONSTITUTION.
The Emperor Justinian to Epiphanius, Archbishop and Patriarch of Constantinople.
PREFACE.
The priesthood and the Empire are the two greatest gifts which God, in His infinite clemency, has bestowed upon mortals; the former has reference to Divine matters, the latter presides over and directs human affairs, and both, proceeding from the same principle, adorn the life of mankind; hence nothing should be such a source of care to the emperors as the honor of the priests who constantly pray to God for their salvation. For if the priesthood is, everywhere free from blame, and the Empire full of confidence in God is administered equitably and judiciously, general good will result, and whatever is beneficial will be bestowed upon the human race. Therefore We have the greatest solicitude for the observance of the divine rules and the preservation of the honor of the priesthood, which, if they are maintained, will result in the greatest advantages that can be conferred upon us by God, as well as in the confirmation of those which We already enjoy, and whatever We have not yet obtained We shall hereafter acquire. For all things terminate happily where the beginning is proper and agreeable to God. We think that this will take place if the sacred rules of the Church which the just, praiseworthy, and adorable Apostles, the inspectors and ministers of the Word of God, and the Holy Fathers have explained and preserved for Us, are obeyed.
CHAPTER I.
CONCERNING THE MORALS, THE LIFE, THE HONOR, AND THE STATUS OF ONE WHO is TO BE CONSECRATED A
BISHOP.
Therefore, We order that the sacred canons shall be observed hereafter when anyone is presented to be consecrated a bishop, and that his life shall first be investigated as prescribed by the Holy Apostle, to ascertain if it is honorable, without blame, and irreproachable in every respect, and what his standing is among good citizens, and whether he performs his sacerdotal functions with propriety.
(1) No one shall (in accordance with the rule already established) be ordained who has left an office or other civil employment, unless he is still young; or, where he has changed his condition by withdrawing from the monastery, he shall first be required to give the fourth of his property to his curia.
(2) An uneducated person belonging to the laity cannot immediately be promoted to a bishopric, nor can he receive a fictitious ordination, where, for example, being illiterate, he is at first created a priest, and then, after a short time has elapsed, becomes a bishop.
(3) Nor can. one who has married a wife, who in the beginning was not a virgin, be a candidate for a bishopric; but he should have as his consort a woman who was a virgin when he married her, and not a widow, or separated from her husband, or who had been the concubine of someone else.
(4) Nor should he have either children or grandchildren, whether they were legitimate or odious in the sight of the law; for if anyone should act otherwise, he shall be expelled from the priesthood, and he who ordained him and violated this law shall lose his episcopate.
(5) We do not permit the purchase of an office in the priesthood to be made with money, for We wish the right to conduct divine service to be obtained from the Lord, and not to be acquired by human agency.
(6) He shall not attain to a bishopric who is unfamiliar with the dogmas of the Church.
(7) He who aspires to be a bishop, and has previously embraced a monastic life, or has been a member of the priesthood for not less than six months, shall have neither wife, children, nor grandchildren. We absolutely require this of bishops, as We have already prescribed in the two preceding constitutions, without investigating whether they still have wives or have renounced them; but We, for the future, do not permit anyone who has a legal wife to be ordained; and this law We now renew, and if it should be violated, the person guilty of doing so shall be expelled from the priesthood, and at the same time the bishop who ordained him shall be dismissed.
Therefore he who is to be consecrated a bishop, whether he belongs to the order of monks or is a member of the other clergy, must be able to produce proof of a good and honorable life, and enjoy an unblemished reputation; for this is the very foundation of the pontificate.
(8) When the candidate has been selected and prepared for the episcopate, he must, before his consecration, be familiar with the ancient and accepted canons which Our faith acknowledges as just and inviolate, and the Catholic and Apostolic Church has established and transmitted to Us. When, after having frequently read them previous to his ordination, the official in charge of the same must interrogate him, and ascertain if he is capable of complying with the said rules and of doing what they prescribe. If he' should state that he cannot observe these sacred precepts he shall, by no means, be consecrated, but if he promises that he will obey them as thoroughly as a man can do, then he shall be admonished and told that, if he does not do so he will be alienated from God, and will lose the honor conferred upon him, and that the civil laws do not leave any offence unpunished, for the reason that Our predecessors and Ourselves have, very properly, rendered the sacred canons valid as laws; and if he still adheres to his declaration, he shall then, in compliance with his professions, be consecrated a bishop.
(9) We decree that a candidate shall not purchase his consecration with money, or by the donation of any other property, but shall obtain it gratuitously and without remuneration, and, as it were, bestowed by God. For if he should employ the means previously mentioned by Us, he shall be considered to have purchased the episcopate either with money or with other property; and he is hereby notified that he will not be permitted to receive it, and he who consecrated him shall be deprived of his office, forfeit his episcopate, and be expelled from the priesthood, and thus both parties will be punished, for one will not obtain what he expected, and the other will lose what he already has. The money or other property which has been paid in for the consecration shall be given to the church, whether the bishop received it, and for this reason was removed from office, or whether someone else belonging to the clergy did so; for We impose the same penalty upon each, namely, We dismiss him from the priesthood, and transfer the money or other property given to obtain the consecration to the church which sustained the injury.
Where anyone who is a stranger, and not an ecclesiastic, receives money or any other property, to procure consecration, and especially if he holds any civil employment, he shall be punished by God Himself, for divine penalties will be imposed upon him; and he shall also be compelled to give to the church double the amount of all that he received, and, in addition, he shall lose his office, and be condemned to perpetual exile. He, also, who purchased the bishopric with money or other property, is hereby notified that if having previously been a deacon or a priest, he has been elevated to the priesthood by favor, he shall not only forfeit the episcopate, but shall be deprived of the office of priest or deacon. He shall also be excluded from every other ecclesiastical order for the re*ason that his desires exceeded the bounds of decency. He who officiates at the consecration must, at the time of the ceremony, and in the presence of the faithful people, acquaint the candidate with what has already been stated, and, after
having done so, shall consecrate him, so that he, having heard these things in public, may not only experience the fear of God, but also anticipate a criminal accusation if he should prove unworthy.
(10) Where anyone who is considered eligible to the episcopate is about to be consecrated, and it is alleged that he knows that he has committed some unlawful act, he shall not receive consecration before the charge is investigated and it is apparent that it is entirely unfounded. If, after an accusation of this kind, he who is to perform the ceremony does not institute a judicial inquiry but proceeds without it, he is hereby notified that whatever he does will be void, and that he who thus acts unlawfully will forfeit his priestly office; and anyone who confers consecration without proof shall be deposed from the office of bishop, for he is an offender against God, who seeks by all means to preserve the purity of his ministering priests. If, however, he who opposes the consecration is ascertained to be a slanderer, either before or after the examination, or if he does not proceed with it, he shall be forever excluded from holy communion by the bishop, in order that his deceit may not go unpunished. For as We require him who is to be consecrated to have a good reputation, so We punish a false accusation when someone brings it without reason. Where, however, no one makes an accusation, or having done so, does not produce satisfactory evidence, and after the examination has taken place the accusation is shown not to be true (as We have previously stated), then he who appears to be in every respect irreproachable shall be admitted to consecration.
He who is consecrated in this manner and is familiar with all the principal sacred precepts, as well as exemplary in thought, in speech, in bodily conduct, and in wisdom, cannot fail to lead a proper life.
CHAPTER II.
A BISHOP CANNOT BE ABSENT FROM His CHURCH FOR A LONGER PERIOD THAN A YEAR.
We also decree that no bishop shall presume to be absent from his church for a longer time than a year, unless by order of the Emperor, for in this case he would be blameless. We direct the Most Holy Patriarch to compel the bishops in their jurisdiction to remain attached to their churches and not separate themselves from them by making long journeys, nor dwell in foreign countries, nor neglect their congregation by being away for a longer term than a year, which We grant them by way of favor.
When any of them remains absent from his own bishopric for more than a year, without the authority of an Imperial order (as We have previously stated), then if he who has left his church is a metropolitan, the patriarch shall notify him to return by means of a proper summons, always observing the rules of the Canon Law.
If, however, he should continue to be disobedient, he shall be expelled from the holy order of bishops, and another shall be intro-
duced in his place who is worthy of the reverence, veneration, and honor of the office. Where the offender is not a metropolitan, but some other bishop who has violated the law, this duty shall be performed by the metropolitan; and none of such persons shall advance the pretext that he has been absent on account of some litigation or any other private matter; or that he has wandered about here and there on business connected with the church, or has remained in one place, or has visited several on this account.
In the eyes of the multitude, to whom the presence of a bishop is necessary, no valid reason exists to authorize ministers to travel; nor does any benefit result to their churches; nor is any assistance afforded to them; nor, under the circumstances, do they reflect any credit upon their sacred calling by being absent. For when it becomes necessary, and any litigation gives causes for any step of this kind to be taken, this can be done by the ecclesiastics of inferior rank or the stewards, and petitions can be presented to the government for the purpose of obtaining what is desired.
Hence We order that if any necessity should arise in a matter in which the interests of the Church are involved, those persons charged with the conduct of ecclesiastical affairs (who are called apocrisiarii) or others of the clergy appointed for that purpose, or the stewards themselves, can notify Us or Our ministers, and receive proper attention ; and hence there will be no occasion for bishops to absent themselves, for they will injure their churches by their absence, and through the great expense incurred by them as well as by their sojourn in foreign countries, thus not only good will not result, but the holy churches will sustain great loss.
CHAPTER III.
BISHOPS SHALL NOT VISIT THE IMPERIAL COURT WITHOUT FIRST OBTAINING LETTERS AUTHORIZING THEM TO DO so.
A bishop cannot visit this Most Fortunate City without first receiving letters addressed by the archbishop to the government, and which, according to the canons of the Church, disclose a good reason for his presence. If an archbishop wishes to travel, he must obtain letters from the patriarch, stating that his absence is necessary, and the Emperor should order him to be presented, for an ecclesiastic must not rashly, and without the knowledge of the archbishops or patriarchs go upon journeys, as this is prohibited by the divine rule; and having arrived, he shall not, at his own instance, presume to present himself to the government, but must first apply to the patriarch, or to those charged with the administration of the diocese, and explain to them the reasons which have induced him to come, and, after having done this, he can enjoy the sight of the Emperor.
After he has been presented, the said bishop can either by means of those who were styled referendarii of the Most Holy Principal Church, or by the agency of the apocrisiarii in charge of the holy pa-
triarchate, make application to the government and be insured a speedy reply; so that if his demands are just, they will be complied with, or if they are not, he may return quickly to the place from whence he came.
SECOND PART OF THE LAW.
CHAPTER IV. CONCERNING THE SELECTION OF ECCLESIASTICS.
After having, in conformity with the sacred canons, disposed of the preceding matters relating to bishops, We now decree, in compliance with the same canons, that no one can be ordained an ecclesiastic until after a careful examination, and that the candidate must be of good character, and by all means conversant with letters, and proficient in the doctrines of the Church. For We are unwilling for persons who are ignorant of letters to be ordained under any circumstances, that is to say, as clerks, priests, deacons, readers of the service, or of ecclesiastical or canonical books. Anyone, however, who is meritorious and blameless, and against whom no complaint or opposition has arisen, and who has given neither money nor other property, shall be eligible.
We are unwilling that any officials charged with the administration of the affairs of a curia should be ordained, unless in accordance with the laws which We have already promulgated with reference to this matter, and which We now confirm. Persons who are ordained shall be instructed in the sacred precepts in the presence of the entire people, for the same reasons for which We have directed this to be done in the case of bishops.
CHAPTER V.
We do not permit anyone to be ordained who is either a deacon or a priest who has either had a second wife or has one now, or is married to a woman who has left her husband, or is living with a concubine, but only where he married a wife who was chaste and a virgin. For, when ordinations take place, We delight in nothing so much as to know that the candidates are living a chaste life; and that they are not living with their wives, and have not been married : more than once to a woman who is chaste, which, according to the sacred canons, is considered as the principal and true foundation of durable virtue. But if any priest, deacon, or sub-deacon should afterwards marry, or keep a concubine either openly or secretly, he shall immediately be expelled from his order and become a layman. If a reader should, for any reason, marry a second time, and this was caused by inexorable necessity, he can never attain to a higher rank in the clergy, nor enjoy a position of greater dignity, but he shall always remain in the same rank, and shall not contract a third marriage, for two are sufficient. If, however, anyone should do this, and after having
contracted a second marriage, be promoted, he shall thereafter become a private person and a layman, and be absolutely deprived of his sacred office. For it is proper, above all things, for Us to live chastely, and if those who become members of the priesthood are such when they are ordained, it will be easy for them to attain to the episcopate, and many of their number will be found eligible to the highest rank of the priesthood.
CHAPTER VI.
CANDIDATES FOR DEACONESSES WHO ARE UNDER FIFTY YEARS OF AGE SHALL NOT BE ORDAINED.
We desire that everything which We have decreed concerning ecclesiastics shall be observed with reference to deaconesses, and they shall not violate these provisions. In order for them to be ordained, they must be neither too old nor too young, and not liable to temptation, but they should be of middle age, and, in accordance with the sacred canons, about fifty years old, and, having arrived at that age, they shall be eligible to ordination, whether they are virgins, or have previously been married to one man; for We do not permit women who have contracted a second marriage, or who (as We have already stated), have led a vicious life, to be ordained, but they must be free from all suspicion in order to be admitted into the holy service of the Church, to be present in baptism, and assist in the celebration of the mysterious and sacred rites which form part of their duties.
When, however, it is necessary for a woman under the age of fifty to be ordained a deaconess, ordination can be conferred upon her in some convent where she must reside; for she can by no means be permitted to mingle with men, or to live where she chooses, but by her withdrawal from society she must give evidence of her retirement and the simplicity of her life. Moreover, We are not willing that deaconesses who have once been ordainedwhether they be either widows or virginsto live with any of their relatives, or with such persons as they may select, for, under such circumstances, they will be liable to criticism, but they can either reside alone or with their fathers and mothers, children, or brothers, who are persons that if anyone should suspect them of criminality, he will be regarded as either foolish or impious.
If any disparaging statement should be made with reference to any woman who desires to be admitted to the order of deaconesses, to the effect that she has lived with someone under an assumed name, and this should give rise to evil suspicions, the woman shall, by no means, be ordained a deaconess. And if she should be ordained, and then commit an act of this kind and cohabit with anyone under another name, she shall be expelled from the diaconate, and both the parties shall suffer the penalties prescribed by this law and others for persons of corrupt morals.
All women who are ordained deaconesses must, at the time of their ordination, be instructed in the duties of their office, and have the
precepts of the sacred canons communicated to them in the presence of the other deaconesses, in order that they may fear God and have confidence in their holy order; and they are hereby notified that if they should regret having received ordination, or, having abandoned their sacred office, they should marry, or choose any other kind of life, they will render themselves liable to capital punishment and the confiscation of their property by the holy churches or monastaries to which they are attached. Any persons who may be so bold as to marry or corrupt them shall, themselves, be liable to the penalty of death, and their property shall be confiscated by the Treasury. For if, by the ancient laws, capital punishment was inflicted upon virgins who permitted themselves to be corrupted, how much more reason is there for Us to impose the same penalty upon those who are dedicated to God; and why should We not wish that modesty, which is the greatest ornament of the sex, should be preserved, and be diligently practiced by deaconesses, in accordance with what is becoming to Nature and due to the priesthood?
CHAPTER VII.
CONCERNING ECCLESIASTICS WHO ADOPT ANOTHER MODE
OF LIFE.
Those who have once become deacons or priests can, under no circumstances, relinquish their sacred duties. We decree that this rule shall not only be applicable to priests and deacons, but also, where any sub-deacon or reader renounces his former condition and embraces another life, he is notified that if he does anything of this kind (as has already been stated by Us), he shall either be assigned to his curia along with his property, or, if he is without resources, shall be devoted to this service.
THIRD PART OF THE LAW.
CHAPTER Vill.
CONCERNING - THE EXPENSES OF CHURCHES AND THE PROHIBITION OF INCREASING THE NUMBER OF THE
CLERGY.
It is proper that the ordinations of ecclesiastics should not be multiplied, and what has been done up to this time must be corrected. We, however, permit it to exist temporarily, but for the future it must not be repeated in such a way as to cause injury to the holy churches. Therefore, as it is necessary to establish certain regulations with regard to the Principal Church of this Our Royal City, and others subject to it, We have included these provisions in this special law. With reference to all churches situated outside the city We decree that, if anyone should found or build a church, and specify the number of ecclesiastics to be attached thereto, as well as the sum to be expended
for its maintenance, no one can be ordained in that church in excess of the number originally established. When, however, this has not been done, the Principal Church shall provide for it, as well as for other churches under its control; and, in this instance, the number of the clergy shall not be increased, nor shall the Principal Church be burdened with the expense of bestowing any privileges or benefits upon it (for this is neither pious nor becoming to priests), but those charged with the financial situation shall give what it is possible out of what God has bestowed, or observe the ancient custom without making any innovations whatever.
The patriarchs and archbishops should see that the ecclesiastics estimate the resources of each church, and only confer ordinations in proportion to the revenues of the same; and the archbishops, warned by the Holy Patriarchs, shall pursue the same course, and compel the bishops of their dioceses to preserve the fixed number of clergy, and to avoid not granting ordinations beyond what the revenues will justify, for We know how many holy churches have become impoverished by reason of ordinations of this kind, and the payment of other expenses.
And as We have with difficulty relieved some of these churches of their burdens, and others are still oppressed by theirs without being able to discharge their obligations, the Holy Patriarchs, archbishops, and bishops must in the future take measures against the recurrence of such an evil; so that We, having learned of what they have done, may approve of those who have used every effort to cause this Our law to be obeyed.
EPILOGUE.
The holy patriarchs of every diocese, the metropolitans and the remaining reverend bishops and clergy, shall observe inviolate and in conformity with the sacred canons the rules which We have above established, and shall, for the future, observe the worship of God and the discipline of the church unimpaired, under the penalty of being rejected by God, and excluded from the sacred order of the priesthood as being unworthy of it. We, however, grant permission to everyone, no matter what may be his office or to what order he may belong, when he becomes aware of any of these breaches of discipline, to notify Us, or the government; so that We, who have established the said rules, in accordance with the sacred apostolic canons of the Church, may inflict the proper penalty upon those who are guilty.
Whatever has heretofore been decreed by Us with reference to the property of bishops shall be observed.
(1) The patriarch of each diocese shall publish this law to all the churches under his control, and communicate it to the archbishops. The latter, in their turn, shall publish it throughout their jurisdiction, and communicate it to the bishops, each one of whom shall publish it in his own church; so that no person in Our Empire may be ignorant of what has been done by Us for the honor and glory of God and Our Savior Jesus Christ. In addition to this, Your Holiness will see that
this law shall be always known to, and obeyed by the holy archbishops subject to your jurisdiction.
(2) Written copies of this law have been despatched to Ephrenius, Archbishop of Alexandria; to the Archbishop of Theopolis; to Peter, Bishop of Jerusalem; to John, Most Glorious Praetorian Prefect, twice Consul and Patrician; to Dominick, Most Glorious Praetorian Prefect of Illyria, to whom what follows is addressed. "Your Highness being notified of this law will hasten to observe it, along with your successors, and if any accusation should be filed for a breach of the same, and especially for a violation of what has been forbidden with reference to the ordination of decurions^ or other officials, you must prevent its continuance, and notify Us, in order that a proper penalty may be imposed upon the guilty parties. Your Highness will communicate this, Our Constitution, to the illustrious Governors of provinces, in order that they may be on their guard, and not permit any violation of the same to be committed; for if they, being aware of the offence, do not at once inform your government, or that of the Empire of the fact, they will be liable to a penalty of five pounds of gold, in order that ordinations may everywhere be observed with propriety.
"A copy of this law, with the addition, has also been sent to Dominick, Praetorian Prefect of Myricia."
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SECOND COLLECTION.
TITLE I.
CONCERNING THE PROHIBITION OF ALIENATING OR EXCHANGING IMMOVABLE ECCLESIASTICAL PROPERTY, OR OF GIVING IT TO CREDITORS UNDER SPECIAL HYPOTHECATION, A GENERAL HYPOTHECATION BEING SUFFICIENT.
SEVENTH NEW CONSTITUTION.
The Emperor Justinian to Epiphanius, Most Holy and Blessed Archbishop of this Fortunate City, Ecumenical Patriarch, or Patriarch of Constantinople.
PREFACE.
As We are always intent upon correcting anything which We find to be confused or imperfect, or removing it, and making clear what is obscure in Our legislation, We think that it is necessary for everything relating to the alienation of the property of the Church to be included
in a single law, which shall replace and amend all others, supply what is lacking, and rescind what is superfluous. Leo, of pious memory, who, with the exception of Constantine, of all the Emperors, added more than anyone else to the Christian religion, and thoroughly established the honor and discipline of the holy churches, enacted a law concerning ecclesiastical alienations, which he, however, limited to the Principal Church of this Most Fortunate City. We applaud the greater portion of this law, because the worship of God is its principal object, but for the reason that it does not generally apply to all churches, We think that it requires amendment. An enactment on the same subject was also published by Anastasius, of pious memory, which, although it did not resemble the former one, is still restricted in its effect, for although it applies to places outside of Constantinople, it is still imperfect for the reason that it has reference only to the clergy and the diocese subject to the authority of the patriarch of this Royal and Most Fortunate City, but is not applicable to sees. The author of the law understood that it should be corrected, as he amended several portions of it, although he left others untouched, for which reason We decree that it shall hereafter be void as being imperfect and limited in scope, and not be included among laws generally as introducing anything that is of value to jurisprudence. Hence, We have corrected all these matters, and think that it is necessary for uniform legislation to be imposed upon all churches, hospitals, monasteries, asylums, infirmaries for the poor, and all other religious foundations; and We desire that the present law shall be an addition to that of Leo, of pious memory, of which We are going to enumerate in a few words such provisions as remain in force. It forbids the archbishop and patriarch of this Fortunate City or of the principal church of the same, as well as the steward, to sell, give, or alienate in any other way any of the immovable property belonging to the holy Principal Church of Constantinople, whether said property consists of buildings, land, serfs, rustic slaves, or grain furnished by the State (for these last items are regarded as immovable), and the law does not permit any transfer to be made by way of compensation, or under any other pretext; and it renders the purchaser liable to restore to the steward having charge of the property of the church whatever he has purchased, together with the profits of the same which he may have obtained since the alienation, and anything else which he may have acquired thereby, as well as to forfeit the purchase money, and it regards the transaction just as if it had never taken place. It also compels the steward who has failed in the discharge of his duty to pay over any profits which he has received from what belonged to the holy church, or to indemnify the latter for the losses which it may have sustained. And, in addition to this, he shall be deprived of his office of steward, and the law grants a right of action to the holy church not only against the stewards themselves, but also against their successors, whether the latter have made the alienation without the opposition of the bishop in office at the time, or of that of any of the other clergy, whether they were aware of it and con-
: jJlS? '
sented, or remained silent and suffered it to take place, for they are much more reprehensible if they gave their consent, and knowingly permitted such a thing to be done without preventing it.
It also punishes with perpetual exile the notary who drew up the documents, and refuses him clemency or permission to return; and any judges who consent to the alienation, and preside in cases of this kind, or who permit such donations or alienations to be made, it directs shall be deprived of their insignia, their offices, and their
estates.
Although this law strictly forbids the alienation of church property, it, nevertheless, allows the use of the same, which is called usufruct, for a certain time, or even during the life of the person who obtains it, when this is granted by the Most Holy Principal Church, under the restriction that the recipient of this favor shall give to the Most Holy Principal Church a certain portion of the property by way of compensation, from which the Most Holy Church can have the same income as he obtains from the use of said property; and, after the death of the usufructuary, or the expiration of the time prescribed for its enjoyment, the use and usufruct of the ecclesiastical property which has been granted shall revert to the Most Holy Principal Church, as well as the use and ownership of what was given by way of compensation. The law prescribes that a contract of this kind can be made without any risk.
If, however, what has been given by way of compensation should happen to be less than what was transferred by the holy church, the law declares that the contract shall be void, just as if it had never been entered into, and it grants the right of recovery just as if the holy church had been defrauded.
(1) These are, briefly stated, the provisions of the law, and where it imposes a fine, it only has reference to property belonging to the Most Holy Church of Constantinople; and while it disposes of all the fraudulent acts which We have mentioned, it still is not sufficient to restrain the efforts of persons intending to deceive. For, indeed, certain individuals have invented what is called leasehold titles, that is, where anyone received from the church a building whose value was, for instance, one hundred solidi, and which yielded an annual income of ten solidi, and he paid a hundred solidi more or less for the same, and agreed to pay every year out of his own property three solidi by way of rent, he was called parcecus; and, in consideration of this small payment, he became the possessor of the property, along with his heirs, in perpetuity.
This right was not known to any of Our laws, or recognized by any emperor; and, by means of it, those who invented it could commit great frauds against the law, and make almost constant alienations, which We forbid to be done hereafter, and have promulgated the present law for this very purpose. Those having charge of the administration of the property of said church formerly had recourse to emphyteusis, and by this means, obtained the greater part of the revenues of the same. For this reason We, by means of one of Our
preceding constitutions, have limited the duration of emphyteusis to the lives of three persons, that is to say, to that of the one who makes the contract, and his two immediate successors; and We permitted this to be done with reference to the property of the Most Holy Principal Church, but did not allow more than a sixth part of the income obtained under emphyteusis to be collected where unforeseen events occur. We have, however, learned that documents often have been impiously executed by certain persons under which a sixth part was left to the holy church, and all the rest of the property was given in emphyteusis. When Anastasius, of pious memory, decreed that rules should be drawn up with reference to emphyteutical alienations, in order that the time of possession might be determined, and decided that an irregular emphyteusis should last until the death of the emphyteuta, and that where it was regular, it should be perpetual, he enacted a law which was useless and imperfect in every respect, and which, as We have already stated, was only effective within the Patriarchal See of Constantinople.
CHAPTER I.
CONCERNING THE PROHIBITION OP ALIENATING PROPERTY BELONGING TO RELIGIOUS HOUSES.
Hence We decree (for it is now time to come to the provisions of the law) that the Holy Principal Church of Our Most Fortunate City, or any of those which are subject to its jurisdiction, and are maintained by it (as provided by Anastasius, of pious memory), and any other churches in this Most Fortunate City, or within its confines, which are subject to the Patriarchal See, the archbishops of which obey its patriarch or any other patriarch or bishop (We refer to those who reside in the East, in Illyria, in Egypt, in Lycaonia, and in Lycia, together with those who are in the province of Africa, and all who are distributed throughout Our entire dominions, including the bishops of the West, from Rome even to the ocean, who have charge of the holy orthodox churches), as well as superintendents of hospitals, orphan asylums, infirmaries for the poor, abbots and abbesses of monasteries, and presidents of sacred colleges, shall not be permitted to alienate any immovable property, whether it consists of buildings, fields, gardens or anything of this kind, rustic slaves, and grain provided by the State, or deliver it under a special contract to creditors by way of pledge.
We accept the term alienation in its general sense, and hence forbid the sale, donation, and exchange of property, as well as perpetual emphyteusis, which does not differ greatly from alienation. We forbid all ecclesiastics, everywhere, from making transfers of this kind under the penalties prescribed by the Constitution of Leo, of pious memory. We decree that this law shall be valid, and hereby ratify it, and, for this reason, We have proposed and proclaimed it, and have caused it to be written, not in Latin but in Greek, in order that it may become familiar to all, and its interpretation be facilitated.
We leave any alienations which have already taken place in their present condition, for where so many documents have been executed for a long time, interference with them at present must result in much confusion. Hence, those which have existed up to this time shall remain in full force, but, for the future, We prohibit all alienations under the penalties previously imposed.
CHAPTER II.
CONCERNING THE GIFT OP IMMOVABLE PROPERTY TO A RELIGIOUS HOUSE BY THE EMPEROR.
In order that the laws based upon the instability of human nature and events which frequently occur may always remain unaltered (for how can anything be so permanent and immovable among men that it cannot suffer any change, when our entire life is in constant movement?), We have deemed'it necessary to formulate some exceptions to the laws, which, being applied with reflection and care, may prove beneficial by preventing their operation.
(1) Therefore We authorize the government, when it is for the common welfare and the general advantage of the State, to obtain possession of any immovable property belonging to churches, religious houses, or associations, where others of equal or even of greater value than what was received is transferred by way of compensation. What excuse can the Emperor have to avoid furnishing greater indemnity? For God has given him possession of enormous wealth, and has made him the ruler of many subjects, and has rendered it easy for him, above all, to give to the holy churches, towards which one cannot be too liberal. Wherefore, if such a thing should take place, the transfer shall be valid, provided it is preceded by a pragmatic sanction authorizing the government to transfer property in compensation, where compensation is provided by reason of the gift of better and more productive immovable property; and those who have charge of the religious establishments whose property is alienated, and the notaries who drew up the contracts, shall everywhere be exempt from blame, and shall not be apprehensive of the penalties prescribed by Leo, of pious memory, and which have been confirmed by Us, since the priesthood and the Empire differ greatly from one another, as sacred things do from those which are common and public, and the abundance enjoyed by the churches is continually derived from the munificence of the Emperors.
Hence, where compensation is given by either party, neither can legally be blamed by anyone; but, on the other hand, We expressly prohibit every other sale, donation, exchange, or emphyteusis, whether made by the government or any other person whomsoever. Nor do We permit the donation of any real property by way of pledge for the purpose of securing a loan.
We desire this law to be observed by every church, monastery, hospital, house of refuge, hermitage, convent, infirmary for the poor, and all other establishments founded under religious auspices, for no
one can legally acquire any property from them. Therefore the constitution of Anastasius of divine memory shall hereafter be of no force or effect, and no law shall be enacted for the purpose of renewing it, nor shall its provisions be cited, as they are all hereby annulled.
CHAPTER III.
UNDER WHAT CIRCUMSTANCES THE EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY MAY BE PERMITTED.
We authorize the Most Holy Principal Church, and all other religious foundations, to lease their property by emphyteusis, provided that the duration of the lease is limited to the life of the emphyteuta, and two of his heirs, that is to say, his children and grandchildren, both male and female; and the said property will revert either to the husband or the wife, if this has been expressly stated in the contract; otherwise, it will not pass to any other heirs, but will be confined solely to the lives of those who received it, when they have neither children nor grandchildren. We, by no means, allow real property belonging to churches or hospitals, or even rustic slaves or supplies of grain to be leased, and We do not permit an alienation made contrary to these provisions to have any force.
(1) The Constitution of Leo, of pious memory, permitted ecclesiastical property to be leased by emphyteusis, where this was done without any loss, but We have decreed in another constitution promulgated by Us that a sixth part of the income should be given to him who took the emphyteusis; and thus We establish a certain rule of diminution, so that the rent of the property leased may be ascertained with truth and accuracy from the beginning, when it was acquired by the holy church and the emphyteusis was granted to the persons whom We have mentioned; for then We concede it to them, scrupulously reserving the sixth part of what they paid. Where, however, the amount is diminished through some accident, or the whole of it is lost, a new rate should be established for the person desiring to lease the property; or, indeed, none at all shall be made where it is decided to be more advantageous to lease it in some other way than to subject it to an excessive diminution of the rent under emphyteusis.
When suburban ecclesiastical property is leased under emphyteusis which We have ascertained is, in many instances, done in this Most Fortunate City at a high priceand it yields but very little rent, or even none at all, We do not wish the rental to be regulated by the income, but that a just appraisement shall be made of the land, adopting as a standard the income collected for twenty years, and that the rate under emphyteusis shall be based on this appraisement; but We repeat that this must not be done in perpetuity, but only during the lifetime of the person who receives the property, and that of two of his successors; but it will also be revertible to either the husband or the wife, as We have already stated.
(2) It is proper that emphyteutas should be notified that if they do not pay the rent for two consecutive years (for the term of three years is established in the case of other emphyteutas, but We have decided two will be sufficient where ecclesiastical lands are leased), they shall be deprived of the emphyteusis, and the officials in charge of the religious houses shall be permitted to resume possession of them without being liable on account of any improvements which may have been made. But if the emphyteuta has caused any deterioration of the land or suburban property, he can be compelled to thoroughly restore it to its former condition, at his own expense; and he, together with his heirs, will be obliged to return the said property, with all the income from it which may be due, without delay. It has already been stated by Us that no alienation of real property belonging either to a church or a hospital can take place, and this prohibition has reference to every person in the Empire, and applies not only to houses, suburban lands, gardens, fields, and buildings ruined by fire, earthquakes, or any other calamity, as well as to such as are entirely destroyed and levelled with the ground, whether enough materials remain for their reconstruction or not, for We only permit them to be alienated by means of temporary emphyteusis, in accordance with what has already been stated, and to the three persons whom We have previously mentioned.
In order that no fraud may be committed with reference to ecclesiastical property under such circumstances, an examination shall take place, when said property is in this city, in the presence of two master mechanics or architects, together with ecclesiastical stewards, five reverend priests, two deacons, and the bishop of the diocese; but where the property is situated in a province, this shall be done in the presence of two master mechanics or architects, or of one (if there are no more in the town), who shall assemble on the ground, and decide under oath on the Holy Gospels how much should be paid to the church under emphyteusis, and an emphyteutical contract may be drawn up in accordance with what has previously been prescribed.
The emphyteuta can then erect buildings with the materials, if there are any, and transmit the emphyteusis to two of his successors (as has already been stated), and, after the death of the three persons aforesaid, the property shall revert to the holy church or the venerable religious house by whom the emphyteusis was executed ; and a contract of this kind shall be valid, provided it is not in contravention of the terms of the present law.
(3) The various pretexts which have, up to the present time, been employed to prevent the termination of contracts of this description, shall no longer be permitted; and where the term of the two heirs has expired, permission is hereby given to those who succeed them to lease the property by emphyteusis; and they, in their turn, shall be allowed to transfer it to others. By resorting to such fraudulent methods, the consequence is that the emphyteusis always remains under the control of the same persons, and the church is deprived of its right to the property. Where anything of this kind takes place,
the reverend stewards are not obliged to transfer the property to others after the death of the two heirs of the emphyteuta.
CHAPTER IV.
IN WHAT WAY THE USUFKUCT OP PROPERTY BELONGING TO THE CHURCH is CREATED.
If anyone should desire to enjoy the use or usufruct of property belonging to the Holy Principal Church, or to any other church whatsoever situated in Our dominions, or which belongs to a hospital, he can obtain it by observing the rules which have been already laid down, and by complying with the provisions of the Constitution of Leo, of pious memory, which requires that the usufructuary shall be a man of means, and the owner of land, and shall give to the holy church or the religious house, by way of compensation, some other property yielding at the same times a revenue of equal amount and of the same character. This should be done in order that, after the death of the usufructuary, the property belonging to the church or hospital may revert to it, together with the use which was bestowed, and may not be extended beyond the lifetime of the person who acquired it. On the other hand, the usufructuary shall, until his death or for the time agreed upon, enjoy the usufruct of the property which he is given by way of compensation, and after the termination of the usufruct, the ownership and the use of the two pieces of property aforesaid will absolutely belong to the holy church.
CHAPTER V.
To WHAT PENALTIES PERSONS WHO ALIENATE ECCLESIASTICAL PROPERTY ARE LIABLE.
While the Constitution of Leo, of pious memory, only prescribed a penalty for the sale of ecclesiastical property, We, on the other hand, forbid not only the sale but also the donation, exchange, perpetual lease under emphyteusis, and pledge of real estate; for We are aware that there are certain persons who love to take risks, and make a practice of defrauding the laws, and of doing things which are absolutely prohibited and render those guilty of such conduct liable to capital punishment, hence We have considered it necessary to affix a certain penalty to every contract, and those penalties which were provided for unfaithful stewards by the aforesaid Constitution of Leo, of pious memory, We decree shall also be applicable to all in charge of houses for the accommodation of travellers, hospitals, and orphan asylums, as well as to abbots and abbesses of monasteries and convents, in accordance with what has been previously established. Therefore, if anyone should presume to buy property belonging to either a church or a hospital, he shall lose the purchase-money, and be deprived of whatever he acquired, together with all its income in the meantime; and he shall be entitled to no right of action against the said church or religious house, but he can sue the stewards or
other officials who sold him the property, and recover damages out of what personally belongs to them, so that if they are not deterred by the fear of God from engaging in transactions of this kind, the apprehension of losing their own property may prevent them from
doing so.
(1) If anyone should presume to accept as a donation anything belonging to a church or a hospital, he shall, by all means, lose what was given, and shall surrender to the said holy church or venerable religious house a portion of his own property equal to that which he received, so that he may realize the wickedness of his conduct in violating this law by suffering the loss of his private fortune.
(2) If any exchange should be made by persons except where the transfer of public lands is involved, as We have previously stated, he who assented to the exchange shall be liable to the penalty, shall lose what he received, which shall revert to the venerable religious house from which it was taken, and whatever was given by way of compensation shall also be acquired by it. He who is guilty of thus violating the law shall thus be deprived of both, and be punished by the loss of his own property as well as of that which he expected to gain; but, in this instance, a right of action will lie against those who made the contract with him.
CHAPTER VI.
IT is LAWFUL TO ENCUMBER ECCLESIASTICAL PROPERTY BY A GENERAL BUT NOT BY SPECIAL HYPOTHECATION.
Where a creditor chooses to take security for money loaned on immovables belonging to a church or hospital, which consist of buildings, suburban lands, fields, gardens, supplies of grain, or rustic slaves, he shall be deprived of such property, and the holy church which received the money shall keep it. In this case, however, the creditor will be entitled to bring suit against the steward, the official in charge of the hospital or the orphan asylum, the superior of the convent or monastery, or the superintendent of any other religious house responsible for the transaction, and he can also proceed against the abbesses of convents.
(1) Where, however, holy churches or other religious houses, are compelled to borrow moneyand this is so necessary that if it is not borrowed they cannot comply with their contractsor there is any other good cause to induce them to do this, it will be lawful to have recourse to a general hypothecation, but no special pledge of property can be given to creditors.
CHAPTER VII.
To WHAT PENALTIES THOSE WHO MAKE A PERPETUAL EMPHYTEUTICAL CONTRACT ARE LIABLE.
If, however, anyone should, in violation of the provisions of this Our law, presume to take either a perpetual or a temporary lease
under an emphyteutical contract, he will lose the land in question, as well as what he paid for it, which shall be forfeited to the religious house. He will also be required to pay the rent for which he bound himself, just as if he had made a legal contract, and he will obtain no benefit from the property of the poor which was uselessly transferred to him under the emphyteusis.
(1) All these provisions shall be observed, subject to the abovementioned penalties, and notaries, even though relying upon Imperial authority, must be careful not to draw up any instruments with reference to such contracts, but shall have the fear of exile before their eyes, with the understanding that they never will return; nor shall judges venture to authorize the execution of any false documents, or perform any act for the purpose of confirming those which already have been executed, under the penalty of being deprived of their insignia of office, their rank, and their property, in accordance with the Constitution of Leo.
CHAPTER Vill.
CONCERNING THE PROHIBITION OF ALIENATING SACRED
UTENSILS.
The same punishment shall be inflicted upon those who, in violation of Our law, either pledge, sell, or melt for the purpose of alienation, any sacred vessels, for We think that they who presume to commit an impious act with reference to sacred utensils consecrated to God should be punished with the same, or even with a greater penalty. Still, an exception may be made in the case which We have mentioned regarding the redemption of captives, where the souls of men are released from death and chains by the sale of inanimate vessels.
The same rule applies (as We have frequently stated) to the alienation of public supplies of grain, as We have ascertained that such supplies exist not only in this Most Fortunate City, but also at Alexandria as well as at Theopolis, and also, perhaps, in other provinces. Whenever this is the case elsewhere, the present law is applicable and shall be observed.
CHAPTER IX.
CONCERNING HIM WHO PURCHASES THE PROPERTY OF THE CHURCH BY VIRTUE OF A PRAGMATIC SANCTION.
For the reason that it is probable that someone, for the purpose of evading this law, may attempt to obtain from Us a pragmatic sanction authorizing the purchase of ecclesiastical property, We hereby prohibit everyone, of whatever rank or political station, or those immediately attached to Our service, or anyone residing among the people, from doing anything of this kind; and We decree that it shall, under no circumstances, be lawful to produce a pragmatic sanction for the purpose of acquiring immovable property belonging to churches, monasteries, convents, or any other religious establishments. The
quaestor who authorizes such a transaction will be liable to a fine of a hundred pounds of gold. Judges or other magistrates who sanction it will be liable to the same penalty; notaries who have drawn up the agreements shall be punished in accordance with the Constitution of Leo, of pious memory; and bishops and stewards who can refuse to obey any pragmatic sanction of this description shall forfeit the priesthood, if they accept it and allow it to be executed, and ignoring these laws, they comply with the terms of the pragmatic sanction.
(1) It is necessary for laws which are promulgated for the common and general welfare of all to be of more force than those enacted for the benefit of individuals to the prejudice of such as are of general application. It is for this reason that a special enactment for the purpose of leasing or transferring ecclesiastical property by emphyteusis has been deemed necessary.
CHAPTER X.
CONCERNING OFFICIALS WHO ALIENATE PROPERTY BELONGING TO THE CHURCH.
Stewards, or other ecclesiastical officials who are entrusted with the management of church property, cannot be compelled under a pragmatic sanction, by persons who are in authority, to lease or transfer by emphyteusis the said property to anyone who has obtained the pragmatic sanction; and anyone who does so will not only render himself liable to the penalty for sacrilege, but will also be subjected to all the fines and other punishments enumerated in this Our law.
CHAPTER XL
CONCERNING THE PROHIBITION OF ALIENATING MONASTERIES.
We have ascertained that unusually flagrant violations of the law have been committed by the people of Alexandria and other Egyptians, as well as in other places in the Empire, and that persons do not hesitate to sell the monasteries themselves, or exchange them for other property, or give them away (a place is monastic in which an altar has been erected and religious service is performed, as is customary in churches, -or where the Scriptures are read, or the holy and ineffable communion is administered), so that these buildings consecrated to God are transferred to private ownership and uses; hence We absolutely prohibit this to take place in the future, permitting no one to violate this law, and We declare that everything done in contravention of the same shall be invalid. We impose the forfeiture of the purchase-money upon those who receive the property, the vendor shall lose what he sold, and both the property and the purchase-money shall belong to the church of the diocese and the monastery. By this means it is provided that whatever has been alienated fraudulently shall be returned to the monastery, and that no hypothecation
of the property shall be of any force or effect, but shall be void, and the property itself be restored to the monastery to which it belongs.
CHAPTER XII.
WHERE A STERILE FIELD COMES INTO THE POSSESSION OF A CHURCH.
As We forbid injurious alienations to be made, so also We prohibit the acquisition of property which is unprofitable. For many questions have been submitted to Us in cases where persons have bestowed worthless lands upon a church or other religious house, or have sold such lands as being valuable, when this was not the case, as they were barren in the beginning, and, on this account, the religious house suffered a loss. Hence We forbid officials in charge of religious establishments to do anything of this kind, and We require them to inform themselves absolutely concerning the property in question; for if they do not use every effort to this end, when a contract is made and property which is either sterile or injurious is transferred to a church, a monastery, a hospital, or any other religious foundation, the contract shall be void, and he who fraudulently alienated the property shall take it back, and the steward, abbot, or official in charge of the said religious house or orphan asylum shall be personally liable for the loss resulting from the transaction. If, however, the agreement was of such a nature that money was given along with the property, it shall belong to the religious house, and he who paid it will be entitled to an action against the official who made the contract, as We have previously stated.
EPILOGUE.
This law shall, by all means, be observed with reference to the alienation of property belonging to churches or other religious foundations, in accordance with the terms of the Constitution of Leo of pious memory, and if it provides for nothing else, it still neglects nothing on this subject, and shall apply to all the provinces governed by Roman law and subject to the authority of the Catholic Church, and must be perpetually observed and executed by the patriarchs of every diocese as well as by the metropolitans, bishops, priests, stewards, abbots, and superintendents of hospitals, orphan asylums and all other similar religious institutions, and be maintained by them in all its force; and everyone is authorized to denounce those who violate it, or fail to observe its provisions. For anyone who does this is worthy of praise, as he does not merit the name of a false accuser who exposes any violation of the laws, for he performs a pious action and one which is beneficial to all religious houses.
All judges throughout Our Empire, no matter what their rank, or whether they are in the civil or military service, shall see that this law is enforced; this especially applies to the most glorious praetorian prefects throughout all the dioceses, as well as to those invested with less important jurisdiction, who are designated spectabiles, for We
include the Augustal proconsular and spectabile Counts and other officials of the East, and the magistrates who are inferior to them that is, those of consular rank or the Governors of provincesas well as the defenders of cities. All persons in civil, military and public employments are required to observe this Our law, for the promotion of the public welfare and the increase of the piety of the entire country; and those who violate it shall be liable to the penalties which We have previously enumerated.
We hereby confirm whatever has been enacted in former chapters, or by Our predecessors, with reference to the leasing of ecclesiastical property, and it shall remain inviolate; nor shall any innovation take place with reference to this Our present Constitution, for We authorize the preservation of the provisions in other laws when they conform to this one which We have promulgated, as it has greater scope than that enacted by Leo of pious memory, and is sufficient to remove every pretext for the alienation of property belonging to the Church.
Your Holiness, as well as those who may succeed you in the Pontifical See, will take measures to carry into effect the provisions which have been enacted by Us. May the Lord preserve you for many years, most Holy and Religious Father.
Given at Constantinople, on the seventeenth of the Kalends of May, during the Consulate of Belisarius.
TITLE II.
JUDGES SHALL NOT OBTAIN THEIR OFFICES BY PURCHASE. EIGHTH NEW CONSTITUTION.
The Emperor Justinian to John, 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 presenceand 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.
appointmentsand swear that he has never offered to give anything to obtain either office or influence; that he did not promise anything, or agree to send anything into a province, or offer anything to the prefects or other officials, or their attendants, nor has bestowed anything upon anyone for the purpose of obtaining his support, but has obtained his position absolutely without expense to himself; and that he will not take anything from the public except his regular emoluments, which are all that We allow him to accept;. that he will administer his office with clean hands, and be accountable to God and to Us.
Your Highness, as well as those who will succeed you, are hereby notified that if you, or the officials attached to your office, should accept anything from candidates beyond what has been established by Us as customary, and which We have decreed should be considered sufficient, you will be subjected to severe punishment; and where any superior magistrates have presumed to receive anything from persons who are seeking office, or permit any of their subordinates to do so, and, having been informed of it, do not take measures to correct this abuse, they shall not only pay quadruple the amount which they have received, but shall also undergo Our just indignation, and be deprived of their offices; and if their attendants and subordinates should attempt to collect more than what has been prescribed by Us, they also shall be subjected to the penalty of quadruple restitution, and shall forfeit their offices and their property, and, in addition, be liable to the penalties which their offences deserve.
CHAPTER Vill.
GOVERNORS SHALL DILIGENTLY ATTEND TO THE COLLECTION OF TAXES.
Those who in this manner assume the duties of government, without having incurred any expense, must by all means give special attention to the collection of taxes, and, by the exercise of severity, compel those who are negligent to make payment, and be absolutely in-flexible in this respect, without considering the gain which they might acquire by being lax in the discharge of their duty, and treat those who are prompt with paternal kindness. They should also not display any violence towards Our subjects, nor exact anything unjustly from them, but be equitable in their decisions, as well as in the maintenance of public order, prosecuting crimes, but everywhere guarding the rights of those who are innocent, inflicting punishment according to law upon such as are guilty, and treating Our subjects generally as fathers do their children, discriminating between the innocent and the guilty and punishing the latter, dispensing justice in all public and private matters, not acting alone and independently, but always consulting with their attendants and subordinates, so as to avoid punishing the innocent, which is more dishonorable than if they themselves had participated in the illegal acts.
Hence Your Highness must be careful to select for the service of the government honest men who are experienced in financial matters, and have already held office in the curia,, or discharged some other magisterial employment. For who does not respect and honor a man for his integrity when he has been appointed to office by Us, or by Your Highness, and has a good reputation because he is of the highest character, above all when he has obtained the office gratuitously, and does not attempt to enrich himself by acting dishonestly in the province, or plan to acquire wealth with the connivance of some one who pays out money, but is solely influenced by the desire to commend himself to God and to Us, and enjoy the greatest distinction with the expectation also of receiving a great reward?
(1) If anyone should violate this law and be proved guilty of theft during his administration, and it should be established that he had either paid money to obtain his place, or had received it for any cause while he was in office (as both of these acts are equally reprehensible), he is hereby notified that he will be liable to the confiscation of his property and to exile, as well as to the penalty of being scourged. A person who accepts anything from him (as We have previously stated) shall be subjected to severe punishment, for We require the hands of provincial magistrates to be clean, in order that We may protect Our subjects.
We also desire that the laws which impose penalties upon persons occupying the offices aforesaid shall be enforced against all who are guilty, without distinction. And if an official charged with the administration should be guilty of an illegal act, or if he should inflict any injury upon, or permit any false charge to be brought against, any of Our subjects, We hereby authorize the inhabitants of the province to apply to the bishops and primates of the diocese, that they may address petitions to Us setting forth the offences of the said official. For as soon as We are informed of this, We shall send someone into the province to make an examination of the case in which injustice was said to have been committed, and inflict the penalty for the same, in order to serve as an example, and deter anyone else from acting in this manner hereafter.
CHAPTER IX.
GOVERNORS OF PROVINCES SHALL REMAIN FOR FIFTY DAYS IN THEIR FORMER JURISDICTION, AFTER THEIR SUCCESSORS HAVE ARRIVED.
In accordance with former constitutions, every Governor, after he has relinquished his office, must remain for the term of fifty days in the province which he formerly ruled, showing himself publicly and ready to answer any demands which may be made upon him. If, however, he should take to flight before the said term of fifty days has expired, he shall be arrested in the same manner as a dishonest slave; and We give Our subjects permission to detain him in the province, and to exact from him everything which they may illegally
have given him in the presence of the bishop (the examination not being committed to writing), until he returns everything he is proved to have stolen; and if the inhabitants of the province should find that any theft has been committed by the Governor, they shall have the right, or rather be required to communicate the matter to Us; so that, being informed that he has sold justice for money, We may subject him to the penalties aforesaid, in addition to which he will be liable to punishment by Heaven for having violated the oath which he took at the time of his inauguration.
But if the Governor should, for some reason or other, make up his mind to flee from the province before the said fifty days have elapsed, then he shall be arrested wherever he may be found, and be returned to the province in which he administered his office, and he shall return fourfold the amount which he is proved to have received.
CHAPTER X.
ALL THE PEOPLE OF THE PROVINCE SHALL SHOW THEIR GOVERNOR THE HONOR AND RESPECT TO WHICH HE is
ENTITLED.
It should, under all circumstances, be observed that Our subjects are not authorized to proceed against their magistrates except in case of extortion, and not even then unless the Governor has been extremely active in the illegal exaction of sums of money, or corrupt in the execution of persons guilty of crime, for only in such cases do We authorize them to take measures against him.
On the other hand, where Governors have clean hands, and have collected taxes with honesty, We prescribe the severest penalties against those who presume to bring charges against them after they have relinquished their office; and when, having left the province after the time prescribed by law, they are not treated with honor oti their return. For those who, subsequent to the enactment of this law, may be appointed Illustrious Provincial Judges, must consider what distinction they will attain if they observe it, as well as what difficulties they will encounter if they disobey it. For it would be absurd for magistrates, who torture vile thieves and do not relax their efforts until the stolen property is returned, to themselves remain unpunished after having committed the most flagrant thefts, and who do not blush at the evil example they afford to persons who are honorable, free, and everywhere respected, and being worthy of Our esteem are justified in cherishing the hope of promotion.^
(1) Nor do We permit the distinguished judges or other magistrates to inflict oppression or injustice upon anyone, or to countenance the institution of any civil proceedings against them, in order that We may preserve Our dignity, and that they may manifest the purity of their intentions and their devotion to Our service. For all Our subjects are informed that, in order to promote their welfare, guard them everywhere against loss, and contribute to their repose, so
that they may not be compelled to leave their respective provinces and travel into foreign countries, We have enacted the present law, which We dedicate to God to be published on festival days by the reverend ecclesiastical authorities, and especially by those of the same communion, in order that all persons may regard their magistrates rather as fathers than as thieves and persons plotting to deprive them of their property.
(2) It is also necessary for you, who are Our subjects, being conscious of Our anxiety for your welfare, to pay your taxes without diminution, and with all punctuality, and not compel the officials to adopt extreme measures, but to act in such a way as to show Us by your conduct that you are deserving of Our indulgence, and that you are not insensible to the favor and solicitude which We are inclined to manifest for you. Being aware of this, and knowing that the magistrates are responsible for the payment of taxes, and that it is clear that their administration is at their own risk, you must avoid all improper delay, and not willingly violate the laws to the extent of provoking harsh acts of the Governors, which may be necessary to secure the inevitable fiscal exactions; and you also know that diligence is required to meet military expenses, including those contracted through the invasion of the enemy, and that these things cannot be accomplished without money, and admit of no delay, We, not consenting to the diminution of the territory of the Roman Empire, have recovered all Lydia, reduced the Vandals to servitude, and, with the assistance of God, hope to achieve still greater results, for whose accomplishment, however, taxes must be promptly paid without diminution at the times prescribed. Wherefore, if you notify the magistrates and they assist you in the payment of what is due, We shall praise their zeal, and approve your good intentions, and the concord existing between you and them will be for the advantage and welfare of all.
CHAPTER XL
ALL PERSONS SHOULD RENDER THANKS TO GOD ON ACCOUNT OF THIS LAW.
All Our subjects should sing hymns of praise to God and to Our Saviour Jesus Christ for this law, which gives them the free exercise of their faculties, permits them to live in their country with safety, and to obtain justice from magistrates. When We promulgated it, We intended to dedicate to God the justice which it contains, and also to commend Ourselves and Our Empire to Him in order that We may not seem to depise oppressed persons whom He has entrusted to Our care, but, imitating His kindness, exercise benevolence towards them in every respect. Therefore, as far as We are concerned, this law shall be consecrated to God, since in framing it We have omitted nothing which We could think of that would be available for the protection of Our subjects. For, desiring to repress all dishonesty and base thefts, and retain Our subjects in peace through the agency
of provisional magistrates, We have gratuitously bestowed government upon them, in order that there might be no inducement to oppress those for whose benefit We have exerted Ourselves; disdaining to imitate such of Our predecessors as made appointments in consideration of the payment of money, and, concealing the gifts bestowed upon them, granted permission to Governors to abuse their authority; and while they were considered just, still could not protect their own subjects from corrupting magistrates, nor consistently proceed against the latter for the reason above stated. We believe that the government will receive sufficient revenue from the taxes imposed upon the people, and that no necessity will arise to annoy Our subjects by the imposition of other burdens.
CHAPTER XII.
IN WHAT CASES PERSONS DETAINED BY A GOVERNOR CAN HAVE NO LEGAL RECOURSE AGAINST HIM.
We think that what has already been decreed by Us should be included in legislation of greater scope, and set forth in more explicit terms, in order that Our meaning may be clear to all; for We decree that the illustrious Governors of the provinces of Our Empire who, mindful of their official oath, have been appointed without expense, shall be so favored by Us that no one in their jurisdiction can institute legal proceedings against them, whether for violence, for criminal offences, or for such as arise from injuries, public sedition, or the collection of taxes; but all persons shall be subject to their authority, and they shall not expect the ordinary judges to proceed against guilty persons, nor shall they file any accusations before them, but shall remain content with this Our law, by which We have conferred full power upon them; and no one shall, in the cases aforesaid, be permitted to avail himself of any special privilege for the purpose of committing crime with impunity. For if one has reason to fear magistrates who, because they have received money from Our subjects, prefer everything else to God and Our law, he, on the other hand, need not apprehend anything from those who act honorably, dispense justice to Our subjects, and observe the law under all circumstances.
(1) For this reason We place the soldiers stationed in the provinces under the control of the Governors, so that the latter may not require any order from Us or from Our magistrates in order to avail themselves of their services, but they shall make use of the present law, and show it to them, and call upon them for aid in enforcing their commands. If, however, the latter, being aware of these facts, should fail to obey, they shall lose their military emoluments, as well as run the risk of corporeal punishment, and We have made this provision in order that there might be no need for other magistrates to send officers to pursue thieves, or prevent violence, who, summoned for this purpose, themselves are frequently guilty of greater offences, and, availing themselves of plausible pretexts, are instrumental in
causing the commission of the most atrocious deeds. For where the Governors of provinces, discharging the duties of the highest magistracy, perform the functions prescribed for them by Our law, who would be so bold as to file an exception against them in court, or adopt any other measures of this kind?
CHAPTER XIII.
CONCERNING OFFICIALS DESPATCHED IN THE PURSUIT OF
THIEVES.
We forbid the glorious Commander in Chief and all Our magistrates to send into the provinces officers in the pursuit of thieves, or for the purpose of suppressing violence, or dispersing persons who are armed. Those who have been appointed for this purpose and, after the promulgation of this law, presume to do anything of this kind, are hereby notified that, if arrested by Our provincial magistrates, they shall be placed in chains, and that We, after the matter has been brought to Our attention, will subject them to severe penalties. Those who have despatched them on such an errand shall be liable to a penalty of thirty pounds of gold and shall, in addition to this, suffer the consequences of Our righteous indignation.
Hence the Governors of provinces must, to the extent of their authority, act in such a way as to render themselves justly and lawfully feared by all, constantly bearing in mind that if they should unworthily abuse the administration and authority conferred upon them by Us, they will be liable to the punishment which We have previously prescribed, and that not only while they remain in office, but even after they have relinquished it, they will be liable to prosecution. For We do not give them permission to depart from the provinces over which they had jurisdiction until the fifty days prescribed by law have expired, whether this is done on account of their being recalled, because they have taken to flight, or for any other reason whatsoever; they being well aware (as We have previously stated) that they shall be returned to the province which they governed, and undergo all the penalties which We have previously enumerated, whether they come to this Most Fortunate City or betake themselves elsewhere.
CHAPTER XIV.
How, AND BEFORE WHOM, MAGISTRATES SHOULD BE
SWORN, AND CONCERNING THE SECURITY WHICH SHOULD
BE REQUIRED OF THEM.
Magistrates shall take the oath which We have mentioned above. Where commissions are sent to any provinces, magistrates must be sworn in the presence of the archbishop and other principal ecclesiastics, and in this way they will be invested with official authority. Any magistrate appointed either in this city or in a province shall, as soon as he has received his commission from Your Highness,
execute a bond to the Treasury to insure his proper levy of taxes, in such terms as you may approve.
This law shall be applicable to all magistrates subsequently created who, from the present time, shall be appointed without any expense, and will only be subject to the laws already enacted. No penalty established by this Our law shall hereafter apply to those already in office, unless they are detected in dishonest practices after its publication.
EPILOGUE.
Therefore, Your Highness, being informed of the present law, will proceed to have it published everywhere throughout the provinces in your jurisdiction, and see that it is formally executed by the Governors; so that they, being aware of Our solicitude for Our subjects, and the care which We have exercised in the selection of honest magistrates, and considering how much has been undertaken for the public welfare, may not fail to assist the government in this good cause.
Given on the sixteenth of the Kalends of May, during the Prefecture of Belisarius.
Edict Addressed to all Pious Archbishops and Holy Patriarchs Throughout the Earth.
We, "having in view the interests of the government entrusted to Us by God, and desirous of living in the practice of justice toward all Our subjects, have enacted the present law, which We think proper to address to Your Holiness, and by your agency have published to all the inhabitants of your province. We therefore commit it to the care of Your Reverence and the other ecclesiastics, and if any of its provisions are disregarded by magistrates the matter should be referred to Us, in order that none of those regulations which have been piously and justly approved by Us may be violated with impunity. For as Our unhappy subjects have been subjected to illegal fiscal exactions, and have suffered violence through the dishonesty of magistrates, due to the sale of the administration of provinces, We have attempted to remove these evils by the enactment of the present law.
You must not fail to report to Us any violation of this constitution, otherwise you will be responsible to God (to whom We have consecrated it) for all the injustice committed in Your diocese; and when you are present in any of the provinces, you will communicate to Us the names of such magistrates as are just, as well as those of such as disobey Our law; in order to enable Us to punish or reward them, as the case may be. When this law has been published and becomes known to all persons, you will deposit it in the holy church along with the sacred utensils, as being itself dedicated to God, and written for the security of the men created by Him.
Your Highness will act even more advantageously for all persons in your jurisdiction if you should cause this law to be engraved upon tables or stone, and placed at the portals of the holy church, as this measure will be beneficial by affording all persons the opportunity of reading it, and making themselves familiar with its contents.
CHAPTER XV. CONCERNING THE DEFENDERS OF CITIES.
If, indeed, We require purity in the life of judges, it is clear that there is much more reason that We should not permit defenders of cities to either give or receive anything whatsoever. For as soon as they have obtained their commissions, they will be required to pay into the court of the Most Glorious Prefect (where they are appointed in large cities) the sum of four solidi, and if the cities are small, three solidi, and nothing more than this. They shall receive nothing from anyone where their salaries are paid by the Treasury. Where they receive nothing from the Treasury, they can accept only what is provided by Our Constitution; otherwise, if they themselves, or those who are called chartularii, or anyone attached to their service, should take anything, they must refund fourfold the amount and be deprived of their offices; and, in addition to this, they shall be punished by perpetual exile, be subjected to corporeal punishment, and be compelled to surrender the defence of the province to men who are better than they are.
In the observance of the present law, it will be your duty to ascertain every act done in contravention thereof, in order that no violation of the same may remain undiscovered, and that the culprits, by concealing their offences, may not go unpunished, but Our subjects be treated at all times with equity and justice. If, however, after the promulgation of this law, any judges should not abstain from illegal acquisitions, they are hereby notified that they will, in accordance with its provisions, render themselves liable to punishment.
The Edict Addressed to the Inhabitants of Constantinople is as follows:
The law which We have just enacted and communicated to Our Most Glorious Prefects shows you how much interest We take in your welfare. We have published it in the form of an Edict, in order that all persons may become aware of Our solicitude; and you should render thanks to God, and sing hymns of joy to Our Saviour Jesus Christ, because of the exertions which We have made for your benefit.
NOTICE OF PAYMENTS TO BE MADE BY MAGISTRATES APPOINTED TO OFFICE. No ONE SHALL BE ALLOWED TO EXACT MORE THAN is HEREIN SPECIFIED.1
Done at Constantinople, on the seventeenth of the Kalends of May, during the Consulate of Belisarius.
This Copy of the Law is Addressed to Dominick, Most Glorious Praetorian Prefect of Illyria.
Magistrates shall be sworn in accordance with the form of oath communicated to Your Highness. Those whom you appoint to office
1 The list of salaries which follows has been omitted, as containing nothing of interest or value at the present time.ED.
shall be installed by virtue of commissions issued by Us, which commissions you will give them; and they shall take the above-mentioned oath before the Bishop of the city in which they are, and the inhabitants assembled in your palace, as well as in the presence of members of your court, and those who exercise curial or other public employments, to whom We desire that Your Highness shall show all proper consideration.
You must be careful not to obtain any profit by the appointment of magistrates, and not permit them to be injured by anyone, and see that those who are serving in Our army, or who are invested with curial offices are promptly paid their salaries; for We expressly charge Your Highness and your successors to provide for their necessities. Hence, when you send their commissions to the Governors whom you appoint, you, as well as Your successors, must direct them to protect in every way magistrates who are exercising curial employments, and to exact absolutely nothing from them, and not cause them any loss; and you must notify the said magistrates that if they do not comply with what We have decreed they will incur the severest penalties.
We also wish you to restrain and punish the avarice of the defenders of cities, who have no right to take anything from Our subjects, and who must be content with what is allotted to them by the government. If, however, any of them should not, in accordance with ancient custom, be entitled to any salary under these circumstances, they may receive some small compensation from Our subjects, which should be given to them voluntarily rather than exacted by compulsion; and they must accept nothing more than what is necessary to maintain them in a moderate condition of life. If they should accept anything more than this, they shall be condemned not only to make quadruple restitution, but also to undergo perpetual exile as well as corporeal punishment.
TITLE III.
THE OATH TO BE TAKEN BY MAGISTRATES APPOINTED TO OFFICE.
"I swear by omnipotent God, by his only Son Our Lord Jesus Christ, and by the Holy Spirit, by the glorious, perpetually Virgin Mary, by the four Gospels which I hold in my hand, by the holy archangels Michael and Gabriel, to be faithful to Our Imperial Masters Justinian and Theodora his wife; to discharge with the greatest fidelity the duties of the administration of that part of their Empire and government that their kindness has entrusted to me; and that I will devote all my efforts to that end, without any fraud or deceit whatsoever. I also swear that I am a communicant of the Most Holy Catholic and Apostolic Church, and that no time I will oppose it, or permit anyone else to do so, as far as lies in my power. I also swear that I have neither given nor will give anything to anyone for the sake of obtaining my office, or in consideration of his influence, and that I have
promised to send nothing out of the province, and shall, by way of contribution, send nothing either to the Emperor, to the Illustrious Prefect, or their subordinates, or to anyone else whomsoever. As I have received my appointment without having paid anything for it, I swear to act honorably with the subjects of Our Imperial Majesties, and to be content with the allotment of subsistence made to me by the Treasury. I also swear to devote especial attention to the levying of taxes; to collect them inexorably from persons who are not prompt in payment; to show no leniency to them; and not to have in mind any profit which I might be able to obtain in case I were more indulgent. I promise not to extort anything from anyone whomsoever; or grant anything to anyone either through favor or dislike, beyond what he legally may be entitled to; to treat with paternal kindness taxpayers who are prompt in discharging their duties, and to protect as much as I can the rights of all the subjects of Our Most Pious Imperial Magistrates. I also swear to be impartial in deciding the cases of private individuals, as well as those which concern the maintenance of public order, and only to compel my subordinates to do what is equitable; to prosecute crimes; and in all my actions to practice the justice which may seem to me proper; and to preserve the innocence of virtuous men, as well as inflict punishment upon the guilty, in conformity to the provisions of the laws. I also swear (as I have already done) to observe the rules of equity in all public and private transactions; and if I should ascertain that depredations have been committed against the Treasury, that I will not only see that they are punished, but will also supervise the officials under my control, and induce them to exert the same honest efforts in the performance of their duties that I do; and if any of them should be found to be dishonest, I promise that his delinquency shall be made good, and that he shall be immediately dismissed.
"If I should not observe all these things which I have sworn to, may I, in the future as well as at present, undergo the terrible punishment of Our God arid Saviour Jesus Christ, share the fate of Judas, the leper Gehazi, and the anxiety of Cain, as well as undergo the penalties imposed by Our pious magistrates."
A copy of this oath has been sent to Dominick, Most Glorious Praetorian Prefect of Illyria.
TITLE IV.
THE ROMAN CHURCH SHALL ENJOY THE PRESCRIPTION OF A HUNDRED YEARS.
NINTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Blessed and Holy Archbishop and Patriarch of Ancient Rome.
No one is ignorant of the fact that, in ancient Rome, legislation originally emanated from the head of the Pontificate. Hence We now deem it necessary to impose upon Ourselves the duty of showing that
We are the source of both secular and ecclesiastical jurisprudence by promulgating a law consecrated to the honor of God, which shall be applicable not only to this city but to all Catholic Churches everywhere, and exert its salutary vigor over them as far as the Ocean, so that the entire West as well as the East, where possessions belonging to Our churches are to be found, or may hereafter be acquired by them, shall enjoy its advantages.
The ancient law permitted temporary exceptions to be filed within thirty years, and, where an hypothecation existed, it granted a slightly longer time; but We do not consent for the rights of the holy churches to be affected by such a restrictionespecially in matters through which they may sustain injury, or where something is due to them but We decree that an exception can be pleaded against them only after the lapse of a hundred years; that all ecclesiastical privileges shall remain intact during the aforesaid term; and that, as aforesaid, no exception will be available in opposition to them until after the expiration of a century, as this is considered to be the utmost term of human life.
Therefore Your Holiness will extend the benefit of this law to the Catholic Churches of the entire East; and to those parts of the West in which they have any possessions, so that the protection of Divine property may be an act worthy of Omnipotent God, and wicked men will no longer be secure in the perpetration of wrong, and the means of committing sin will be taken from them; but anyone who is innocent shall not be molested where his rights are not based upon some false allegation dependent upon lapse of time. This Our law, enacted in honor of Omnipotent God and the venerable See of the Apostle Peter, shall be observed in all lands of the entire West, and be applicable to the most distant islands of the Ocean; and Our solicitude for the subjects of Our Empire induces Us to declare it to be perpetual. Returning to the privileges granted by this law (as has been stated above) We desire that it shall be observed not only in the Western provinces subject to the Roman Church, but also in the East where are situated any possessions of the said Church, or which the latter may hereafter acquire; that is to say, that it must be observed by all superior and inferior magistrates who are Christians and profess the orthodox faith, or may hereafter do so, under the penalty of being subjected to celestial punishment, and of being liable to a fine of fifty pounds of gold.
This law shall not only be applicable to cases which may hereafter arise, but also to such as are at present pending in court.
EPILOGUE.
As soon as Your Holiness has received the present law, which We have dedicated to God, you will place it among the sacred utensils; and We shall see that it is executed, and that all ecclesiastical possessions remain inviolate.
Given at Constantinople, on the sixth of the Kalends of May, during the Consulate of Belisarius.
TITLE V. CONCERNING THE REFERENDARIES OF THE PALACE.
NINTH NEW CONSTITUTION.
The Emperor Justinian to Hermogenes, Master of the Imperial Offices, Ex-Consul and Patrician.
PREFACE.
As We have made suitable provision with reference to other matters, We have thought it advisable to pay attention to Our referendaries, and especially because they are extremely useful to Us. These officials were not numerous in the first place, but We have appointed more than formerly existed, in order that We might be of assistance to many of Our subjects, who, through them, address petitions to Us.1
(1) But on account of the multitude of petitions presented to Us, certain persons have requested an increase of the number of referendarii, and have not desisted until We have raised it to fourteen. Having, from time to time, been influenced by these applications, a great number of referendarii have been appointed, and now, being apprehensive that the honor of the position may be diminished, We think that the number should be reduced; but it is not Our intention to deprive those at present in office of their employment (which would be an act unworthy of Imperial Majesty), but We shall make no further appointments, not even of persons who are agreeable to Us, and faithfully discharge the duties required of them; and We shall retain the present referendarii in office, until their number is reduced to eight, which number shall always remain the same hereafter, and shall not be increased for any reason at any time; these officials being exhorted to make up for the deficiency by the exercise of their diligence and zeal in the service of Us and Our Empire. Nor shall anyone hereafter demand that this number be increased, for an application of this kind will not only not be entertained, but he who presents it shall be subjected to a fine of ten pounds of gold, and also be deprived of his office.
We desire that the referendarii restricted to the number aforesaid shall be endowed with justice and all other virtues, and be prepared for any emergency. We are satisfied that nothing honorable can be accomplished by a great multitude, because among so many few will be found who live in consonance with the rules of justice. Hence the
1 The office of referendary, whose name indicates his functions, and who was, as stated in the text, an official charged with the reception and delivery of petitions addressed to the Emperor, as well as with the communication of the decisions of the latter, dated from the sixth century. The incumbent also established the order in which cases were to be heard on appeal, and frequently acted as intermediary between the great ecclesiastical dignitaries of the Church of Constantinople, and the secular authorities of the Empire. He was the prototype of the English chancellor, for the referendarius, whose employment is suggestive of the services performed by his immediate successor, was an important member of the government during a great part of the Anglo-Saxon domination.ED.
number of referendarii shall, in accordance with what We have previously stated, be limited to the number aforesaid.
EPILOGUE.
Your Eminence, having been informed of these matters, must see that what has been decreed by Us is at no time disobeyed, and that those who violate this law shall pay the penalty prescribed by it, without being allowed to ask that it be remitted, nor shall this be done. This law of Ours, while reducing the number of referendarii, affords an opportunity for the practice of virtue, which never occurs in a numerous body of officials, and especially among those whose duty it is to report to Us the requests contained in the petitions of Our subjects, whose morals, indeed, may be good, but who, like their fathers, have passed their lives in petitioning Us for relief. Your Eminence will exert yourself to carry into effect the measures which We have decreed and promulgated in this Imperial law.
Given at Constantinople, on the Ides of May, during the Consulate of Belisarius.
All churches in the neighborhood of Viminacium, which are under the jurisdiction of a special archbishop, shall no longer be subject to the authority of the Archbishop of Thessalonica.
TITLE VI.
CONCERNING THE PRIVILEGES OF THE FIRST JUSTINIANIAN
.ARCHBISHOP, AND THE PATRIARCHAL SEE OF ILLYRIA IN
SECOND PANNONIA, WHICH is Now TRANSFERRED TO THE
FIRST JUSTINIANIAN ARCHBISHOP.
ELEVENTH NEW CONSTITUTION.
The Emperor Justinian to Catollianus, Most Blessed Archbishop of the First Justinianian.
PREFACE.
We, being desirous of conferring many and various benefits upon the province in which God first permitted Us to see the light, do hereby establish there the center of sacerdotal authority; intending that the temporal head of the first Justinianian shall be not only a metropolitan, but also an archbishop; and that his jurisdiction shall include other provinces, that is to say Dacia upon the Mediterranean, as well as Dacia Ripense, Second Mysia, Gardania, the province of Prasvali-tana, Second Macedonia, and that part of Second Pannonia in which is the City of Bacense. After the establishment of the Prefecture of Firmia, all the authorities of Illyria, civil as well as ecclesiastical, resided in that city; but after the time of Attila, when this country was laid waste, the Praetorian Prefect Appennius fled from Firmia, and took refuge in Thessalonica, where the bishop followed him; from which date the said city became the seat of the prefecture as well as
of the episcopal authority. The bishop of Thessalonica, however, did not thereby obtain any prerogatives over the other bishops merely through the exercise of his own authority, but acquired supremacy by being in the shadow of the Prefecture.
Now, as by the aid of God, the public territory is increased, and both banks of the Danube are occupied by towns subject to Our Empire, and Viminacia, Recidua, and Litterata, situated on the other side of the Danube, are subjected to Our dominion, We have deemed it necessary to establish in the province of Our birth the glorious prefecture formerly situated in Pannonia, for the reason that it is not far distant from Mediterranean Dacia, and Second Pannonia; and, moreover, while Our subjects were occupied with the hardships of war, the public welfare suffered because of the great distance which separated Macedonia from the seat of the Prefecture, it appeared to Us necessary to bring this seat nearer to the upper provinces, in order that they might obtain the advantages incident to its proximity.
Hence Your Holiness, and all the prelates of the first Justinianian diocese, shall have the rank of archbishop and enjoy the superior privileges, power, and authority that this title confers over other ecclesiastics, and it will be your duty to ordain them; and you will enjoy the first sacerdotal dignity in all the aforesaid provinces, and the highest honors of the priesthood will attach to your See; the provinces will have no other archbishop; and you will, in no way, be subject to the Bishopric of Thessalonica.
When any dispute arises between the judges and other magistrates, you and your successors must decide and finally dispose of it, without recourse being had to anyone else; and all the provinces above mentioned, while recognizing you as the head of the Church, shall obey your orders, whether they are issued by you personally and of your own authority, or whether this is done by members of the clergy whom you may designate for that purpose; for you are invested with supreme power, unlimited sacerdotal supervision and the right of appointment.
We desire Your Highness to select a bishop for the City of Aquis, situated in the province of Dacia Ripense, so that the said city may no longer be subject to the spiritual jurisdiction of the Bishop of Southern Thrace, as We "desire that his authority shall only be exerted in the South, and, under no circumstances, at Aquis. The Bishop of Aquis shall have that city with all its castles, territory, and churches under his jurisdiction, so that he can banish the heresy of the Bono-sians from that city and country, and bring them into the orthodox faith.
We communicate this law to your venerated See, in order that Your Holiness may become acquainted with these provisions, and that the church of Our country may forever preserve the remembrance of a benefit which We have bestowed upon it for the glory of Omnipotent God. When anyone who happens to occupy your See shall have departed from life, We order that his successor shall be ordained by the Venerated Council of Metropolitans; and, as it is proper for
the archbishop to be honored by all the churches of his jurisdiction, the archbishop of Thessalonica shall not be allowed to participate in the proceedings of the said Council.
EPILOGUE.
Your Holiness will not delay to see that this law is carried into execution.
Given on the twentieth, during the Consulate of Belisarius.
TITLE VII.
CONCERNING INCESTUOUS AND EXECRABLE MARRIAGES. TWELFTH NEW CONSTITUTION.
The Emperor Justinian to Florus, Most Glorious Count of Private Affairs.
PREFACE.
We consider the laws heretofore promulgated with reference to incestuous marriages to be imperfect, as they permit persons who contract such marriages to go unpunished, and deprive any offspring resulting from them of the property of their father; so that those who have committed the sin do not suffer any penalty, and those who are innocent are punished as if they were guilty.
CHAPTER I. CONCERNING INCESTUOUS AND WICKED MARRIAGES.
Hence, for the future, We decree that if anyone should contract an unlawful marriage, and one contrary to nature (which the law characterizes as incestuous, abominable, and prohibited), and has no children by a former legal marriage, he shall at once forfeit all his property, and shall have no control over anything given to him by way of dowry; but his entire possessions shall be confiscated to the Treasury, on the ground that when he could have contracted a legal marriage he preferred to violate the law, confuse his descendants, and wrong his family; and yielding to such passions as for the most part influence animals who are deprived of reason, committed an impious and wicked act.
He shall not only be liable to the confiscation of his property, but shall also be deprived of his office, and sent into exile; and if he is of inferior rank, he shall be scourged, in order that he may learn to live chastely, restrain himself within natural bounds, and not delight in transgressing the laws of nature which have been prescribed for Our conduct.
If any woman, who is aware of this law, should disobey it, and contract an incestuous marriage, she shall be liable to the penalty established by the same.
CHAPTER II.
LEGITIMATE CHILDREN SHALL BECOME INDEPENDENT WHEN THEIR FATHER is PUNISHED FOR CONTRACTING AN INCESTUOUS MARRIAGE, AND SHALL BE ENTITLED TO His
PROPERTY.
Where any man who contracts an incestuous marriage has any children or grandchildren who are the issue of a former matrimonial union, or any more remote descendants, they will be entitled to the estate of their father as soon as he has been punished, and will be released from his control; but they shall be required to furnish him with food and with the other necessaries of life, for even if he has violated the laws and acted in an impious manner, he is still their father.
CHAPTER III.
WITHIN WHAT TIME THIS CONSTITUTION SHALL BECOME
OPERATIVE, AND TO WHAT PORTION OF THEIR FATHER'S
ESTATE CHILDREN BORN OF AN INCESTUOUS MARRIAGE
SHALL BE ENTITLED.
This Constitution shall take effect from this very day, and no one living in chastity shall be affected by it, and where persons are innocent they shall not incur its penalties. Those who have already contracted incestuous marriages shall, by no means, go unpunished, although We do not subject them to the full measure of Our indignation. Hence where incestuous marriages have taken place, but have subsequently been dissolved, no matter in what way, the parties concerned shall not be liable to prosecution; but if, on the contrary, this Our law should find anyone who has already contracted such a marriage, he shall be permitted to leave his wife within the term of two years, and when the separation is not feigned but genuine, she shall not be permitted to return to him.
If, however, he should resume his relations with her, a fourth part of his property shall be confiscated to the Treasury, and the remainder shall go to his children, whom We consider as innocent of the offence of their father; for if they are alone, and there are no other legitimate children the issue of a former legal marriage, they shall not be deprived of the estate of their father; unless the latter, justly prejudiced against them for a good reason, on account of some offence which they have committed, excludes them from the succession to his estate.
(1) But where there are any children, the issue of a former lawful marriage, three-fourths of the estate shall go to those who are legitimate and innocent, unless they have been guilty of some injury which, according to the law, renders them unworthy of succeeding to their father; and the latter shall be permitted to leave the remaining fourth of his property to the children born of the in-
cestuous marriage, who, sustaining an injury, shall be considered as free from blame; and We, under these circumstances, order that they, rather than the Treasury, shall be entitled to the said fourth. We grant these different shares to the respective children not only where they are bequeathed by will, but also in case of intestacy, in accordance with the rule of inheritance which We have established. These provisions shall not only be observed where the father abandons the woman he illegally married, but also where he afterwards contracts a legal marriage with another, having issue by both. We grant this delay in the exercise of Our clemency, allowing the woman who contracted the former marriage to retain her dowry. But if he who is living in a criminal union does not dissolve it within the two years hereinbefore prescribed, he shall lose his property, his wife shall be deprived of her dowry, and the penalty aforesaid shall be imposed; nor shall the children born of the marriage be entitled to any share of their father's estate or of their mother's dowry. If, in this instance, any children should have been born of a preceding lawful marriage, they will be entitled to the entire estate (after the fourth due to the Treasury has been deducted), and they will be released from his control without, however, being freed from the obligation of supporting him, and providing him with the necessaries of life, as We have previously stated; and the dowry of the incestuous wife shall be confiscated to the Treasury. Where, however, there is no issue by a former legitimate marriage, then the Treasury will be entitled to the entire estate; for We order that, where anyone who has married illegally in this way, he shall be placed on the same footing as one who did not leave his wife in the time prescribed by Us, Who, in Our law, have declared marriages of this kind to be both incestuous and abominable.
CHAPTER IV.
CONCERNING NATURAL CHILDREN BORN BEFORE DOTAL INSTRUMENTS HAVE BEEN EXECUTED.
As doubt has arisen in certain localities with reference to the legitimation of children as set forth in one of Our laws, We, as the author of the same, have thought it proper to make some additions to it, and thereby remove the doubt referred to. We promulgated the law for the following reason, namely: where a father has any legitimate children by a first wife, who died, or from whom he was separated, and then forms a connection with another woman, with whom he could contract a legal marriage, and, in consequence, children are born to him, either before or after any dotal agreement has be^en drawn up; or where children are born before the dowry has been provided for, but none are born afterwards; or if, after having been born, they should die; certain authorities have held that such children are not legitimate, as other legitimate children, the issue of the first marriage, are living, which opinion is consonant with neither justice nor reason. For if We have shown that children of this kind are rendered legitimate by the execution of a dotal contract, there is no doubt that those
born before the safd contract was drawn up are also legitimate in every instance.
It is still more reasonable to hold that, if the father should predecease his legitimate children, and his natural children born before the dotal contract was made, although none may have been born afterwards, or, if this is the case, they should be dead, Our law will permit him to follow his own inclinations when making his will in favor of his descendants; provided he does not, in any respect, violate the rules which reserve for all children a certain part of his estate. The result of this is that both these classes of children succeed to their father equally, whether ab intestato, or under the terms of his will (that is to say, by testamentary disposition or by operation of law). Why should We decree anything additional, when what is allowed by the laws, even against the provisions of the will, is sufficient to confer upon them the lawful name and rights of proper heirs, and render them competent to take all to which they are entitled under this appellation?
EPILOGUE.
Your Eminence, to whom this law has been communicated, will hasten to put it into execution and bring it to the attention of the Governors of provinces, in order that all persons may learn of the care which We take to protect pure and innocent children, and how odious to Our laws illicit unions are.
Given at Constantinople, on the sixth of the Ides of October, under the Consulate of Belisarius.
TITLE Vill. CONCERNING PRAETORS OF THE PEOPLE.
THIRTEENTH NEW CONSTITUTION. The Same Emperor to the Inhabitants of Constantinople.
PREFACE.
We do not know the reason why the title bestowed by the ancient Romans upon magistrates charged with the preservation of order has been exchanged for another. For in the part of the country in which We were born, such officials were styled Prefects of the Watch; and in the Greek language they are called, We do not know why, Prefects of the Night, just as if it were necessary to call them to the discharge of their duties at sunset. The name of night seems to be added to that of Prefect, for the purpose of designating the officer whose duty it was to patrol the streets, and preserve order during the hours of darkness, but We think it is advisable to change this name; because, if 'the offices could be divided, and the Prefect of this Most Fortunate City only took cognizance of acts committed during the day, and another should be appointed having jurisdiction over offences com-
mitted during the night, a conflict of authority would inevitably result. Hence all. magistrates dislike this obscure and unintelligible title of Nocturnal Prefect, and regard the discharge of its functions as resembling a penalty, thinking that such an office is unworthy of appointment by the Emperor.
CHAPTER I.
Therefore We, having carefully considered this matter, have come to the conclusion that this public employment should be entirely recreated, and committed to persons who may administer it without any reference to their nocturnal duties; for they shall hereafter have jurisdiction by day as well as by night.
(1) Hence, as the name of Praetor was very acceptable to the ancient Romans, We have thought that that of Praetors of the People should be conferred upon officials whose duty it is to maintain public order, as well as to suppress popular seditions. And just as the other Praetors preside in the Senatorial Court, where questions having reference to guardianships, freedom, and other matters of this kind arise, in like manner, the Praetors whom We create shall have jurisdiction in cases in which the rights of citizens are involved, and they shall hereafter be called in Latin, as well as in Greek, Praetors of the People.
The designation of Praetor is as honorable as that of Consul, and, indeed, does not differ greatly from the latter; it is connected with the law, for the Praetors are obliged to publish edicts, they decide the law in unison with it, and they are attached to the Consulate. Thus, as formerly the Consuls presided over the principal curia, and were at the same time the princes of the people who governed them, so, likewise, there are at present Praetors who discharge in the Senate the official functions which We have just referred to, and at the same time the Praetors of the People will be charged with the preservation of peace and will provide for the public welfare.
(2) This office, indeed, was one of great dignity and honor in ancient Rome, and was exercised with distinction not only under the Emperors, but for a long time afterwards; and the Great City in receiving it was far from considering it as unimportant. We have not been able to ascertain the time when any of these offices at the disposal of the government we're not thought to be entitled to the same respect; they were, by degrees, divested of the eminence once attaching to them, and being no longer bestowed by the Emperor, they passed under the control of the Prefects of this Most Fortunate City, from whom their incumbents received orders; the consequence of which was that the duties of this branch of the magistracy were very badly performed. If, however, anyone should compare the conduct of public affairs in ancient times with that of the present day, in this respect, he will learn that a private tribunal of cohorts existed which possessed almost all the attributes which now attach to the municipal magistracies.
CHAPTER II.
Therefore, We, having given the subject due consideration, hasten to restore everything to its former honorable condition, and promulgate the present law, in order that thefts and associations of thieves may be less frequent, and that the decisions of magistrates, being no longer based upon unworthy motives, may cease to be regarded with contempt. For as pecuniary cases, in the determination of which litigants do not run any other risk than that of losing their money, are heard by magistrates of superior rank, and We take particular pains to see that cases of this kind are disposed of, there is still more reason for Us to exercise every precaution in the appointment of officials, whose duty it is to decide concerning the lives of Our subjects, because when they condemn any of them to death, they can no longer restore to him that of which he has been deprived.
CHAPTER III.
Hence We decree that We Ourself shall appoint the Praetors of the People, and that no one can exercise the functions of this office unless by virtue of Our Imperial Letters. We shall only select for this place the illustrious or respectable Consistorial Counts or the distinguished Praetorian Tribunes and Notaries, or such other persons as have already been in office, and whom We regard as qualified, and worthy of Our confidence; which rule We establish in order that the Praetors of the People may practice what is honorable in all things, and especially in the administration of justice; since, when hearing cases of homicide, adultery, felonious assault, robbery with violence, and other crimes of this kind, they have the right to inflict the penalty of death.
(1) Hence it is necessary for magistrates having jurisdiction of offences of this kind to be honest, irreproachable in character, and worthy of public confidence; and they must abstain from extortion, or the acceptance of bribes, and keep their hands clean. They shall have a Council which has been approved by Us, and will receive an annual salary of a certain sum of solidi sufficient to prevent them from having recourse to theft or venality, beyond which they shall be entitled to no compensation whatever.
(2) No money or presents of any kind shall be bestowed upon anyone for the purpose of influencing his decisions, as was customary in former times. For he who gives anything to a magistrate because of his office is guilty of a crime equal in its enormity to that of which the magistrate himself is guilty who, in consideration of the money given him to render judgment in a criminal case, decides in accordance with the oath of the defendant.
CHAPTER IV.
We have learned that the Prefects of the Night Watch have been in the habit of employing persons of bad character, such as informers, poisoners, pickpockets, and a number of other criminals whom it is
much more preferable to punish than to afford a living in this way. Such informers do not accomplish anything beneficial, as the thieves know who they are, and this enables them to steal with more safety, and corrupt their judges. Hence those whom We now appoint to the Prefecture of the People shall hate and avoid persons of this kind, and make use of agents who are of good reputation in the prosecution of thefts and other crimes, clear the city of robbers, and only employ men who are skillfulwhom, however, they should treat with severity to arouse their fears, and compel them to perform their duties with diligence and good will. If the Praetors properly discharge their duties, there will be no thieves; stolen property will be easily recovered; those who are guilty apprehended; their number will be diminished; and they will have cause to fear a body of magistrates whom no one can purchase with money.
The Praetors of the People shall take cognizance of all crimes, no matter how serious they may be; they shall repress popular seditions; and being obedient to Our orders should render themselves worthy of honor; the inferior judges shall, in their turn, exert themselves to assist their superiors in rank, and do everything with a view to meriting the esteem of the Imperial Government, and the respect of all good citizens.
(1) If a fire should happen to break out in this city, at any time (which, however, is something We do not wish to occur), the Praetors are required to be present and take measures to prevent thieves from stealing the property of the unfortunates whose houses are burned, and to save as much as they can from the violence of the flames. If they are diligent in performing their duty under such circumstances, the increased distinction of their office will be reflected upon them, and they will see how much better it is to act honestly than to incur contempt by employing numerous persons in the commission of injustice; and they will also learn that gain acquired in an unlawful manner is of no permanent advantage, and that what has been improperly obtained is soon lost.
Thus, by appointing Praetors of the People for Our subjects, We have intended to provide for their welfare, so that they may receive the benefit of an honest administration. The said eminent Praetors of the People shall have the advice of a Counsel worthy of their office, as We have previously stated.
CHAPTER V.
We decree by the present law that twenty soldiers and thirty firemen shall assist the Praetors of the People, shall obey their commands, and be authorized to arrest any persons behaving improperly, as well as to maintain public order. They are hereby notified that, if they discharge their duties as they ought to do, they will have the aid of God and enjoy Our approbation, as well as deserve a longer term of office; for who indeed would wish to remove anyone who acts with propriety and justice?
CHAPTER VI.
Whenever the Illustrious Prefect of this Most Fortunate City sends anyone to be punished by the Praetors of the People, the latter shall ascertain with certainty the rank and position of the culprit; the reasons which have induced him to kill a man, to deprive him of some member, or to perpetrate any similar offence; they can obtain their information from the Prefect himself, if the latter is aware of the circumstances; and, after their investigation, they must condemn the accused person by a just sentence either to the loss of life, or of one of his members.
(1) As We concede to the respectable Praetors of the People such dignity as may render them worthy of holding their office from Us, and as We grant them subsistence, a title suitable to their rank, and the other advantages already mentioned, We, on the other hand, require them to serve Us with honesty and vigilance, and perform their acts with pure and disinterested motives; because if they should be guilty of malfeasance, of theft; or of giving thieves immunity and not using every effort to detect them; or if they should subject honorable men to the penalty of death; and if, in conclusion, they should not expel persons guilty of minor offences from this city, the Capital of Our Empire, they are notified that they must render an account of their behavior, not only to God, but also to Ourself; that they will be responsible for all the evils which Our subjects may suffer; that they will incur Our indignation, and be rendered infamous, as well as be dismissed from the office which We have bestowed upon them. For We perform great labors and incur great expense, in order to preserve Our subjects from false accusations, and to prevent them from losing their lives or their fortunes, without knowing why this has taken place.
EPILOGUE.
Therefore, this law having been brought to Your attention, and being convinced that We have omitted nothing therein which may be advantageous to you, you must pray for the prosperity of Our Empire which protects you, and provides for the welfare of everyone, thus extending its paternal care over all of you. This law shall be communicated to all the citizens within the jurisdiction of Constantinople.
Given at Constantinople, during the tenth of the Kalends of October, during the Consulate of Belisarius.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
THIRD COLLECTION.
TITLE I. CONCERNING PANDERS.
FOURTEENTH NEW CONSTITUTION. The Emperor Justinian to the People of Constantinople.
PREFACE.
The name and calling of procurer was so odious both to the ancient laws and to those of the Empire that many legal enactments have been published against persons committing offences of this description. We, Ourselves, have already promulgated a constitution increasing the penalties against those who are guilty of such wicked deeds, and We have, in addition, supplied by other laws what Our predecessors omitted, and have by no means lost sight of this matter, for We have very recently been informed of the evil consequences which such traffic has caused in this great city.
We are also aware that certain persons are accustomed to employ cruel and odious means for the purpose of obtaining wealth; making a practice of travelling through the provinces and other places, in order to deceive young girls by promising them clothes, and, after having obtained possession of them, they bring them to this Most Fortunate City, place them in their houses, provide them with wretched food and clothing, and deliver them up to others for the purpose of debauchery, they themselves' taking the entire profit of this wretched trade obtained from the bodies of their victims; and that they also draw up contracts by means of which the girls aforesaid are compelled to continue their wicked criminal life as long as those.who have possession of them may desire.
Some of them, indeed, require sureties to be furnished, and to such an extent are their illegal acts carried, that they are perpetrated in almost all this Imperial City, as well as in the countries beyond seas; and (what is worse) houses of this kind exist in close proximity to holy places and religious establishments; and at the present time this wickedness is so prevalent that any persons who wish to withdraw these unhappy girls from the life that they are leading, and legally marry them, are not permitted to do so.
Some of these wretches are so unprincipled as to deliver over to corruption girls who have not yet reached their tenth year, and in order to ransom these unhappy beings for the purpose of contracting lawful marriage, great sums of money are exacted. Ten thousand means of effecting their ruin exist which are not susceptible of being
described in words; and the resulting evil is so great, and the cruelty so widespread that, while it was first confined to the most remote parts of the Capital, it now not only extends over the city itself but also over all its suburbs.
Persons informed Us of this condition of affairs some time ago, and recently the Praetors have been directed by Us to make inquiry concerning it, which they have done, and made their reports to Us, and We immediately afterwards deemed it necessary to implore the assistance of God, and purge the city quickly of this iniquity.
(1) Therefore We direct all persons to live as chastely as possible, which, with confidence in God, can alone profit the souls of men. As there are many weak women, We absolutely forbid that any attempt should be made by fraud, artifice or compulsion to lead them astray, keep them in a house to be prostituted, or buy them for any other purpose. We also forbid all persons from drawing up contracts with these objects in view, of requiring sureties to be given, or of adopting any means by which they may force these wretched beings to lose their chastity against their will.
Nor shall it hereafter be lawful to deceive young girls, and induce them to prostitute themselves by promising them clothing, food, and ornaments.
We strictly prohibit all these things; and, after having considered the subject carefully, We direct that any bonds which may have been executed to secure the performance of such contracts shall be of no effect; and that those who are guilty cannot recover any gifts which they may have made to the girls with whom the said contracts were made; and that they themselves shall be expelled from this Most Fortunate City as pestiferous persons, and destroyers of public morals, because of having reduced free women to slavery by requiring them to lead a licentious life, deceiving them, and bringing them up for promiscuous debauchery.
Hence We decree that if anyone should hereafter remove a girl against her will, and compel her to remain with him, and, without providing her with sufficient food, appropriate for himself the wages of her prostitution; he shall be arrested by the respectable Prsetors of the People of this Most Fortunate City, and condemned to death. We have already entrusted the Praators of the People with the prosecution of persons guilty of pecuniary theft and robbery; and is there not much more reason for Us to do so where crimes against chastity are concerned? If any owner of a house should rent it to a procurer for this purpose, and, knowing who he is, should not eject him; he shall be sentenced to pay a fine of a hundred pounds of gold, and his house shall be confiscated. If anyone hereafter should draw up an agreement in writing as evidence of a contract of this kind, and receive a surety with reference to the same, he is hereby notified that he will not be benefited in any way either by the obligation of the girl, or by that of her surety; for as her agreement is void in every respect, her surety will, under no circumstances, incur any liability. The guilty person shall, as We have already stated, undergo corporeal punish-
ment, and shall be expelled far from this great city. We exort the women of Our Empire to remain chaste, and not allow themselves to be persuaded or compelled to embrace a life of debauchery; We absolutely prohibit panderism, and when it is committed, We shall punish it.
These provisions apply to this Most Fortunate City and its environs, as well as to the adjoining provinces, which, from the beginning, have been subject to Our government, and especially those which have been donated to Us by God, for the reason that We desire to retain pure and without blemish the gift which He has seen fit to confer upon Our Empire, for We believe that the present law, enacted in the interest of chastity, will be acceptable to God, and be of great benefit to Our government, and that as a reward for it God will bestow all manner of blessings upon Us.
EPILOGUE.
We communicate this law to You, Our citizens, who will be the first to experience its beneficial effects, in order that you may be aware of Our zeal for your welfare, Our desire for the preservation of good morals, and the extent of the labors by means of which We hope that Our Empire will be preserved in the enjoyment of every advantage.
A copy of this law, with a, slight change of phraseology, is also addressed to the Most Glorious Master.
As soon as Your Highness has received a copy of this law, you will publish it by a special proclamation, and communicate it to all the subjects of Our Empire, including not only the citizens of Constantinople, but also those of the provinces, who shall implicitly obey it; and all to whom it is directed shall receive it as being authorized by God, to whom it is dedicated.
Given at Constantinople, on the Kalends of December, during the Consulate of Belisarius, 535.
TITLE II. CONCERNING THE DEFENDERS OF CITIES.
FIFTEENTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Pratorian Prefect, twice Consul and Patrician.
PREFACE.
Unless We make haste to recall the defenders of cities to the performance of their duties, their ancient titles will no longer be applicable; for, as formerly, names indicative of their functions were given to magistrates, and that of defender certainly indicates that such officials were charged with seeing that no injustice was committed; so in like manner, in paternal language We style them defenders, because they were appointed to defend persons suffering from
the acts of wicked men. When, however, the name of defender is treated with contempt in many parts of Our Empire, and is so despised that its use is rather considered an insult than a distinction; the reason for which is that it is not so much a judicious choice as pity which is responsible for such appointments, they being conferred upon obscure men who have nothing to live upon, and who obtain these employments by solicitation. Then, defenders are entirely dependent upon the Governors, by whom they are removed at will, without any reasons, or on insufficient grounds, and are then replaced by others, who are treated merely as holders of the position; and as many removals take place during the same year, the result is that the officials, the municipal magistrates, and the citizens themselves have not the slightest respect for the defenders, nor is any confidence reposed in the documents which they execute, and which the defenders themselves refuse to draw up if the Governor forbids them to do so; for, being absolutely subjected to his authority, they comply with his slightest inclinations. When documents are drawn up by them in the first place, they only do this for money; and then, as there are no archives in which these documents can be deposited, they are lost; and no monuments of former times are ever found in the possession of those who receive them, but when a demand is made upon their heirs or other successors, they either do not have them, or where any are found they are not worthy of consideration, or have been defaced to such an extent that they can no longer be deciphered.
Therefore, as We have already decreed with reference to Governors, to whom We have granted great authority in the provinces, and who should exercise supervision over cities at a distance, We think that it is necessary to also regulate the conduct of defenders, and We believe that the relations existing between these officials will be advantageous to both, if We confer judicial authority upon the defenders of cities, for then the Governor of a province will be regarded as a judge of judges, and his office will appear more honorable than formerly, in accordance with the rule that the distinction of a superior magistrate is always increased in proportion to that of an inferior one.
CHAPTER I.
No INHABITANT OF A CITY SHALL BE PERMITTED TO REFUSE THE OFFICE OF DEFENDER.
Notice is hereby given, in the first place, that no man shall be allowed to reject the appointment of defender, and that all the nobles of cities shall be required to exercise its functions regularly in their turn, for We have learned that in the early ages of the Republic this course was productive of great benefit, hence no person can decline this office, even when he belongs to the rank of those who are styled illustrious, or is invested with a military employment, or can plead some privilege bestowed by the Imperial enactments, or produces a pragmatic sanction authorizing such an exemption. A list of the
principal inhabitants alternately eligible for the office of defender shall be drawn up, and when this list has been exhausted, each one of those included therein shall again begin to discharge the same public functions in his order; and this is provided in order that he who occupies this position in any city shall rather be considered as a judge than a defender. When the list is to be drawn up, all owners of property resident in the city, with the exception of those who do not have their domicile therein, shall be sworn.
(1) The defender who is about to assume office shall swear to perform his duties in accordance with law, and without distinction of persons, and shall (as is at present the case) be confirmed by Our Glorious Prefect. He shall remain in office two years, after the expiration of which time he shall be replaced by someone else; the Governor of the province shall not be authorized to remove him, but if he should not discharge his duty properly, the prefects must be notified, so that he may be dismissed by the same officials who appointed him.
CHAPTER II.
We absolutely forbid Governors as well as defenders to cause substitutes for themselves to be appointed. For We do not wish magistrates in cities to be succeeded by any other persons than defenders, who alone shall represent them, and should exert all their efforts for the welfare of the cities in which they reside.
CHAPTER III. ALL DOCUMENTS SHALL BE REGISTERED BY DEFENDERS.
All wills, donations, and other documents of this kind shall be registered by defenders; and no Governor of a province shall prohibit any instrument from being drawn up or published, for We do not grant permission for anything of this kind to be done. We think it would be most absurd for men to be compelled to refrain from necessary transactions, in accordance with the unreasonable wishes of the authorities; and We desire full liberty to be granted everyone to make any contract he wishes, and publish the same; and even if what is done has reference to the Governor of the province, or to any other official, it still shall not be forbidden. For those who are in charge of the government, or hold'some position of responsibility, should conduct themselves so as not to prevent any charge from being brought against themselves, but, on the other hand, they should render their conduct so irreproachable that no occasion may exist for such- complaints to be made; and whether the Governor is in the city or not, no one shall be prohibited from filing documents with the defenders in any matter whatsoever, with the exception of such as are not in his jurisdiction, but belong to that of the Governor.
(1) Again, the defenders of cities shall, along with the other officials charged with this duty, collect taxes, and if anyone should prove refractory, and refuse to pay what is due, they must draw up
the papers necessary under the circumstances; and We order that this shall be done without delay; and also that they exercise strict supervision over persons of bad behavior, and obtain evidence against them.
They must also repress all public sedition, and, in every respect, exercise the functions of judges, especially when the latter are absent; and all the officials of the province who are in the city where the defender exercises his authority are required to obey and assist him, so that where the Governor is away, his presence will not seem to be necessary. Defenders shall have a clerk subject to their orders, as well as two officers to carry their decrees into execution.
(2) Defenders shall have jurisdiction in all pecuniary cases where the sum involved is not more than three hundred aurei; and Our subjects shall not be permitted to appeal to the illustrious Governors of provinces, where the amount in controversy is less than the aforesaid sum.
CHAPTER IV.
A plaintiff shall not estimate the property in dispute in excess of its real value, for the purpose of avoiding the jurisdiction of the defender, and bringing his action before the Governor of the province. If anyone should commit an act of this kind, and the judgment shows that the property in litigation was worth less than three hundred aurei, and that its value had been designedly increased in order to bring the case before the Governor of the province, and prevent the defender of the city from deciding it, the plaintiff shall be liable to all the costs of litigation.
CHAPTER V.
Appeals from the decisions of defenders of cities shall be brought before Governors. When officials are guilty of any abuse of defenders the Governors of provinces can punish them. If the Governors should fail to do this, We grant the defenders permission to have recourse to Your Highness, who will afford them any relief which may be proper. Defenders are authorized to prosecute persons guilty of crime, ^ust as Governors can do.
(1) When the office of defender of a city becomes vacant, it shall immediately be bestowed upon the person next on the list, who shall be sworn, and shall be confirmed by letters from Your Highness. We (as has previously been stated) by no means desire that defenders shall be permitted to substitute anyone in their places, lest, if this should be done, matters will again be involved in confusion.
(2) Your Highness will issue orders in every province for a building to be furnished in which the defenders can keep their documents, and someone must be selected to have charge of the same, in order to prevent their destruction, and enable them quickly to be found by persons desiring to inspect them; and thus archives will be provided for the defenders, and what hitherto has been lacking in cities will be supplied.
CHAPTER VI.
As the defenders of cities discharge the duties of their office without any compensation, when they are residents of a 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 THE PROHIBITION OF ALIENATING MORE
THAN A SINGLE SHARE OF PROPERTY OBTAINED BY
MARRIAGE.
The observations made by Leo, of Divine memory, with reference to the obligations of persons who contract second marriages, seem to Us to be excellent. For he says that where parents, who have had children by a first marriage, contract one or more subsequently, the father cannot give to his second wife, nor the mother to her second husband, either by a donation inter vivos or mortis causa, any amount in excess of the share that a child of either sex, the issue of the first marriage, could claim if he or she were living; and that where there are several children who succeed to equal shares, neither the stepfather nor the stepmother will be entitled to more than each one of
them. Where a parent, who marries a second time, leaves his or her estate to his or her children unequally divided, the father is not allowed to give to his second wife, or the mother to her second husband, either by means of a donation inter vivos, or by last will, any more than a share of the estate equal to that of the child who is entitled to the least; and everyone is aware that formerly a fourth, and that at present a third, and, under certain circumstances, the half must be left to children, unless they have rendered themselves unworthy by ingratitude. This rule must likewise be observed where a grandfather or a grandmother, a great-grandfather or a great-grandmother having grandchildren or great-grandchildren of either sex under parental control, or emancipated, and descendants in the paternal or maternal line, marries.
Leo has also very properly observed that where anything has been left or given to a stepfather or a stepmother, in excess of the share to which either is entitled, this is considered as not having taken place, and the surplus shall be divided equally among the children.
It has also been stated in a constitution that children who are the issue of a second marriage have a right to share in this surplus, but We are not willing to sanction this, and only the children born of the first marriage, for whose benefit We have enacted this legislation, shall profit by it, without anyone being able to deprive them of this advantage, either by the interposition of other persons or in any other way. This surplus, however, shall only be divided among children who have shown proper respect to their parents, for We exclude from this privilege those who have been guilty of one of the kinds of ingratitude enumerated by the laws, in order that the hope of sharing in the aforesaid surplus may, in every instance, induce them not to manifest any insolence, and violate the laws of nature.
It is perfectly clear that if any of the children entitled to part of the surplus in question should die, his share shall pass to the surviving children, and the children of the deceased shall, in accordance with their number, each receive the portion to which he or she is entitled.
CHAPTER XXVIII.
Up to this time, it has not been determined by the laws to what date it is necessary to refer, in order to decide if the donation made to a second husband or wife is in excess of what is proper; that is to say, if it is necessary to revert to the time of the donation, or only to that of the dissolution of the marriage, and it appears to Us advisable to go back to the date of the death of the husband or wife who made the donation. For while men at the time of their decease dispose of more or less of their property, the distribution of their estates is generally dependent upon the caprices of fortune.
Hence, in order that there may be no mistake, reference shall be had to the time of the death of the husband or wife who has married a second time, and from this date the appraisement of the donation given by the second husband or wife shall be made; and if it exceeds the amount which could be bequeathed, the surplus shall be adjudged
to the children of the first marriage; and, in all cases of this kind, not the date of the donation or testamentary disposition, but that of its occurrence shall be considered.
CHAPTER XXIX.
CHILDREN BY BOTH MARRIAGES SHALL RECEIVE RESPECTIVELY THE PROPERTY OBTAINED BY THE MARRIAGE OF WHICH THEY ARE THE ISSUE.
We do not think that We should neglect confirming what Theodosius the Younger, of pious memory, decreed, when he stated that where a woman, having had children by a first marriage, contracts a second by which she also had children, and then her second husband should die, and she herself should subsequently die intestate, the children born of the two marriages shall share her estate equally; but those in each line shall be entitled to the ante-nuptial donations of their respective fathers. Thus the children by the first marriage will receive the entire donation given in consideration of that marriage, just as the children born of the second will also have a right to all the advantages resulting from it, even when the wife does not marry a third time; for how would this benefit the children by the first marriage? And how can it injure the issue of the second marriage, if the children by the third marriage are not injured? Each set of children shall then participate in all the advantages enjoyed by their father; those by the first marriage will be entitled to its advantages, and those of the second to the benefits conferred by the latter, even though the woman may not marry a third time. As a natural consequence, whatever applies to the wife is also applicable to the father when he marries a second time. Hence, just as the dotal property of the first marriage is preserved for the children who are the issue thereof, so, likewise, that derived from the second will belong to the children born of it, even though the father may not contract a third marriage.
(1) But either a father or a mother, who contracts a second marriage, will be entitled to any advantages resulting therefrom through either legacies or trusts, even if he or she should marry a third time; for they will acquire full ownership without the third union being able to prejudice them in any respect, and the property will become a portion of their estates which they can dispose of in any way that they may desire.
CHAPTER XXX.
No MATTER BY WHAT KIND OF A DIVORCE A MARRIAGE MAY BE DISSOLVED, ALL THE PROPERTY ACQUIRED THEREFROM MUST BE PRESERVED FOR THE CHILDREN WHO ARE THE ISSUE OF THE SAME.
As We have established regulations concerning the dissolution of marriage which most frequently occurs through death, We desire to add a brief provision relative to the advantages acquired, whatever
they may be, whether derived from the dowry or the ante-nuptial donation, when the marriage is dissolved through separation by common consent, or in any other way; for these advantageslike those obtained through the death of one of the married personsshall entirely be preserved for the children; and this rule shall apply even where there is no dotal agreement, whenever, in accordance with one of Our laws, the presumption of either the husband or wife, who has given cause for repudiation, is punished. Nor do We make any distinction as to which one of them is to blame for the divorce. For no matter in what way it is obtained, the property derived from the marriage shall go to the children who are the issue of the same, whether the dissolution of the first or the second marriage be involved, even where no third marriage has taken place.
CHAPTER XXXI.
A DOWRY OR A DONATION ON ACCOUNT OF MARRIAGE GIVEN AT THE TIME OF THE FIRST NUPTIALS CAN EITHER BE INCREASED OR DIMINISHED, AND THIS CAN ALSO BE * DONE IN CASE OF A SECOND MARRIAGE WHERE THERE ARE NO SURVIVING CHILDREN WHO ARE THE ISSUE OF
THE FIRST.
Some former laws have been enacted with respect to the increase or diminution of dowries and ante-nuptial donations, and, after due consideration, We have not only granted permission to married persons to increase donations on account of marriage during the existence of the latter, but We have also allowed them to do so from the very beginning; and as We have permitted them to augment these donations, so also We have allowed them to diminish them; but in order that what has been stated with reference to diminutions may not violate the provisions of the Constitution of Leo, of pious memory, We do not authorize married persons to make any such diminutions during the second marriage, when there are any children who are the issue of the first. For if an excessive dowry should be given at the time of the second marriage, or a similar ante-nuptial donation should be provided for, or any other extraordinary gift should be made, and afterwards, one of the parents having ascertained that this was prohibited by law, should defraud his children by diminishing the said dowry or donation, the consequence would be that the issue of the first marriage, having been injured, would not receive what they were legally entitled to, and the stepfather or stepmother would profit
by their loss.
CHAPTER XXXII.
CONCERNING THE USUFRUCT LEFT BY A HUSBAND TO His WIFE OR A DONATION MADE BEFORE THE MARRIAGE WAS
CONTRACTED.
Where a husband has given to his wife, or a wife to her husband, by testamentary disposition, the usufruct of his or her estate, an
ancient law prescribed that if the spouse who gave it should marry a second time, he or she would lose the usufruct in the same way in which they would be deprived of the ownership, if it had been left to either, and that the said usufruct would afterwards be acquired by the children; and, if they were under the age of puberty, the parent who married a second time would be accountable to them for the enjoyment of the usufruct during their minority, for this is what the law directs.
We do not think that this provision is satisfactory, and We decree that where the usufruct of property which anyone is permitted to dispose of in this way is bestowed as a gift, or as a donation mortis caiisa, the recipient will be entitled to the enjoyment of it during his lifetime, even though he may marry a second time; and the same rule will apply to the use of the property, unless the husband or wife who either gave or bequeathed the usufruct expressly stated that if the one to whom it is given should marry again, the usufruct will determine, and revert to the ownership. We decree that these rules shall be observed whenever a gift of the usufruct is made.
CHAPTER XXXIII.
WHERE THE USUFRUCT OF PROPERTY is GIVEN BY WAY OF DOWRY OR ANTE-NUPTIAL DONATION.
Where, however, the usufruct of property is bestowed by way of dowry, or at the time of betrothal, We establish no innovation with reference to it, but all previous regulations are hereby confirmed, and the property shall remain in the hands of the recipient during his or her lifetime, even though the persons who made the donations should revoke them ten thousand times when they are at the point of death; for a private individual is not authorized to deprive anyone of an advantage conferred by law.
CHAPTER XXXIV.
A FATHER DOES NOT LOSE THE USUFRUCT OF PROPERTY WHICH BELONGED TO THE MOTHER OR WAS ACQUIRED BY
MARRIAGE.
While We are treating of the subject of usufructs preserved by the laws, it will be advisable to confirm the provisions included in the three preceding constitutions, which state that the father, even though he may marry again, will be entitled to the usufruct of all the property which passes to his children, whether through the maternal line, by means of donations in consideration of marriage, or in any other way; for the laws of Our predecessors have declared (and We hereby confirm it) that fathers, during their lifetime, have the right to the entire usufruct of property derived from the mother, or from anyone else, which belongs to the children. We, however, except from this rule all peculium castrense or quasi castrense.
CHAPTER XXXV.
WHERE A WOMAN WHO HAS GIVEN PROPERTY TO HER CHILDREN DESIRES TO REVOKE THE GIFT ON ACCOUNT OF THEIR INGRATITUDE, AFTER SHE HAS CONTRACTED A
SECOND MARRIAGE.
Where a mother, who has given something out of her own property to her child, marries a second time, she will not be permitted under the pretext of ingratitude to revoke the gift which she made. For she cannot allege this reason because she will be presumed to have acted on account of her second marriage; still, the case will be otherwise if it is established that the child has openly attempted the life of its mother, or has raised impious hands against her, or has tried to deprive her of all her property.
CHAPTER XXXVI.
WHERE A WOMAN HAS CONTRACTED A SECOND MARRIAGE SHE CANNOT TAKE ADVANTAGE OF THE RANK OR PRIVILEGES OF HER FIRST. HUSBAND.
We do not permit a woman who has contracted a second marriage to continue to enjoy the dignities and privileges of her former husband, but she shall be reduced to the condition of the second; and the reason for this is that the woman who forgets her first marriage ought not to be allowed to profit by the advantages derived from it.
CHAPTER XXXVII.
CONCERNING FREEDWOMEN WHO MARRY THEIR PATRONS.
The Emperor Alexander, of Divine Memory, has taken precedence of many ancient legislators by having decreed that if anyone should manumit a female slave, and then marry her, and she, after having thus been raised above her rank, should obtain a divorce, the law will not permit her to marry a second time without the consent of her first husband; for it would consider this second marriage not as a matrimonial union, but as mere fornication and debauchery, by means of which a disgraceful injury is inflicted upon him who gave her her freedom.
CHAPTER XXXVIII.
We have also found a constitution of the same Emperor which We think worthy of being confirmed by Us, which says that, as a mother appears better fitted to conduct the education of her children than anyone else, this law confers that right upon her, unless she contracts a second marriage.
CHAPTER XXXIX.
WHERE A HUSBAND RETURNS THE DOWRY TO His WIFE DURING MARRIAGE.
Dowries which the contracting parties have received are not readily transferred to wives during the existence of the marriage, unless for certain causes enumerated by the law; and where such a thing takes place, it is held to be merely a donation. If the woman should die, the husband who returned the dowry to his wife prematurely will receive it again from her heirs, together with any profits which may have accrued in the meantime; and he and his heirs will be entitled to the benefit of the same, in accordance with the terms of the nuptial agreement. If the husband should marry a second time, the children can hold the dowry without power of alienation, as is generally provided. But where the husband did not return the dowry .while the marriage was in existence, it can be recovered from the heirs after the death of the wife, in compliance with the dotal contract.
CHAPTER XL.
WHERE A WOMAN WHO is ADMINISTERING THE GUARDIANSHIP OP HER CHILDREN MARRIES A SECOND TIME.
When a woman who is administering the guardianship of her minor children, and has sworn that she will not contract a second marriage, disregards her first one and her oath by marrying a second time, without having previously had a guardian appointed for her said children, renders her account, and discharges all indebtedness, the law not only subjects her own property to hypothecation for the benefit of her children, but also that of her second husband; and it excludes her from the succession of any deceased child under the age of puberty, even though she may maintain that its father substituted her for it. This rule has been established by Our predecessors.
We, however, are surprised that when a woman is so wicked as to disregard her oath, and so desirous of contracting a premature marriage as to forget three most important things, the wrath of God, the respect due to her deceased husband, and the affection she should entertain for her children, legislators should have subjected her to such a light penalty, when they severely punished a woman who marries before her time of mourning has expired, and thereby manifests but little consideration for her children, establishing this regulation solely through honorable motives, even where the woman has no children; and, where she is so under the domination of her passions, did not subject her to the same penalties to which those women are liable who marry a second time before their term of mourning has elapsed.
Hence We decree that, hereafter, when women presume to perjure themselves in this way, they shall be liable to all the preceding penalties which We have previously formulated with reference to widows who marry before their term of mourning has expired, that is to say,
infamy and other punishments. We, however, grant them the power to release themselves from these penalties in the same manner as the others are authorized to do, namely, by petitioning the Emperor, and giving half of their property to their children without reservation of the usufruct; and We place the woman who has thus prematurely contracted a second marriage, and the one who has married before her term of mourning has expired, in the same category. But where a woman who is administering the guardianship of her natural children (for We also have authorized her to do this) marries a second time, and does not do what is hereinbefore prescribed, she shall be liable to the same penalties.' When a woman who is discharging the duties of a guardian desires to marry a second time, provision shall be made in the provinces by the Governors of the same, and here by the Most Glorious Prefect of the City together with the Praetor having jurisdiction, for the appointment of a guardian for her minor children; and she must render her account, and discharge all indebtedness incurred by reason of the trust.
CHAPTER XLI.
THE LAW OF ZENO, RELATING TO A LEGACY SUBJECT TO A
CONDITION LEFT BY A FATHER OR A MOTHER TO His OR
HER CHILDREN, is HEREBY CONFIRMED.
We adopt the Constitution of Zeno, of pious memory, which provides that when a father is directed to bequeath to his own son a legacy either under a condition, or at some specified date, security to preserve the legacy can only be required of him in case he marries a second time, for the obligation to furnish it is among the penalties imposed upon a husband who contracts a second marriage.
CHAPTER XLII.
CONCERNING ECCLESIASTICS WHO CANNOT MARRY. (SEE NOVEL VI.)
Where any member of the most reverend clergy (We refer to those above the rank of reader and chorister) contracts a marriage, We decree and desire that he shall be expelled from the priesthood. If a reader should marry, and then, through some inexorable necessity, should marry again, he shall not be raised above the rank of reader, and his affection for his wife will be an impediment to his promotion; but where a layman is about to be ordained a deacon, a subdeacon, or a priest, and it should subsequently be ascertained that he had married a woman who was not a virgin, but who had been divorced, or with whom he had formerly lived in concubinage, or if he who is about to be ordained has married a second time, he shall not obtain admission to the priesthood, and if he should obtain it by concealing the facts, he shall, by all means, be expelled.
CHAPTER XLIII.
WHERE A HUSBAND LEAVES PROPERTY TO His WIFE ON
CONDITION THAT SHE DOES NOT MARRY AGAIN; AND
CONCERNING THE LEX JULIA MISCELLA.
The matter which follows is of great antiquity, and has received many corrections, not only by others but also by Us, without, however, being rendered perfect; for which reason We now, by way of amendment, establish the present rules.
The ancient law, styled the Lex Julia Miscella, enacted with a view to the procreation of offspring, permitted women, even where their husbands had left them something on condition that they should not marry a second time, to do so, and to swear that they acted for the benefit of their children; and even where the woman married within a year the law authorized her to take what was bequeathed to her.
Where, however, she allowed the year to elapse without marrying a second time, the law did not permit her to obtain the legacy without furnishing security that she would not marry again. It was not Julius Miscellus who caused this to be enacted, but Quintus Mucius Scffivola, who was instrumental in having security furnished in cases where prohibitions of this kind existed. Therefore We, being aware that the large majority of women who had sworn not to marry again were induced to do so not for the purpose of having children, but through necessity, thus disobeying the directions of their deceased husbands, have thought that the more sacred part of this law should first be corrected, and the opportunity for committing perjury removed, and hence that they should not be required to take an oath, and thereby be tempted to swear falsely. For it certainly was not the intention of. the law that women who have no children, as well as those who have, should be sworn, a proceeding which was offensive to God, as well as insulting to the memory of the deceased husband, when it was so easy to commit perjury, especially when the procreation of children was so largely dependent upon chance.
Therefore, as We have by this Our law excused women from taking the oath under such circumstances, and authorized them to receive what was left by their husbands, We have considered it advisable (as this is something which has also been omitted by Us) to make provision with reference to the memory of the deceased husband. Hence We promulgate this law, for We do not desire the wills of deceased persons to be set at naught, or their widows to obtain anything which is illegal; for if We should say that a woman must, by all means, comply with the wishes of.her husband by not marrying a second time, the law would with reason be considered too harsh; but, on the other hand, it would be too indulgent if it permitted her to marry again, and also to receive what was left to her; for it would be a most flagrant offence to treat the wishes of the deceased husband with contempt, and insult his memory, if permission were given to his widow both to receive the legacy and to contract a second marriage.
CHAPTER XLIV.
Wherefore We decree that when a husband forbids his wife, or a wife her husband (for the same rule is applicable to both) to marry a second time, and bequeaths a legacy under this condition, the spouse who was entitled to it shall have the choice of two things, namely: either to marry again and renounce the legacy, or if she should be unwilling to do this, and wishes to honor the memory of the deceased, always abstain from marrying a second time.
(1) But to prevent the matter from remaining in suspense, and, besides, in order that the return of the legacy may not be required after the lapse of a certain time, it seems to Us to be proper for the person entitled to the legacy to demand it before the expiration of a year, provided an exception is not made in his case on account of his entry into the priesthood, since he can then entertain no hope whatever of marriage.
(2) When, however, the year has expired, We permit the person to whom the legacy has been left to receive it, not absolutely or simply, but where it consists of immovable property, the legatee cannot acquire it without furnishing juratory security,1 and by encumbering his or her own property (which We give authority to be done tacitly under the terms of this law), and if the said person should contract a second marriage, he or she must return what was given, as well as any profits that may have accrued in the meantime.
(3) But where the property is movable, the person entitled to it, if solvent, can obtain it by providing the same security and hypothecation. But when restitution takes place, the property must be returned in the same condition in which it was when received, or indemnity must be furnished for any diminution in value which may have taken place.
(4) When the legacy consists of money with the interest which can be obtained from it, the person entitled to the same must furnish juratory security. Where, however, it was not absolutely given, but only the use of it, interest shall be paid to the legatee at the rate of four per cent.
1 The juratoria cautio of the Roman law, which was applicable to many other cases than that mentioned in the text, and by which a promise under oath was given, generally when no better security could be obtained, is known to the jurisprudence of Scotland, and may be taken in "advocations," or transfers of actions from an inferior to a higher court; and in "suspensions" of decrees in foro, which practically amount to stays of execution. "Where the suspender cannot from his low or suspected circumstances procure unquestionable security, the Lords admit juratory caution, i. e., such as the suspender swears is the best he can offer; but the reasons of suspension are in that case to be considered with particular accuracy at passing the bill." (Erskine, Principles of the Law of Scotland III, III, Page 357 [note] ; IV, III, Page 621.)
In offering the juratory caution, the party either enters into his own recognizance to secure his presence at a criminal trial, or he makes an affidavit containing a detailed statement of his personal property, which he thereby assigns to his adversary by way of security. (Vide Paterson, A Compendium of English and Scotch Law, Pages 495, 546.)ED.
(5) When the legatee is not a person of means, a surety will be required; and if he or she is unable to furnish one, then juratory security must be given, and the hypothecation of his or her property will take place (as has already been stated).
(6) As soon as the legatee has married a second time, whatever was given to him or her can be recovered by the person who gave it, or his representatives; and We order that this rule shall be observed in every case of restitution, whether the property be movable or immovable.
(7) When what has been bequeathed consists of money, and the legatee is not solvent, and cannot furnish a surety, and is himself unworthy of credit, the money will then remain in the hands of the person charged with its payment, and will bear interest at four per cent until the legatee becomes solvent, or contracts a second marriage (or until the accumulation of interest exceeds the capital), or until it becomes clear that the legatee will never marry again either through his or her entrance to the priesthood (in which instance nothing shall be paid), or in case of death; for then the heirs shall be entitled to the legacy without being required to refund the interest.
(8) We have introduced this provision, which shall apply not only where married persons have made bequests reciprocally under such a condition, but also where a stranger has left a legacy to either the husband or wife conditionally, as aforesaid. This law shall be executed in accordance with its nature, whether the payment of the legacy or its restitution is involved.
This is what We have decreed with reference to the constitutions recently promulgated by Us on account of the Lex Julia, Miscetta; but the other kinds of legacies will take effect in accordance with the terms of the donation, and in conformity with the provisions which We have prescribed.
(9) The security above mentioned by Us shall be given to the heirs or their substitutes, or to those to whom they have been bequeathed, where there is a partial appointment, or portions of legacies are left, and when there is a donation mortis causa, the security shall be furnished entirely to the heirs. Where, however, an heir has been appointed to the entire estate under such a condition, security must be given to the substitutes, if there are any, or, by all means, to those who are called to the succession in case of intestacy, so that the law may everywhere be perfect in all its details, unless the testator directed that the person to whom he left something by special appointment or the whole estate, or a legacy, a trust, or a donation mortis causa, shall receive it without giving any security; for the wishes of the deceased must be complied with, and'it is Our earnest desire to observe them whenever they are in accordance with law.
CHAPTER XLV.
CONCERNING THE ADMINISTRATION OF DONATIONS MADE
IN CONSIDERATION OF MARRIAGE. (THE SAME SUBJECT
HAS BEEN TREATED IN NOVEL II, CHAPTER IV.)
As We have heretofore made very few provisions with reference to the security of property, and as We are aware that a law of Leo, of Divine memory, relating to second marriages, provides that where a woman marries a second time, and cannot furnish a surety who will be responsible for the transfer of the property to her children, she shall be entitled to the interest on the same at the rate of four per cent, We now enact the present law, which is better than the one referred to, and makes a distinction in conformity with what has been established.
(1) We decree (as We have already done in a preceding constitution), that where anyone offers as an ante-nuptial donation property which consists entirely of immovables, the mother shall have a right to the use of said property after she contracts a second marriage, and she must accept, and not refuse it, but she cannot exact interest from her children in proportion to the value of the same; and she must exercise the same diligence as if the law had granted her the entire ownership of the property, and must preserve it for her surviving children as required by law; or if all of them should die, she must, in accordance with Our law concerning children who are no longer living, preserve it for the benefit of their heirs.
(2) Where, however, all the donations made on account of marriage are composed of money, or other movable property, the mother will be entitled to interest at four per cent, as the security previously referred to does not require money to be paid by the children unless it is certain that there is sufficient gold, silver, clothing, or whatever else was given to her out of the estate of the husband, to do this; for, under such circumstances, We grant the mother the choice of accepting the donation by furnishing a bond with a surety, or of receiving the interest at four per cent, as established by the ancient laws as well as by Our own.
(3) Where, however, the property is of different kinds, and the donation is composed of money as well as of immovable property, the immovable property shall, by all means, remain in the hands of the mother, in order that she may obtain her maintenance therefrom. But, so far as the movable property is concerned, the rule which We have formerly promulgated shall apply, in case the entire donation comprises this kind of property; and the woman must be careful not to neglect the immovable property, and to restore whatever she has received without it having suffered any deterioration.
CHAPTER XLVI.
CONCERNING THE SUCCESSION OF MOTHERS TO THE ESTATES OF THEIR CHILDREN, TO WHAT SHARE OF THE SAME THEY ARE ENTITLED, AND How THEY CAN ACQUIRE IT.
What We have heretofore provided impels Us to treat of the succession of children, to which mothers who contract second marriages are entitled. We have always promulgated a law with reference to these matters, which was addressed to Hermogenes, of glorious memory, Master of Our Imperial Offices, and dated the seventeenth of the Kalends of April, before the Consulate of the Glorious Belisarius; by which We authorized a mother, along with the brothers of the deceased, to be called to the succession of a son who died without issue, and granted them the undisputed ownership of the property, as well as the use of the same, whether an heir was left in the first place, or she had afterwards married a second time, and this law annuls all others which provide anything in contradiction to it.
We order that this Our law shall remain in full force solely with reference to parents who marry again; and We preserve for them indisputably any property which they may have received from their children either before or after having married a second time, where the said property has descended to them.
This, Our present law, applies to women who may hereafter contract second marriages. Hence when a child of either sex dies, whether it makes a will or not, whatever he or she does must be taken into account. We shall, in the first place, discuss cases where property is left by will, and then proceed to its disposal in case of intestacy.
(1) Therefore, when a son has disposed of all or only a portion of his estate in favor of his mother by will, she shall be entitled to it (because We desire that in every instance the wishes of deceased persons should be complied with), and she shall have what was left to her, whether the ownership of the property or merely the usufruct of the same was bequeathed. Moreover, it shall be lawful to leave the property to a stranger, and the second marriage of the woman will not in any way prejudice the heir; so, where anything is left to the mother, either through a testamentary appointment, or by a legacy, both the ownership and the usufruct can be bequeathed, whether the property comes to her from her father, or from some other source; nor can her brothers, on this ground, dispute the validity of the bequest.
(2) Where, on the other hand, a child dies intestate before or after its mother has contracted a second marriage, the latter shall be called to the succession with the brothers of the deceased son or daughter, in accordance with Our Constitution having reference to successions in case of intestacy; but the mother will only be entitled to the usufruct of property obtained by the son from the estate of his father, whether she marries before or after the death of the former. So far as property derived from another source than the paternal estate is concerned, the mother shall be called to the succession in the way which We recently stated ought to be corrected.
These rules which We establish have reference to property other than that included in the ante-nuptial donation. For We order that what has been decreed by Us in this respect, as well as what has been provided by the Constitution of Leo, of Divine memory, shall remain intact, in accordance with which the mother will only be entitled to the usufruct of the property.
(3) With reference to any other acquisition by the mother, which does not form part of the donation on account of marriage, whether the child acquired it through the medium of his father or otherwise, by will, or ab intestato, We decree that ungrateful children shall continue to be excluded from the succession to such property when their ingratitude is established; but We preserve intact all other provisions relating to the succession of parents to the estates of children, or of children to those of their parents.
(4) We consider ingratitude to be a cause of exclusion from inheritance, not only when it is displayed against the mother, as has previously been stated by Us, but also when exhibited toward the deceased brother himself.
CHAPTER XLVII.
As We are aware that many contentions often arise among brothers, We do not permit one who has shown himself to be ungrateful towards his brother to share in the succession to the latter's estate. This rule will also apply where anyone has attempted the life of his brother, or has brought a criminal accusation against him, or has attempted to deprive him of his property; for, under these circumstances, his share will pass to his surviving brothers and his mother. This law, which relates to the succession of children to which brothers are called, along with their mother, shall remain in force subject to the amendment which was made by Us with reference to widows who in the future may contract second marriages. As for women who have already married a second time, and can enjoy the benefits of Our above-mentioned law, they shall be entitled to the succession either by will or in case of intestacy, both as respects the ownership of the property and the usufruct of the same, and are fully authorized to alienate, bequeath, and transfer it, without any impediment being placed in their way by the present law at any time.
(1) We hereby confirm what We have enacted in a former law with reference to the issue of former marriages. For if an antenuptial donation which the mother obtained from her husband should happen to fall into the hands of her dying son, and hence become a part of his estate, his mother who succeeds him will not be entitled to the absolute ownership of the property comprised in the said antenuptial donation, but will only enjoy the use and usufruct of the same as long as she lives. Hence this provision shall continue to be operative in favor of the issue of former marriages, unless some settlement was made either by means of a judicial decision or a compromise before the aforesaid constitution took effect.
(2) In accordance with the terms of the Tertullian Decree of the Senate, the mother was excluded by a male child from the succession to her son, and was placed in the same position as the daughters. We, however, while not questioning the claim of the sons, hereafter grant the mother the legal right to their succession, and call her, along with the brothers of the deceased, to succeed to an equal share of the estate, no matter how many children there may be, so that she will obtain as much as each of the brothers. We establish the same rule where there are both brothers and sisters. Where, however, there are no other heirs but the mother and the daughters, the same Decree of the Senate gave half of the estate to the mother and the other half to the sisters, no matter how many of them there were. As We have not yet changed this, We do so now, and in this instance call the mother to the succession pro rata with the children; that is to say, she shall receive out of the estate of the deceased son a share equal to that of each of his sisters; and, under all circumstances, she shall be entitled to an equal share (which is the law), whether there are only male or only female heirs, or whether they consist of members of both sexes.
CHAPTER XLVIII.
PARENTS SHALL ENDEAVOR TO PRESERVE EQUALITY AMONG CHILDREN BY THE FIRST AND SECOND MARRIAGES.
We have thought proper to add what follows to this law. Hence if a husband or wife should die and leave children, the issue of a first and second marriage (which was contracted after the enactment of this law, for by it We are providing for the present), We have directed that under such circumstances any gain acquired by the marriage of which the children are the issue shall be preserved for them; and We have also designated the shares that parents should leave to their legitimate offspring who are not ungrateful, but it would not be just that their entire affection should be manifested for children of the second marriage by giving them all the remainder of their property, only leaving to those who were the issue of the first marriage that to which they were legally entitled, and bequeathing all the rest to the issue of the second; for it is only just for something more to be left to the children of the first marriage than what is authorized by law.
Where, however, the parents entertain such an affection for a child born of either the first or the second marriage that they wish to give it preference over the others in the possession of their estates, We grant them permission to do so, but they must proceed in such a way as not entirely to diminish the shares of some and increase those of others; and, when favoring the children of the second marriage, they must be careful not to absolutely forget those of the first, and not violate the rule that Our predecessors established on this subject; for when fathers distribute their estates between the issue of two marriages, they should remember that all of them are their offspring,
and this should induce them to make a proper division of their property by will. For as the law calls them all equally to the succession of intestates, it is proper for them to imitate the law, and not impoverish the children by depriving them of too large a share of their estates; as they should show themselves to be good parents and worthy of Our legislation, and they should be just in the observance of the law.
If, indeed, they should leave them anything over and above what the law prescribes, they will prove themselves to be at the same time just and humane. We do not include both grateful and ungrateful children in this statement (for We have already frequently spoken of those who are ungrateful), but We refer to such as are more or less beloved by their parents, as a great difference exists between children who are guilty of ingratitude and those who cause themselves to be beloved, as well as in the way in which both of them treat their
parents.
Hence when We discussed the equality which parents should observe in the distribution of their estates among their children by the first and second marriages, We exhorted rather than ordered them, because, having elsewhere increased for all the share which was absolutely to be left to children in case of intestacy, and fixed the amount at four-twelfths of the paternal estate, where there are four children, or less, and half of it, where there are more than four, We have thereby given the children a sufficient consolation, and have relieved them from the poverty to which, according to the ancient apportionment, they were liable to be subjected.
(1) Therefore the present law, as We have frequently stated, is only applicable to the future, and has no retroactive effect, but, consolidated and included under one heading, it regulates almost everything concerning second marriages, and maintains in full force all preceding enactments, as well as explains matters having reference to second marriages, concerning which it introduces a nice and beneficial distinction. Hence, as has already been prescribed by Us, all these things will be embraced in a single constitution, which will be sufficient in every case in which such questions are involved.
EPILOGUE.
Therefore Your Highness will order this law to be published everywhere in your jurisdiction, so that all persons may know that We have devoted Ourselves to labors even greater than Imperial meditations, that We only attempt to provide for Our safety by collecting from every source the principles of justice, and that all persons may see that everything relating to this legislation is condensed under a single head, and learn that We have preserved laws formerly promulgated, and which We now confirm and declare shall be valid in the future.
Given at Constantinople, on the fifteenth of the Kalends of August, after the Consulate of Belisarius.
Copies of this Constitution have been addressed to Patricius, Most Glorious Prefect of this City; to Basilides, Most Glorious Master of the Imperial Offices, Ex-Consul and Patrician; to Tribonian, Most Glorious
Qusestor, and twice Consul; to Germanus, General of Cavalry, Ex-Consul and Patrician; to Tziga, Most Glorious General of Infantry, Ex-Consul and Patrician; and to Florus, Most Glorious Count of Private Affairs, and Ex-Consul.
Your Excellency, when informed of the Constitution which it has pleased Us to promulgate, will cause it to be published in Your Court, not only to the advocates, but to other persons under Your jurisdiction, and they must all observe it, as communicated to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
Given at Constantinople, on the fifteenth of the Kalends of April, after the Consulate of Belisarius.
TITLE II.
CONCERNING APPEALS, AND WITHIN WHAT TIME THEY SHOULD BE TAKEN.
TWENTY-THIRD NEW CONSTITUTION.
The Emperor Justinian to Tribonian, Most Glorious Quaestor and twice Consul.
PREFACE.
As We are accustomed to moderate the excessive severity of ancient laws, We think that it is necessary to pursue this course in the present case with reference to appeals. For the ancient law prescribed that anyone who conducted his own case and lost it should have only two days in which to take an appeal, but when this was done by means of an attorney, the time could be extended to three days. We, however, have learned by experience that this was productive of injury, for many men being ignorant of the subtlety of the law, and thinking that an appeal could be brought within three days, allowed the two days to elapse, and thereby lost their right. Wherefore We have considered it necessary to apply a suitable remedy.
CHAPTER I.
Hence We order that all appeals from the decisions of judges of either superior or inferior jurisdiction (with the sole exception of the Sublime Praetorian Prefects), whether instituted by the parties themselves or by their attorneys, defenders, curators, or guardians, shall be filed within ten days after the rendition of the judgment. We grant this term to persons engaged in lawsuits in order to enable them to determine whether they will take an appeal or not, and lest, through the influence of fear, an appeal may be taken without proper consideration, a course which would increase the number of appellants; but now all shall have a sufficient time for deliberation, which will restrain the unreflecting precipitancy of litigants.
CHAPTER II. CONSIDERING CONSULTATIONS.
We have provided that when an appeal is taken to Our Consistory, and the hearing of the same has been deferred on account of the Emperor being employed with the dispatch of public business, and the senators cannot be called together for this reason, the appeal shall not be exposed to risk on this account. For how can the appellants be to blame when the Emperor is occupied with other matters? Or who has sufficient authority to compel the sovereign to convoke the senators and other officials, when he is unwilling to do so?
When anything of this kind happens, the case shall remain in abeyance until the Emperor voluntarily calls together the senators and nobles, and allows the matter to be brought before him, and everything to proceed as is customary.
CHAPTER III.
CONCERNING APPEALS IN EGYPT, ASIA, PONTUS, AND ELSEWHERE.
In this, the third chapter, a matter must be disposed of which was settled in ancient times, but has recently been neglected. For, formerly, when magistrates of superior, intermediate, and inferior rank, were appointed, appeals, when taken, instead of being brought before the superior magistrate, were filed in the tribunal of the intermediate judges, who, together with their associates, decided them. In modern times, however, this course is no longer pursued, for Our judges of superior rank are annoyed by appeals in cases of trifling importance, and litigants are subjected to great expense where insignificant matters are involved, so that the value of the entire property in controversy is not as much as the costs incurred. Therefore We order that when an appeal is taken in Egypt, or in either Lybia, in a case where an article is worth ten pounds of gold, it shall not be brought to this royal city, but before the Augustal Prefect, who shall hear and dispose of it instead of the Emperor, and that no appeal can be taken after he has rendered a final decision.
(1) In like manner, whenever, either in Asia or Pontus, an appeal is taken in an action where property to the aforesaid amount of ten pounds of gold is involved, it shall be brought before the Counts, Proconsuls, Prators, or Governors whom We have especially authorized to hear it. These magistrates shall take the place of the Emperor, just as the Augustal Prefect does, and shall hear such suits and decide them, having the fear of God and the law before their eyes, without the right of further appeal. Cases which have been in abeyance in the East, because appeals have been taken, and which are limited to the said value of ten pounds of gold, shall be sent before the Count of the East, who shall hear and finally dispose of them.
CHAPTER IV.
APPEALS FROM MAGISTRATES SHOULD BE BROUGHT BEFORE THOSE OP HIGHER RANK.
It must be observed that magistrates having the title of spectabiles, or others invested with similar jurisdiction, cannot have their decisions reviewed by other judges of the same rank, when appeals are taken, no matter what may be the amount of the property involved (as appeals must not be brought before judges of equal authority, but from the decisions of those of inferior jurisdiction, to others of more exalted rank), but by the Illustrious Prefect (as has already been stated), who with the distinguished Quaestor in office at the time, shall decide them with the assistance of their subordinates, that is to say, the employees of the Imperial Bureau of Records and of the Praetorian Prefecture. We make this provision in order that appeals from the Proconsuls or other magistrates who, charged with no other public duties, have been appointed by the Emperor, may not be brought indiscriminately before the aforesaid judges without observing the distinction of rank.
We, however, desire that appeals from the Governors of provinces and judges appointed by Us, where the latter are not spectabiles, shall be restricted to cases where the above-mentioned amount is involved. But where superior judges have been appointed by Us whose rank is above that of those referred to, or Proconsuls, or any other magistrates of equal official dignity who have been commissioned by the Emperor, their appeals, no matter what the value of the property in dispute may be, shall be brought to this Imperial City, where competent magistrates will hear and determine them, in conformity with ancient custom.
Everything prescribed by the ancient authorities, by former constitutions, or by Ourself, shall, in all other matters relating to appeals, remain in full force and effect.
Given at Constantinople, on the Kalends of July, after the Consulate of Belisarius.
EPITOME OF THE PRECEDING CONSTITUTION.
CONCERNING MAGISTRATES TO WHOM APPEALS SHALL BE
TAKEN WHEN THE VALUE OP THE PROPERTY INVOLVED
DOES NOT EXCEED TEN POUNDS OP GOLD.
Not only the parties litigant themselves, but their attorneys as well as their defenders, curators, and guardians, can take an appeal within ten days from the rendition of the judgment. It is not permitted to appeal from the decision of a Praetorian Prefect.
CHAPTER I.
If the time established by law should elapse without the appeal having been heard by the Emperor, the case shall in no way be prejudiced. When an appeal is taken to the Emperor either from Egypt
or from either of the Lybias, and the amount of property involved does not exceed ten pounds of gold, the appeal shall be heard and decided by the Augustal Prefect; in the East by the Count of the East; and in Pontus and Asia by the Counts, Proconsuls, Praetors and Governors, if they have been expressly charged with this duty. All these officials are hereby invested with imperial authority for this purpose, and no one shall question their jurisdiction when cases of this kind are brought before him.
CHAPTER II.
When an appeal is taken from a Governor, whether the property in controversy is worth more or less than ten pounds of gold, the Praetorian Prefect, along with the Qusestor and other officials, shall take cognizance of the same.
TITLE III.
CONCERNING THE GOVERNOR OP PISIDIA. TWENTY-FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Imperial Praetorian Prefect of the East.
PREFACE.
We have thought that the ancient Romans never could have rendered their government, which arose from such insignificant beginnings, so vast and powerful, added to their territory (We had almost said) ihe entire ea'rth, and been able to control and protect it by their domination, if they had not invested the eminent magistrates, whom they sent into the different provinces, with great dignity, as well as with military and civil jurisdiction, and had not selected such as were well qualified and capable of performing their official duties. They designated these magistrates by the name of "Praetors," an appellation derived from the fact that they were pre-eminent and superior to others, not only in the conduct of matters relating to warfare, but also in the execution of the laws. In consequence of this, the places in which they resided or publicly dispensed justice were styled Pretoria, and the greater portion of the Edicts published orally by the Praetors had the effect of statutes. Many Praetors governed Sicily, Sardinia, and Spain, while others extended the Empire over land and sea, and ruled the conquered countries.
Bearing these things in mind, and recalling with honor the ancient institutions of the Republic, as well as the dignity of the Roman name, and being aware that the two magistrates appointed for the administration of regions which have been the hardest to control up to this time were neither of them perfectly content with their condition, and that, on this account, in certain of Our provinces subject to both civil and military jurisdiction, the Governors were always quarrelling among themselves, and opposing one another, and, instead of accomplishing
something beneficial to Our subjects, they, on the other hand, rather oppressed them, We have thought that it would be preferable to unite the civil and military jurisdictions into one, and again give the name of Praetor to the magistrate invested with this authority, so that the same official would have command of the soldiers in accordance with the title which he formerly enjoyed, and would also be invested with the execution of the laws, which was originally one of the functions of the Praetor, and that he would be entitled to the emoluments of both offices, and have a single court composed of a hundred subordinates (for this will be sufficient for him) which would be styled the Praetorian Cohort, and be established by letters issued by Us.
Being thus invested with great dignity, the Praetor would be terrible to robbers, and render it impossible for those guilty of injustice to escape. He could accomplish everything through his extraordinary power, and, as a law formerly promulgated by Us orders all judges to have clean hands, he must obey it; and having taken the oath he must govern in accordance with it, both in his military and civil capacity. If anyone of Our glorious Consuls should happen to be appointed to the aforesaid office, this would appear to be an imitation of former times, when Consuls and men of consular rank drew lots for provinces, as the Praetors are not much inferior to them, since they have exalted the Roman name little by little, and increased its renown to such an extent that God has never before conferred such distinction upon any other Republic or Empire.
We have investigated the origin of the Pisidians, and have learned from ancient writers that this people formerly exercised dominion over a large portion of the earth, and now that this province needs a powerful and energetic magistracy (for it contains a great number of villages, and a large population who are especially seditious wlien it comes to the payment of taxes), We think it necessary to give to a country inhabited by a dishonest and blood-thirsty population of this kind, which, on account of its greed and wolfish voracity, has been called Lycocranitse, a magistrate who will leave here armed with proper power.
And as this magistracy should include both military and civil jurisdiction on account of the danger of revolt, all the military forces in the province shall be subjected to its authority. All the civil officials shall be called by and honored with the name of Praetor, for who will not stand in terror of his name? And who will not respect him, when civil and military jurisdiction are combined in a single official, when he knows what his duties are, and that he must obey the laws; provided he is well disposed and wishes to preserve his life, being aware that, in case he is disobedient, he will immediately be put to death, and the laws be enforced by arms?
CHAPTER II.
It therefore is necessary for anyone who undertakes the duties of this magistracy (for We always bestow it gratis, and without any payment of money whatever, in order that the incumbent may, in
every instance, be free from corruption, and remain satisfied with those emoluments alone which he received from the public, as Our first law has also stated), to act with justice and honesty, and bear himself with a certain degree of severity, but still with kindness towards those subjected to his authority, as We have previously decreed, and banish from his province homicide, adultery, the rape of virgins, and, in a word, all other offences; and punish those who commit them as prescribed by Our law, without evincing any respect for the malefactors, even though they may be men of high rank; nor must he submit to those who offer no excuse for their acts, or only give such as are abominable; but he shall maintain justice in every instance, and regulate his conduct by Our enactments, rendering judgment in accordance with them, so that Our subjects may also form their lives and their rules of conduct in conformity thereto; and he must, above all things, keep the fear of God and of Us in mind, and never plan anything in contravention of Our precepts.
We forbid him to leave his province frequently and come here to annoy Us with unreasonable communications, but he must hear all cases in the first place himself, and decide them with a view to the importance of the office to which We have appointed him, and he must so conduct himself in this respect that no one will have reason to file charges against him on account of his administration of the magistracy, being aware that if anyone, after having applied to him, should not obtain justice, and be compelled to refer the matter to Us, he will be responsible for the result of the controversy which We shall subsequently determine, for as We have honored him with an increase of authority, so, if We find that, in opposition to Our intentions and wishes, he has abused his administration, We shall inflict suitable punishment upon him, and in this way We shall serve God as well as assist in the execution of the laws, whether he has been guilty of dishonesty, or has acted illegally through the influence of either favor or enmity; for We wish again to relieve Our subjects of the evils which formerly existed, and, without being deterred by the greatness of the undertaking, We have hastened to turn Our attention to this subject.
CHAPTER III.
This official must not only perform the duties which have already been enumerated by Us, but he must see that there is a great abundance of provisions in the towns, and that no citizen is without subsistence. He must inspect the public works in the different cities, and not allow them to fall into decay, but keep all aqueducts, bridges and highways in good repair, and not permit the collectors of taxes to oppress Our subjects in any way; and We forbid him to receive any of those orders which, in conformity with a practice that We do not approve of, are issued by your court for the repair of walls, the opening of public highways, and innumerable other purposes. He shall not, under the pretext of orders of this kind, or, for any other reason, permit anyone to inflict injury upon Our subjects, nor shall he execute any decisions proceeding from your office, which in any respect may be improper (for
We have already prohibited such things), but he alone must assume supervision of all public works.
If, however, in accordance with the provisions of Our law, We should address a pragmatic sanction to your prefecture, the Praetor must himself carry out what We have ordered to be done, without any other person being permitted to annoy Our subjects, for while We are rendering Our provinces more and more flourishing by increasing the number of citizens, We do not wish a multitude of men to repair to the capital who dare not return to their homes on account of the iniquity of Governors.
For this reason We order that Your Excellency shall for the future not hold two distinct magistracies in Pisidia, but that only one shall exist there under a Praetor, who shall possess both civil and military jurisdiction and shall have charge of both public and private civil matters, and be in command of the soldiers, so that in this way he will enforce his authority by their aid, and on the other hand, his military jurisdiction will be adorned by the law. No sedition will hereafter take place in the cities, if for the future We select for Praetor a man whom We deem worthy of both these offices which have been combined in one.
CHAPTER IV.
Therefore the Treasury will pay the Praetor of Pisidia the ordinary salary which We in the notice appended to this law order that he shall receive. We wish this magistrate to bear Our Imperial name, and that he be styled the Justinianian Praetor. The body of Praetorian officials approved by Our letters (as We have previously stated) shall be appointed, and shall have charge of all affairs and persons, both civil and military. This Governor and his subordinates shall also be responsible for the collection of taxes, and he shall enjoy all the distinctions and insignia which are customary, that is to say, the curule chair of silver, and the axe and fasces; he shall also have among the soldiers an adresponsus, to whom We grant authority over the soldiers of that department, enjoining him to command them properly, preserve discipline, and make use of them not only for the pursuit of thieves, but to retain Our subjects in order and tranquillity.
The Praetor shall not permit seditions to break out in the cities, or the counts to appropriate anything belonging to the Treasury, but he shall have authority over all, without any exception whatever. This magistrate shall be placed among those that are of intermediate rank, and be classed with such as are designated spectabiles. Hence he will be invested with all the attributes formerly possessed by vicegerents and which to-day attach to the Justinianian Counts of Pacatian Phrygia, and First Galatia, as well as those of the Count of the East and the Proconsuls; he shall also be a magistrate of the rank of spectabile, and appeals taken from his decisions shall be decided here, as is customary in the case of other spectabile magistrates, by the tribunal of the Most Glorious Praetorian Prefect, with whom shall be associated in the determination of causes the Most Glorious Quaestor
of Our Imperial Palace; for the reason that although this office is invested with a military character, still, because it will hereafter also possess civil jurisdiction, the same order which was formerly customary in the case of magistrates of the rank of spectabile must be observed.
CHAPTER V.
As We have recently stated in an Imperial Constitution that, where the property in controversy did not exceed in value the sum of fifty pounds of gold, appeals should be taken from Governors, and heard and determined in the Imperial Audience-Chamber, We decree that where an appeal of this kind is taken in Pisidia alone, from the decision of a judge whom We have appointed, or from that of one of Our superior magistrates, it shall not be brought before the Justinianian Count of Pacatian Phrygia (which We have prescribed by former laws), but before the Praetor himself, and be heard just as it would be in the Imperial Audience-Chamber (for We also honor the magistrates in this way) and be permanently decided by him, and not sent to this city, in order that We may prevent persons who engage in litigation concerning matters of slight importance from being subjected to inordinate expense.
CHAPTER VI.
In order that the subordinates of the Praetor of Pisidia, or persons appointed to other offices which We have established or shall hereafter establish, may be informed of the manner in which it is proper for them to govern their provinces, it has seemed proper to Us not only to give them the distinctive insignia of their rank with their commissions, but also to prescribe for them certain rules of official conduct, in accordance with which they may govern their provinces (which preceding legislators designated "advices to Governors") so that they might conduct their administration with these before their eyes, and by means of them Our subjects everywhere be benefited.
Wherefore We order that instructions of this kind shall be filed in the Imperial Laterculus and with their commissions be delivered to the magistrates, who will take the oaths which We have laid down in Our Constitutions, as well as observe all the regulations which We have prescribed therein. A schedule appended by Us to this law states the amount which the Praetor must pay after his nomination, either to Imperial Laterculus, or to the Forum of the Most Glorious Prefect, for the commissions of his office; and also fixes the compensation which the Praetor himself and his assessor shall receive from the public. Having taken personal cognizance of everything relating to the consolidation of the magisterial offices in question, the Praetor must, on his part, exert every effort to deserve Our esteem, and'appear blameless in Our eyes.
This law shall be recorded in the Book of Our Constitutions (for We order that it shall also be included among them), and you will see that it is executed, and always observed and recognized in the cases to which it has reference.
Three hundred solidi shall be paid to the Praetor of Pisidia by way of subsistence, capitation, and indemnity; seventy-two solidi shall be paid to his assessor; and fifty-two to the members of his court. The Praetor himself must pay for the commissions of his office the following sums: nine solidi to the chartularii of the Imperial Bedchamber; forty-five to the Chief to the Illustrious Tribunes of the Notaries and the laterculensii; three solidi to his assistant, and sixty to the Cohort of the Most Glorious Pratorian Prefect for orders and all other purposes.
TITLE IV.
CONCERNING THE PRAETOR OF LYCAONIA. TWENTY-FIFTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
When We consider what writers and historians have stated concerning the origin of the people of Lycaonia, and call to mind their extraordinary affinity with the Romans, which afforded such a good reason for their reunion, We thought that it was but just to give to this magistracy a rank superior to that which it had hitherto enjoyed. Tradition relates that, in ancient times, Lycao, who was King of Arcadia in Greece, lived on Roman soil, and that after having conquered the Enutrians, he, so to speak, founded the Roman Empire (We have reference to times much more ancient than those of JEnseas and Romulus), and a colony having been established in these parts, he seized a large portion of Pisidia, and imposed his own name upon it, calling this region Lycaonia after himself; hence it is but just that this province should be subjected to the government of one of the magistrates that the ancient Romans invested with so much honor and distinction, and that the authority of both the magistrates who governed the said province at that time (We allude to the civil Governor, as well as to the one having military jurisdiction) should be combined in a single official designated by the appellation of Praetor. This title is peculiar to the Roman government almost by paternal right, and was in use under the Republic even before that of Consul. For the ancient Romans called their Emperors Praetors, and at the same time invested them with military command; they obeyed the laws promulgated by them; and, afterwards, this magistrate, moderate in the exercise of both jurisdictions, displayed as much resolution in battle as he did in the enactment of laws, and the preservation of order.
CHAPTER I.
Hence We are determined to combine these two administrations into one, and We designate the magistrate who is entrusted with them
by the name of Praetor, so that the character of a magisterial office of this kind, to which such an appellation is given, may acquire great respect for the incumbent, and as he is not invested with a single office (such, for instance, as that of military or civil jurisdiction), but united both of them, he will show himself stern and severe when military affairs are concerned, but lenient and gentle in the administration of civil justice; and for this reason he will display a more terrible spirit towards malefactors, but will conduct himself in a more gracious and moderate manner towards persons who are honorable.
We have established these regulations not without good reason, and have bestowed the name of Praetor upon the aforesaid magistrate alone, being induced to do so on account of the requirements, as well as for the benefit of the province. For, indeed, this country is inhabited by brave men, and does not in any respect differ from Isauria; it is, like it, situated in the centre of the earth, exposed to the rays of the sun, suitable for the pasture of horses, and supports numerous inhabitants and many horses; in it are many large towns, and it contains a multitude of men suitable for cavalry and for archers, whose minds are readily inflamed, who are prompt to take up arms, and are fit subjects for military government, because they are opposed to having their fortunes solely under the control of civil magistrates, whom they think should be despised; for bold men are unwilling to obey the law when it is not rendered formidable by a proper display of force.
These considerations have impelled Us to appoint but a single magistrate, as We have previously done among the Pisidians, and to confer upon him the appellation of Praetor, together with Our name, for We desire that he shall be styled the Justinianian Praetor of Lycaonia, as is the case with those of Pisidia and other provinces. We also combine both courts over which civil and military magistrates formerly presided into one, designating it as the Praetorian Tribunal; and it shall be established in the accustomed manner by means'of letters issued from the office of the Imperial Secretary, from which the Proconsuls received theirs; and We grant to the Praetor, as well as to his assessor and other subordinateswho are limited to a hundred in numberthe salaries of the two offices, and fix the amounts thereof in the notice appended to the present law. Finally, the Praetor shall be entitled to an odresponsiis, or apocrisiary, whose duty will be to maintain order among the soldiers, and to this end We direct that he shall have the command of the other soldiers stationed in said province.
CHAPTER II.
We shall send a man to discharge the duties of this office, who is of approved reputation, and of the same eminent rank from which those Praetors formerly were selected that adorned the Republic with their labors, who being a resident of Italy, will soon depart for his seat of government. This man must always be mindful of the requirements of his office, and, no matter how he may have obtained it, he must cause himself to be respected by Our subjects; he must render himself terrible to robbers and other malefactors, and always conduct himself
with courage. For there is no doubt that he will discharge his duty with clean hands whenever he obtains his place gratuitously; and, moreover, the law recently enacted by Us orders all magistrates therein described to refrain from corruption (as they are sworn to do), to render judgment according to Our laws, and, in every instance, to dispense equity and justice to Our subjects. "It was under circumstances of this kind that the old Romans adorned their Republic, and obtained the domination of the world. For who is there who would not at the same time reverence and fear a magistrate of this kind, regarding him as exercising his functions in a twofold capacity, who can both readily execute what the law commands, and properly employ military force where it is violated in any respect?
(1) We have been induced by the same reasons which existed in the case of the appointment of a Praetor to the government of Pisidia to give the same title to the Praetor of Lycaonia. For as he must, under all circumstances, receive his office without paying anything for it, and, remaining content with those emoluments alone which are bestowed upon him by the Treasury, in conformity with the former law promulgated with reference to the duties of Governor, absolutely abstain from base and avaricious conduct, so also he must show himself to be sincere and just in the administration of his office, and act in such a way as to maintain harmony in his province, by treating those subject to his rule sometimes with firmness and severity, and again with leniency, as circumstances may demand.
(2) This magistrate must detest and punish all cases of adultery, homicide, and especially the rape of virgins, with extreme rigor; he must also punish other malefactors who are, as it were, afflicted with an incurable disease, without exception; and he should also endeavor to induce those who are less guilty to lead better lives. In addition to this, he must show no favor to anyone who is guilty of dishonorable behavior,' even though he may be rich or enjoy high rank, for the reason that We have chosen him from among the latter class is that he may not find it necessary to treat with consideration anyone but Ourselves, and the laws, in accordance with which he must dispense justice, and regulate the affairs of Our subjects.
CHAPTER III.
The Praetor must not abandon himself to idleness, or be guilty of injustice to anyone, lest the inhabitants of the province over which he has jurisdiction may be compelled to leave it, and incessantly annoy Us with their affairs. He must hear and determine all cases brought before him, and always remember the honor which We have conferred upon him; he must devote himself incessantly to the duties of government, in order to obtain Our praise and avoid being required to render an account of his administration. He may rest assured that, if any litigant having failed to obtain justice in a case in his jurisdiction should appeal to Us, We will send him back without giving him any answer. But We warn him that where any person applies to him without obtaining redress, and then has recourse to Us, the result of
the decision which We shall render will make him responsible instead of the appellant; and as We have increased his authority, if We should ascertain that he is idle and careless, and does not properly avail himself of the power with which We have invested him, We shall come to the assistance of the law by prosecuting him relentlessly; and as he did not respect either Our instructions, Our laws, or the form and rank of his magistracy, We shall not show any regard for him, but shall take measures to compel him to improve his administration; and whether he be guilty of corruption, of partiality, or of violating Our laws, We shall call him to account for his acts, in order that it may not be said that in the treatment of Our subjects We are only influenced by pecuniary interest, or that We are sparing them for some other reason which may redound to Our own advantage.
CHAPTER IV.
It is also necessary for this magistrate to take measures to maintain order in the towns under his jurisdiction; to prevent seditions from breaking out therein; to administer justice everywhere; and exercise the greatest diligence to avoid being too indulgent and lax in the maintenance of discipline.
(1) Again, he must not neglect the public works in the cities of his government, that is to say, the aqueducts, bridges, walls, and highways ; he must keep them in good condition, or report the expense of the repairs to Us, so that this may be partly met by the civil revenues, and partly by Our liberality.
(2) He must not permit Our subjects to be oppressed by collectors sent from here by officials of high rank, or anything to be extorted from them by persons who have been given orders which formerly emanated from your throne, and are injurious to citizens in moderate circumstances; which orders sometimes have reference to the repair of walls, highways, statues, bridges, and harbors; or provide for the renovation of public water-courses, and the cleaning of public places; as well as the demolition of buildings which have been erected where this ought not to have been done, and other matters of this kind which are extremely annoying to Our subjects; but the Praetor himself must discharge this duty, and cause the necessary labor to be performed without any expense to those under his authority.
If, however, it should appear to Us that repairs of this description require special examination, We shall, under such circumstances, avail Ourselves of a pragmatic sanction addressed to you, by which someone else will be authorized to do the work. In this way Our subjects will be relieved; Our cities will flourish; their inhabitants will be greatly increased, and will not be compelled to flee from their country; and the fear with which they regard their Governors will no longer induce them to abandon their property.
CHAPTER V.
Therefore Your Excellency will be aware that hereafter there will be only one magistrate in Lycaonia, and not two; that all the emolu-
ments formerly given by the Treasury to the incumbents of both offices will now be paid to the Praetor and his subordinates, in conformity to the notice appended to this constitution; and this shall take place in the same manner as heretofore.
(1) The collection of public taxes shall be committed to the officials of the Praetorian Tribunal, as well as to the Praetor himself, to whose authority they are subject; and he will be entitled to the insignia of both offices, although the greater portion of these are of a military character. He will take his seat upon the silver chair, the axe will precede him (for this is the emblem of consular power), and the fasces also will be borne solemnly before him; the entire army stationed in the province shall obey his orders; and he must be careful to suppress brigandage and protect persons who have suffered from injustice, and maintain peace and concord among Our subjects.
(2) He shall not permit the Counts to levy public taxes or to take any part in their collection. He shall take rank among the spectabiles, even though he may be promoted to a higher office, for the honor of those who govern provinces is such that We do not think that the dignity of anyone is diminished when he is called upon to administer their affairs. Therefore it is proper for this official to be numbered among the spectabiles on account of the importance of the place which he holds, in which rank are also included the Proconsuls, and the Counts of the East, of Galicia, and of Phrygia.
(3) He shall hear all legal controversies arising in his province, whether they be pecuniary, civil, or relating to freedom, and he can delegate his authority to other magistrates. Appeals from his decisions shall be heard in the same way as has already been prescribed in the case of spectabile magistrates, by the Most Glorious Praetorian Prefect and the Most Glorious Quaestor (as We stated in the beginning) ; the reason for which is that this office becomes civil by means of the laws to which We desire even military jurisdiction to be subordinated.
CHAPTER VI.
In conformity to the law recently promulgated by Us, when, in a ease where the value of the property in controversy does not exceed five hundred pounds of gold, an appeal is taken from the decision of one of the magistrates of Praetorian jurisdiction, not the Count of Pacatian Phrygia (as We have previously stated) but the Praetor himself must hear it, even though the judge whose decision is appealed from may have specially been appointed either by Us, or by someone of high rank; and it will not be necessary, for the reasons already stated, for this judge to be spectabile; but the Praetor shall decide the appeal without (as was formerly the case) it being possible for recourse to be had to Us, and to prevent Our subjects from being compelled to incur great expense where the value of the property is insignificant.
We give the Praetor information on these matters in order that he may learn properly to represent Us; We confer upon him not only the
honor of his office by the commissions (for they are so designated) which it is customary to give to magistrates of spectabile rank, but We also communicate to him the Imperial mandates, which the ancient legislators styled "instructions to Governors." When We drew up these instructions We directed that they should be filed in Our Imperial Bureau of Records, in order hereafter to be delivered to the magistrates with their commissions, for the latter confer the authority, and the former indicate the way in which it is to be exercised.
The notice appended to this Our law fixes the amount to be paid by the Praetor for his commissions, when he is appointed, and the salaries to which he, along with his assessor and his court, are entitled from the public. If Your Excellency should ascertain that the Governors of the provinces included in the jurisdiction of the Praetor of Lycaonia are negligent in rendering an account of the taxes, you will not remove them, but will notify the spectabile magistrates, in order that they may reprimand such Governors as are devoted to idleness, and they themselves see that the taxes are paid into the Public Treasury.
EPILOGUE.
Therefore We order that the present law shall be inserted in the Book of Our Constitutions; it shall carry with it the eternal memory of Our benefits; and Your Excellency, as soon as you have received it, shall cause it to be enforced.
The following schedule of payments is applicable to the office of the Praetor of Lycaonia. He shall receive by way of subsistence, capitation, and salary, three hundred solidi; his assessor shall receive seventy-two, and his attendants fifty-two. On the other hand, the Praetor shall pay for his commissions nine solidi to the Chief of the Chartularies of the Imperial Bedchamber; twenty-four to the Chief of the Illustrious Tribunes of the Notaries, and officials of the Later-cidus, three to the assistant of the Chief, and sixty to the subordinates of the Most Glorious Prefects, for orders and other purposes.
TITLE V.
CONCERNING THE PRAETOR OF THRACE. TWENTY-SIXTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
It is an admitted fact that when anyone mentions the country of Thrace there straightway arises in his mind a spirit of courage, and a desire for war and battle. And, indeed, such a desire is innate in this people, and is, as it were, an inherited attribute. For this reason We first determined to establish better conditions in that country, and, after having long considered the subject, We have finally drawn up
the present law. We are aware that two vicegerents are stationed at Long Wall, one of whom is in command of the military (for there are a great number of soldiers in that neighborhood), and the other has charge of civil matters. But as one of them performs the duties of Most Glorious Prefect and the other those of general of the army, they never agree among themselves; and although the Treasury furnishes them with subsistence and other emoluments separately, they, nevertheless, encroach upon the jurisdiction of each other so that controversies incessantly arise between them.
CHAPTER I.
Therefore, it has appeared advisable to Us to treat Thrace as We have treated other nations, although the people are not so fierce or so much in need of military government as those referred to; for We do not desire that two officials having respectively civil and military jurisdiction should any longer exist in Thrace, hence We now combine the two offices into one, which We entrust to a single magistrate of eminent character, who is worthy of respect, and will not only discharge the civil duties of the place, but will be careful to preserve proper military discipline, as anyone who performs the functions of Governor alone is not invested with sufficient authority for this purpose.
(1) If, however, the care of this region, the administration of all its affairs, and the preservation of order, as well as the command of the army require the service of a good man, and one who cannot only control the soldiers, but also issue orders in conformity with the laws, what name would be appropriate for Us to confer upon a place of such importance? How shall We designate the official appointed to this magistracy? Is it not clear that, just as the ruler of Pisidia and the supreme magistrate of Lycaonia have been created and appointed by Us, so also, in this instance, the official should be called Praetor joined with the name of Our majesty? For if the ancient Praetor of the Romans occupied the same position under the Republic as under the Empire, it must be admitted that no title is so applicable to this magisterial office as that of Praetor, since this dignitary commands the soldiers, and has not a few towns subject to his jurisdiction, in which he dispenses justice in accordance with Our laws.
Civil as well as military affairs require the services of a man of high character in these places, for in the early days of the Republic soldiers were always appointed to great offices; they not only commanded the army, but also governed Our other subjects at the same time, even though the latter were not enlisted in the army. Finally the invasions of barbarians demanded the adoption of more stringent measures, and it became advisable for the administration to be entrusted to a magistrate who could rule in accordance with Our laws, as there is a great difference between the maintenance and the disregard of order; and it is evident to everyone that when military power alone is exercised it exceeds the limits of propriety, and becomes too bold; while, on the other hand, a purely civil administration,
when not supported by a military force, will be deficient in authority; but when both of these forms of government are united in the same ruler, the management of public affairs becomes more perfect and effective, not only for the prosecution of war but also for the preservation of peace.
CHAPTER II.
Hence the two administrations of this province shall be united, and the official invested with the government of the same shall be designated the Justinianian Praetor of Thrace. We grant him the insignia of his rank both by means of the commissions issued here like those given to spectabile magistrates, and by Imperial instructions which prescribe the method of governing the province, which said instructions Our predecessors called mandates of the sovereign, and were delivered to those who drew the provinces by lot, for the purpose of informing them of the manner in which they should discharge the
duties.
The office of Praetor has always been regarded as one of the highest dignity; it has increased the greatness of the Roman name among many nations subject to Our Empire, especially in the West; and it is through the agency of the Praetors that the Romans have added to their dominions almost the entire North, South, and a large portion
of the East.
You will communicate the provisions of this law, having reference to the government of provinces, and whatever We have also decreed concerning the Praetors of Pisidia and Lycaonia, to all persons, so that these magistrates may be appointed gratuitously, and may also, without reward, devote themselves to the welfare of Our subjects; and there is all the more reason for this, as the law referred to applies to Our entire Empire, and is well known to everyone, for it prescribes the oath to be taken by Our magistrates when they assume their official duties, and by means of it they devote their souls to God, and promise to govern Our subjects with equity and justice, as well as to refrain from all corruption, enmity, and partiality.
(1) The court of the Praetor of Thrace shall be composed of a hundred persons, and the Praetor shall be invested with the insignia of both military and civil magistracy. In addition to this, an adre-sponsus shall be assigned to him who shall have charge of the army stationed in that region, over which he shall have full command, and which the Praetor shall be authorized to make use of in every way which he may think will be to the advantage of the Government.
(2) The levy of taxes in that region shall be made by the Praetor himself and his subordinates, and the entire body of the latter shall be given the name of praetorian, and shall be appointed by letters issued by the Imperial Secretary's office, whence in former times the members of the vic'eregal court also received their authority.
CHAPTER III.
The Praetor must be careful, in the first place, to keep his hands clean from the acceptance of either bribes or presents, and afterwards,
in public as well as private, to show himself to be just in every respect towards Our subjects, whether they are involved in litigation, or enter into contracts with one another; and he must take measures to prevent them from engaging in disputes. He must also employ his soldiers in military exercises, in order to render them more efficient and active; he must govern the other inhabitants in accordance with law, to the end that they may become just, and free from all wickedness and malice, by which they may the more readily be induced to practice equity, virtue, and courage; and when a military expedition is undertaken, he shall see that it is despatched as quickly as possible, and that every cohort is at hand, as the civil officials should co-operate with the military for the purpose of counter-acting any hostile operations of the enemy.
(1) Again, this magistrate must hear and determine all pecuniary, criminal, and other cases justly and in accordance with Our laws, without evincing any partiality, and not give any occasion to litigants to annoy Us with their importunities; for We are unwilling for Our subjects, when oppressed by their Governors, to be compelled to abandon their provinces in order to have recourse to Us. If, hereafter, the people of Thrace should appeal to Us for any reason, We shall carefully ascertain whether they have already brought their cases before the proper official in their province, and if We ascertain that this has not been done, We shall send them back with a severe reprimand. But if, after having made application to the Praetorian Tribunal, the magistrate has neglected to render judgment, or, if influenced by some dishonorable motive, he has not decided in accordance with law, We shall then devote Our attention entirely to him. For as We increased the power of the Prsetor (that is to say, as We conferred upon him the functions of two offices) and have placed him in control of such a great multitude of men, if We should find that he has acted in any unworthy manner, We shall not overlook the fact, nor shall We impose a moderate penalty upon him; and as We shall exalt him if he discharges his duty properly, so We shall inflict the more severe punishment upon him when he does anything contrary to law. He must show no partiality whatever for anyone, no matter what his rank may be or what wealth he may possess; and We appoint men of distinction and authority to places of this kind in order that it may not be necessary to favor those who desire to make use of their wealth to inflict injury upon others.
CHAPTER IV.
The Praetor of Thrace shall see that the public works do not suffer any damage, for instance, the harbors, walls, bridges, and highways; but he himself must provide for all necessary repairs where the civil revenues are sufficient, and if any greater expenditures are necessary, he must inform Us of the fact, and accounts must be rendered, just as has already been prescribed by one of Our laws. Nor do We wish that persons who are ordinarily charged with the inspection of watercourses, and the repair of gardens, walls, pictures, and other things of this kind, should be sent from your prefecture (which indeed We have
already prohibited) into the province; but the Prsetor himself must ascertain what should be done, and render an account of the expenditures for repairs, in accordance with Our Constitution.
(1) But if We should determine to place another in charge of this office, We shall do so by means of a pragmatic sanction, which (if it seems advisable) shall be addressed to your prefecture. For, in order to prevent Our subjects from incurring too much expense, and because We are aware of the great power of money, and have made ample provision for the subsistence of Governors, their courts, and all their attendants, as is customary, We do not desire them to commit any discreditable acts on account of poverty or for any other similar reason, but honored with distinguished rank, and being members of the eminent body of the Senate, they should govern their provinces, having the glory of God and the memory of Ourselves constantly in mind. If the Prsetor does not in any respect disobey what We have commanded, he will greatly increase his reputation.
(2) And, as the ancient Romans only appointed men of consular rank and Prsetors to govern provinces, We do not do anything contrary to good morals when We designate persons for such a purpose who, repressing the yiolence of collectors of taxes, that, sent from here, seek to oppress Our subjects, can in this way render themselves useful in case of necessity.
We confer upon the Prsetor of Thrace power to investigate and prevent things of this kind, and thus correct these abuses, and his secretary shall inform Us of their existence, in order that if the Prsetor should be unable to remedy them, and the case demands it, Our authority may be interposed.
CHAPTER V.
We admonish magistrates by Imperial mandates, which We communicate to them along with the insignia of office, to remind them of the oath which they have taken, as well as of the instructions which We have communicated to them, so that if they desire to show themselves worth of Our approbation, they will lead proper lives, and, in accordance with Our laws administer the offices bestowed upon them. We have conferred authority upon these magistrates subject to the abovementioned condition, granting them (as has already been stated) full power to act, and render decisions in pecuniary, criminal, and all other cases; and appeals should be taken from them to Our Most Glorious Prefects and Quaestors, who shall decide them in the same way that they do cases referred to the Imperial Palace.
Where in this province a case in which a sum less than fifty aurei is involved is taken up on appeal, and it was originally decided by a judge appointed either by Us or by the Prsetor (provided the magistrate is not one of the rank called spectabile), the appeal shall be taken to the Prsetor, who shall hear it in accordance with the procedure of the Imperial Palace. For We honor his office in this way, and place him upon the same footing as the Count of the East, the Proconsuls, and the Counts of Phrygia and Galatia; and if he is of the above-
mentioned rank, as the magistrates of these provinces are, he can render judgment in the same way. Our law does not diminish the importance of the office of Governor, but the Praetor shall himself be charged with the execution of the laws in the province; that is to say, he shall exercise the same functions in the jurisdiction which We have just conferred upon him.
(1) A notice has also been appended to this law which establishes the sums to be paid by the Praetor for his commissions, and fixes the salary given him by the public by way of subsistence. We do not permit him to accept anything beyond that amount, and he must avoid making any profit, for if We grant liberal allowances to magistrates, they must indemnify Us for doing so by consulting the welfare of Our subjects, and always be mindful of the oath which it is customary for them to take.
We desire the present law to be recorded in the Book of Constitutions, and after having received it, you will see that it is perpetually observed hereafter.
The Praetor of Thrace shall be entitled to three hundred solidi by way of subsistence, capitation, and salary; his assessor shall have seventy-two solidi; and his attendants fifty-two; but, on the other hand, the Praetor shall pay for his commissions the following sums, viz.: to the three chartularies of the Imperial Bedchamber nine solidi; to the Chief of the Illustrious Tribunes of the Notaries and the officers of the Laterculi, twenty-four solidi; to the court of the Most Glorious Prefect, for orders and other things, forty solidi.
TITLE VI. CONCERNING THE COUNT OP ISAURIA.
TWENTY-SEVENTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
The government which Our predecessors established in Isauria is at present in Our mind, and We remember at the same time that in First Galatia and Pacatian Phrygia, We united the office of Vicegerent (as it was formerly called) to the civil magistracy, and honored the official who administers them with the ancient appellation of Count, because of which one of these dignitaries bears the title of Count of First Galatia, and the other that of Count of Pacatian Phrygia, added to the name of Our Majesty.
CHAPTER I.
We make the same provisions with reference to the Province of Isauria, for We do not wish that he who in the future may administer this office shall use double commissions, assume the title of civil magis-
trate and at the same time be invested with the insignia of military authority, and bear a double appellation when, in fact, the two places are combined in one; hence, in order that he may have but a single office, We decree that he shall possess military jurisdiction, collect the public taxes, govern all the inhabitants under his control, and preside over only one tribunal which shall be called that of the Count, and shall receive the letters conferring his authority from the Bureau of the Imperial Secretaries. He shall, under all circumstances, obtain the magistracy gratuitously, and shall not give or pay out any money; and in order that he may be free from corruption, We send him the law which We have recently promulgated on this subject.
In addition to the commissions conferring the rank of magistrate which are delivered to him, We also give him the Imperial precepts, called mandates by former Emperors, and which have again been introduced by Us into the government, from which he may understand what is required of him in all matters both public and private, and in addition to this, what measures to adopt to prevent the Treasury from being subjected to any unnecessary expense, and learn in what way he should perform his official functions.
CHAPTER II.
He is notified that he is assigned a place among the spectabile magistrates, and that the Most Glorious Praetorian Prefect, along with Our Most Glorious Quaestor, will hear any appeals taken in his province, as the Augustal Prefect, the Proconsul, the three Praetors, whom We have recently appointed in Pisidia, Lycaonia, and Thrace, as well as the Count of the East, and the Counts of Pacatian Phrygia, and First Galatia do. When a case involving property of the value of less than fifty pounds of gold is hereafter appealed in Isauria the Count himself shall hear it, just as is done in the Auditorium of the Imperial Palace. For We grant him this privilege, adding thereby to the dignity attaching to his office.
EPILOGUE.
Your Excellency will conduct yourself towards the aforesaid magistrate just as you do toward the other magistrates hereinbefore mentioned.
We append to this law a notice stating what must be paid out of the Public Treasury to the Count, his court, and his assessor, and also what he must give in consideration of receiving his commissions. These officials, who have recently been appointed by Us, are hereby notified that they must refuse to receive any money tendered for offices, which is not bestowed by Us either upon themselves, their assessors, and court attendants; for We have allotted large salaries to the Governors themselves, in order to prevent them from accepting anything from Our subjects. If you should discover that the Governors of provinces included in the jurisdiction of the Count of Isauria are negligent in the collection of taxes, you will not remove them, but you will notify
the magistrates to threaten such idle and inefficient officials and exert every effort to increase their diligence; for it is only by their cooperation that the government of Isauria can be improved and acquire a greater lustre than it formerly enjoyed.
The Count of Isauria shall be entitled to two hundred solidi by way of subsistence; his assessor to twenty-two; and the attendants of his court to fifty-two. He must pay the following sums for the delivery of his commissions, namely, nine solidi to the Chartularies of the Imperial Bedchamber; twenty-four solidi to the Chief of Tribunes of Notaries, and the Laterculensii; and forty solidi to the officers of the court of the Most Glorious Prefect, on account of orders and for all other purposes.
TITLE VII. CONCERNING THE GOVERNOR OF THE HELLESPONT.
TWENTY-EIGHTH NEW CONSTITUTION. The Emperor Justinian to John, Praetorian Prefect.
PREFACE.
It is certainly not the part of a well-established and powerful government without good cause to alter and divide what has for a long time been settled and confirmed, as the strength of an empire does not depend upon a multitude of words, but upon the faithful and just administration of affairs. We have ascertained that this rule has been violated with reference to the two Provinces of Pontus, that is to say, the Hellespont and Polemoniac Pontus; for they were formerly subject to the authority of a single Governor, while at present there are two officials, without public necessity requiring it, or anyone being able to give a good reason for their existence. The proof that there is no good cause for this is that, up to this time, the two Provinces of Pontus have only had a single Count for the collection and expenditure of taxes; and if anyone should undertake to enumerate the different towns situated in both of them, he would hardly find enough for a single province. For instance, the Hellespont has eight: Amasia, Ibora, Euchaita, Zela, Andrapa, ^Egeumwhose climate, that is, its agreeable location, has caused it to be includedSinopa, and Amisus, ancient municipalities, as well as Leontopolis, which formerly was numbered among cities.
Polemoniac Pontus contains five towns, namely: New Caesarea, Comana, Trapezus, Cerasus and Polemonium, for Pitius and Sebastopol should rather be included among forts than cities; and these are the towns included in the two Provinces of Pontus.
Lazica is situated near them, in which is the City of Petraeon, which by Our favor, is entitled to Our name and is styled Justinianian; and also Archa3opolis and Rhodopolis, both large and ancient fortified towns, are among those which We have received from the Persians;
together with Scandis, Sarapanis, Murisius, and Lusiris, and if, in addition to these, any others are included in the country of the Lazi, We are not aware of the fact.
Next come the Tzani who, during Our reign, have for the first time been subjected to Roman rule. This nation has several towns which have recently been built, as well as others which are in course of construction. Then come the Suani, the Scymni, the Apsiles, the Abasges, and others, who, with the permission of God, have either been subjected to Our dominion or included among Our allies.
CHAPTER I.
But as in treating this subject, We have been brought to the consideration of different countries, We now return to the two Provinces of Pontus and the projected union of the same. We hereby establish a single province composed of the two Pontuses, which include thirteen cities, and We grant them their ancient form of government while retaining their modern appellation. For they are called the Hellespont by everyone, which name was given them by the Emperor Constantine, in memory of his most honorable mother Helena who recovered for Us the sacred emblem of Christianity. The ancient name of Polemon, which the greater number of the rulers of Pontus applied to that province, shall hereafter be abolished, first, because it was derived from that of one of the said rulers; second, for the reason that the province itself contains a city called Polemon; and finally, as it is better to designate Christian countries by the names of kings than to call them Polemi, which word conveys the meaning of war or tumult.
CHAPTER II.
The union of these thirteen cities into a single province will not have the effect of depriving either of the two capitals at present in existence (namely Amasia and New Caesarea) of that title; and the bishop of these cities shall continue to be consecrated at Constantinople by the prelates charged with this duty (as has been the custom up to this time), as We make no innovations so far as the priesthood is concerned; for many institutions of this kind having reference to bishops exist in every province, some of which have been established for centuries, and others We Ourselves have recently authorized. A single magistrate, ordinarily designated Harmostes in Greek, shall exercise jurisdiction under the title of Governor, but the name Governor is of high antiquity, and worthy of the greatness of the Romans, while the term Harmost was applied to a magistrate sent from Laca-demon with jurisdiction over conquered cities.
CHAPTER III.
Hence the official who undertakes this administration shall be called the Justinianian Governor of the Hellespont, and will assume command of the military forces stationed in that province. He shall
also have an adresponsus, to whom all men, no matter to what civil condition they may belong, shall be subjected, without exemption on account of any privilege. He shall hear all cases pecuniary as well as criminal, and shall dispose of such as are insignificant in character, without record or expense; and, so far as those of greater importance are concerned, they shall be decided by him, and the proceedings recorded, but no other costs shall be incurred than those prescribed by Our Constitution.
The said magistrate shall receive the emoluments granted to the two preceding ones, which amount to seven hundred and twenty-five aurei; he shall have only one court, and with it he shall be responsible for the levy of taxes, for the reason that he is the only one appointed for government in the province; his assessor shall be paid seventy-two aurei out of the Public Treasury; and the two preceding courts, which have been combined in one, shall be entitled to four hundred and forty-seven and one-third aurei.
CHAPTER IV.
Moreover, the official who is discharging these duties shall not despatch deputies to the cities of his province (for the rules established by Our Imperial mandates shall be observed), but he himself shall visit the said cities, one after another, and he shall not be prevented from doing this by any law or pragmatic sanction previously promulgated, even though a former custom may have authorized something of this kind. He can establish his residence wherever he thinks best, either in one of the capitals, or in some other town, provided the latter is of sufficient importance to justify him in doing so. He must abstain from all corruption and illicit gain, and conduct his administration in such a way as not to involve the inhabitants in unnecessary expense. For neither he himself, nor any of his subordinates, nor any soldiers of his escort, shall accept anything from taxpayers, or exact anything gratuitously, and he must not molest Our subjects, or permit the soldiers who accompany him to do so, for this forms part of the instructions which We have given.
He must always be mindful of the oath which he has taken, and that he received the office without paying for it; and that if he is to prove worthy of an increased allowance, he must never venture to accept any gift, unless he expects to be compelled to return it, and be subjected to severe punishment. Nor shall he permit any of his subordinates, under any pretext, to exact anything, or accept it if it is offered. If he does not see that the soldiers under his command are content with the salaries paid them, he will not escape the effects of Our righteous indignation, and will be forced to reserve enough from their pay to indemnify any of Our subjects who have suffered from their impositions.
(1) We desire these dignitaries of high rank to be invested with great authority, not only through the number of persons composing their retinues (the Court of the Governor of the Hellespont shall consist of a hundred officials), but also because of their personal dis-
tinction (for We confer the rank of spectabile upon the Governor of the Hellespont), so that, in case of necessity, We may be enabled to avail Ourselves of magistrates endowed with formidable power, who may be in a position to assist Us. What could the Governors of provinces accomplish under the ancient form of administration, when they had very few attendants, were invested with but little authority, received but small salaries from the Public Treasury, and paid out large sums of money in order to obtain their offices? They were obliged to steal, they constantly granted favors and benefits to their creditors, who had loaned them money to enable them to purchase their offices, and who constantly threatened them. The result of this was that Governors compelled Our subjects to sell their property in order to procure for themselves revenues which were precarious and dishonestly obtained.
(2) This unworthy condition of affairs impels Us not only to reject the proceeds of the sale of public offices, but also to refuse to sanction the enormous expenses incurred by the payment of salaries to officials; and where any kind of magistracy was formerly conferred by Our predecessors in consideration of the payment of money, We shall provide a remedy for the evil, deliver Our taxpayers from this imposition, and pay out of Our own Treasury salaries to magistrates who have been appointed to office, and by so doing give them freedom. It is true that God has been liberal to Us in this respect, so that We have not only given peace to Africa and to the nations included therein, but He has also enabled Us to relieve from great expense and infamy peoples established, so to speak, in the midst of Our Empire, against whom a new action was instituted rigorously every year; and who, instead of being subjected to the authority of a single ruler, were, at frequent intervals, placed under the administration of new magistrates.
We have thought that the privilege of remedying this abuse has been conferred upon Us by God, who has placed the Imperial crown upon Our head, and who, for the common welfare, has invested Us with the purple, through the medium of Our Father, and, in short, has been more generous to Us in every respect than to any of Our predecessors.
CHAPTER V.
The magistrate appointed to this office is hereby notified that he will be invested with the government of many men and towns; that he should cause himself to be greatly respected; that the form of his administration from being consular and correctional has been changed and rendered a great magistracy; that he must consult the interests of Our subjects; preserve them from all oppression; govern them without bribery; increase the fiscal revenues and exert every effort for their preservation. He must avoid avarice; abstain from accepting gifts; administer justice to citizens in public as well as in private; visit the cities, and correct any vicious practices existing there, and do
nothing for the sake of profit; he must not be animated by the desire of acquiring either a small or a great reputation, but he must act in such a way as to acquire one which is good and praiseworthy; he must religiously observe the oath which he has taken; and, in conclusion, he must endeavor to render himself acceptable to Us in every respect.
(1) He shall also take care that no one in Pontus is permitted to place notices upon the lands or houses of others, because this right is one of the privileges of the Treasury; and notices of this kind are only placed upon the palaces belonging to Us, or to Our August Consort. If the Governor should ascertain that notices have been set up in the name of a third party, he must tear them down, and prosecute him who is responsible for it. Where, however, the notice has been affixed by someone claiming to be the owner of the immovable property, the Governor shall place a public notice upon said property, after having broken the others on the head of him who affixed them. But if this was done by an agent having charge of the property of others, the Governor must break the notice on the head of the latter (as We have already stated), and also subject him to moderate punishment; in order that the beneficiary of the illegal act may learn that neither he himself in person, nor through the agency of others, nor by means of anyone selected for the purpose of gratifying his avarice, will be permitted to commit any injustice against Our subjects.
CHAPTER VI.
In like manner the distinguished Governor will be required to prosecute thieves; men who make a practice of committing fraud; ravishers of women; and robbers who take property, beasts of burden, and other things of this kind by employing force; and he must preserve intact the rights of those subject to his authority, in order that it may be evident that We have made a good choice in giving him his appointment.
Persons guilty of such offences shall not afterwards be permitted to enter the province, which will have no reason to regret that We have done away with the officials formerly sent to suppress violence, and punish thieves, and We have subjected soldiers to the commands of the Governor in order that, with their assistance, he may be able to clear his province of all kinds of criminals.
CHAPTER VII.
Our wishes shall be communicated to the Governor in a few words, as he can by reading the general law (which law We promulgated at the time We established the rules for magistracies), as well as by familiarizing himself with the instructions of the Emperors, readily ascertain what must be done; as the said instructions, when given to him, will explain the way in which he should discharge his duties. If he discharges them properly, he will not only show himself to be grateful to Us, but at the same time will devote his soul to God, and be able to hope for a great reward for his beneficent administration.
A notice appended to the present constitution establishes the salaries which the Governor, his assessor, and his subordinates shall receive from the Public Treasury; and it also 'fixes the amounts which the Governor will be required to pay for his commissions. The latter, remembering the extent of Our generosity towards him and the moderate sum exacted for drawing up his commissions, should administer his government with justice, and, above all, with a view to the interests of the great provinces and the multitude of persons committed to his
care.
CHAPTER Vill.
We further state that appeals taken from the decisions of the Governor of the Hellespont shall, like those from other magistrates, be brought before the Most Glorious Prefects, and Our Most Glorious Qusestor, and decided just as would be done in the Imperial Consistory. When appeals are taken in cases where the amount of property involved is less than five hundred aurei (even though this be done by delegation) but not from the decision of a magistrate of spectabile rank; the Governor himself, who is clothed with high powers, shall hear and determine the same; and shall bear in mind the increase of dignity with which We have honored him, and his public conduct should render him irreproachable in the eyes of Our subjects and Ourself, and before Us, in those of God and the law.
EPILOGUE.
Your Excellency, after having received this constitution, will deliver to the Governor the great emoluments which have been granted him; and he, for his part, impressed with the importance of his office, must endeavor to render himself worthy of the distinction which We have conferred upon him, by being careful to observe the provisions of this law.
TITLE Vill. CONCERNING THE PR^TOR OF PAPHLAGONIA.
TWENTY-NINTH NEW CONSTITUTION. The Emperor Justinian to John, Pra3torian Prefect.
PREFACE.
The ancient race of the Paphlagonians was not formerly degraded, inasmuch as it sent out many colonies, and established itself in Venice in Italy, and by it Aquileia, the largest of the cities of the East, which had many controversies with kings themselves, was founded.
CHAPTER I.
This country of Paphlagonia suffered a diminution of territory during the reign of the Emperor Honorius, and lost certain cities, the
reason for which is not known. We desire to restore to this province its ancient form of government, and to administer it in the same way as if it was a city, as well as to accomplish what We have done in the two Provinces of Pontus, in order that the official invested with authority who will govern the two provinces (namely Paphlagonia and Honoriades) may be designated Praetor (which is a Roman name applicable to the Governors of provinces), and have a single court of a hundred officials, made up of the members of the two previous courts combined.
This magistrate shall collect the public revenues not only from the Paphlagonians, but also from the inhabitants of Honoriades. He shall also be charged with the administration of all the cities originally included in each province, that is to say, in Honoriades, Prusias, Gratia, Hadrianople, Tio, Claudiopolis, and Heraclea. Some of these, for instance, Prusias, Heraclea the capital and chief city of the province, and Claudiopolis, were originally taken from Bithynia, and as this was done, We do not deem it advisable again to deliver them to the Bithyn-ians, it will not be necessary to make any change in this respect. Thus the six cities included in Honoriades shall now form part of Paphlagonia. The Prsetor shall also have jurisdiction over the six other cities which, from the beginning, have belonged to this province, namely: Germanicopolis, Gangra, Pompeiopolis, Dadybros, the heights of Amastridis, and lonopolis, and thus twelve cities in all will be embraced in the territory of Paphlagonia.
We do not formulate any regulations with respect to the priesthood, but the metropolitans will continue to be consecrated as formerly, and receive their ordination from the patriarchs of this city; and ecclesiastics of inferior rank shall be ordained by them, and there shall be no dispute on this account, nor shall any confusion of jurisdiction arise. In consequence of this, there will be in the future but a single province, which, as in the case of others, will have several metropolitans.
CHAPTER II.
The official invested with the government of the entire province (which shall, as formerly, be designated Paphlagonia) must visit the different cities, but is not authorized to send deputies here and there to the towns throughout the province, even though this may not have been prohibited in former times by any pragmatic sanction. We forbid this to be done under any circumstances, as it would be disgraceful for him, after having been appointed to dispense justice in the province, to entrust this duty to someone else, in violation of the provisions of this law. He himself shall have the direction of everything, and shall collect the public taxes as quickly as possible, and, when doing so, must not exact anything more or less than is due. He shall see that Our subjects are equitably treated, and, at the same time, make provisions for any losses which may be sustained by the Treasury, and he must also prevent the cities from suffering any injury either in public or private matters.
This magistrate shall receive the same remuneration formerly paid to both the others, which amounted to seven hundred and twenty-five aurei; he shall have an assessor, who will be entitled to seventy-two aurei; and a single court composed of a hundred men, selected from the two former ones, to whose members emoluments shall be paid out of the Public Treasury to the amount of four hundred and seventy and one-third aurei. As he obtains his place gratuitously, he must also administer it in the same manner, for We hereby release Our subjects from the control of those who formerly were accustomed to accept gifts, when appointed to office; the salary of the Prsetor shall be paid to him by you out of the public taxes of his province; and We shall not suffer Our subjects to be reduced to servitude under the pretence of an increase of taxation. Nor shall We allow the subjects of Our predecessors, whom We have restored to their ancient freedom after they had been subjugated by the barbarians, and who have always been under Our government, to be enslaved by anyone else; for what offering could be more acceptable to God than the liberty of Our subjects, who have, up to this time, been oppressed by fresh extortions of their Governors (as far as this can be done) since God has made use of Us to bestow freedom upon many nations?
What We have said does not apply to recently appointed magistrates, for they are sufficiently secure in this respect; but in the future We do not permit money to be paid to obtain the office of magistrate, nor Our people to be bought as slaves, and the right to commit injustice again to become the subject of traffic.
Therefore Paphlagonia, formerly divided into two provinces (We do not know for. what reason) shall hereafter only be considered one among the Provinces of Pontus; the magistrate charged with the administration of the same shall have (as We have already stated) the title of Justinianian Prsetor of Paphlagonia, and it shall even be permissible for him to be styled Strategos, in Greek.
CHAPTER III.
You will constantly remind the Praetor of the oath taken by him at his installation, when he swore to keep his hands pure and free from all corrupt gain, to increase the revenues of the Treasury by just and honorable means, and to dispense equity and justice to Our subjects in public as well as in private matters, whether these have reference to contracts or to judicial controversies. He shall visit the cities without imposing any burden upon Our subjects, so that neither he, his assessor, nor any of the persons in his train, nor any soldiers, court-attendants or slaves, may obtain any profit, or travel without incurring any expense. For he himself, and all his escort, must act with propriety, paying their expenses out of the salaries given them by the public; and the soldiers are notified that if, during their journeys, instead of being content with their emoluments, they venture to inflict injury upon Our subjects, cause them any loss, or take anything from them without compensation, this shall be deducted from their pay, by way
of indemnity for the wrong committed; which the Praetor himself must attend to, and, if he does not do so, he will personally Be required to indemnify Our subjects.
CHAPTER IV.
This law, which We have enacted with reference to the Paphla-gonians, renders their magistrate more honorable, places him in the rank of spectabiles, and confers authority not only upon him over the soldiers stationed in his province (provided he commands them with justice) but also over others; it does not permit anyone under his jurisdiction to be released from it, even where he may be authorized to do so by reason of some privilege, or is charged with the administration of the estates of powerful persons. He should take special care to prevent any other inscription than those of the Treasury or Royal Houses to be placed upon the property of others, which is something which frequently happens in Paphlagonia.
If the Prsetor should learn of any offence of this kind, he must remove every trace of the inscription, and place those of the Treasury upon the property of the offender, after having broken his own over his head, if he is present. Where he is absent, and the agent in charge of the property is arrested, the Prsetor shall inflict corporeal punishment upon him, and at the same time break the inscriptions over his head.
The Praetor is hereby notified that if he neglects to do what We have ordered, and We should ascertain that he has allowed inscriptions to be placed upon other lands than those belonging to the Treasury, and Ourself and Our August Consort, he will render himself liable to the confiscation of his own property, for the reason that while invested with great power, he has, through negligence, permitted acts to be committed which could readily have been prevented.
CHAPTER V.
We desire the Prsetor of Paphlagonia to pay great attention to the pursuit, arrest, and punishment of persons who are guilty of robbery, stealing the property of others, ravishing women, and other crimes, for all of which offences he must impose suitable penalties. He must, by all means, prevent injustice, nor allow men who are honest and peaceable to suffer injury, lest We may be compelled again to despatch officers charged with suppressing violence, apprehending thieves, and other duties of this kind, a measure which is intolerable to Us. We invest this magistrate with such honor and dignity that the appeals of cases decided in his province shall be brought before Your Excellency and the Most Glorious Quaestor of Our Imperial Palace, who shall take cognizance of the same and decide them, just as if they were brought before the Imperial Audience-Chamber.
The Praetor himself shall hear and determine all controversies where the value of the property involved is less than five hundred solidi, which have been tried in his province before magistrates of inferior rank, even though the judgments may have been rendered by delegation, whenever such cases remain in abeyance for the reason
that appeals have been taken. He shall rank with the other magistrates whom We have recently created, and as such magistrates have more authority, they shall also enjoy greater distinction than their predecessors, and will be able to furnish Us greater assistance whenever this becomes necessary. In fact all their powers are greater, whether they have been bestowed by Our predecessors or granted by
Us.
A notice appended to the present law fixes the salaries to which the Praetor, his assessor, and the subordinate officials of his court, shall be entitled out of the Public Treasury, as well as the sums which the Praetor himself shall be required to pay for his commissions.
(1) As the manner in which this Praetor shall conduct his government is only concisely stated here, it will be more explicitly set forth either by the general law which is applicable to all magistracies, or by the Imperial instructions which We intend to deliver to him with his commissions, when, in accordance with Our law, We require him to take the prescribed oath.
EPILOGUE.
After this constitution has been communicated to You, Your Excellency will deliver to the Praetor of Paphlagonia the great emoluments to which he is entitled; and he, impressed with the dignity of his office, and desirous of proving worthy of the Honor which We have conferred upon him, should exert himself to carry out the provisions of the present law.
TITLE IX. CONCERNING THE PROCONSUL OF CAPPADOCIA.
THIRTIETH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
Persons who have studied history are aware that the people of Cappadocia bear distinguished names; that they had many transactions with the Romans before being subjected to their rule; and that their dominions formerly embraced all of Pontus, and gave birth to famous men who obtained a high reputation among the Romans. Cappadocia is of great extent and wonderfully fertile, and found such favor in the eyes of the Emperors that the latter were accustomed to appoint as Governor of those regions a special magistrate of higher rank than that of a civil official. This country is extremely populous, and contains a great city which bears the name of Caesar, one which is very dear to Us, being that of a ruler who began the acquisition of the empire of the world which We at present possess, a name held in great veneration by all the people of the earth, and which We exalt above all the attributes of Imperial Majesty.
CHAPTER I.
It seems to Us contrary to all propriety and dignity that Cappadocia hitherto should have been subject to the jurisdiction of an inferior magistrate, as We have learned that almost constant seditions have arisen against the government; that the city is divided into two factions, one of which is styled Tamiacal, or Fiscal, and relating to the Treasury; and the other Eleutherical, that is to say, free; and while there is but one community enclosed by the walls, there are two bodies of persons entertaining different opinions. This gives occasion for seditions and quarrels, and if the inhabitants experience any evils it is due to this cause (so We think) and, when it is removed, We shall restore authority and concord, than which nothing better or more desirable can exist among men.
(1) With this end in view, We have established a different form of government, with other magistrates, as We have already done in the case of the Pisidians, the Lycaonians, and the Thracians, by the union of both the civil and military jurisdiction; but, as We desire it to be superior to theirs, We have added a third. For, in addition to the fact that the magistrate entrusted with the government of Cappadocia shall supervise the execution of the laws by the civil officials, and shall have command of the soldiers stationed in his province, as well as all the other provinces of Pontus, where Tamiacal lands are to be found, he shall also be invested with authority over soldiers stationed in those places. For We grant him jurisdiction over the men attached to Tamiacal lands, as well as over those forming part of the Comitian Court, who shall all obey him, and in this manner he shall administer a government of a threefold nature, for he will have civil and military jurisdiction, as well as control of Tamiacal property. Thus he will have two courts, Comitian, whose officers will execute his orders without reference to the Civil Court and that of the illustrious Governor of the province; these two courts shall be styled Proconsular, and We desire that each one of them, that is to say, the one formerly known as Comitian and the one called Civil, although they will have but one appellation (that is Proconsular) shall each exercise distinct functions. In this way the Civil Court will have charge of tributary and civil matters which We are aware from the beginning have always belonged to it; and the court which formerly was called Comitian will be restricted to the administration of property belonging to the Empire, and shall make collections in the manner which We shall presently explain.
CHAPTER II.
Bearing in mind the example of former times, and the enormous injury inflicted by curators and stewards upon Our wretched subjects, We do not desire the names of these officials to longer exist. For this reason there shall be appointed for each separate house thirteen of the principal members of the Comitian Court, who shall be called first and second masters, and shall be personally liable, and thirteen others who shall be next in authority, and shall, like the first be assigned to.
each private house (as already stated) ; and the latter, under the supervision of the head masters, shall attend to the collection of the revenues, and preserve for the Treasury the property belonging to the same; it shall be their duty to correct the indolence of taxpayers, but they must be careful not to cause the latter any loss, for We warn them that they will be responsible for anything of this kind, and will give every public receipt at their own risk.
The first and second masters and the thirteen others who come next in order must be careful not to divert the public revenues to any improper purpose; nor shall they be compelled to pay any personal contribution to the Proconsul in office at the time on account of their commissions, or to do this under any other pretext; but each one of the thirteen collectors shall pay fifty aurei to the thirteen head-masters.
CHAPTER III.
Collectors shall not take from peasants, or others from whom collections can be made by them, any more than has been prescribed by the Edict of Niceta, and they are forbidden to pretend that the taxpayers are indebted, and to oppress them under the pretext of compelling them to make payment to stewards, by way of greeting; or in the observance of some custom; or for any other annoying purpose; for We desire absolutely to deliver Our subjects from such exactions, as well as from the unlawful and onerous contributions that they formerly paid to stewards, and which prevented them from discharging the obligations which they owed to the public. We hereby annul every pragmatic sanction, or long-established usage, where any authorizing similar contributions exists; for by abolishing even the name of these officials, We destroy at the same time everything which has reference to them, and grant a special favor to Our subjects. If any collector should dare to take from tax-payers anything beyond what is authorized by the Edict of Niceta, and which alone We have permitted them to accept, he shall be deprived of his office, rank, and property.
CHAPTER IV.
As it may happen that among the thirteen collectors (We order that they shall be appointed to this office in regular gradation), one may be found who is not qualified for the collection of the revenue, We nevertheless allow him to be paid his entire salary. But We order that the thirteen principal masters, as well as those who come directly after them, shall, at their own risk, appoint an assistant who shall make collections in his stead; because in this way the collection of taxes may be promoted, and the Treasury will not suffer any loss through the imbecility of an incompetent official; who, however, shall not be deprived of his rank, or his time of service; but We repeat that the appointment of his assistant shall be made on the responsibility of the thirteen head-masters, and the thirteen other officials who are immediately subordinated to them.
Collectors will have reason to thank Us for having released them from the 'excessive contributions that they were formerly obliged to
make, not only to the head-masters, but also to the Count in office at the time, and his attendants. If, however, We have freed them from this species of imposition, it has been done to prevent them from being guilty of injustice toward Our tax-payers, and that they may not invent pretexts; for instance, that of their assuming office, or various others, by which the means of peasants are exhausted, and that they remain content with what was allotted to curators by the Edict of Niceta, of illustrious memory, and abstain from exacting anything beyond this amount.
CHAPTER V.
The Proconsul shall decide all matters within the jurisdiction of civil, military, or Tamiacal authority. For We desire to place over Cappadocia a magistrate invested with greater power than in the other provinces; and as it was customary among the ancient Romans for the provinces to be apportioned by lot among the Consuls, or those officials who replaced them and were called Proconsuls, We desire that the Cappadocians also should possess a Proconsular Magistracy, an office by which the Romans are conducting the administration of Africa. We place the government of Cappadocia in a class so superior to the others that We designate the official to whom it will be entrusted in the way that We do Our Glorious Praetorian Prefects. He shall be called in a paternal manner the Justinianian Proconsul of Cappadocia, and he shall also have- the special title of Archegetes, that is to say, Principal Magistrate. For it is not without reason that he should be invested with such extraordinary dignity, as his power extends to other localities by means of the Tamiacal possessions; he has civil jurisdiction over persons as well as property; and, as he, at the same time, commands the military forces, he will, in every respect, exercise great authority. He shall, however, be required to conform to custom in the administration of civil affairs, and shall properly direct the soldiers at his disposal.
(1) The Proconsul with the head-masters shall attend to the administration of such Tamiacal property as has been so deteriorated and exposed to the depredations of others that it is worth almost nothing, for We have been informed that such great abuses exist in that province that it is extremely difficult to apply proper remedies. Those who have charge of the estates of powerful persons (We almost blush to say it) conduct themselves on all occasions with intolerable insolence; they are accompanied by guards to prevent the multitude from following them, and they steal with the greatest impudence. We are surprised that the people of this province have been able to endure so many injuries.
Again, every day, a vast number of Cappadocians who have been oppressed by injustice, among whom are to be found many ecclesiastics, and women, lay their complaints before Us, while We are occupied in conducting the government, because no one can be found in their province who is able to prevent acts of this kind from being committed. Tamiacal possessions are almost reduced to the condition of private
property; they are ravaged and torn up; everything belonging to them is removed; and no one makes any remonstrance because the mouths of those who could do so are closed with gold.
CHAPTER VI.
Therefore, being fully informed of these matters, We have decided to commit the government of Cappadocia to an official who, possessing triple jurisdiction, will unite in himself all administrative functions; who shall be invested with the insignia of civil office; be entitled to use a silver chariot, the axe, the fasces, and every other mark of Proconsular authority; and shall also command the soldiers, and collect the income of Tamiacal lands; shall see tha't the officials appointed for these collections are not guilty of fraud or negligence, and compel them to deliver to Us everything derived from this source to which We are entitled, and which should be given either to Us or to Our August Consort, whether it consists of gold or cloths, for We wish nothing of this kind to be retained.
(1) These articles, however, shall not be obtainedas has been the case up to the present timefrom Our subjects by extortion (for We regard all such measures as abominable, and wish them to be excluded from Our government) ; but We order that they shall be acquired by the just and legal means which We have prescribed in this Our law.
The Proconsul shall obey these rules, and shall give to Our August Consort fifty pounds of gold, as has been stated; for We appoint him gratuitously, and give him his commissions without requiring him to pay for them, nor do We desire that anyone shall collect anything from him on this account.
(2) We grant the Proconsul a salary of twenty pounds of gold and his assessor two pounds; and each body of attendants shall, without any diminution, receive the same allowance which has, up to the present time, been furnished it by the public. We decree that the connection which the magistracy of Cappadocia has had with the Most Glorious Imperial Chamberlain shall be preserved; and We desire that the latter, as well as the entire corps of Palatines subject to his orders shall retain their former authority and rank in this province. But We forbid the Proconsul then in office, and his court, to exact anything whatsoever, whether it be gold, cloth, or other things, under the pretext of custom or subsistence; and if the Proconsul should violate this order, he will not conduct his administration honorably, and will not prevent the ruin of his province, for which very reason We have placed it under his exclusive jurisdiction.
CHAPTER VII.
The official whom We shall dispatch into Cappadocia to discharge the duties of the Proconsulate will have general supervision of Tamiacal lands. He must ascertain whether they consist of meadows, fields capable of tillage, vineyards, or other property or houses, and if held
by private individuals, he shall recover them without the latter being permitted to plead any prescription of time, for to adopt such a measure against the Treasury is not allowed, and anyone who has taken possession of Tamiacal land cannot add it to his own estate; hence, where some person is ascertained to have been induced by avarice to appropriate property of this kind, he will be much nearer poverty than wealth, because he will be compelled to return it, and will also be subject to reproach and disgrace.
(1) The Proconsul shall maintain peace in all the cities, and not permit any sedition to disturb his administration; he shall diligently and justly collect the public taxes, and give this matter his entire attention, without allowing either the Treasury or private persons to sustain any loss. He shall have the same authority over all men, whether they be soldiers, secretaries of the Most Glorious Prefect, generals of the army, members of the Civil Court; whether they are discharging the duties of a Tamiacal office, or are invested with great or little authority; or, finally, whether they are included in the body of ecclesiastics. This magistrate shall have jurisdiction over all persons, and shall make it his special duty to preserve his reputation unblemished ; he must obey the laws, and, above all things, render himself acceptable to God; he shall see that the collection of public taxes is made without loss or delay by the Proconsular officers; he shall cause the revenues from Tamiacal lands to be paid into his Treasury by the said officers, and in this respect he will observe the rules ordinarily laid down by Our Most Glorious Imperial Chamberlain.
The collectors themselves must not accept a single obolus beyond the amount given them by the Most Glorious Imperial Chamberlain, nor can they take anything on the ground of its being authorized by custom, or under any other pretext, either from the Praetor in office at the time, from those who draw up the public receipts, from the Proconsul himself, from the members of his court, from the officials styled Katascevastse, or instructors, from stewards, or from any other person attached to the service of the Imperial domain.
The Proconsul shall have charge of both armies; he shall restrain the satellites of powerful men; he shall prevent the province from being depopulated and infested with brigands; and, finally, he shall not, in person, travel over it as formerly the Counts were accustomed to do. He shall not appoint any deputies in his stead, but shall be represented by the defenders of the different places and his own subordinates.
(2) When any part of the province has need of soldiers, the Proconsul shall direct those stationed therein to render assistance wherever it may be required; and they must travel at their own expense, without causing any loss or damage to Our subjects. The Proconsul shall also travel at his own expense, no matter where he goes, even when We direct him to repair to some other province; and the same rule shall apply to his assessor and his escort composed of Proconsular officers, even though they may have with them slaves or horses. But as We have previously stated, all the soldiers and persons residing in the province, as well as those composing the household of the Pro-
consul, shall be required to obey his orders, under the penalty of losing their places and their property, for the Proconsul can deprive them of both, if they refuse to obey him; and We confer authority upon him to do this in order to render him more formidable to Our subjects, and increase the respect with which he should be regarded. For if a soldier, an official of the Court of the Proconsul, or a member of his household should, while executing the orders which he has received, cause Our subjects any lossprovided he is performing his duties on his own responsibilitythe Proconsul shall deduct enough from his salary to indemnify the person who has been injured. In conclusion, the Proconsul shall not permit any officials, sent from this city, to molest Our subjects.
(3) He shall also see that the public race-course is kept in good condition, for We except nothing from his jurisdiction, and if anyone despatched from a court into the province should be guilty of oppression, or exact anything more than he is entitled to, he must prosecute him.
CHAPTER Vill.
The Proconsul shall also take care of the city and of all matters relating to the public distribution of grain, as well as of the public works; take measures to have accounts rendered in accordance with Our law; and see that all revenues, Tamiacal as well as civil, are collected. He shall expel from the province any persons who are ordinarily charged with the repair of aqueducts, walls, bridges, highways, and other public works of this kind, who formerly attended to these matters in accordance with an evil custom. He shall not permit such persons to execute orders of this description, or to obtain any profit under this pretext; and when We are convinced that an inspection of works should be made, and that it is advisable to send to the Proconsul a pragmatic sanction on this subject, We shall do so, after having notified Your Highness, in order that the entry into the province to collect money there may not appear to be easy to anyone. The official who discharges the duties of this office shall prohibit everything in his jurisdiction which he finds to be dishonorable. If, in order to do this, it is necessary to adopt more severe measures, he will communicate the fact to Your Excellency, as well as to the Most Glorious Imperial Chamberlain and the other eminent magistrates who have power to act in the matter; and finally he must have recourse to Us, and We will instruct him in what he has to do.
(1) The Proconsul shall not, in the province subject to his jurisdiction, affix to the real property of private individuals any other notices of claims than those of the Emperor, or of the Imperial domain, that is to say, the Treasury; he shall confiscate the property of persons who are guilty of this offence, and cut off their hands in case they are present; but where their agents have committed this violation of law in the absence of their principals, he shall punish the former. In addition to this, he shall break the inscriptions over the heads of those who have either themselves placed them upon the land, or have done
so by their agents. He is hereby notified that, if he neglects to punish a crime of this kind when it is brought to his knowledge, he'will render himself liable to the confiscation of his own property.
CHAPTER IX.
This magistrate must devote all his care and attention to the administration of justice, and must not (as was formerly the case) suffer rustics to be oppressed. Nor should the Cappadocians annoy Us any longer by their supplications and lamentations, for the Proconsul himself will act as their judge and decide their disputes. For if anyone should come here without previously stating his grievances at home, We shall send him back with a reprimand for having besought Our clemency before having applied to the magistrate of his province. But where injured persons have gone before the Proconsul, and the latter, steeped in debauchery and abandoned to pleasure, did not listen to their complaints, permitted them to make their applications in vain, and obliged them to have recourse to Us, especially if such persons are women, We, having ascertained the fact that they applied to him and he did not redress their wrongs, shall then regard his conduct as suspicious, and think that he has been influenced by the expectation of gain, or has acted through favor or consideration for certain persons, and shall interpose Our authority; for as he is invested with the functions of a threefold magistracy, he shall be punished in a threefold manner, by justice, by Us, and by the laws.
(1) It is proper for this official, who is entitled to public respect, to constantly bear in mind the instructions which We have given him (Our ancestors called these instructions Imperial Mandates), and always act in conformity to Our law, displaying equity in his judgments, honesty in his administration of affairs, and everywhere cultivating justice, than which there is nothing more powerful or admirable in men, or better adapted to secure the approbation of God and the Emperor.
A magistrate of this kind must act in such a way as to merit Our commendation, and We wish him alone to attend to all the business of his province, and no one else to take cognizance of cases; for, under these circumstances, it is not easy for Us to interfere with his decisions and appoint others to act in Our stead, or to dispatch officials into his province for the purpose of suppressing violence, or for any other reason whatsoever. For although, up to this time, officers of this kind have, by virtue of Our orders and the decrees of magistrates, been commissioned for this purpose, this shall not be done hereafter, and the Proconsul after receiving the administration of his entire province must not permit anyone else to have access thereto.
CHAPTER X.
Moreover, We confer upon this magistrate the rank of spectabile, which is enjoyed by all Proconsuls; appeals from his decisions shall be heard by Your Excellency along with the Most Glorious Quaestor of
Our Imperial Palace, in the form and according to the procedure of consultations. But when, in Cappadocia, any case where property to the value of five hundred aurei is involved is suspended by appeal, even though it may have been determined by a judge appointed by Us, or by some other magistrate, who, however, is not of spectabUe rank, the Proconsul himself must hear and decide it, according to the practice of the Imperial Consistory instead of the Imperial Audience-Chamber. We grant him this privilege, and thereby invest his magistracy with greater dignity than any which an official of this kind has hitherto obtained in Cappadocia.
The Proconsul must be just, a man of high principles, and have nothing before his eyes but Our service and compliance with the law, being aware that if he observes strictly what We enjoin upon him, he will hold his office for a long time, and afterwards deserve promotion to a more important one. But if he should neglect Our orders, and not treat Ourself and the law with proper respect, or permit himself to be influenced by powerful persons, he shall immediately lose the authority with which We have invested him, and be considered as guilty, and unworthy of Our esteem.
CHAPTER XI.
This magistrate must punish with severity the crimes of adultery, the rape of virgins, fraud committed with the expectation of gain, and homicide, in such a way as to restrain the majority of persons by the punishment of a few. The law confers upon him the right to search for criminals with this end in view; for this is not ordinary humanity, but the highest degree of that virtue, where many are rendered safe by the castigation of a small number. If this official should favor anyone accused of crime on account of some office which he holds, or his civil or sacerdotal rank, or should endeavor to release him from liability under any other pretext, he is hereby notified that he will incur Our indignation. For no one can rely upon his own influence, and set up a defence which has no connection with the crime of which another is accused, in order to enable the latter to escape the severity of the law. And where anyone makes a defence of this kind, and the Proconsul admits it, there is every reason that he should incur the same penalty as the guilty party, since there is no distinction between the commission of an offence and a desire to release the offender from the hands of the law.
(1) A notice is appended to the present law fixing the emoluments that the Proconsul and his subordinates shall receive from the public, as well as what he will be obliged to pay for his commissions, and what will be due to the household of Our August and Pious Consort. He shall pay the latter, in consideration of the three jurisdictions entrusted to him, fifty pounds of gold, the same amount which has been customary up to the present time.
(2) And (as We have frequently stated) the Proconsul must govern Our subjects uprightly, as it is for this reason that We have
taken so much pains, performed so much labor, incurred so much expense, and undertaken such great wars, in consequence of which God has not only granted Us the enjoyment of peace and the subjugation of the Vandals, the Alani, and the Moors, as well as enabled Us to recover all Africa and Sicily, but has also inspired Us with the hope of again uniting to Our dominions the other countries which the Romans lost by their negligence, after they had extended the boundaries of their Empire to the shores of both oceans, which countries We shall now, with Divine aid, hasten to restore to a better condition.
Nor do We hesitate to encounter any difficulties, no matter how great they may be, in the pursuance of this object; and We shall undergo vigils, abstinence, and other privations, even beyond what can be endured by human nature, in order to promote the welfare of Our subjects. The Proconsul must constantly peruse Our instructions, which We shall give him with the commissions of his office, as We have previously stated; and' if he complies with them scrupulously, he will show himself to be entitled to admiration and in every respect worthy of Our Empire.
EPILOGUE.
When the provisions of this law have been communicated to Your Excellency, you will deliver to the Proconsul the emoluments which We have allotted to him. His authority will be so great that many persons aspiring to the honor and distinction which We bestow upon him will be anxious to obtain his office.
TITLE X.
CONCERNING THE DIVISION OP ARMENIA INTO FOUR JURISDICTIONS.
THIRTY-FIRST NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
While there are certain matters which, being mingled in confusion are, nevertheless, susceptible of proper adjustment, there are many others which though separate are deemed disgraceful, even though this may not actually be the case; for, being without elegance, they still are not absolutely devoid of refinement, or are considered disarranged and discomposed, although they are in reality clear and distinct. As this observation applies to Armenia, We have thought that this country should be regulated and brought into harmony, in order that We might the better render its condition more stable, impart greater strength to its government, and establish better order within its territory.
CHAPTER I.
Hence We divide Armenia into four provinces, one of which shall be called Interior, and shall have for its capital a city which bears Our name, and which formerly was called Bazanis or Leontopolis; and We honor this province, which was formerly governed by the magnificent Acatius, with a Proconsulship. The magistrate appointed shall be of spectabtte rank, and be invested with all the honors pertaining to his office. For We bestow upon him the consular robe, as well as other insignia, and include in his jurisdiction the City of Theodosio-polis, which already belonged to it, Satala, Nicopolis, Colonea (as it was formerly called), which We have taken from Armenia, Trapezunte, and Cerasunte, which belonged to what was originally Polemoniac Pontus, all of which cities were formerly governed partly by an illustrious provincial Governor, and partly by another magistrate. Thus Interior Armenia will include seven cities and the territory dependent
upon the same.
(1) We order Second Armenia to be formed from what was previously called the First, and that its capital shall be Sebastea. The cities of which this province is composed are Sebastopol, which it already had; Commana, which belonged Polemoniac Pontus; Zela, which was taken from the Hellespont, and also Brisa. This province will therefore include five cities under the jurisdiction of a Governor whose authority shall not be diminished, and whose rank shall remain
the same.
(2) In the next place, We form Third Armenia out of the territory of which the Second was composed, the capital of which is Melitena, a remarkable city situated in a fertile country possessing an agreeable climate, and not far distant from the river Euphrates. We have thought proper by the present law to give this province a magistrate of spectabile rank, who shall be styled the Justinianian Count, to whom shall be allotted the salary of seven hundred solidi; seventy-two solidi shall be paid to his assessor, and three hundred and sixty to the members of his court; and, in addition, We grant him all the attributes attaching to an office of this kind. Those who are appointed members of this court shall perform the same duties as before, and shall be specially charged with the levy of taxes; and the Court shall bear the name of Comitian, and be invested with all the privileges which it previously enjoyed. In accordance with this arrangement, Third Armenia will include the six cities which belonged to Second Armenia; that is to say, Area, Arabissum, Ariarsathea, Comana (which is also called Chrusa) and Cucusa, which makes the six cities which the province formerly had.
(3) We now constitute Fourth Armenia, which was not originally included in the province, but was composed of several nations with barbarous names, such as those of Trophsena, Anzethena, Ophena, Astesena, and Balabithena, which were governed by satraps (the name of this magistrate, however, is not Roman, and was not introduced by Our ancestors, but was borrowed from a foreign Empire). We establish in this province of Fourth Armenia a government which shall
be entrusted to a civil magistrate, to whose jurisdiction We add the City of the Martyropolitani, and the fortified town of Cithariza. This government shall belong to the class of ordinary consular magistracies, and We decree that two of the magistrates having jurisdiction over the four provinces of Armenia, that is to say, the Proconsul, who will govern First Armenia, and the Count who will govern Third Armenia, shall be spectabiles; while the two others, who will be placed in charge of Second and Fourth Armenia, shall only possess the rank of ordinary magistrates.
In cases where the value of the property involved is less than five hundred solidi, We desire that appeals taken from these provinces, instead of being brought to this city, shall be sent to the nearest spectabile magistrate. Hence appeals taken in Second Armenia, of which Sebastea is the capital, shall be decided by the Proconsul of First Armenia; and those below the aforesaid value taken in Fourth Armenia shall be heard and determined by the Count of Third Armenia, who will fix his residence at Melitena.
CHAPTER II.
These matters having been in this way attended to by Us, We think it advisable that a man should be appointed for the government of First Armenia, who, on account of his rank and the eminence of his services towards Us, may be worthy of the office. Hence, as We are aware that the most magnificent Thomas has already exercised authority in Armenia, and besides is an excellent man who has always served Us faithfully, and is still in Our service, We intend to promote him to this office, and he shall not merely be charged with the government of First Armenia, but shall also execute in the other provinces the orders which We shall communicate to him in Our Imperial instructions, which will inform him of the way in which he should act with reference to their administration.
(1) We desire that, so far as ecclesiastical affairs are concerned, everything shall (as We have frequently stated) remain in its former condition, and that no change shall take place either in the law governing archbishops, or in that regulating ordinations. Ecclesiastics who have already been ordained shall, as formerly, retain the authority conferred by their ordination, and the former metropolitans shall retain theirs, for no innovation whatever shall be made in matters of this kind.
CHAPTER III.
We have already declared that the Count of Third Armenia is invested by Us not only with civil but with military jurisdiction. The soldiers stationed in that province must obey his orders, and he shall have the power to summon them in his own name, to make deductions from their pay, and to inflict punishment upon them when they act improperly; and he must not, under any circumstances, permit them to injure Our subjects.
When, however, the soldiers commit any illegal act, he must prosecute them like any other criminals, and he will have the same control over them as is conferred upon military commanders. We place under his jurisdiction all the military forces subject to the Counts of Isauria and Pacatian Phrygia and the Prsetors of Lycaonia, Pisidia, and Thrace; and, like them, he will have one court for the despatch of civil business, absolute authority over the army, and supreme jurisdiction over soldiers as well as all others, just as if he held but one office.
He must also take measures to prevent the perpetration of crimes in his province, and suppress those which come to his knowledge; he shall not be turned aside from his duty through the influence of any person in his province, whether he be a civilian, a soldier, or some one attached to the Imperial domain; but We desire him to maintain Our subjects in a just and perpetual peace, and see that Our laws are not brought into contempt by the acts of any persons whomsoever.
EPILOGUE.
Your Excellency will see that what We have been pleased to decree with reference to the division of Armenia into .four provinces, and especially that part of it relating to the Thirdon account of which We have enacted the present lawis scrupulously observed. The various annual salaries which We have ordered to be paid to these magistrates shall be given to them, in accordance with the special instructions communicated to you.
TITLE XL
No ONE SHALL RETAIN THE LAND OF A FARMER GIVEN BY
WAY OF SECURITY FOR A LOAN, NOR SHALL CREDITORS
RECEIVE EXCESSIVE INTEREST FROM FARMERS.
THIRTY-SECOND NEW CONSTITUTION.
The Emperor Justinian to Agerochius, Most Illustrious Governor of .^Emimons in Thrace.
An evil greater than excessive impiety and avarice exists, which We consider necessary to remedy by a general law, that shall be applicable not only for the present, but for all time to come. For We have ascertained that certain persons in the province which you govern have not hesitated, when there was a scarcity of grain, to lend a small amount of seed to farmers, in order to obtain possession of their land, the consequence of which is that the majority of the unfortunate farmers have been obliged to take to flight; that many have perished from hunger; and that a horrible contagious disease, not less terrible than the invasion of the barbarians, has been added to their other misfortunes.
CHAPTER I.
Therefore We order that, where persons who have lent farmers any quantity of dried fruit, and have received from them security for their
loans, they shall return said security without being able to retain the land of the debtors, under the pretext of such loans, whether the agreement was reduced to writing or not; that creditors shall only be authorized to take, by way of interest, the eighth part of a measure annually for each measure furnished, where dried fruit has been lent; or one siliqua a year for each aureus, where the loan is of money.
Moreover, creditors shall, in the future, be content with the said eighth part of a measure annually for every measure lent, or with one siliqua annually for every aureus lent, no matter what may be the amount of the loan. They shall be compelled to return everything which they have taken in pledge, whether it be land or other property of the debtor, for instance, cattle, sheep, or slaves.
This provision of the present law affords everyone an example of humanity and forbearance, and, at the same time, provides for the necessities of indigent debtors and the interests of creditors.
EPILOGUE.
Your Illustrious Highness will take measures to have this constitution carried into effect, and every creditor is hereby notified that if he dares to do anything contrary to its provisions, he will be deprived of the right to recover what he has loaned, and he who has sustained the injury shall be compensated, either by being released from liability, or by knowing that his creditor has lost his property.
Given at Constantinople, on the fifteenth of the Kalends of July, during the Consulate of Belisarius.
TITLE XII. CONCERNING THOSE WHO MAKE LOANS TO FARMERS.
THIRTY-THIRD NEW CONSTITUTION.
The Emperor Justinian to Dominicus, Prastorian Prefect of Illyria.
We have promulgated a law for the purpose of suppressing the avarice of creditors, who, taking advantage of the prevailing distress, acquire the lands of unfortunate farmers, and seize all their property on account of the little grain which they have furnished them; and this law, at first published in all the provinces of Thrace, We now communicate to all those of Illyria. We order that a copy of it shall be attached to the present constitution, in order that not only private individuals may be certain that its provisions are applicable not only to them, but also to soldiers who rely upon their superior influence.
Your Highness is notified that this law is applicable to the inhabitants of the provinces, to soldiers, and to all officials without any exception, and We address it to you in order to warn soldiers who may think that they are not bound to comply with it, that in case of its violation, they will be deprived of their offices, reduced to the condition of private citizens, and subjected to the penalties which We have prescribed by the preceding law.
TITLE XIII.
No ONE WHO HAS LENT MONEY TO A FARMER SHALL
RETAIN His LAND WHICH HAS BEEN GIVEN AS SECURITY,
AND WHAT RATE OF INTEREST CREDITORS ARE ALLOWED
TO RECEIVE FROM FARMERS.
THIRTY-FOURTH NEW CONSTITUTION.
The Same Emperor to Agerochius, Most Illustrious Governor of ^Emimons in Thrace.
We have considered it advisable to correct a most atrocious and inhuman abuse which is far worse than any act of impiety or avarice, and administer a remedy applicable to all persons, not only in this present time of necessity, but throughout all future ages; for it has come to Our ears that certain persons, in the province which you govern, being induced by avarice to take advantage of the public distress, and, having drawn up agreements bearing interest, by which they loaned a small amount of grain, have seized the lands of the debtors, and that, for this reason, some farmers have fled and concealed themselves, others have died of starvation, and pestilence, not less terrible than a barbarian invasion, has, in consequence of the failure of the crops, afflicted the people.
CHAPTER I.
Hence We order that all creditors of this kind, no matter what may be the value of the articles which they have loaned, or whether they consist of wheat, barley, or other grain, or dried fruits, shall hereafter be entitled to receive annual interest on such articles at the rate of the eighth part of a measure for each measure furnished, and must return to the farmers the lands which they have taken in pledge, without being, under any circumstances, permitted to hold them under the pretext of a loan at interest, whether the obligation has been committed to writing or not.
Where the creditor has lent money, the debtor shall not be required to pay him any more interest on the same than one siliqua annually for each solidus.
We extend to all Our subjects the benefit of this salutary law, which shall be observed in every respect now, as well as in the future. Thus, as We have just said, creditors who have lent wheat, barley, or other grain at interest, shall receive annually the eighth of a measure for each measure, or a siliqua for each solidus furnished, according to the nature of the article in question; and they shall return to their debtors the lands or other property such as cattle, sheep, and slaves, which they have taken by way of pledge.
This law shall apply to all Our subjects, for it is humane and just, it "relieves the poor, and affords adequate compensation to creditors.
EPILOGUE.
Your Highness shall hasten to put this law into execution throughout the entire province subject to your government. Creditors are notified that if they should violate it in any way, they will lose the right to collect what they have lent; and debtors will have the consolation of knowing that they are discharged from liability for their obligations, and that their avaricious creditors have lost their property.
TITLE XIV.
CONCERNING THE ASSISTANTS OP THE QUAESTOR. THIRTY-FIFTH NEW CONSTITUTION.
This Novel Does Not Exist in Greek, and I Have Copied Here the Epitome of the Same Which I Found in the Novels of Julian.
To the twenty-six assistants. You ask whether it is permissible to substitute for the officials called secretaries of the Quaestor experienced men whom the Quaestor may appoint temporarily, in the presence of the Holy Gospels. The persons substituted as aforesaid shall pay those whose places they occupy the sum of a hundred solidi; the officers of these three ranks, that is to say, those next in order to the employees of the Bureau of Memorials, and the two other Bureaus, even though they may not be included among the twenty-six assistants, shall have the same right to substitute others in their stead. Hence the assistants of the employees most closely connected with the Imperial Bureaus shall have the right to sell their employments, provided the amount received is not above a hundred solidi, and the substitute is approved by the Qusestor.
This Constitution expressly confers this privilege upon Theodosius, Epictetus, Quirillus, Sebastian, and Perigenes. If one of the twenty-six assistants should die, his heir shall, with the consent of the Qusestor, discharge the duties of his office, provided he pays a hundred solidi. All the children of the deceased, even though they may not be the heirs of their father, shall enjoy the same privilege.
Given during the Consulate of Belisarius.
TITLE XV.
CONCERNING THE SUCCESSORS OF THOSE WHO RESIDE IN
AFRICA.
THIRTY-SIXTH NEW CONSTITUTION.
(1) Africans can, during the term of five years, recover any property of which they have been deprived in person, or which was taken from their fathers, mothers, grandparents, or their collateral relatives as far as the third degree, provided this is not barred by legal prescription.
(2) They shall be required to prove their parentage on both side's.
(3) All Africans are subject to the Roman laws.
TITLE XVI.
CONCERNING THE CHURCHES OF AFRICA. THIRTY-SEVENTH NEW CONSTITUTION.
Rules concerning the Venerated Church, etc. The churches of Africa shall be entitled to the property of which they were deprived by the Arians, and shall recover it without being interfered with by anyone, but they must pay any public or private claims that may
be due.
A heretic shall not confer the rite of baptism, or discharge the duties of a public office, and a catechumen shall not circumcise anyone. No heretic shall, under any circumstances, have a house of worship, or a place of prayer. The Carthaginian Church shall enjoy all the privileges granted by the Code to other churches in general. Anyone who takes refuge in a Carthaginian church shall be immune from arrest, unless he has committed homicide, the rape of a virgin, or has been guilty of violence towards a Christian. No one shall take from the churches of Africa any objects which have been donated by persons in gratitude for their restoration to health. This rule shall be generally observed with reference to all churches.
TITLE XVII.
CONCERNING DECURIONS AND THEIR CHILDREN. THIRTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect of the East.
Those who governed the Empire before Us thought that it was necessary, as in the case of this Royal City, to appoint in every town a body of men of noble rank, and form them into a Senate or Curia, by means of which the public business could be regularly conducted. This arrangement proved to be eminently successful, and the order flourished to such an extent that there are many families of decurions, and on account of their large numbers, none of them found the duties of his office intolerable; for where an employment is divided among several persons, the burden is hardly felt by those who sustain it. But when the decurions began to withdraw from the curia, and found opportunities to be released from its requirements, the curise were, under innumerable pretexts, reduced in importance; so if they still preserved any private property, that which was public and common property was greatly diminished, and there remained only a very small number of persons to perform the official duties, and the pecuniary resources of the latter were constantly lessened; the cities, in their turn, were subjected to loss; the duties of the curia were discharged by unprincipled men who were styled "avengers," and the curia being thus deprived of usefulness, the State, in consequence, became afflicted with abuses and all kinds of injustice.
(1) After having frequently and diligently considered this subject, We have thought it advisable to remedy it. And We do so with
a degree of ardor proportionate to the skill displayed by the decurions in evading laws justly promulgated, and in defrauding the Treasury. For when they saw that they were legally compelled to preserve a fourth of their property for the benefit of the curia,, they began to squander their fortunes to such an extent that they rendered themselves insolvent; and so far from leaving the curia that portion of their estates which was prescribed by law, they only left it their poverty. In order to deprive the curia of their personal services, they invented the most wicked expedient that could be imagined, for the decurions refrained from contracting legitimate marriages, and preferred to remain without children than to render themselves useful to their families and their curias.
Again, a law enacted by their agency has existed for a long time, which enabled them to dispose of their property gratuitously, without being obliged to obtain a decree for that purpose, and which provided that they could not sell their property except by virtue of a decree. Hence, in order to dispose of their property in this way, decurions were compelled to obtain a decree; but they could give it away as a donation without doing this, and in consequence, the estates of decurions were distributed among many persons, without their curise receiving anything. Thus had anyone investigated this subject, he would have found the curise of Our Empire entirely stripped of both men and property, or having very few members, and almost no property whatever.
(2) Therefore We formerly promulgated the constitutions by which We directed that sales, simple donations, and every act by which the immovable property of decurions was transferred should, in pursuance of a decree, be subject to the observance of certain formalities. Hence as decurions were accustomed to make donations under false pretenses, We forbade them by a second law to make any simple donations in favor of any person whomsoever, but We made an exception of those given in consideration of marriage; the reason for which was that these are not true donations, but a species of contracts entered into to secure maintenance for any children which may be born, which is a matter of special interest to Us, especially where decurions are concerned.
After having enacted this second law, and ascertained that many frauds were still being committed, We have promulgated the third, which authorizes the curia to succeed to three-twelfths of the estate of each decurion, whether the latter leaves or does not leave any children to take his place; and which does not permit anyone to bequeath less than that sum to his curia; to use any artifice for the purpose of fraud or to diminish the said three-twelfths in any way whatsoever; and whether the son of the deceased decurion is a member of the same, or whether he is not, the curia shall still be entitled to this amount.
(3) We did not even confine Ourselves to this, for We have in addition decreed that women shall be obliged to give a certain part of their property for their own appointment, so that, as We have pre-
viously stated, the curia shall not, for any reason whatsoever, have a fourth of the property of the decurion, which should be reserved for its benefit, diminished. We have also forbidden decurions to make many and excessive gifts, and We do not permit them to be released from the obligations of their curia, unless to enable them to accept offices of great importance, for instance, those of the patriciate, consulate, or civil or military prefecture; and as the law states that prefectures are offices involving the command of the army, where anyone is administering the affairs of a prefecture, whether he despatches civil business, or issues commands to soldiers, he is, by virtue of Our law, exempt from curial requirements, all other exceptions being annulled. We also directed that honorary distinctions, such, for instance, as those attached to the prefecture and the command of the army, shall not release those who obtained them from curial obligations.
These are the provisions which We formerly decreed, and now confirm, together with many others which it will be permissible to disregard. We wish, however, that the different pragmatic sanctions, by virtue of which We have released certain persons, by name, from curial duties, shall remain in force; and We also desire this law to become operative from the day of the eleventh indiction, recently expired, the time at which We first determined to enact it.
(4) But, as We have observed that there are some decurions who are so hostile to their own country that they prefer to convey their property to strangers, rather than to leave the fourth part of it to the curia, We have deemed it necessary by means of this law to increase this amount when decurions have left no children.
CHAPTER I.
Therefore, if after the promulgation of this law a decurion should not leave any issue either male or female, he shall be compelled to bequeath all his estate to the curia with the exception of one-fourth of the same, of which he can make any disposition which he may desire, as the curia will take the place of one or several children; that is to say, the entire city will, so far as he is concerned, represent the children and heirs of his good reputation and his immortal memory. When any decurion has no legitimate children, but only natural ones, he shall be permitted to appoint them as heirs, subject to the rights of the curia; and, under these circumstances, their appointment will be equivalent to a donation, without there being any necessity to have recourse to the ancient laws, and without the decurion being obliged, during his lifetime, to make a formal donation; but as soon as his natural children become members of the curia, and his heirs, they will be entitled to nine-twelfths of the estate of their father, in conformity to the distribution that he made among them. He will do still better if he leaves them his entire property. In every instance, however, he will be obliged to leave them nine-twelfths, and he is hereby notified that if he bequeaths them less, the amount lacking to make up this share will be supplied by the law.
The children will be required to discharge curial functions in order to give them a right to a share of their father's estate, and if some of them should be willing to do this, and others refuse, the share of the latter shall accrue to the former; and even when all the natural children are unwilling to perform curial duties, the curia will be entitled to nine-twelfths of the estate, just as if there were no children.
CHAPTER II.
When a decurion is silent as to the disposition of his estate, and leaves no legitimate children, a fourth of it shall go to his heirs at law; and if he leaves any natural children, who are willing to perform curial functions, they shall be admitted to the succession, and nine-twelfths of their father's estate shall go to one or more among them who are willing to assume the obligations of the curia, whether all, or only a few, consent to discharge the duties of members of the same.
Where a decurion has had children by a female slave, and has emancipated them either during his lifetime or by his will, if he has offered them to the curia, or if they have manifested a desire to discharge curial functions, and have been admitted to do so, they shall be entitled to nine-twelfths of their father's estate, as We have just provided in the case of free natural children. For where a decurion dies either testate or intestate, We desire those of his children who become members of his curia to receive nine-twelfths of his estate, but if he should only manumit his children by a female slave, without offering them to the curia, and all of them, or one, or only a few, should be willing to discharge its duties, then nine-twelfths of his property shall go to the one or more of them who become members of the curia. But where none of the said natural children is willing to assume the curial obligations, or should not be offered by their father for this purpose, in this case, the curia shall be entitled to the nine-twelfths of the estate.
CHAPTER III.
But if a decurion should leave any legitimate children, then in order that the operation of the law may be perfect, and the curia derive the greatest benefit possible, it must be determined whether the children are males or females, or both were included, so far as the obligations to the curia are concerned. If the deceased left only male children, or male grandchildren by a predeceased son, he will be required at his death to divide nine-twelfths of his estate among all of them; and he can make this distribution in any way that he pleases, provided he does not violate the law having reference to inofficious testaments (cases of ingratitude being excepted). For We do not wish to repeal any laws enacted on this subject, but, on the other hand, We maintain them in their entirety, by directing that nine-twelfths of the paternal estate shall be divided among the children who are not ungrateful. In this way each one of them will discharge the curial duties of his father, who can then only dispose of three-twelfths of his estate for the benefit of a stranger.
CHAPTER IV.
Where only married women, who are the children of a decurion, and are the wives of other decurions of the same city exist, the testator will be permitted to divide all his estate among them or only nine-twelfths of the same as he pleases, always without violating the provisions of the law relating to intestate successions.
Where some of the daughters of a decurion are married to decurions, and others to men who do not occupy this position, the father will be required to leave nine-twelfths of his estate to those who are the wives of decurions, which shall be divided among them in the same way that he desired, and the remainder of his property shall go to those of his daughters who are not the wives of decurions, or to other heirs; the portion established by law always being preserved for the former.
When any of the daughters of the decurion are still unmarried, they shall be heirs to nine-twelfths of his estate conditionally, until they are actually married to decurions of the same town. If they refuse to marry decurions, or if their father requested them to do so and they do not consent, nine-twelfths of the estate shall go to the curia of the city, and three-twelfths shall be distributed among them all, as prescribed by law, after the amount of their dowries has been deducted.
CHAPTER V.
Where there are children of both sexes, the males shall be entitled to half of the estate of their father, and the females to the other half, but not in its entirety, as they will be obliged to share the fourth part of it with their brothers, who are members of the curia, provided one or more of them are not the wives of decurions; for, under these circumstances, if the decurions whom they have married are members of their father's curia, they will be released from the obligations of giving a fourth of their father's estate to the curia, as they, through the medium of their husbands, are considered liable to curial obligations as long as they live.
We have deemed it necessary to establish these regulations, not because We desire to deprive decurions of the liberty of disposing of their estates, but to the end that the curias of towns may not be exposed to a lack of these officials, or become impoverished by dishonorable means. We have learned that one of the methods of accomplishing this is for decurions to contract unlawful marriages with a view to having illegitimate children, and thus being enabled to leave their estates to strangers, thereby defrauding the curia out of the share to which it is entitled.
CHAPTER VI.
We have ascertained from experience that there are many persons who state, to the prejudice of the curia, that their mother belongs to the condition of Treasury employees, or to that of inspectors of highways, or to that of those entitled to wear purple, or is of some other
privileged status, seeking thereby to evade what is due to the curia. Hence We order that no artifice of this kind shall hereafter be practiced against the public interests. And We desire, by all means, that the children of women married to a decurion shall themselves belong to the curial condition, even though that of their mother may belong to any of the classes above mentioned. For there are comparatively few decurions in Our Empire, while there are innumerable Treasury officials, inspectors of highways, and magistrates decorated with the purple; and it is better to increase the number of decurions, which is very small in certain cities, than to add a multitude of officials to those who already exist. Hence, if certain persons alleging the condition of their mother should not attempt, or have already attempted to withdraw from the curial condition, after the tenth indiction which has recently expired, any orders emanating from Our court or elsewhere, which may have authorized this, shall be void, and such persons shall be reinstated as decurions. Where, however, anyone has been freed from curial obligations before the expiration of the tenth indiction, We desire that his release shall be permanent.
EXCEPTION.
We, however, except from this Constitution Theodosius and his brothers and the sons of John whose surname is Xescon, although they were born of fathers who were decurions, and were placed in the class of officials of the Imperial Treasury before the tenth indiction, and We hereby annul everything that has been decreed with reference to their liberation. For We do not wish them to enjoy the benefit of this law, and desire that they remain decurions; that they discharge the functions of that office; and that they shall not profit by anything promulgated in their favor either from Our palace or elsewhere.
EPILOGUE.
Therefore Your Excellency will hasten to obey and cause to be executed the law which We have just enacted for the benefit of towns and cwriss, and anyone who presumes to violate this law shall incur a penalty of twenty pounds of gold.
Given at Constantinople, on the fifteenth of the Kalends of March, eleventh indiction, the seventh year after the Consulate of Basilius.
TITLE XVIII.
CONCERNING RESTITUTIONS, AND WOMEN WHO HAVE
CHILDREN AFTER THE ELEVENTH MONTH FROM THE
DEATH OF THEIR HUSBANDS.
THIRTY-NINTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE. :
The course and variety of human nature requires attention from time to time, and it cannot be properly maintained (although its first principles may be unchangeable) unless what specially interferes with it is removed, and it is allowed to proceed in tranquillity and peace in conformity to the law. Considerations of this kind have impelled Us to promulgate the present Constitution, for We are aware that, for a long time, doubts have existed as to the transfer of property left under a trust, and when the person charged with them has consented to the hypothecation of the property, the question arose whether he had been able to encumber what was liable to transfer, or only what was his own, a distinction being made between the words used by the deceased; as the case was held to be different when he directed the simple transfer of property acquired after the death of the trustee, from that where he had expressly provided that his entire estate, with the sole exception of the legitimate fourth, should be delivered.
Hence the rule was established that the private creditors of the trustee could bring suit to recover the property left in trust, and could employ several different means of obtaining possession where the parties were insolvent.
We have recently remedied this evil by the enactment of a law which forbids the alienation or encumbrance of property left under a trust, providing that it shall follow the fortunes of the trustee; that is to say, that it cannot legally come into the hands of anyone, but shall always pass to him to whom it ought to be delivered. This law, although somewhat ancient, and constantly observed in judicial proceedings, confirms what We have said in the beginning; still time has shown (as almost always happens) that it is susceptible of amendment, for both men and women who have been injured have applied to Us for relief.
Among other instances, where a husband was dead, his wife claimed both her dowry and a share of the ante-nuptial donation, to which she was entitled by his death; and, on the other hand, the husband's brother, basing his claim on the will of the common father, demanded the estate of the deceased, and seized the woman's dowry, giving a reason for this that his brother had squandered it, and that there was property forming part of the paternal estate in the possession of the widow, of which the common father had ordered delivery to be made to him, in case his brother did not leave any children. He persisted in claiming the entire estate, and demanded the execution of the law having reference to such cases; the woman, however, in her turn, very justly complained that it was inequitable that her brother should, by means of fraud, become possessed of all her dowry, and alleged that if she had happened to die first, her husband would have obtained the ownership of the property, in accordance with the marriage contract; and that it was not proper that, if her husband died without knowing what he was obliged to deliver, she should be responsible; and a decision was rendered upon this point which We believe to be just.
In another instance, a husband had recourse to Us, stating that the estate of his wife had been transferred by substitution to her children, and that she had directed a very small amount to be reserved for herself, and thus he ran great risk of having his own property rendered liable for the restitution of the dowry and the dotal profits agreed upon in the contract relating to the ante-nuptial donation, without his being permitted to retain any of it whatever.
We have very properly been moved by these complaints, and considered it more advisable to amend Our laws than to expose Our subjects to risk, above all where the marriage state is concerned, which no other condition more beneficial to mankind exists as it affords them the sole means of procreation.
CHAPTER I.
WHERE A MAN APPOINTS ONE OP His CHILDREN OR A STRANGER His HEIR.
For the reasons above mentioned, We publish the present law, without changing any of the provisions which We have formerly adopted; and the only change We make is that when anyone hereafter delivers property which he is charged to transfer, he can reserve from said property the lawful share of his children, who, instead of the fourth (for- We have amended this rule, as We do not approve of such a small amount), shall have the third or half of the estate, dependent upon their number; but if this legitimate share is not sufficient to provide for the dowry or ante-nuptial donation of the children of the trustee, he shall be allowed to reserve from the remainder of the property subject to delivery under the trust whatever may be necessary (in accordance with the rank and position of the parties interested), in order to make up the amount of the dowry or ante-nuptial donation.
We decree that the property mentioned in the marriage contract shall, by all means, be exempt from transfer under the trust, and that any property which has been substituted can be alienated or hypothecated on account of the marriage. And in case either a husband or wife is charged to deliver the property under the trust, if it is the husband, he shall be permitted to reserve the ante-nuptial donation, or the one given in consideration of marriage, without being obliged to surrender it; and if the wife is the trustee, she can, in the same way, deduct her dowry; for We prefer what is to the advantage of all to the special interest of individuals. This is the privilege which We have granted in favor of the deduction of ante-nuptial donations. For if exceptions to general hypothecations existed before Our reign (which certainly was not so advantageous), why should We not authorize a measure which, in cases involving gain through marriage, is still more beneficial ?
(1) Therefore, what We order shall in the future only be available, and applicable to the delivery of property which takes place after the enactment of this law, for We do not permit any wrong to be done;
so that where a woman has a dowry of trifling value, and afterwards learns of the existence of this law, or where a man has made an antenuptial donation of a small amount, and either of them desires to increase what he or she has given for the purpose of evading the said law, and by this means to obtain what they wish from the property left under a trust, We forbid such a fraudulent practice, and decree that the acts of persons wishing to make such an increase shall be invalid so far as any diminution of the trust is concerned, and that Our law shall remain inviolate for the future. This is the first chapter of the present law.
CHAPTER II.
CONCERNING A WOMAN WHO HAS A CHILD AFTER THE ELEVENTH MONTH.
Three constitutions promulgated by Our predecessors with reference to women who marry a second time before the year of mourning has expired, prescribe penalties for an act of this kind. We have also recently enacted a law with some amendments, and have touched upon this matter briefly in a certain part of Our legislation, but a most disgraceful occurrence occasionally takes place, which We are unwilling shall continue to exist during Our reign, and We have very properly decided that it must be corrected. The following is an example of this evil. A woman who had not been chaste during the lifetime of her husband brought forth a child before her year of mourning had elapsed, and more than eleven months after his death; under these circumstances it is not possible to say that the child belonged to the deceased, for conception does not extend for so protracted a period. And as one of the penalties of premature marriage is that the wife shall immediately lose both the usufruct and the ownership of the ante-nuptial donation bestowed upon her by her husband, the children injured by this extraordinary delivery of their mother have a right to claim the ante-nuptial donation given to her, and can also demand that she obtain nothing from the estate of the husband, whose memory she has been so ready to disgrace.
The woman answered (but how can We quote her words without blushing?) that she did not deserve to forfeit the ante-nuptial donation ; that she was well acquainted with the laws regulating legitimate marriage; that she had never contracted any other marriage than the first one; and that the child whom she had brought forth was only the result of her natural inclination to concupiscence. As there is no doubt that this woman who had abandoned herself to debauchery merited penalties ten thousand times more severe, she shall not be exempted from those to which she rendered herself liable; hence (for We come to the relief of the children of the deceased husband), We desire her to be subjected to the loss of the ante-nuptial donation, as legally provided in such cases with reference to women who marry before the term of mourning has expired. For if this law does not
release women from responsibility when they contract legitimate marriages, for the reason that it causes a suspicion to arise that they have hastened to contract a second marriage because of having been unduly intimate with their second husbands during the lifetime of those now dead, why should We leave this woman unpunished, when, in the first instance, there is merely a conjecture, but in the second unquestioned proof exists, and the offence is established beyond doubt by this most abominable of all births ?
(1) Wherefore We decree that if a woman should bring forth a child before the term of her mourning has expired, so that there can be no doubt that it is not the issue of the first marriage, she shall, by all means, be deprived of the ante-nuptial donation (this applies both to the ownership and the usufruct of the same), and she shall also be subjected to all the other penalties, just as if she had contracted a legal marriage before the expiration of the year of mourning. For licentiousness should not enjoy more advantages than chastity, and the woman must be punished, and suffer the loss of the donation on account of her debauchery; and We establish this rule in order that women may not be induced to contract untimely marriages, or disgrace their former ones by still more wicked behavior.
EPILOGUE.
Your Highness will, by formal proclamation, communicate to all persons the matters which it has pleased Us to enact, and which are set forth in this law.
This constitution is addressed to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
Given at Constantinople, on the Kalends of January, during the prefecture of Belisarius.
TITLE XIX.
THE CHURCH OF THE HOLY RESURRECTION CAN ALIENATE
BUILDINGS BELONGING TO IT IN THE CITY IN WHICH IT
is SITUATED.
FORTIETH NEW CONSTITUTION.
The Same Emperor to Peter, Most Holy and Blessed Archbishop of Jerusalem.
PREFACE.
A law prohibiting the alienation of ecclesiastical property has already been promulgated by Us, which We desire to be observed and confirmed in every respect. But, as it is proper for Us to make provisions for all churches, We certainly should not neglect that of the Holy Resurrection, as well as of the place in which the Creator of the world allowed himself to suffer for the benefit of the human race. Therefore -We have considered it advisable to enact the present law,
not for the purpose of repealing what We have formerly established, but in order to make a proper and necessary addition to what has already been adopted. For it is known to all persons that the Church of the Holy Resurrection receives and nourishes persons who resort to it from the entire world (of whom there is an immense number), and that enormous and incalculable expenses are incurred, to defray which its revenues are not sufficient, without a daily repetition of the miracles of Our Lord and Saviour Jesus Christ, who, with a very small quantity of bread, fed an innumerable concourse of persons. Hence it is necessary to take measures to enable this church to obtain sufficient income to meet the expenses caused by the assemblage of such a vast multitude of believers.
(1) We have learned from Eusebius, at present priest and sacristan of the Most Holy Church of this city, who has just returned from Jerusalem, that he has greatly increased the income of that Most Holy Church by only employing means which are honorable and approved by God; and that he has been able, by the expenditure of three hundred and eighty pounds of gold, to obtain an income of thirty pounds of gold, more or less; to accomplish which he carefully collected money and induced the stewards of the holy church to borrow more; but that as now the creditors desire to be paid, he had devised another plan to satisfy them, and stated to Us that many persons attracted to Jerusalem through the desire of visiting the tomb of Our Lord wish to purchase buildings belonging to the Church with large sums of money, provided they were permitted to enjoy them without any risk, but that the authorities of the Church of the Holy Resurrection refuse to sell said buildings on account of their fear of the law which We promulgated with reference to the alienation of ecclesiastical property, although this would result in a great benefit to the Holy Church, and that there are persons who are willing to buy such property only for the term of fifty years.
This advantage is in fact much greater than can be expressed in words; for if, on the one hand, the Holy Church has been able, by the expenditure of three hundred and eighty pounds of gold to acquire property which yields thirty pounds of income, it will recover (which is something worthy of admiration) the original price of its investment in about thirteen years; and, on the other hand, the sale of the buildings referred to will only be for fifty years; and, besides, the property of the Church of the Resurrection consists of houses exposed to all manner of accidents, and may suddenly be destroyed by fire or some other casualty without leaving a trace of their former existence.
CHAPTER I.
These things have induced Us to enact the present law, which We have dedicated to God and the Church of the Resurrection, most holy of all churches, by which law We decree that former provisions relating to rural, ecclesiastical property (which We, under no circumstances, permit to be sold) shall continue to be observed, and We
relax the rigor of this law only with reference to the alienation of the buildings above mentioned. For while We published the preceding constitution for the benefit of the Holy Churches, as We now perceive that it will be advantageous for the Church of the Holy Resurrection to alienate its property, We, by the present law, permit this to be done, giving it full permission and extending every security to both vendor and purchaser, presuming that the said buildings will subsequently revert to the church, and that those who buy them will, through their love of God, leave them to the church at the time of their death. Therefore the Holy Church will be permitted to dispose of the houses belonging to it, without having reason to fear the general law which forbids this kind of alienation, as it is subject to an exception which is more recent, and dispenses with the penalties imposed by the former constitution.
(1) The aforesaid church can, from this time forward, alienate its property, provided it will be to its advantage to do so; and all purchasers of the same, their heirs and successors, both now and hereafter, need have no apprehension of being deprived of the property, for the reason that by the present law they can make a purchase with confidence; for it is not just that they should suffer molestation on this account, or be liable to any accusation, damage or loss. Your Excellency undoubtedly may notify members of the venerable clergy that alienation of their buildings can be made, when you are satisfied that such an act will be advantageous; that the property sold is of comparatively trifling value; and what is to be obtained by the sale is better and more valuable. Thus the total amount of the purchase-money derived from sales made for fifty years will be available to pay what the creditors have advanced to enable the income which We have mentioned to be obtained. For if God, who is the Creator and Master of all mankind, has, in preference to other cities, granted to Jerusalem the privilege of His resurrection, We should, as far as possible, in imitation of God and His infinite miracles, give to the church of this same city advantages over other cities, and cause it to enjoy the benefit of the present law, which We enact as a special favor to it, being, above all things, desirous of promoting its interests.
EPILOGUE.
As soon as this constitution is communicated by Us, it must be recorded in the Books of the Laws, and Your Holiness will publish it to all the inhabitants of Jerusalem. You must also promulgate the provisions which We have decreed for the benefit of the Holy Church of the Resurrection, venerated by the entire human race, provisions which We consecrate to God, whose extraordinary blessings conferred upon Us surpass those of Our predecessors.
This law is especially addressed to Peter, Most Holy and Blessed Archbishop of Jerusalem.
Given at Constantinople, on the fifteenth of the Kalends of June, after the Consulate of Belisarius.
TITLE XX.
CONCERNING QUAESTORS, THAT is TO SAY, PREFECTS OF THE ISLANDS.
FORTY-FIRST NEW CONSTITUTION.
This constitution creates a magnificent magistrate for the army with the title of Quaestor. For in ancient times there were two magistrates of this kind, of whom one remained near the sovereign, and the other was placed in command of the army. The present constitution fixes the amount of the salaries to which the Quaestor and his staff are entitled, and allows him a body of attendants resembling that of the Praetorian Prefect; namely, secretaries, custodians of acts, criers, recorders, torch-bearers, and all other officials of description. It also prescribes the manner in which the emoluments of soldiers who accompany the Quaestor to war, and of those who guard the frontiers, should be distributed. It subjects to his authority five provinces, that is to say Scythia, Mysia, Caria, all the Cyclades Islands, and all of Cyprus. It grants him the right to have a tribunal for the decision of cases, without anyone being permitted to evade his jurisdiction. It includes, in addition, a list of expenses.
This Constitution has been promulgated on the Kalends of June, during the twelfth indiction, after the Consulate of Belisarius.
TITLE XXI.
CONCERNING THE DEPOSITION OF ANTHIMIUS, SEVERUS, PETER, ZOARAS, AND OTHERS.
FORTY-SECOND NEW CONSTITUTION.
In the Name of Our Lord Jesus Christ. The Emperor Caesar, Fla-vius, Justinian, Gothicus, Francicus, Germanicus, Anticus, Alanicus, Vandalicus, Africanus, Pious, Fortunate, Glorious, Victorious, Triumphant, Ever Augustus, to Mena, Most Holy and Blessed Archbishop and Universal Patriarch.
PREFACE. .
By means of the present law, We undertake to dispose of a matter which not infrequently arises in the administration of public affairs. Whenever an ecclesiastical sentence has deposed any persons unworthy of the priesthood, and unfit to preside over the Holy Sees of the Church (such for instance as Nestorius, Eutyches, Arius, Mace-donius, Eunomius, and others who are not inferior to them in iniquity) , the government has always sustained the act of the ecclesiastics. In this manner both divine and human regulations unite in making decisions of this kind equitable. We are aware that a similar decree was promulgated against Anthimius, who was deposed from the See of this Royal City by Agapetus, of glorious memory, Pontiff of the
most Holy Church of Ancient Rome, for the reason that he, in violation of all the rules of propriety, as well as in contravention of the sacred canons, had taken possession of the See, he being condemned by a general sentence of the Holy Pontiff above mentioned, and afterwards by the Sacred Synod of this city.
Another reason for this was, that Anthimius had renounced the true dogmas of the Church, and spread his own doctrines in many places; had rejected various forms of purification while pretending adherence to the four Holy Councils, that is to say, that of the three hundred and eight fathers held at Nicsea, that of the hundred and fifty who met in this Fortunate City, that of the two hundred assembled at Ephesus, and that of the six hundred and thirty venerable Fathers convoked at Chalcedon. He refused to accept the dogmas of the Church, and rejected Our clemency and the pardon We offered him for his own safety; he declined to abandon the impious doctrines whose authors were condemned by the Holy Councils, and he even thought it proper to treat with contempt those who had sentenced him. From the time when he accepted dogmas not recognized by the Holy Church, he never returned to those which were true, although We have afforded him an opportunity for doing so, and have exerted every effort for the salvation of his soul.
CHAPTER I.
For all these reasons, and taking into consideration the sentence of deposition issued against Anthimius by the Holy Synod, on the ground that, without being authorized by the sacred canons of the Church, he had taken possession of the sacred Sees of this Imperial City, as well as because he had renounced the true faith, We have enacted the present law against him. We hereby forbid him to reside in this Fortunate City or its jurisdiction, or in any other large city whatsoever, ordering him to remain quiet, and to seek the society of those whom he considers worthy of it, without having any communication with Our other subjects, or attempting to imbue them with his prohibited dogmas to their ultimate destruction.
(1) We also confirm the sentence passed by all the Patriarchal or Pontifical Sees (with the concurrence of the monks) which anathematized Severus, who, in disobedience of the sacred decrees of the Church, accepted the See of the Holy Church of Antioch, and by doing so threw everything into confusion, and caused a general and abominable war to break out among the Holy Churches. Our predecessors pronounced the same curse against those who promote dissensions, while propagating rules and blasphemies at variance with the true dogmas; and at the same time against any person who adopts the abominable error of the impious heresiarchs Nestorius and Eutyches. These doctrines, although they may be considered to some extent antagonistic to one another, were devised with the same end in view, and were promulgated for the same purpose, namely, to promote the adoption of the provisions of Arius and Apollinarius, both of which,
in like manner, lead to the perdition of the soul, and anyone who accepts either of them will be equally to blame, and will render himself equally guilty of crime, no matter to which of these sects he may adhere.
(2) Therefore Severus shall remain subject to the anathema which the general, patriarchal, pontifical, and monastic assemblies of Our Empire have justly fulminated against him; he shall be expelled from the City of Antioch, and ejected from the See which he occupied the more irregularly, as he seized it while his predecessor was still living and dwelling among the Holy Churches, and drove away the ecclesiastics appointed to take his place. As Severus did not pay any attention to the proceedings taken against him, but, even while under the general anathema of the Orthodox and Catholic Church, he distributed throughout Our Empire a great number of blasphemous and abominable books, We hereby prohibit all Our subjects from having any of the same in their possession. And as it is not permitted to have possession of or copy the books of Nestorius (Our predecessors have included in this prohibition the lectures and the writings of Porphyry against the Christians) so, in like manner, no Christian shall have in his possession either the lectures or the writings of Severus, which are considered profane and contrary to the doctrines of the Catholic Church, and their possessors shall be required to burn them, if they do not desire to expose themselves to great risks. We forbid the copying of the books of Severus by any writer, either on account of the beauty of his chirography or the rapidity of his execution, and everyone is notified that if he does this, the penalty for the offence shall be the amputation of his hand, for We do not wish that the blasphemy contained in these books shall be transmitted to future ages.
(3) We forbid him to enter this Royal City, or its territory, or any other large town, and direct him to retire to some solitary place, to remain there in silence, and not attempt to corrupt others, or induce them to be guilty of blasphemy, or to continue to invent new theories contrary to the true dogmas, and by this means to constantly excite dissension among the Holy Churches.
CHAPTER II.
The Imperial Authority also confirms the anathema of Peter, Bishop of Apamea, who also was deposed at the same time as Severus, and for the same reason, and adopts as its own the decree issued against him. For anyone who has been placed under a general anathema shall remain subject thereto, and the sentence of the most holy ecclesiastics passed upon him is hereby ratified. We do not permit him to reside in this Royal City or its territory, or in any of the principal cities, but in one of those which has adopted his error, and which is situated at the greatest distance, and there he must live in retirement. For it is more beneficial that persons of this kind should remain concealed than be seen, as when they are unknown they only injure themselves; but when they publish their dogmas to the world,
they give occasion for the perdition of many weak persons, which, under no circumstances, should take place among the Christian flock and the orthodox people of God, and is not permitted by Imperial authority.
CHAPTER III.
Zoaras having also been subjected to anathema by the judgment of the most reverend bishops (a very light penalty for such serious offences), whose decisions are always equitable, and having been denounced by them, he will be liable to the punishment which, as is well known, has been inflicted upon Anthimius, Severus, and Peter. Hence the government confirms this sentence, which places him in the number of persons who have been anathematized; denounces him as schismatic, and expels him from this Royal City and its territory, absolutely forbidding him to reside in other cities. As the result of this, Zoaras shall reside and meditate in company with other blasphemers, who have just been punished and condemned to exile. If, indeed, there is anything else included in the sentence of deposition and anathema rendered by the Most Holy Bishops against the persons aforesaid than what We decree, We give it increased force, extend its time, and ratify it by Our Imperial Constitution, just as if it had emanated from the government itself.
If any of those against whom this constitution has been enacted should oppose it, he is hereby notified that he will be liable both to the penalties prescribed by the Imperial laws, and to punishment of even greater severity.
(1) We forbid all persons to attempt to destroy the Catholic Church of God (either by means of the doctrine of the Nestorian heresy, through the foolish doctrine of Eutyches, or the blasphemy of Severuswhich embraces rules similar to theirsor the tenets of others who follow them), to excite sedition among the most holy churches, or enter into any discussion concerning the true faith; but We direct them to keep silence on these subjects, and not call others together with a view to their conversion, or receive them if they come to them voluntarily; or presume to baptize them in their sect, or to defile the Holy Communion by administering it to others; or to explain forbidden doctrines either in this Imperial City or elsewhere; and if anyone should be guilty of such conduct he shall run the risk of punishment.
(2) We forbid all Our subjects to entertain persons who have been anathematized; the latter shall be expelled from cities where they have caused trouble, and all persons are notified that under Our Divine Constitution houses where heresy has been preached shall be taken away from the owners of the same, and adjudged to the Holy Churches. And also where fields are used for this purpose, they shall also be taken, it being entirely just that the Holy Churches should acquire property which is used for the destruction of souls.
(3) We establish these provisions for the common tranquillity of the Holy Churches, in compliance with the dogmas of the Holy Fathers,
in order that the entire priesthood may hereafter suffer no disturbance. By the establishment of tranquillity, Our government will hereafter remain undisturbed, and We shall enjoy the peace which Our Lord Jesus Christ, Member of the Holy Trinity, and only Son of God, grants those who are considered worthy to adore and glorify Him.
EPILOGUE.
Your Holiness will observe this law, and will communicate it by means of special letters to the most Holy Metropolitans subject to his authority, who, in their turn, shall take measures to communicate it to the most Holy Churches under their jurisdiction, in order that everyone may be familiar with the sacerdotal decrees ratified by the government.
Divine Subscription. May God the Holy and Religious Father preserve you for many years.
Given at Constantinople, on the eighth of the Ides of August, after the Consulate of Belisarius.
TITLE XXII.
CONCERNING THE WAREHOUSES OR SHOPS OF THE CITY OP CONSTANTINOPLE, OP WHICH ELEVEN HUNDRED ARE SET APART FOE THE PURPOSE OF DEFRAYING THE EXPENSES OF FUNERALS CONDUCTED IN THE PRINCIPAL HOLY CHURCH, ALL THE OTHERS, No MATTER TO WHOM THEY BELONG, SHALL ONLY BE SUBJECT TO ORDINARY
CHARGES.
FORTY-THIRD NEW CONSTITUTION.
In the Name of Our Lord Jesus Christ Our God. The Emperor Csesar, Flavius, Justinian, Alemanicus, Gothicus, Francicus, German-icus, Anticus, Alanicus, Vandalicus, Africanus, Pious, Fortunate, Glorious, Victor, Triumpher, and Ever to be Honored Augustus, to Longinus, Urban Prefect.
PREFACE.
Our subjects are Our constant care, whether they are alive or dead; hence We have provided by laws relating to funeral ceremonies that the obsequies of deceased persons shall not be too expensive for their relatives. And as Constantine, of Divine memory, the founder of this Our City, and the Most Pious Prince Anastasius, prescribed the number of pallbearers or deans, and fixed at eleven hundred the number of shops to be set apart to provide for this expense, and forbade this number ever to be increased, We, desiring that the number of pallbearers to be selected from each quarter shall be preserved, according to the regulations of Anastasius, of Divine memory, direct that what has previously been established shall remain in full force.
But for the reason that the inhabitants of the said quarters of this city, who, above all others, are the objects of Our solicitude, have applied to Us, stating that they are reduced to extreme necessity; and because the Principal Church is entitled to the income of eleven hundred shops, which has been voluntarily granted to it free of all taxes, for the purpose of defraying the expenses of the people of the city, and that, as the result of this transfer to the Holy Church, the said shops have been released from all other impositions; and that, while these shops are not the only ones destined for the sale of different kinds of merchandise which are exempt from public contribution, but there are many others which also enjoy this privilege, for instance, those set apart for other holy churches for the maintenance of places of entertainment for travellers, and for monasteries, and other religious foundations; which, at first taken away from heretics, have subsequently come into the possession of ecclesiastics of the orthodox faith and of royal houses, magistrates, senators, distinguished men, or officers of the Imperial Bedchamber, are also exempt from taxation ; and that the proprietors of these shops, taking advantage of this privilege, cause loss to the government; and hence there are so many exemptions from taxation that there are very few people who pay any taxes, and the result is that where formerly assessments were increased threefold and fourfold, they are now increased tenfold; although the Divine Prince Anastasius only included in his list of exemptions the eleven hundred shops set apart to defray the funeral expenses incurred by the Holy Church, We have considered it advisable to communicate these complaints to Our nobles, and above all to the Archbishop of this Most Fortunate City, in order that they may assemble for the purpose of ascertaining what property is exempt from taxation, and inform Us on the subject.
We have been pleased to address this law, by which We confirm the rules promulgated by the Most Pious Prince, Anastasius, to you.
CHAPTER I.
Hence We order that the eleven hundred shops charged with defraying the funeral expenses incurred by the Holy Principal Church, as well as to provide it with deans or pallbearers shall, by all means, be maintained intact and free from any other burden; and that no other church but this shall be entitled to demand any deans, whether the said church belongs to heretics or not. What We have already determined shall also be valid, namely, that eight hundred shops shall be set apart to provide pallbearers for the service of the Principal Church, and that three hundred shall pay their share in money, the disposal of which has already been made by Our pragmatic sanction. Any shops which may be destroyed shall be rebuilt in the manner prescribed by the orders of Anastasius of pious memory. The said eleven hundred shops devoted to the service of the Principal Holy Church shall continue to be free and exempt from every species of taxation; nor shall they, or the quarters which furnish them, be compelled to pay tribute, suffer any loss, or recognize any other authority.
(1) The other shops of the fourteen quarters of this city, whether they belong to some holy church, to houses destined for the entertainment of travellers, to monasteries, orphan-asylums, hospitals, or any other establishments of this kind, such as those of magistrates performing public functions of trifling importance, to senators, to nobles of high rank, to Imperial Chamberlains, and to officers enrolled in the army; all these shops, We declare, shall, through the prefects of their quarter, pay the taxes imposed upon them, and shall discharge all other duties which it is proper for each one to assume in its own quarter. No one can, in order to be released, plead any privileges or offer any other excuse, for We do not permit charges imposed upon some to be a burden upon others, nor tolerate the harshness of proposing to frequently increase contributions (which We are informed is done) more than fourfold, fivefold, and even tenfold, especially when We are so diligently exerting Ourselves to prevent anyone from being subjected to new impositions. By a new imposition is meant not only one which is created for the first time, but an addition to one that has already been established. All persons should be treated alike; and this Imperial Pragmatic Sanction (which it is permitted to style a law) shall be of general application, so that everyone may know in what way he may be free from annoyance. For each citizen will the more readily bear his burdens, if he perceives that no one else is exempt except the eleven hundred shops set apart for the provision of funeral expenses in the Holy Principal Church, a regulation which is common and advantageous to all men.
(2) But if anyone should attempt to give an excuse in order to release himself from the payment of contributions, or to prevent them from being collected from his tenants or clients; or to escape liability for the performance of any military, civil, ecclesiastical, or any other contribution, he shall be absolutely deprived of the ownership of his shop, the title to which shall vest in the entire quarter. Under these circumstances, persons will be more careful, and will not attempt to do what is prohibited.
Moreover, if the contributions are equally divided, the amount which each one is obliged to furnish will be very small, and its collection will involve but little trouble, and this will be accomplished more easily as it will be paid by several persons. And, indeed, is it not exceedingly absurd for men who labor with their own hands, and women who nurse the children of others in order to obtain the necessaries of life, alone to have been oppressed with high taxes up to the present time, especially when they belong to the poorest class of society? This abuse is of infinite extent, nor can it be limited in any way.
(3) We prohibit all these things, and promulgate this Imperial Pragmatic Sanction, threatening all of Our subjects with the penalty of losing their property, if, when residing in certain quarters, they interfere with the collection of ordinary taxes which have been established from the beginning, or attempt to convert them into private revenues. Everyone shall have the right to enjoy any income to which
he is entitled, but must see that his shops or warehouses pay the ordinary contributions imposed upon them. For as every private individual should have an eye to his own interest, there is much more reason for Us to come to the relief of this Great and Royal City, which is tottering and almost ready to fall, since We can only provide for the public welfare by releasing persons from burdens to which they should not be subjected, and which, up to the present time, they have been compelled to bear.
EPILOGUE.
Your Excellency, as well as the subordinates attached to Your office, shall, now and hereafter, cause the provisions of this law, which it has pleased Us to enact, to be carried into effect.
TITLE XXIII.
CONCERNING NOTARIES WHO ARE REQUIRED TO PLACE PROTOCOLS AT THE BEGINNING OP PUBLIC DOCUMENTS.
FORTY-FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We have recently learned of a controversy which has given occasion to the enactment of this law. An instrument, of which a woman was said to be the author, but which was not written in her own hand (for she could not write), but had been copied by a notary, who had added the woman's signature to it. The instrument also indicated that witnesses had been present. Doubt, however, arose as to the credit which should be given to it, the woman declaring that she had not consented to certain clauses included therein; and the judge having jurisdiction of the case attempted to ascertain the truth by means of the notary, who, having been called into court, answered that he recognized the handwriting, but was ignorant of what the parties agreed to, because the document had been dictated to one of his clerks, and he had not been present when it was completed. Then the clerk, having been summoned, appeared in court, and also stated that he had not written the instrument in the first place, but had only been present at its execution, and that he to whom it had been dictated could not be found; hence the judge being unable to ascertain the truth by means of witnesses, the whole matter was left in uncertainty, which has induced Us to make an investigation, and publish a decree for the regulation of similar cases.
CHAPTER I.
We also deem it proper to come to the relief of Our subjects, and enact a law for the general welfare of all, by which it is proposed to
compel notaries by all means to be present at the execution of legal instruments, and, unless this is done, such instruments shall not be considered complete, in order that the said notaries may be familiar with, and take part in the transaction, and when they are interrogated by judges, may be aware of what has taken place, and give proper replies, especially where the parties to the instrument are ignorant of letters, under which circumstances it is very easy for them to deny what actually happened.
(1) Therefore, with a view to preventing such occurrences, We have drawn up the present law, and desire it to be explicitly observed by notaries both in this Most Fortunate City and in the provinces; and they are hereby notified that if one of these should violate it in any respect, he will certainly be deprived of his office; and the person who is directed by him to see to the execution of the document, and was present, shall be substituted for him, and shall hereafter exercise the functions of the office, just as his superior did in the first place, by way of punishment for having neglected to discharge his duty, and for not having acted in compliance with the wishes of the parties interested. We impose this penalty upon notaries, in order that such officials may become more just and circumspect, and may not, for the sake of their own pleasure and convenience, cause annoyance to others.
(2) Therefore, if a notary should prove himself to be unworthy of holding his office, he shall be deprived of it, and his place shall be taken by another; but the chief of the body of notaries shall not be prejudiced in any way (even if he himself is not a notary), nor shall he be deprived of any emoluments, as the punishment shall be strictly confined to him who failed to perform his duty, and who shall lose his place; for the offences of notaries do not affect the rights of their official superiors.
(3) Notaries shall not excuse themselves from being present at the execution of instruments by alleging as a pretext illness or their occupation with other affairs, for if anything of this kind should occur, they will be permitted to call the contracting parties before them, and have the business attended to, as such cases rarely happen; and it is not proper for private business to prevent public officials from attending to matters of general importance, as there is nothing so absolutely certain among men that it cannot (even though it may be perfectly just) still give rise to some doubt. The fees of notaries shall not be diminished on account of this law, as they have many opportunities to draw up contracts, and, besides, it is much better to do a few things carefully than many in a negligent manner.
(4) Therefore, in order that this law may not appear to notaries to be too severe, We, being aware of the failings of human nature, have provided reasonable rules for them, and on account of the probability of doubt arising under such circumstances, do hereby grant them permission to appoint substitutes (a matter which shall formally be published by the Illustrious Master of the Census of this Most Fortunate City), and We authorize the said substitutes to be present
at the execution of the instruments aforesaid; but no other notary shall either be appointed in the beginning, or be present at the transaction, except the one indicated, and his substitute, who is duly authorized and designated for this purpose.
If this law should be violated and someone else be appointed, the notary who has been duly empowered by Us in the first place shall be liable to the penalty; but the instruments shall not be rendered void, because of their usefulness to the contracting parties.
We desire that, for the future, notaries shall, through the fear of punishment, obey this law and strictly observe everything which has been prescribed by Us.
CHAPTER II.
NOTARIES SHALL WRITE THE INSTRUMENT UPON THE
SAME SHEET WHICH CONTAINS THE PROTOCOL, THE
DATE, AND THE NAME OP THE CONSUL.
We also add to the present law that notaries shall not draw up instruments on any other sheet than the one (called the protocol) which bears at the head the title of Our Most Glorious Count of the Imperial Largesses, and the date of the execution of the document, and whatever else it is customary to write there, and notaries must not abridge the protocol, but leave it as it was inserted; for We are aware that many forgeries have been, and are now being committed in instruments of this kind, and that some of the latter have protocols which do not belong to them, but to other documents, the result of which is to render them void; hence the whole of the instrument must be written on the same sheet, as We have previously stated.
Therefore, whatever has been decreed by Us with reference to the nature of such documents, and the abridgement or substitution of protocols, We desire to be observed only in this Most Fortunate City, where there is always a multitude of contracting parties, and a great supply of blank paper, and it is easy to be present and have transactions conducted in a legal way, and not afford any opportunity for the commission of forgery, for which crime those will render themselves liable who presume to act in any other way except that prescribed by law.
EPILOGUE.
Your Highness will hasten to carry into effect the rules which it has pleased Us to promulgate by means of this law.
Given at Constantinople, on the nineteenth of the Kalends of September, during the second year after the Consulate of Belisarius.
TITLE XXIV.
NEITHER JEWS, SAMARITANS, NOR HERETICS SHALL BE RELEASED FROM CURIAL OBLIGATIONS ON ACCOUNT OF THEIR RELIGION, BUT THEY SHALL PERFORM CURIAL FUNCTIONS WITHOUT ENJOYING CURIAL PRIVILEGES, AND THOSE WHO ARE LIABLE TO THESE OBLIGATIONS SHALL BE PERMITTED TO GIVE TESTIMONY AGAINST ORTHODOX CHRISTIANS AS WELL AS IN FAVOR OF THE ORTHODOX GOVERNMENT.
FORTY-FIFTH NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
Your Highness has informed Us that Jews, Samaritans, Montan-ists, and other men deserving of contempt, for whom the light of the immaculate faith has never shone, who remain in darkness and have never experienced in their minds the benefit of the true sacraments, are included among decurions; and because We hold heretics in horror, they think, for this reason, that they are exempt from curial obligations, and refuse to perform the duties incumbent upon them. We, however, are surprised that one of your wisdom and shrewdness should have accepted their excuses, and did not at once hasten to punish them, for if certain individuals think that, because of some extreme absurdity, they are entitled to the enjoyment of certain privileges which We have reserved only for persons of the highest distinction, who is there among Our subjects who will not hereafter manifest extreme insolence and folly? Wherefore, let such men continue to perform curial as well as official duties, as was formerly decreed, whether they complain or not; and no religion or civil condition shall render them exempt (for nothing is mentioned on this point in either the ancient or modern law), but they shall not enjoy the honor attaching to the office of decurion, or the privileges granted to persons of this kind, for instance, freedom from corporeal punishment, exemption from removal to other provinces, and numerous others.
But where anything is stated with reference to decurions which does not confer any privilege, it shall also apply to these, and they shall be liable to personal and pecuniary charges, and no law shall exempt them therefrom; they shall enjoy no honors, but must remain in the baseness of their condition to which they are devoted.
These are the provisions which We have enacted on this subject.
CHAPTER I.
You have also mentioned another matter which is worthy of inquiry. We have forbidden heretics to testify whenever orthodox persons are engaged in litigation with one another, and We have permitted
them by Our Constitution, whenever they have any legal controversies with one another, or either the plaintiff or the defendant is an heretic, he can testify, because they are litigants; and they can give testimony for an orthodox person against a heretic, but not against one who is orthodox; and, in conclusion, We have prescribed that the evidence of such persons is not admissible when orthodox believers are engaged in legal disputes with one another.
You have stated to Us that when orthodox persons desire to be released from curial obligations, the testimony of their relatives and others familiar with their condition may be received. As the law rejects the evidence of heretics when offered against orthodox Christians, the judges hesitate to permit it under such circumstances. We, however, think that this apprehension is unfounded, for as such persons are permitted to testify in behalf of orthodox believers (for the law does not forbid them to do this), then, where decurions desire to be released from their public obligations, and call heretics to testify in their behalf, why should not this be permitted? In this instance the orthodox government which God has especially entrusted to Our administration is one of the litigants, those, however, who give evidence for the government, in reality testify for orthodox persons. Our conclusion is just, it is consistent with the orthodox faith, and is based upon the hatred which We entertain for all heresies.
EPILOGUE.
As soon as Your Highness is informed of Our wishes, being aware of what is beneficial to Our government, and, above all, remembering that We have been careful to prescribe by the present constitution what is advantageous to the public welfare, will see that it is observed.
Given at Constantinople, on the fifteenth of the Kalends of September, after the Consulate of Belisarius.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
FIFTH COLLECTION.
TITLE I.
CONCERNING THE ALIENATION OF ECCLESIASTICAL LANDS, AND THEIR RELEASE WHEN PLEDGED.
FORTY-SIXTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We have devoted all Our attention to the laws, and We are daily exerting Ourselves for the welfare of Our subjects, by removing whatever is redundant and superfluous, and substituting therefor what is excellent and praiseworthy. For We have formerly often corrected the diffuseness of the laws, and, by restricting their application, introduced equity in subsequent times. We have very recently published a constitution having reference to all holy churches, monasteries, and other religious houses, forbidding them to make alienations of any immovable property; for We have seen that great confusion prevailed in consequence of this; that ecclesiastical possessions were, little by little, being acquired by strangers, without the payment of sufficient money, and without any urgent necessity existing for the sale of such property; and yet ten thousand frauds were constantly being committed against the laws already in force. Thus, by forbidding alienations, We render the means of committing fraud impossible.
It was only after this that the greater portion of the lands belonging to the Church became of any benefit to the owners, for no one dared to acquire them. Still, a matter difficult of solution has arisen, that is to say, ancient debts as well as others recently contracted, and, above all, fiscal claims, have imposed upon religious houses the necessity of selling their lands; they are forced to take this step because they have no personal property, and if their heads are unable to alienate their lands, they will have no means of discharging their obligations.
These conditions have already induced Us to give permission to churches to surrender their possessions in payment to their creditors, after observing the usual formalities. But as this power was not expressly granted by Our former Constitution, and when the creditor was not a private individual, but the Public Treasury and the Church had no money, and it was impossible for the former to accept real property in payment, We have deemed it advisable to make some concessions, and to a certain extent relaxing the strictness of the law, permit alienations of this kind to take place.
CHAPTER I.
Hence We order that if any of the holy churches or other religious houses should incur fiscal obligations, and not have the means to meet them, all the clergy including the Bishop of the City and the Metropolitan shall be assembled, and the matter shall be examined by them, and if there should not appear to be any other way to pay the debt, except by the alienation of immovable property, permission to do this may be obtained by virtue of a decree issued by the Governor of the province authorizing the disposal of real property sufficient to discharge the indebtedness; and those who acquire said property shall, themselves, become liable for the payment of the obligation, and shall satisfy the Treasury, which must give them a receipt for the same. In this way, they will have ample security, and need not entertain any apprehensions on account of the preceding law; the receipts of payments made to the Treasury shall be filed and recorded by the purchasers in the Bureau of Registry, if they desire to be fully released from all liability toward the holy churches for what they have paid in their behalf, in order that the taxes may be settled, and everything be done in accordance with Our law.
No one shall feign the existence of a fiscal debt for the purpose of obtaining the alienation of real property belonging to the Church; and, with a view to preventing all fraud of this kind, We desire that the decree of the Governor, who intervenes in this matter to establish the existence of such an obligation, shall state the time when it became due, the reason for it not having previously been paid in money, and why the necessity for such alienation exists; for in this way the truth will be absolutely established.
We desire all these formalities to take place in the presence of the Holy Gospels, and that the bishops, clerks, and all others concerned in the alienation shall remember that God will know what is being done by them, and if they are guilty of any deceit or fraud through desire of gain, they will, while living and dead, be punished in their souls.
CHAPTER II.
Where, however, a private individual is the creditor of the Church, he can receive immovable property by way of payment, a decree must always be rendered under such circumstances, and the property of the debtor shall be transferred to the creditor for the amount of his claim. But where the debt is due to the Treasury, and an alienation of immovable property is made, this shall be done in accordance with the previous rules, and no formality, nor any consideration for the public welfare shall be neglected.
CHAPTER III.
The present regulations shall not, however, be applicable to the Most Holy Principal Church of this Most Fortunate City, its territory, or the chapels subject to its authority; but the law already formulated
with reference to ecclesiastical alienations shall remain in full force, so far as they are concerned. If, however, the Most Holy Principal Church has any monasteries under its jurisdiction, We also release them from the provisions of the present constitution, which We enact solely for the exterior provinces in which a scarcity of money exists, which prevents the holy churches from paying their debts in cash.
EPILOGUE.
As soon as Your Highness becomes acquainted with what We have just decreed, you will require these rules relating to the alienation of ecclesiastical property to be scrupulously observed.
Given at Constantinople, on the fourteenth of the Kalends of September, during the second year after the Consulate of Belisarius.
TITLE II.
THE NAME OF THE EMPEROR SHALL BE PLACED AT THE
HEAD OP ALL PUBLIC DOCUMENTS, AND THE DATE SHALL
BE WRITTEN PLAINLY IN LATIN CHARACTERS.
FORTY-SEVENTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Prsetorian Prefect, Twice Consul and Patrician.
PREFACE.
Documents and contracts in which the dates are given are the ones to which the greatest credit shall attach. The same rule applies to those in which the name of the Emperor appears. For the consuls, the indictions, and the dates mentioned in public documents indicate the time when they were executed, as well as the signification applicable to them. We have no intention of suppressing anything of this kind; but, on the other hand, We desire to make additions to it, so that the course of time may be designated more explicitly and perfectly therein. For whoever studies the events of past ages, and the ancient history of the government, will learn of JSneas the King of Troy, Prince of the Republic, from whom We are said to descend; and if he turns his attention to the second epoch, when the Roman name attained great lustre among mankind, he will ascertain that Romulus and Numa founded the government and constructed the city, and that the latter regulated and adorned it with laws.
If he should consider the third epoch, namely, that of the Empire, he would read of the Great Caesar and the Pious Augustus, and would find that the government which now is so powerful was rendered immortal by the acts of these sovereigns. It would, however, be absurd for the name of the Emperor to be placed at the head of all contracts, judicial decisions, and, generally speaking, all of those in which any mention of the date is made.
Wherefore We order that all those officials employed in drawing up documents or decisions, no matter where this may be, and that the notaries who, in compliance with certain rules, draw up various instruments in this great city, or in other parts of the Empire, over which God has given Us the right to preside, shall begin as follows: "The year of the reign of the Most Holy and August Emperor," and, afterwards insert the name of the Consul for that year, and then the indiction, month, and day; in order that the date may be entirely preserved by the mention of the reigning sovereign and the order of the consulate, and the other formalities be observed, as is customary, and when this has been done no changes should be made.
(1) Where, however, the inhabitants of the East, or any other nations, are accustomed to state in their public documents the date of the foundation of their cities, We do not prohibit them from doing so, but We desire that the year of the reign shall first be written, and that (as We have already said) the name of the Consul, the indiction, the month and the day when the transaction took place, and was committed to writing shall follow, and that afterwards the year of the foundation of the city shall be inserted; for We do not abolish any of these former customs, but merely add the Imperial designation. From the date of the preceding indiction, documents shall be begun in the name of God, for instance: "The eleventh year of the reign of the Most Holy Emperor Justinian, the second year after the Consulate of that most illustrious man, Flavius Belisarius, on the .... day of the Kalends of ........"
Thus in all public documents, the year of the Empire, that of Our reignso far as God may be pleased to prolong itand, in the future, the names of succeeding Emperors, will be mentioned. This is perfectly clear, because at present the eleventh year of Our reign is written; but from the beginning of next April, the day upon which God invested Us with the government of the Empire, the twelfth year shall be stated; and so on, as long as God may permit Us to reign, so that this name may survive the laws, and the mention of the latter may remain immortal, while the commemoration of the Empire shall be introduced in all transactions for all time.
CHAPTER II. DATES WRITTEN IN LATIN SHALL BE PLAIN AND LEGIBLE.
We also add that those who insert the date in judicial decisions, and who now use for that purpose ancient and uncertain characters, shall hereafter, in every judicial decision, be obliged to write after the ancient characters, others which are familiar to all, and can be easily read; and which will intelligibly indicate the date of the documents, and not embarrass those who wish to know it, and compel them to seek someone who is able to understand the characters which have been used.
When, however, the body of these documents which follows the date written in characters that cannot easily be deciphered is in the Greek language, the date shall be inserted in Greek letters underneath just as where all the document is in Latin, the date also shall be in that language. When letters which are easily read are employed in this way, their meaning will readily be intelligible, and all persons who are not absolutely ignorant of Latin will be able to understand them.
EPILOGUE.
Your Highness will cause the regulations which We have been pleased to lay down in this Imperial Law to be published in this great city and in all the provinces subject thereto, in order that no one may presume to reckon the time in a different manner, or to do anything else in violation of what We have recently decreed.
Given at Constantinople, on the Kalends, during the eleventh year of the reign of Justinian, ever Augustus, and the second year after the Consulate of Belisarius.
TITLE III.
CONCERNING THE OATH TAKEN BY A DYING PERSON AS TO WHAT His ESTATE CONSISTS OP.
FORTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We have always had the intention of preserving inviolate the dispositions of dying persons unless they were contrary to law, and opposed to the rules which it prescribes. We are informed that when a testator makes a will, by which, in disposing of his estate in favor of his heirs, he swears to what it is composed of, and some of the said heirs refuse to believe the declaration of the deceased (in which they are guilty of injustice, for when acting as heirs of the testator they thereby agree to what he does), and do not wish to confirm what he has stated under oath, and refuse to accept it, notwithstanding Our laws consider an heir and the person who has transferred the estate to him as a single person, as no one can oppose himself, or consider what he has sworn to as not true, he cannot deny his own statements.
CHAPTER I.
Therefore We order that if anyone should make a list of his property either with his own hand, or through the agency of someone else, but signed by him; or should mention in his will the amount of his estate whether some of his heirs are present and others absent, or whether all of them are present, We hereby forbid the said heirs to contradict the statement, and one to accuse the others of having con-
cealed property which was not mentioned by the deceased. Where, however, the dying person has made oath that he has nothing more than he says he has, the heirs, whether they be children or strangers, must accept the statement. We do not wish them to hesitate, to abuse their co-heirs, or, in order to prove their allegations, to demand that the slaves of the deceased be tortured, or to take other measures and make other investigations of this kind, which will lead only to controversy; for if nothing more should be found among the property of the estate than what the testator declared under oath it was composed of, the conclusion will be reached that he desired this amount alone to go to his heirs.
(1) We desire that the declarations of the deceased as to his property shall be conclusive with reference to the heirs, who are desirous of ascertaining what the estate consists of, but it shall not be conclusive so far as creditors are concerned, because it has been prescribed by Our laws that whatever anyone may say or write for his own advantage will be of no benefit to him, nor will prejudice his creditors to any extent, and they shall be permitted to investigate everything in any way that they choose; but the heirs must remain content with the statements of the testator.
The penalty imposed upon the heirs shall be that any one of them who makes a contest on account of the property left to him cannot enjoy it at all, for he will be required to agree to all the dispositions of the testator, or not to accept any of them; and the result of this will be that he must consent to all that the deceased said, and contradict him in nothing if he wishes to enjoy his share of the estate.
These provisions shall be valid for all time hereafter, and be applicable not only to cases which have not yet been brought, but also to such as have been terminated by a judicial decision or compromised in an amicable manner.
EPILOGUE.
Your Eminence, after having learned what it has pleased Us to enact by this Imperial law, will formally communicate it to all Our subjects by a special proclamation.
Given at Constantinople, on the fifteenth of the Kalends of September, during the second year after the Consulate of Belisarius.
TITLE IV.
CONCERNING THOSE WHO APPEAL; AND WHEN A COMPARISON OP THE HANDWRITING OP PERSONS CAN BE MADE, AND CONCERNING THE OATH TO BE TAKEN TO OBTAIN DELAY, AS WELL AS THE OATH OF CALUMNY.
FORTY-NINTH NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
Human affairs are changeable, and what can not remain the same will never be characterized by stability, and constantly introduces confusion into legislation, and perplexity into matters which seem to have been justly and permanently disposed of; and those things whose observance has been carefully provided for, for the most part, subject to the disturbing influence of various contingencies. For We remember that We recently corrected certain abuses which affected appeals in an evil and fraudulent manner, for the appellants were content merely to appeal, and furnish security to appear in court, and then after having taken the first steps against the other party, or having contradicted his allegations (for this is perfectly indifferent), they abandoned the case, so that the victory obtained by the other party was unavailable, as he could neither enjoy the advantage of the judgment, as execution was suspended by filing the appeal, and it could not be heard on account of the absence of the appellant.
(1) We have already provided for the correction of this abuse by allowing the appellant, whether he made the application in person or by an attorney, a year in which to proceed and obtain judgment, and not leave the matter in abeyance. If, after this time, he, through indulgence, by an order of court, or for any other good reason should cause further delay, and have the decision of the appeal prolonged for another year, We have decreed that when the litigation was not ended after this second postponement, the first decision in favor of the other party shall be affirmed.
(2) A great many litigants have applied to Us, alleging that after having notified appellants that they wish to have the case tried and disposed of, they have been unable to obtain a hearing from the magistrates on account of, for instance, a press of business. Others have alleged that violent storms or contrary winds have not permitted them to travel by sea to their provinces; and that they have been prevented by extreme poverty from making the journey by land; or, indeed, because, residing on an island, they could not travel in any other way than by sea, and that, for these reasons, they were not able to proceed with the case during the second year; others have stated as an excuse the severity of the weather, and others again have pleaded a dangerous illness. We have been justly influenced by all these excuses, and, without desiring to violate the present law, We intend as far as possible to come to the relief of those who are injured by such unfortunate occurrences.
CHAPTER I. A CASE TAKEN UP ON APPEAL SHALL BE TERMINATED AT
THE END OF THE SECOND YEAR.
What then was there to do, unless enact another law which might afford relief ? We direct that the provisions of the preceding law shall (as We have previously stated) in every respect, remain in force. If, however, through some inevitable accident, the litigant who took an appeal does not appear when a certain day, which was final, has been
assigned to hear it, and the expiration of the two years was approaching, We direct that the first decision shall, under certain circumstances, be confirmed; as was provided in Our former law, to which We now make certain additions. For as We have come to the relief of defendants on appeal, by granting them delay in opposition to those who, after having a time appointed for a hearing, are still unwilling to proceed with the case, or abandon it during the argument, We desire to modify to a slight extent the right which We have granted them while taking into consideration what is proper. For We direct that if the party who has obtained the first decision in his favor should, in case the appellant does not appear, wish this decision to be confirmed, not under any convenient pretext, or through lapse of time, but actually and definitely, let him give notice of his intention, and seek out the appellant, and whether he finds him or not, he can take measures in the meantime, and if all the two years but one month have expired, and it is decided that he is right, the first decision shall be affirmed; for if it is not founded in justice, judgment should be rendered against him, even though the appellant who appointed a fixed day for the case to be heard may not have appeared.
We add that whether the defendant gains or loses the case taken up on appeal, the appellant who did not appear, shall be liable for all the costs incurred since the appeal was taken; for if the defendant should gain the case, for the very reason that he is successful, it is only proper that his costs should be paid. If, on the contrary, he should lose it, and the appellant should gain it without having put in an appearance, it is still no more than right that he should pay the costs, as he did not appear; but he will enjoy the benefit of the decision on appeal, for which he should thank God and the present law, which treats him with justice and only makes him liable for the costs, for the payment of which his absence and not the said law is responsible. But where neither of the parties to the action, that is to say, the defendant or the appellant who has appointed the day for the hearing, appears, the first decision in favor of the defendant shall remain in full force.
In addition to this, We ratify the provisions of all other laws having reference to delays, and other matters of this kind, for in enacting the present constitution, especially against litigants who, after having themselves appointed a certain day, do not appear, We do not repeal or change anything in former laws having reference to the postponement of appeals, all of which We confirm by this constitution.
(1) It is also advisable to determine whether appellees who have already obtained a decision affirming the prior judgment shall enjoy the benefit of it; for We do not intend to take any steps with reference to matters which have already been decided. If, however, there are cases on appeal which are still pending, and the term of two years has almost but not entirely expired, and the first decision has not been ratified by a judgment, such cases shall be decided as above set forth, and the defendants on appeal shall enjoy the benefit of them if they should be affirmed.
CHAPTER II.
COMPARISONS OF HANDWRITING SHALL ONLY BE MADE IN THE CASE OF PUBLIC DOCUMENTS, AND IN THE CASE OF PRIVATE INSTRUMENTS WHERE THE ADVERSE PARTY
CAN USE THEM FOR His OWN ADVANTAGE.
We have decided that the following addition should be made to the present law. We have, sometime since, drawn up a constitution forbidding the comparison of handwriting in the case of private instruments, and only authorizing this to be done with public documents; but experience has convinced Us that this law should be amended, and, as this is the case, We are going to proceed in accordance with the custom observed by litigants. For it frequently happens that the plaintiff produces an instrument in someone's handwriting by which he can establish either the title to property, or the proof of his allegations; and the defendant produces other instruments written in the same hand, by means of which he desires to contradict what has been offered by his antagonist, and then the plaintiff avails himself of the law which, while authorizing the comparison of the handwriting of public documents, on the other hand, prohibits that of private ones.
(1) We order that if anything of this kind should occur, and someone should desire an examination to be made of any documents presented by his adversary, this proceeding shall not be considered improper. For the plaintiff cannot discredit the document upon which he depends to establish his title, and which he has produced; and he should not prevent its comparison with one in other handwriting, even though the latter be that of a private individual. Nor should he contradict himself, and deny the statements which he has already made.
(2) Where, however, a document taken from the public archives is produced, for instance, a receipt issued by the Bureau of the Most Glorious Prefecture (for a question of this kind has been suggested), as an instrument of this description is based upon public evidence, We decree that it can be admitted in a comparison of handwriting. For, as We entertain hatred for the crime of forgery, We order that the experts charged with the comparison of the handwriting of public documents shall be sworn before any private instruments are placed in their hands for this purpose. Wherefore this law, as well as the present modification of the same, shall remain in full force, and the experts aforesaid shall by all means be sworn.
CHAPTER III.
CONCERNING THE UNION OF THE OATH TAKEN TO OBTAIN DELAY WITH THE OATH OF CALUMNY.
Therefore in order to preserve honor among litigants, We direct that they should make oath at the beginning of the suit, that is to say, that the plaintiffs shall swear that they are not proceeding for the purpose of causing annoyance, and the defendants that they believe the plaintiffs to have been satisfied, and are not actuated with the
desire of encouraging strife; and We render this law applicable to all persons, without any exception whatsoever.
We also add that if anyone should demand proof of the statements of the plaintiff, or the acknowledgment of any of his documents, instruments, or letters, he must first swear that this is not done for the sake of delay. For there are many persons who, on account of trifling injury (and this is especially the case where noble women are concerned, or the proof of documents is called for, or for some other reason), have recourse to this oath, so that it is frequently taken in one and the same transaction.
(1) Hence, in order to remedy this evil, and being unwilling that the oath should be exacted repeatedly in the same action, We order that both parties, the plaintiff, when he takes the oath of calumny, and the defendant, when he swears that he has ground to dispute the claim, shall add that during the entire course of the proceedings, no matter what evidence he may demand from his adversary, he will not do this to cause delay, but only in order to establish the truth, and when he thinks it is necessary that the said evidence should be produced by him.
Where either party takes this oath, his opponent can, by no means, exact another from him, even though proof may frequently be demanded ; but the testimony shall be given, and no one will be required to be sworn several times, and, generally speaking, an oath of this kind can only be taken once.
EPILOGUE.
Your Highness will cause what has been enacted by Us and published by means of this Imperial law to be brought to the attention of all persons, by means of direct edicts, so that everyone may be aware of what We have decreed.
Given at Constantinople, on the fifteenth of the Kalends of September, after the Consulate of Belisarius.
TITLE V.
CONSTITUTION ADDRESSED TO BONUS, QU.ESTOR OF THE ARMY, PRESCRIBING BY WHOM APPEALS TAKEN FROM FIVE PROVINCES, NAMELY CARIA, CYPRUS, THE CYCLADES ISLANDS, MYSIA, AND SCYTHIA, SHALL BE HEARD AND DETERMINED.
FIFTIETH NEW CONSTITUTION.
The Emperor Justinian to Bonus, Most Glorious Quaestor of the Army.
PREFACE.
We are aware that We have previously promulgated an Imperial Constitution by which We entrusted to Your Glory the five provinces
of Caria, Cyprus, and the island surrounding them, Mysia, and Scythia, for the purpose of being subjected to your administration. In this constitution We add that appeals taken in these provinces instead of being brought, as heretofore, before Our Most Glorious Prefects, shall be brought before yourself. Many persons from Caria, Rhodes, and Cyprus have applied to Us, making complaint, and stating that they are frequently obliged during the winter to resort to Scythia and Mysia, where you reside, for the purpose of prosecuting appeals, many of which involve very small sums of money, and that they are compelled to cross wide seas, and regions infested with barbarians; and for this reason We have determined to address this law to Your Glory; so that any appeals taken from Scythia and Mysia, as they are in your vicinity, may be heard by you, but any from elsewhere, that is to say, from Caria, and the aforesaid islands, and Cyprusprovided they were formerly brought before Our Most Glorious Prefect and, by virtue of Our Imperial order were within the jurisdiction of the Prefectural magistracyand you should be in this royal city, shall be brought before and decided by you and the Most Glorious Quaestor of Our Imperial Palace, in the Imperial Audience-Chamber, as the law regulating appeals directs.
(1) If, however, you should continue to reside in Scythia and Mysia, appeals from the three other provinces shall be heard by the magistrate who takes your place in this Fortunate City, and shall be disposed of by him and Our Most Glorious Quaestor, in their regular order, as We do not desire litigants to be subjected to inconvenience for too long a time; however, as We have enacted this law on their account, their cases shall be determined by the two magistrates whom We have just mentioned, the proceedings shall be conducted with greater diligence, and the decisions shall acquire still greater authority.
(2) But if you appoint a judge in the above-mentioned provinces, the magistrate who takes your place in this Fortunate City shall have cognizance of appeals taken from the decisions of the former, and shall determine them conjointly with the Most Glorious Prefect; for if a case taken up on appeal should be begun before you, while you are here (which is likely to occur), and afterwards you should change your residence on account of judicial expenses, this appeal shall be disposed of without delay by the magistrate who takes your place, in the same way as if you yourself had decided it. When, however, in the first place, the appeal is taken from any of the provinces, instead of being brought before the Most Glorious Prefects, or some other tribunal, We do not, in this instance, change the ancient practice in any respect.
EPILOGUE.
Your Glory will hasten to render effective the matters which We have decided upon, and promulgated by means of this Imperial law, which you will cause to be observed forever hereafter.
Given at Constantinople, on the fifteenth of the Kalends of September, during the eleventh year of Our Lord the Emperor Justinian, after the Consulate of Belisarius.
TITLE VI.
WHERE PROSTITUTES FURNISH SURETIES, OR TAKE AN OATH TO CONTINUE TO PURSUE THEIR EVIL LIFE, THEY CAN VIOLATE THEIR CONTRACTS WITHOUT ANY RISK TO
THEMSELVES.
FIFTY-FIRST NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We know that We have already published a law prohibiting sureties from being required of women kept in houses of prostitution to insure their remaining and pursuing their infamous calling. This law does not afford any opportunity for repentance to persons who exact such security, but it even threatens them with severe punishment, and it also provides that the sureties shall not be responsible, and that there is no necessity for them to represent the women for whom they have become bound. But We have ascertained that, at the present time, a cruel and intolerable fraud has been committed against chastity, which is something greatly revered by Us; for, as We have forbidden sureties to be taken, a much more abominable method has been devised, and those who profit by the vile profession of prostitutes compel them to swear that they will never abandon their base and wicked life; and these wretched women, influenced in this way, think that they are acting honorably if they remain, and they keep their oaths to the destruction of their chastity, when they should be aware that such transgressions are more agreeable to God than the observance of such oaths. For if anyone has, at the instigation of another, sworn, for instance, to kill, to commit adultery, or to commit any other unlawful act, this oath need not be observed, as it is base and unlawful, and leads to perdition. Therefore, even though a woman may have taken such an oath, she shall be permitted to violate it, and to live chastely without danger of prosecution for perjury (if, indeed, the penalty applies to a case of this kind), for it is more acceptable to God that punishment should be inflicted upon him who required the oath to be taken.
CHAPTER I.
Wherefore We impose the penalty of ten pounds of gold upon anyone who presumes to exact and receive an oath of this kind, as soon as it is tendered. We order that this sum shall be collected by the Governor of the province, and given to the unfortunate woman to
assist her in leading a virtuous life. Governors are hereby notified that if they should be negligent in this respect, they themselves will be required to pay it at the end of their administration; and that their heirs and successors, as well as their estates, will be liable for it, because they have neglected to perform a meritorious act.
(1) If, however, the Governor of the province should himself exact such an oath, he shall be compelled to pay the said fine of ten pounds of gold; and if there is a military magistrate in the province it shall be his duty to collect it, and, as We have already stated, it shall be given to the woman. But where there is no military magistrate, the money shall be collected by the metropolitan bishop of the province, who shall refer the case to Us, if it becomes necessary; or the matter shall be attended to by the superior magistrate of the adjoining province.
Anyone who commits an act of this kind in any place, whether he be a magistrate or a private individual, shall be punished as above stated, and shall pay the amount to the woman without which she cannot live in chastity, and she shall not be considered to have perjured herself.
EPILOGUE.
Your Highness will, by suitable proclamations, communicate to all persons what we have pleased to enact by the present law, in order that the subjects of Our Empire may be aware of Our zeal for the preservation of chastity.
Given on the Kalends of September, during the eleventh year of the reign of the Emperor Justinian, and the second year after the Consulate of Belisarius.
TITLE VII.
PLEDGES SHALL NOT BE MADE FOR THE BENEFIT OF THIRD PERSONS. DONATIONS MADE BY PRINCES TO PRIVATE PERSONS Do NOT REQUIRE TO BE RECORDED, ANY MORE THAN DONATIONS BY PRIVATE PERSONS TO THE
EMPERORS.
FIFTY-SECOND NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Many laws formerly enacted, and especially those which have been promulgated by Us, have a horror of dishonorable pledges, and the odious seizures to which they have given rise; but We are not ignorant of the reasons for such abuses, and that, when prohibited by so many laws, they still take place in the Empire, with even more regularity than if the laws had made them necessary.
CHAPTER I. CONCERNING PLEDGE.
On this account We order that, under no circumstances, shall a pledge be taken in Our Government, or in the markets (for We have learned that this is most frequently done there), nor in the country, nor in cities, nor in villages, nor be required of citizens, villagers, or farmers anywhere, or at any time whatsoever; but We direct that anyone who presumes to take from another gold or other property to indemnify himself for what is owing to him by a third party shall be compelled to return quadruple the amount to him who has suffered the wrong, and he shall be deprived of the right of action which he has against his true debtor. For it is not reasonable that one person should be a debtor, and the claim be collected from another; or that anyone should be molested on account of a third party, in the same manner as if a trespass or some similar injury had been perpetrated upon the latter; or that a person belonging to the same village should be maltreated, sustain injury, suffer violence, be subjected to malicious prosecution without any lawful cause, or be liable to a corporeal penalty because of someone else. Governors of provinces are hereby notified that if they do not prevent such abuses, or permit seizures of such pledged property to be made in the provinces within their jurisdiction, nothing will prevent them from being punished by Us.
CHAPTER II.
DONATIONS MADE BY PRIVATE PERSONS TO THE EMPEROR Do NOT REQUIRE TO BE RECORDED.
We have also deemed it proper to make the following addition to this law. As donations made by the government do not require to be recorded, but have sufficient force of themselves; so, also, those made by private persons to the Emperors (unless they are actually drawn up as public documents by notaries, bear the signatures of witnesses, and are executed with the other formalities required in the case of donations) do not need to be recorded, no matter what their value may be. For it is of no consequence that the government does not, so far as private individuals are concerned, enjoy the same advantages which it enables them to enjoy.
This inequality results from the innovation which the Constitution of Zeno, of pious memory, introduced, which provided that Imperial donations do not require to be recorded. But, as this law appears to Us to be imperfect, and We wish to amend it, We decree that the rule shall apply to both parties, that is to say, neither donations made by the Emperors to private individuals, nor those made by private persons to the Emperors, need to be recorded; so that justice, which is derived from equality, may be observed in cases of this kind.
EPILOGUE.
Your Excellency will see that what is contained in this Our Imperial Constitution is formally communicated to all persons by means of the proper proclamations.
Given on the fifteenth of the Kalends of September, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE Vill.
CONCERNING DEFENDANTS SUMMONED AND BROUGHT INTO COURT; AND CONCERNING THE DELAY OF TWENTY DAYS GRANTED TO THOSE NOTIFIED TO APPEAR ; AND CONCERNING THOSE WHO FURNISH JURATORY SECURITY AND WHO DISAPPEAR BEFORE JOINDER OF ISSUE TAKES PLACE ; AND CONCERNING HYPOTHECATIONS WHICH ARE STYLED EX-CASU, AND WHAT PERSONS HAVE THIS RIGHT, AND UNDER WHAT CIRCUMSTANCES THEY CAN AVAIL THEMSELVES OF IT. CONCERNING WIVES WHO ARE UNENDOWED, AND ARE ENTITLED TO A FOURTH OF THE ESTATES OF THEIR HUSBANDS, WHO, ON THE OTHER HAND, ARE ALSO ENTITLED TO A FOURTH OF THE ESTATES OF THEIR WIVES, WHEN EITHER OF THE SURVIVORS Is POOR.
FIFTY-THIRD NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Many persons have had recourse to Us, for the reason that they have been summoned by others, or taken into different provinces by virtue of an order issued by Us, or in obedience to judicial decrees, and by this have been caused much suffering; thus plaintiffs summon others, or exact security from them to appear within a certain time before a designated judge, while they themselves, remaining in the province, subject the former to great expense on account of the journeys which they are required to make.
CHAPTER I.
CONCERNING DEFENDANTS WHO ARE SUMMONED FROM ONE PROVINCE TO ANOTHER.
Our compassion having been excited, We decree that when anything of this kind takes place, and the time appointed by the plaintiff for the execution of the bond, or the appearance has expired, and the defendant comes into court, but the plaintiff does not, and fails to appear within ten days after the arrival of the defendant in the province, the latter can then go before the judge and inform him of
this fact, and be summarily discharged; and after the defendant has been sworn as to the amount of the expense which he has incurred on account of his journey and his residence in a strange place, judgment shall be rendered against the plaintiff who has brought suit to no purpose. And as it is not customary for citations to be served, or appearances to take place unless the plaintiffs produce sureties responsible up to a certain sum, by which they become bound to prosecute the case and obtain decisions in their favor, the said amount shall, by all means, be collected from them, and given to him who has been subjected to this unnecessary annoyance.
If, however, the latter should swear that his expense was greater than the amount for which the plaintiff furnished security (although the sum which the laws call taxatio shall be prescribed by the judge), this can also be collected in addition, in order that persons may know that they cannot make a jest of the lives of others, but must select judges in the province of the latter, and proceed against their adversaries where they reside.
CHAPTER II.
CONCERNING THE BOND TO BE FURNISHED BY THOSE WHO
SUMMON DEFENDANTS TO APPEAR OUTSIDE OF THEIR
OWN PROVINCE.
We are aware that security usually is given in this place by plaintiffs to those against whom they bring suit, but, as this rule is evaded when they are called into other provinces, We order that if the judge or the Most Glorious Quaestor appointed by Our Imperial letters should direct anything of this kind to be done, no one can be summoned from another province before the plaintiff produces a surety in court to guarantee that, if he does not prosecute the case, or if, after having done so, he should be unsuccessful he will pay him the amount fixed by the judge in accordance with the distance which he is obliged to travel.
We decree that everything shall be done which We have prescribed with reference to the appearance of the defendant; the sum fixed by the court shall be collected from the sureties, and given to the defendant; the oath of the latter shall be taken to establish the amount of the costs; and if he swears that he has expended a larger sum than that mentioned in the bond he shall receive it, in order that Our legislation may seem to be perfect in every respect.
CHAPTER III.
THE TERM OF TWENTY DAYS SHALL BE GRANTED TO THE DEFENDANT AFTER SERVICE HAS BEEN MADE UPON HIM.
At present, persons make a practice of violating the beneficial rule established in ancient times of using the clemency of Our laws, by making it the ground of vexatious litigation, as formerly, a person notified to appear in court was allowed ten days for deliberation, in which he could examine the case, and perhaps settle the claim and be
released from liability; and, after the said ten days, he could accept service by indorsing the summons and then give security in court. Certain persons, however, being aware that Our laws do not, after issue has been joined, permit the judge to be rejected and another to be demanded, act fraudulently in this matter, with the connivance of court officers; and as soon as a citation is granted they bring the defendant into court without filing a complaint, or any bond, and compel him to join issue and defend himself, although he is not informed of the facts; so that, when issue has once been joined, he can not be permitted either to reject the judge, or demand another, if the one appointed should be liable to suspicion. In this way plaintiffs accomplish whatever they wish, and after having craftily obtained control of the defendant, they do with him whatever they please.
(1) Therefore We order that when a summons is served upon anyone, the cause of action shall be specifically communicated to him; and that he shall, in accordance with the ancient legislation, not only be entitled to the term of ten days to put in his appearance, but this term shall be doubled, that is to say, it shall consist of twenty days; and if he chooses, he shall have the right to reject the judge and demand another, or acknowledge the debt, or be released by his adversary from the suit in an amicable way; and that he shall not, either for the sake of annoyance, or by fraud, be compelled to have his case heard by a judge who may be liable to suspicion, or otherwise unacceptable to him, or more frequently by one who entertains dislike to him; but the party who brings the action shall not be entitled to any delay in order to deliberate with reference to the joinder of issue for which the defendant appears.
(2) The complaint having been received, only personal security shall be furnished by the defendant; and, the fees having been paid in accordance with Our Constitution, the defendant shall sign the paper which is called the answer; he must state the time when the complaint was served upon him, in order that no fraud may be committed in this respect, and, when the trial begins, the judge shall ask the defendant to show whether the twenty days allowed for deliberation have elapsed, the defendant must tell the truth, which shall also be established by the date and the signature to the complaint, and if the defendant says that if the said term of twenty days has elapsed, the trial shall then proceed. The defendant shall, during this time, be permitted to file objections to the judge, and demand that another be appointed; or he can, with the plaintiff, select another or even amicably agree to one; and, during this interval, the rights of the defendant shall not, in any way, be prejudiced, nor shall any execution be issued, or served by the officers of justice; and the defendant shall furnish a judicial bond which the judge will approve, and be entitled to twenty days for deliberation.
If these rules should not be observed, all the steps taken by the plaintiff will be void, even though the case may have already been begun; still, after joinder of issue, he will be permitted again to institute proceedings after the expiration of another twenty days, just as if joinder of issue had never taken place.
CHAPTER IV. CONCERNING JURATORY SECURITY.
We do not permit a defendant, after having once rejected a judge and accepted another, to reject the second one. For while We protect the interests of the defendant, We are, by all means, opposed to adopting any measures against the plaintiff by countenancing further delay; but if the defendant should swear that he will come into court, and, before joinder of issue has taken place disappears from this great city, the plaintiff shall, even before joinder of issue, be permitted to go before the judge who has been appointed to hear the case, and notify him of the disappearance of the defendant. The aforesaid judge, if he is the Governor of the province, shall direct the defendant to be considered guilty of perjury, and, so to speak, to have accused himself of this offence by having become a fugitive. Where, however, the judge is not the Governor of the province, but was appointed by some magistrate, either by virtue of a pragmatic sanction, or an Imperial order, or even if he had been appointed by some other public official, the plaintiff can have recourse to the magistrate who made the appointment, in order that he may exercise his authority to compel the appearance of the defendant, lest the case of the plaintiff may be fruitless, as the judge cannot do anything, for the reason that joinder of issue has not yet taken place, and the defendant, who has treated the law as well as his oath with contempt, has left the plaintiff without any opportunity to obtain lawful relief.
(1) Therefore, to prevent the case from remaining in abeyance, because of the defendant remaining concealed and his appearance being delayed, the judge shall ascertain, as far as he is able, to what place the defendant is said to have gone, and shall fix a time for his appearance; and if he does not come within that time (provided the judge is convinced that the nonappearance of the defendant is not due to the act of the plaintiff), then he shall hear the case, and put the plaintiff in possession of the property of the defendant to the amount of the debt, as stated; and, when he has been placed in possession, he shall hold the said property as security for the claim, and if the defendant should afterwards appear, he can recover his property after having previously indemnified the plaintiff for all expenses incurred, and when the property has been returned to him, he must furnish a surety, and the case shall proceed.
CHAPTER V.
CONCERNING HYPOTHECATIONS CALLED Ex-CAsu MILI-
TIARUM, AND WHAT PERSONS SHALL BE ENTITLED TO
THIS RIGHT, AND WHEN THEY CAN EXERCISE IT.
It is extremely advisable to regulate what follows by means of a general law, on account of the doubt attaching to the questions involved. For it was at first uncertain whether offices could be subjected
to hypothecation, or whether they were exempt, but this doubt was removed by a law, and it is now settled that some offices can either be sold or encumbered. We have examined the opinions entertained by Our ancestors on this subject, and have come to the conclusion that, in former times, offices could not be hypothecated, but that they were subject to certain claims which no longer exist. The Emperors, moved by compassion toward creditors who constantly applied to them for redress, by degrees granted them the right of hypothecation, when the offices were public, and they did not receive any other compensation except that derived from Imperial munificence.
(1) Hence We order that hypothecations which are designated ex-easu shall not indiscriminately be granted to all persons, unless a creditor has lent money for the purpose of purchasing the office; but where there are any children, or a surviving wife of the deceased, We give them preference over all the creditors, and by virtue of Our Imperial order We grant them the privilege of taking an hypothecation on the office of the deceased, not, however, as part of his estate, but as a concession of Imperial liberality. We establish this rule in order to furnish a deserved consolation to those who leave an estate, as well as to those who have none.
Where, however, the deceased left neither wife nor children, nor any creditor who lent him money to enable him to obtain his office, under such circumstances We grant other creditors the right; for We do not desire it to be said that We have done something that is not humane, and that We have enacted a law for any other purpose than to perform an act which is pious and acceptable to God. The privileges which have been bestowed upon the Silentarii shall remain in full force.
CHAPTER .VI.
CONCERNING A POOR WOMAN WHO Is UNENDOWED.
As every law enacted by Us is based upon clemency, and We see that when men married to women who have brought no dowry die, the children alone are legally called to the succession of their father's estates, while their widows, even though they may remain in the condition of lawful wives, for the reason that they have not brought any dowry, and no ante-nuptial donation has been given them, can obtain nothing from the estates of their deceased husbands, and are compelled to live in the greatest poverty, We wish to provide for their maintenance by enabling them to succeed to them, and be called to share their estates conjointly with the children. But as We have already enacted a law which provides that when a husband divorces his wife, whom he married without any dowry, she shall receive the fourth of his estate, just as in the present instance, whether there are few or many children, the wife shall be entitled to the fourth of the property of the deceased, if, however, a husband has left a legacy to his wife and this legacy amounts to less than a fourth of his estate, this amount shall be made up out of the same. Hence, as We come to the relief of women who have not been endowed or divorced by
their husbands, so We assist them where they have constantly lived with them, and We grant them the same privilege.
Again, everything that We have stated in the present law with reference to the fourth to which a poor woman is entitled shall equally apply to a husband, for like the former one, We make this law applicable to both.
(1) But if the woman has property of her own in the house of her husband, or situated elsewhere, she will have the right to retain said property, and it shall not, under any circumstances, be subject to hypothecation for the benefit of the creditors of her husband; unless he is the heir of his wife to the amount established by the present law.
(2) We enact these provisions as applicable in cases where either of the two married persons has not brought either a dowry or an antenuptial donation, and the survivor is poor, or the deceased was rich. For if the survivor has property elsewhere, it would be unjust when, having neither brought any dowry nor ante-nuptial donation, he or she should oppress the children by sharing the estate with them; and as another of Our laws provides that a wife who does not bring any dowry cannot, by means of an ante-nuptial donation, acquire any property from her husband, We desire that this rule shall continue to remain in force, establishing, however, an exception to it where a husband has bequeathed a legacy, or some other share of his estate to his wife; for We by no means wish to prevent this, in order that the laws may, in every respect, be consistent with one another, and that the poverty of one spouse may be compensated by the wealth of the other.
EPILOGUE.
Your Highness will hasten to cause this law, which it has pleased Us to enact, to be observed and carried into effect by everyone; and this you will do by means of a general proclamation issued from your office, in order that what We have decreed may everywhere be obeyed.
Given on the tenth of the Kalends of October, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE IX.
THE CONSTITUTION WHICH DECLARES THE ISSUE OF A SERF AND A FREE WOMAN TO BE FREE SHALL BE OF No ADVANTAGE TO CHILDREN BORN BEFORE THE PROMULGATION OF THIS CONSTITUTION, BUT ONLY TO THOSE WHO ARE BORN SUBSEQUENTLY. RELIGIOUS HOUSES, WITH THE EXCEPTION OF THE PRINCIPAL CHURCH, SHALL NOT BE PERMITTED TO EXCHANGE IMMOVABLE ECCLESIASTICAL PROPERTY WITH ONE ANOTHER, EVEN WHEN AUTHORIZED To Do So BY A FORMER DECREE.
FIFTY-FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
Questions have been raised by certain persons who think that they have found some obscurity in one of Our Constitutions, where, in fact no obscurity exists; for, as We are deeply attached to freedom, this constitution, at variance with the ancient principle providing that children born of a serf and a free woman shall follow the condition of their father, establishes a contrary rule, and states that in order to determine the civil condition of a child, the condition of its mother should be taken into consideration. This beneficent law of Ours is unwilling that the child born of a free mother shall be a slave, as We stated in it that whether serfs were already married to free women when it was enacted, or whether they were united to them afterwards, the issue of such marriages would be free. Certain persons have ventured to interpret this so foolishly and in such a subtle manner as to hold that children born before the law was published, even though they were old at the time, are just as free as if they had been born after its enactment, and not long previously. They base this opinion upon the assumption that We certainly intended that where serfs were already married to free women, and children were born to them after the enactment of the present law, or even if they were not yet married, and contracted marriage subsequently, the children born afterwards would be free by virtue of the law.
CHAPTER I.
A CHILD BORN OF A SERF AND A FREE WOMAN SHALL
BE FREE.
Therefore, in order that no artifice may prevail, or any fraud be committed, and the use of subtle interpretations for the purpose of injuring possessors of property may no longer be allowed, We hereby decree that all children born of free mothers after the publication of this law shall be released from the condition of serf, and that the other ancient legislation on this subject shall remain in full force.
CHAPTER II.
THE STEWARDS OF RELIGIOUS HOUSES ARE AUTHORIZED
TO MAKE EXCHANGES OF PROPERTY BELONGING TO SAID
HOUSES, WITH THE EXCEPTION OF THAT OF THE CHURCH
OF CONSTANTINOPLE.
We have recently drawn up a law for the purpose of remedying abuses relating to the alienation of ecclesiastical property, and We desire, where any public debt exists, to enable them to dispose of it, if they observe all the formalities prescribed by law. When, however, there is any private indebtedness, immovable property can be given by way of payment, provided no law prohibiting alienations of this kind is violated by doing so; and We add that, where the case is urgent, and it is advantageous to religious houses to give or receive such
property, one church may transfer it to another, or one hospital to another, or one house for the entertainment of travellers to another; for We authorize such an exchange to be made between one religious house and another founded for a different purpose, such as a church and an asylum for poor invalids, a monastery and another religious house, etc.
By the terms of the present law We grant authority to the heads of these monasteries to make exchanges of this kind, and We hereby establish the validity of such exchanges; thus the government shall not be the only one (as was provided by the former law) entitled to the privilege of exchanging immovable property with churches. Religious houses, dedicated to God, the common King of all mankind, can also do this, but the interposition of a decree as well as the taking of an oath shall be absolutely necessary; the reason for the exchange shall be investigated by the metropolitan bishop of the diocese, and if it is actually proved under oath that the exchange will be advantageous to both parties, it shall be confirmed and rendered valid, and there will be no need of a pragmatic sanction, or any special order for that purpose.
Those who make exchanges of this kind will have the judgment of Omnipotent God to fear, if any fraud for which they are responsible should be committed, or any collusion take place on their part, and they should consider the benefit of one of the parties rather than that of the other; for terrible maledictions in addition to those which We at present prescribe are denounced against persons guilty of offences of this kind, when the said stewards fail to comply with any of the requisite formalities, and are afterwards proved to have done this with evil intent, and where this is the case the transaction shall be void.
(1) We except the Holy Principal Church from the operation of this law, just as was done by the previous constitution; and We desire that it shall continue to be included in the former prohibition concerning alienations, as this has been considered to be proper by the ecclesiastical authorities having it under their control.
EPILOGUE.
Your Eminence will communicate these matters which have appeared to Us to be good and proper, and which are set forth in the present law, to all the provinces under your jurisdiction; in order that they may be formally promulgated by means of suitable proclamations.
Given at Constantinople, on the fifteenth of the Kalends of September, during the eleventh year of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE X.
CONCERNING THE PROHIBITION OF FRAUDULENTLY EXCHANGING ECCLESIASTICAL PROPERTY FOR THAT OP THE EMPEROR, IN ORDER BY So DOING TO TRANSFER IT TO OTHER PERSONS, FOR SUCH EXCHANGES SHALL ONLY BE MADE WITH THE IMPERIAL HOUSE. ALSO CONCERNING THE AUTHORITY GRANTED TO CHURCHES TO MAKE PERPETUAL EMPHYTEUTIC CONTRACTS WITH EACH OTHER, WHEN A DECREE HAS BEEN OBTAINED FOR THAT PURPOSE, THE PRINCIPAL CHURCH OF THIS CITY EXCEPTED, WITH THE UNDERSTANDING THAT THE EMPHYTEUSIS SHALL NOT BE TRANSFERRED TO A PRIVATE PERSON.
FIFTY-FIFTH NEW CONSTITUTION. The Emperor Justinian to Menna, Archbishop of Constantinople.
PREFACE.
We have already enacted a law prohibiting the alienation of ecclesiastical property, and which allows the most holy churches, as well as the Most Holy Principal Church of this Fortunate City, to make exchanges when the Empire desires to obtain anything from a religious house, and We have subsequently promulgated another law by which We have excepted the Most Holy Principal Church, but authorized certain alienations which are set forth in the said law. But, for the reason that We have ascertained that certain persons have evaded what is provided in a chapter of Our first Constitution, which treats of exchanges made between the government and the most holy religious houses, and as the said persons ask Us to Ourselves acquire property from the Most Holy Church, in order to transfer it to them, and many with the intention of evading the Imperial Constitution aforesaid have presented petitions to Us for this purpose, We desire that whatever We have prescribed up to this time shall be valid, and that none of the transactions which have been made by Us with the Most Holy Church, or with others that have received anything from Us by virtue of such contracts, shall be abrogated.
CHAPTER I.
We decree that, hereafter, no person shall be permitted to do anything of this kind, but that only those exchanges shall be valid which have been made between the government and the Church; in order that the property transferred may always remain in possession of the Empire, and not be conveyed to any private individual, nor that the title to said property shall pass to such persons through the medium of the government. If anything of this kind should occur, We grant permission to the most reverend stewards to seize the property and restore it to the Most Holy Church, just as if no such transfer had been made to the government in the first place.
This law shall, from this day, remain forever in force, and all exchanges which (as We have stated) have been made through the medium of the government after the enactment of the first law shall be confirmed, for the reason that said transactions have already been perfected. Now, however, certain persons, taking advantage of these former examples for the purpose of annoying Us, and defrauding the Most Holy Principal Church of this Most Fortunate City, desire to obtain possession of property in this way, which We are unwilling should be done at any time. If, however, such an exchange should take place, it will be void, and the property in question shall be recovered by the Most Holy Principal Church, and held in perpetuity, and no prescription of long time can be pleaded against it.
CHAPTER II.
CHURCHES SHALL BE PERMITTED To MAKE PERPETUAL EMPHYTEUTICAL CONTRACTS WITH ONE ANOTHER.
We hereby decree that all provisions enacted with reference to emphyteutical rights, so far as the Most Holy Principal Church or all other religious houses are concerned, shall remain in full force; but churches and religious houses, with the exception of the Most Holy Principal Church, shall be permitted to make perpetual emphyteutical contracts with one another, provided a decree authorizing this has been previously obtained, as We are not willing that this right should be enjoyed by a private individual.
EPILOGUE.
Therefore Your Holiness will observe these matters which have been ordered by Us, and communicate them to those who occupy Metropolitan Sees in Your jurisdiction, so that they may become familiar with what We have been pleased to enact, and will not venture to evade any provisions of these laws; for if they should either do this themselves, or permit others to do so, they will become liable to the judgment of Heaven, as well as to severe penalties.
Given at Constantinople, on the third of the Nones of November, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE XI.
THE CONTRIBUTIONS ORDINARILY MADE BY MEMBERS OF THE CLERGY AT THEIR ORDINATION SHALL CONTINUE To BE PAID IN THE PRINCIPAL CHURCH, BUT NOT IN OTHER
CHURCHES.
FIFTY-SIXTH NEW CONSTITUTION.
The Emperor Justinian to Menna, Archbishop of the Royal City of Constantinople.
PREFACE.
As We intend to make many additions to Our laws, We have thought it proper to address this constitution to Your Holiness. The clerks ordained by Your Reverence in the most holy churches (from which, however, the Most Holy Principal Church is excepted) are subjected to the most cruel exactions of all, for We have ascertained from frequent complaints made to Us on the subject that they are not permitted to receive their churches before they pay into them certain sums of money by way of contributions.
CHAPTER I.
Therefore We order that Your Holiness shall diligently inquire whether it is customary for those who are ordained in the Most Holy Principal Church to contribute in this manner, and if it is, they shall continue to do so, for We do not change anything where payments are made in this way in the Most Holy Principal Church. But, so far as all other churches are concerned, no ecclesiastic shall collect anything whatever from a member of the clergy under the pretext of admission fees. If an act of this kind should be committed, the culprit shall be expelled from the priesthood, and he whom he imposed upon shall obtain his place, for this shall be the reward of his avarice, and the defenders of the Most Holy Principal Church must obey what We have prescribed, under the penalty of ten pounds of gold, if they fail to comply with the provisions of this law, and they shall perform all their functions gratuitously, for We do not wish clerical services to be subject to sale, or be done for reward, but honorably and without compensation. In this way ecclesiastical duties, not being purchasable, will be more worthily discharged.
EPILOGUE.
Therefore Your Holiness, together with those who may subsequently occupy Pontifical Sees, will hasten to carry into effect the matters promulgated by Us in this law.
Given at Constantinople, on the third of the Kalends of November, during the eleventh year of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE XII.
THE SALARIES OF ECCLESIASTICS WHO ABANDON THEIR CHARGES SHALL BE GIVEN TO THOSE WHO ARE SUBRO-GATED TO THEM. THE FORMER SHALL NOT BE REINSTATED EVEN IF THEY So DESIRE, AND IF ANYONE WHO HAS BUILT A CHURCH, OR PAID THE SALARIES OF ECCLESIASTICS IN THE SERVICE OF ONE SHOULD WISH TO APPOINT OTHERS, HE CANNOT Do So WITHOUT THE APPROVAL OF THE MOST HOLY PATRIARCH.
FIFTY-SEVENTH NEW CONSTITUTION.
The Emperor Justinian to Menna, Most Holy Archbishop of this Royal City, and Universal Patriarch of Its Territory.
PREFACE.
Many members of the clergy who have been in the service of religious houses, or have been appointed by persons who have paid their salaries, frequently abandon the establishments to which they are attached for reasons known to them alone.
CHAPTER I.
CONCERNING ECCLESIASTICS WHO SHOULD BE SUBRO-GATED TO MEMBERS OP THE CLERGY WHO HAVE ABANDONED THEIR CHURCHES.
Hence, in order that there may be no interruption to religious service, We decree that other members of the clergy shall be subro-gated by the bishops to those who have deserted their charges, and shall be entitled to their salaries. For We do not wish that the revenues paid to the most holy churches by their founders for the maintenance of ecclesiastics, who have abandoned them, should, under any pretext whatever, be a source of profit to certain individuals; but the emoluments which were provided from the beginning shall always be given, and the holy ministrations of the church shall not be suspended on this account; nor shall the former incumbents be reinstated and those who have been substituted for them be expelled, after having been appointed by the Most Holy Patriarch or the provincial bishops. Those who have incurred this expense shall not be required to pay double, that is, pay the substitutes as well as those who desire to be reinstated, and if the latter should return they shall not be received. Their emoluments shall be given to those who have been appointed after their departure, nor shall any ecclesiastics already in the service of the church profit by their accession, and the salaries of the clerks as well as the expenses of the church shall be entirely furnished by the founders. The heirs and successors of the latter are hereby notified that if, after the promulgation of this law, they should perpetrate any fraud with reference to this matter, a certain portion of their property will be assigned to Our Imperial domain, to provide for the payment of the above-mentioned obligations.
CHAPTER II.
FOUNDERS OP CHURCHES SHALL NOT BE PERMITTED TO
ACTUALLY APPOINT ECCLESIASTICS FOR SAID CHURCHES,
BUT MERELY TO PRESENT THEM FOR APPOINTMENT.
We decree what follows for the honor and advantage of Your See. When anyone who has founded a church, or made provision for its expenses, desires to appoint ecclesiastics, he will have no assurance that those whom he, on his own authority, presents to Your Reverence for ordination, will be admitted, but Your Holiness must examine them, and those who, according to your opinion or that of him who occupies the Pontifical See, appear competent and worthy of the
service of God, shall be ordained. In this way the holiness of God will not be profaned (which is recommended by the Holy Scriptures), but will remain intact, ineffable, and awe-inspiring, and everything relating to it will be treated with reverence and in a way acceptable
to God.
EPILOGUE.
We order Your Holiness to cause what it has pleased Us to insert in this Imperial law to be perpetually observed, you being well aware that We are not less solicitous for the welfare of the holy churches than for the salvation of your soul.
Given at Constantinople, on the Nones of November, during the eleventh year of Our Lord the Emperor Justinian, and the third after the Consulate of Belisarius.
TITLE XIII.
SACRED MYSTERIES SHALL NOT BE CELEBRATED IN PRIVATE HOUSES.
FIFTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to Menna, Archbishop of the Royal City of Constantinople.
PREFACE.
It has been provided by former laws that sacred mysteries shall, under no circumstances, be celebrated in private houses, but that the belief in and the worship of God shall be professed in public, in accordance with the custom which has been handed down to Us with regard to the observance of religious ceremonies; and We, by this present law, do provide that what We wish shall be strictly complied with. For We forbid the inhabitants of this great city, as well as all others in Our Empire, to have any kind of chapels in their houses, or to celebrate sacred mysteries there, and to do nothing which may be opposed to Catholic and Apostolic tradition.
Where, however, any person desires to have an oratory in his residence without the celebration of the sacred mysteries, We hereby authorize him to do so. There is no objection to anyone having a private place for prayer, as in holy places, provided he abstains from doing anything else there. Where anyone wishes to invite members of the clergy to come for the purpose of conducting religious services, this can be done where they belong to the Most Holy Principal Church and the holy houses subject to its jurisdiction, if this is authorized and approved by the Most Holy Archbishop; and in the provinces any priests who are sent for this purpose must be approved by the bishop. No innovation is made by the present law with reference to any rights enjoyed by Your See, either here or in the provinces, so far as ordinations and government are concerned, and all its privileges shall be preserved now and for all time.
We order Your Glory to cause the law which We have enacted to be obeyed, and to communicate the same to all Our subjects by special letters, in order that it may be effective in every respect. We give the same order to the Most Glorious Prefect of this Fortunate City, and to the Most Holy Archbishop and Universal Patriarch, in order that these provisions may be forever observed by both the civil and ecclesiastical authority.
The owners of houses are hereby notified that if they do not obey these rules they will incur the anger of the Emperor, and that the buildings in which anything of this kind takes place will become public, and be confiscated to Our Imperial Treasury. Persons who have chapels in their houses are also notified that if, after the term of three months from the promulgation of this law has expired, they do not cease celebrating the sacred mysteries there, and comply with its provisions, they will be liable to the aforesaid penalty; but We wish them to act sincerely, and not with dissimulation, for We are greatly attached to the truth.
We command Your Highness to see that this law is executed, and to permit nothing to be done in violation of its provisions; and you are hereby notified that if, after any breach of the said law has been communicated to you, you or your successors do not immediately take measures to suppress it, you will be liable to a fine of fifty pounds of gold, and your subordinates will incur the same penalty, because they permitted a matter to which We attach much importance, that is to say, the unity of the Most Holy Church, to be interfered with, and allowed what has been publicly prohibited by Us to be secretly done, and suffered Our authority to be despised; and they will also run the risk of losing their offices, and, in addition to this, the house in which anything of this kind takes place shall become public property, and be confiscated to the Imperial Treasury.
EPILOGUE.
This law has been addressed by Us to the Most Holy Patriarch of this Fortunate City, in order that he may provide for its execution. We desire that it be rendered inviolate for all time, by both sacerdotal and judicial authority.
Given at Constantinople, on the third of the Nones of November, during the eleventh year of the reign of Our Lord the Emperor Justinian, after the Consulate of Belisarius.
TITLE XIV.
CONCERNING THE FUNERAL EXPENSES OF DECEASED PERSONS.
FIFTY-NINTH NEW CONSTITUTION.
The Same Emperor Justinian to John, Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
It is necessary for each of the good works of which We are the author to be begun with the favor of God, or if corruption should find its way into the beneficial laws of Our predecessors, this must be remedied by Us, and they be placed in their former condition, in order that We may always endeavor, either by enactments or amendments, to participate in measures advantageous to the public welfare. Hence We think that matters connected with the funerals of deceased persons require correction, and that provision should be made for all 'contingencies so that no one shall be subjected to the double embar-rassment of losing his property, and, at the same time, of suffering personal injury. But as what Constantine, of pious memory, after due deliberation, decreed, and Anastasius, of pious memory, subsequently confirmed by making additions to the revenues set apart for funeral expenses, seemed about to fall into disuse, We are compelled to restore it, taking every precaution and proper means to do so, with a view to rendering it permanent. For Constantine, of pious memory, set apart nine hundred and eighty warehouses in the different quarters "of this Most Fortunate City for this purpose after having exempted them from taxes, the income from which was payable to the Most Holy Principal Church. Anastasius, of pious memory, not only increased the number of said warehouses by a hundred and fifty, but also, by two pragmatic sanctions, apportioned a certain revenue to be employed by the reverend stewards, to be paid to persons who conducted funeral
ceremonies.
Many individuals, however, have applied to Us, stating that matters were not as they should be, and that funerals were not conducted gratuitously, but enormous sums of money were extorted; and it has been ascertained that much property has been taken from mourners against their consent, and that even those who were unable to do so were called upon to contribute; hence We have determined that all these abuses should be remedied.
CHAPTER I.
Therefore, in the first place, as the number of warehouses originally set apart has been greatly diminished, We restore them all to the Most Holy Principal Church, addressing for this purpose a pragmatic sanction to the Urban Prefect; in order that he, along with his subordinates, may place eleven hundred warehouses at the disposal of the defenders and most holy stewards of the said church. Eight hundred of these warehouses shall be charged with furnishing pallbearers to the defenders, and the remaining three hundred with paying the stewards the revenues allotted to the Most Holy Church by Anastasius, of pious memory. No payment, however, small as it may be, can be exacted for conducting funerals, as the stewards have the revenue from three hundred warehouses for the purpose of paying the deans and other persons employed the monthly salary which is due to them; and the defenders have under their control the income
of eight hundred warehouses to furnish pallbearers, and provide what is necessary for the funerals of deceased persons, in order that all the expenses of those who mourn their loss may be defrayed.
CHAPTER II.
Therefore it is necessary for the aforesaid eleven hundred warehouses to be preserved for the use of the reverend stewards and defenders, without any diminution of their revenues, as well as to remain exempt from taxation; and if any accident should happen, or any change in their arrangement or destination should take place, this must be effected by the Most Glorious Prefect of this Fortunate City, in order that the stewards charged with the administration of property to defray the expenses of burial, having at their disposal the revenue of three hundred warehouses free of taxes, and the defenders, having control of eight hundred of these warehouses, the Most Holy Church may defray the funeral expenses of deceased persons.
As We have already stated, the said stewards shall, in addition to the revenue of the three hundred warehouses aforesaid, use for this purpose the property which they have petitioned Us to enable them to acquire, with this end in view. Therefore, for the reason that among the eleven hundred warehouses situated in this Fortunate City, there are many in a ruinous condition, We direct that they shall immediately be repaired, in order that the entire number may remain undiminished, and without taxation; and that they shall continue to be divided between the stewards and the defenders, as We have just stated; so that there may be not less than eight hundred deans furnished to the defenders by eight hundred warehouses; and that, so far as the other three hundred warehouses allotted to the stewards are concerned, the latter shall be permitted to obtain from them three hundred deans or less, or to collect from all or some of the said three hundred warehouses an income in money which the said stewards have not obtained up to this time, and which We Ourselves have informed them they must expend in the funerals of deceased persons, distributing it in the same way as the income from other property, among the deans, hermits, canons, and acolytes, as We shall prescribe hereafter. For the said stewards, having informed Us that in the future it will be impossible to collect the same revenues as heretofore, We have very properly given them an increase of three hundred warehouses, in order that the revenues which have heretofore regularly been paid to those who conduct funerals may be available hereafter, that is to say, four hundred solidi shall be divided every month among the deans, acolytes, ascetics, and canons, in accordance with the custom observed up to this time; the deans shall be entitled to one hundred and eighty-two solidi, the ascetics to ninety-one solidi, the acolytes to ninety-one solidi, and the canons to thirty-five solidi a month, which sums shall be paid semi-annually to those who have been in the habit of receiving them.
CHAPTER III.
The stewards shall be required to pay the share due to the most reverend ascetics, in accordance with the amount which We have just established through the agency of Eugene, Deacon, and Superior of the Hospital of Samson, of holy memory, which has been founded by Us; and through the agency of those who, after him, are the heads of similar houses already mentioned, for the reason that the ascetics employed at funerals are subject to the control of the temporal heads of these venerated establishments. Thus, as the stewards pay to the acolytes and most reverend canons the money to which they are entitled through the medium of those who at present exercise authority over them, and to whom their interests are committed, these officials shall distribute the money among the ascetics, canons, and acolytes subject to their authority. But if the stewards should be in default in paying the said officials, and if six months should have elapsed, and the second half year should have begun without anything having yet been paid, then the entire amount due shall, after the expiration of the first six months, be collected from them with interest at four per cent. The Most Holy Archbishop and Patriarch of the Principal Church of this city shall be charged with the execution of this provision.
CHAPTER IV.
If, however, an entire year should elapse, and the stewards should not pay anything to the most reverend women, or to the aforesaid deans, the Most Holy Patriarch shall be permitted to collect from them not only the amount due with the interest previously mentioned, but also to compel them to pay whatever has been decreed; and (if he should wish to do so) to deprive them of the administration of the property, and force them to surrender it in good condition. The Most Blessed Archbishop and Universal Patriarch, to whose authority the members of the clergy and everything relating to the Principal Church are subject, shall exercise the greatest care with reference to all these matters.
(1) Where these things have once been accomplished, nothing shall be accepted by way of compensation for watching a corpse; and that everything may be plainly understood on this point, We direct that an assisterium shall be assigned gratuitously to every bier, which shall consist of ascetics or canons preceded by not less than eight women, who, chanting, shall precede the bier, and three acolytes, who shall be entitled to nothing whatever for their services. If, however, any of the heirs of the deceased should voluntarily, and without compulsion by anyone, desire to have two assisteria, or even more, he can employ them at his own expense; and in order that We may not leave this matter in doubt, We desire that those who perform this duty shall consist of the same number of canons and acolytes which We have already prescribed, that is, that there shall not be less than eight ascetics or canons, and three acolytes in each assisterium.
CHAPTER V.
When the funeral ceremonies take place within the new walls of this Fortunate City, there shall be paid to the ascetics or canons, in excess of the number which ought to accompany the body gratuitously, the third part of a solidus, which they must not divide with the acolytes. Where three acolytes, in excess of the three who are required to give their services gratuitously, are employed, they shall remain content with three siliquse, and where there are six, they must be satisfied with six siliquse, and so on, according to the number.
It is certain that if the distance which the funeral procession is compelled to traverse is very long, and more pallbearers are necessary to carry the bier, then the ossisterio, which are in excess of the one gratuitously furnished will be entitled to something more by way of compensation for this increased labor.
This rule which We have just established is only applicable to funerals conducted within the space enclosed by the new walls and the Passage of Justinian, as, in this case, the distance will not be very great, and much time and trouble will not be required to reach the sepulchre. Where the funeral ceremonies are celebrated outside of the new walls of this Fortunate City, or in some other place beyond the Passage above referred to, half of a solidus shall be paid to the ascetics or canons, which they must not divide with the acolytes, and the latter in each assisterium shall receive four siliquse, to be divided among them (as We have already stated) ; but there must always be one assisterium,, which, along with three acolytes, shall gratuitously follow the bier which has been furnished. This assisterium, composed of eight ascetics and three acolytes, shall, as previously mentioned, receive absolutely nothing for their services, nor shall they exact any compensation for tapers, or under any other pretext whatsoever.
CHAPTER VI.
We have established all these rules for persons who are not sufficiently liberal or ostentatious to demand the two large biers deposited in the venerated Hall of Vases; We mean the biers of Studius, of glorious memory, and of Stephen, of magnificent memory. If anyone should desire to have these, as several men are required to carry them and great care must be exercised when they are used, We do not include these biers with the ones already mentioned, and since those who desire to use them for the purpose of making a display must pay the pallbearers, ascetics, and canons a certain sum for their use, We decree that this shall not exceed ten solidi for the said two biers of Studius and Stephen. And so far as the gilded bier deposited in the Most Holy Church is concerned, a solidus shall be paid for each pallbearer, which makes four in all; and the ascetics, canons, and acolytes shall receive double the amount which We have previously allotted them. Again, the assisterium, or canons who precede the other biers gratuitously, shall be entitled to the same as the others, and the acolytes shall also receive twice the sum which We have
already prescribed, when the bier used for the funeral ceremonies is one of the three that We have just mentioned; for if the defenders are compelled to furnish pallbearers and biers out of the revenues of the eight hundred warehouses which We have placed at their disposal, they shall not be required to incur other expenses, and the stewards shall not be obliged, on account of the revenue which has been allotted to them by Anastasius, of Divine memory, to pay out of the income from the three hundred warehouses set apart for their use any other persons than those employed in funerals, in accordance with the general rule which We have established. In this way nothing will remain unprovided for; those who desire burials to take place with moderate expense will enjoy the benefit of this arrangement; and others who are given to pomp and display will not be put to great expense, but will be liberal, and at the same time practice moderation.
CHAPTER VII.
This is what We have decreed with reference to warehouses and their revenues, and funeral ceremonies, whether the latter are conducted gratuitously, or at the expense of the relatives of the deceased. We charge not only the Most Glorious Prefect of this City and his subordinates, but especially Your Highness and those subject to your jurisdiction, to see that the number of these warehouses is never diminished. We also impose a fine of fifty pounds of gold upon your office if any one of your attendants should fail to obey this rule, and double that sum upon those who may hereafter occupy your place; for We desire that the number of eleven hundred warehouses shall never be decreased, and that the division which We have established shall always be maintained. But if Your Highness, or your successor, should ascertain that the number of warehouses is not complete, you or he must take pains to make it so. The warehouses shall be free from all burdens of any kind, and shall not be interfered with either by Your Highness or by anyone else, in order that there may be no occasion to exact any contributions for the funeral expenses of anyone whomsoever, in contravention of what We have decreed. We make no distinction between deceased persons, whether they be rich or poor, unless, as We have already stated, one of the three biers with reference to which We have formulated appropriate regulations should be selected.
We desire that this Imperial pragmatic sanction shall be strictly observed, and that, in accordance with what We have prescribed, it shall remain unchanged and immortal, and be obeyed by all persons, as long as there are men upon the earth; that the name of Christian shall be great and praised among them, and its renown daily increased by the efforts of Divine Providence. The Most Holy Patriarch of this Most Fortunate City will himself, before all other persons, see that this law is observed; he will make use of his pontifical authority to prevent it from being violated; and will not permit this to be done by any person of sacerdotal or judicial condition; and We, as the
representative of the government, fixing Our eyes upon God, pray that, as the Eternal Master of all rulers, He may vigilantly provide for the execution of this law. For the maintenance of pious institutions concerns the living as well as the dead, and, above all, involves the salvation of those entrusted with the cares of government; and it is also important that the efforts of preceding legislators should not be rendered void by the negligence of their successors.
And, just as We have decreed that the eleven hundred warehouses allotted to the service of the Principal Church shall be preserved intact in number, and free from all taxes, so We order that all other warehouses shall be liable to taxation, and that none of them shall be absolutely exempt from it, whether the said warehouse belongs to a religious church, a hospital, a hermitage, a monastery, or any such establishment whatsoever, or even to Our Imperial House, or to a great or wealthy man. We also desire that all warehouses shall be equally liable to the payment of taxes, and that none of them can exempt itself, or be released from liability from the share which it owes, so as to impose the entire burden of taxation upon a small number of warehouses, which are not able to sustain it.
EPILOGUE.
Therefore after Your Highness has received your office and appointed the members of Your court, you will see that what it has pleased Us to enact by this Imperial pragmatic sanction is perpetually observed.
Given at Constantinople, on the third of the Nones of November, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE XV.
NEITHER THE BODY OF THE DECEASED NOR His FUNERAL CEREMONIES SHALL SUFFER INJURY AT THE HANDS OF His CREDITORS. COUNCILLORS SHALL NOT TAKE COGNIZANCE OF CASES IN THE ABSENCE OF JUDGES.
SIXTIETH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Persons who make comparisons of different cases are not easily mistaken if they carefully examine the truth; for it is probable that those are in error who, in considering the multitude of laws promulgated by Us on every subject, do not take into consideration the necessity which compels Us to publish new enactments, with a view
to providing for cases which have not been foreseen by laws already enforced, an instance of which has recently occurred. A certain man who alleged that he was the creditor of another, being aware that his debtor was about to die, collected a number of officials and several slaves, and with them invaded the chamber of the man who was at the point of death. The latter, being alarmed, began to cry out, until overcome by the violence of his sufferings, he gave up the ghost; and then the creditor, on his own responsibility, affixed his seals to the property of the deceased, although there was no magistrate present, and he did not observe any legal or civil formality; and not only did not retire, but was not ashamed to abuse the deceased, and at first insisted that no funeral should take place. Afterwards, when the funeral procession had begun to remove the corpse from the house, he refused to permit the bier to be carried in public, stating that this should not be done unless payment of his debt was made, or until a surety had been furnished, and that only under such circumstances would he allow the body of the deceased to be placed in the grave. While We have already laid down suitable rules with reference to a case of this kind, We still think it is necessary to remedy the abuse by means of a law of general application, in order to prevent such an act from being repeated, and always remaining without proper legislation.
CHAPTER I.
CONCERNING CREDITORS WHO THREATEN THEIR DECEASED DEBTORS (AFTER JULIANUS).
Therefore We decree that if anyone, while a person who he thinks is indebted to him is still living, should enter his house and annoy him or members of his family, for instance, his wife, his children, or any of the members of his household, and presume, on his own authority, to place his seals on the property of the person who is ill, without having previously obtained a decree, and observing the ordinary legal formalities, he shall, after the death of him who he alleges is indebted to him, be absolutely deprived of all rights of action against him, whether they are well founded or not; and an amount equal to that which he says is due to him shall be collected from him, and paid to the heirs of the deceased. He shall also suffer the loss of the third part of his property (a penalty which the philosophical Emperor Marcus inserted in his laws), and be branded with infamy; for he who does not blush to injure human nature deserves to be deprived of money, reputation, and everything else.
(1) If, after the death of a debtor, his creditor should interfere with the funeral ceremonies in such a way as to prevent them from taking place, a law which was promulgated by Our Father imposes a penalty upon him, but a still more severe one will be imposed upon him by Our laws, for We decree that he shall be subjected to the punishment that the present law inflicts upon creditors who abuse dying debtors in the manner which We have mentioned. The Most
Glorious Prefect of this Fortunate City, who is charged with the suppression of crime, shall pay special attention to the prevention of what is treated of in this law, and the Most Glorious Praetorian Prefect, as well as the Most Glorious Master of the Imperial Offices, will see that it is enforced; for it is necessary that the right to prevent and punish wrongs against nature should be granted to all magistrates.
What We now order shall be applicable not only to this Most Fortunate City, but also to all the provinces, the government of which has been entrusted to Us by God from the beginning, or which He has added to Our Empire, or which he may subsequently add, as one of Our predecessors has already stated. All provincial magistrates, both military and civil, are charged with the execution of this law, and a fine of thirty pounds of gold shall be imposed upon the magistrates of Constantinople and their offices, and one of five pounds of gold shall be imposed upon provincial judges, if they fail to perform their duties in this respect, or disregard any notices of the violation of this law either in this city, or in any of the provinces.
CHAPTER II.
NEITHER COUNCILLORS NOR ASSESSORS SHALL TAKE COGNIZANCE OF CASES IN THE ABSENCE OF MAGISTRATES.
We have decided that (in conformity with the Constitution of Leo, of pious memory, as well as with that which We Ourselves have promulgated) it is proper not to permit the councillors of judges to hear by themselves any cases brought before magistrates charged with judicial duties or before judges who have been appointed by Us. For it is much better and preferable for proceedings to be instituted before the proper officials themselves, in the presence of the parties interested, as the witnesses produced will be more influenced by fear; and the case will be tried with the same decorum as it would be before ordinary judges, who differ in no respect from councillors. But as the magistrates always appointed by Us may be occupied with the execution of Our orders, or with other matters, and not be able to hear cases themselves, it is absolutely necessary, under the circumstances, to enact a law applicable to existing conditions.
(1) Therefore We order that suits shall be brought before the magistrates themselves, who have either superior or inferior jurisdiction, and when this is once done, the action may proceed before councillors; but when final judgment is to be rendered, it cannot take place without the presence of the magistrates, and the latter, with the dignity befitting their office which We have for a long time charged them to display, and in the presence of the Holy Scriptures, shall hear the report of all the proceedings, and decide the case, and receive the appeals, without any delay, if anyone should appeal under circumstances permitted by the law. We desire that the judges of appeal shall, by all means, hear cases entirely by themselves, and that
no one shall presume to do otherwise; for if anything of this kind should happen, the magistrates themselves will be liable to a penalty of twenty pounds of gold, and the councillors, who have ventured to hear the case alone, if they are advocates, shall be expelled from the association of advocates, and if they are not, shall be deprived of their offices (if they have any) and punished by a fine of ten pounds of gold. For those who treat with contempt the Constitution of Leo, of pious memory, in addition to the one which We have long since promulgated, as well as the present law, cannot expect to escape punishment for their wrongful act.
The Most Glorious Count of Our Imperial Domain shall be charged with the execution of this law, and shall collect the fine and turn it over to the Treasury, whenever any violation occurs; for he is well aware that he will be liable to the Treasury for the said fine out of his own property if he does not take measures for the observance of this constitution.
(2) What We have decreed has reference to magistrates whose duty it is to see to the execution of Our orders, and they have a good excuse not to hear cases by themselves. But so far as other magistrates are concerned, who, having no regular employment, hear cases by virtue of Our orders, whether in this Most Fortunate City or in others, if they should be guilty of anything of this kind, We impose still more severe penalties upon them, when they do what We have forbidden, and those who are subject to their authority as councillors take cognizance of cases; for unless proceedings are conducted before these magistrates from the beginning to the end of the action, and they hear it conjointly with their councillors, We threaten them with the loss of office and a penalty of twenty pounds of gold, and their councillors shall be expelled from the city in which they have violated Our law, and be disgraced in other respects.
EPILOGUE.
Therefore Your Eminence will communicate to all persons the matters which We have been pleased to enact by this Imperial law, and you will do this by the publication of formal edicts throughout the provinces, in the usual manner, in order that no one may be ignorant of what We have ordered. The Most Glorious Urban Prefect is charged with said publication in this Most Fortunate City.
Given at Constantinople, on the Kalends of December, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the second after the Consulate of Belisarius.
TITLE XVI.
IMMOVABLE PROPERTY OF WHICH ANTE-NUPTIAL DONATIONS ARE COMPOSED SHALL NEITHER BE HYPOTHECATED NOR ALIENATED IN ANY WAY BY THE HUSBAND EVEN WITH THE CONSENT OP His WIFE, UNLESS HE HAS SUFFICIENT PROPERTY TO AFTERWARDS SATISFY HER CLAIM ; AND THE SAME RULE SHALL ALSO APPLY TO DOWRIES.
SIXTY-FIRST NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
A pitiable case having been brought to Our notice, We, having corrected it in the proper manner, desire to remedy abuses of this kind by means of a general law, as We are accustomed to do.
CHAPTER I.
IMMOVABLE PROPERTY COMPOSING AN ANTE-NUPTIAL
DONATION CAN UNDER No CIRCUMSTANCES BE EITHER
HYPOTHECATED OR ALIENATED.
We order that if anyone should agree to give an ante-nuptial donation, or one in consideration of marriage (for We have decided that the latter name is preferable), whether he does this himself, or someone else agrees to give it, for instance, the father, the mother, other relatives, or even strangers, and the said donation consists of immovable property, We expressly prohibit the husband from either encumbering it, or disposing of it in any way whatever thereafter, for it is not proper to alienate anything which has been once bound by the ties of nuptial generosity; and the wife, if she should happen to obtain this advantage, and the property was not found in the possession of her husband because it had been alienated or hypothecated to a third party, who perhaps was a powerful person, would find it difficult, or perhaps entirely impossible to recover it, and she would be reduced to the necessity of bringing an action for that purpose, when she should be protected by the law itself.
(1) Wherefore, this constitution shall be observed; and anyone who hereafter makes a contract of this description is hereby notified that whether he purchases the property, or has it encumbered to himself, he will reap no benefit whatever from doing so; and whatever has been reduced to writing or agreed upon verbally shall be considered as not having taken place, in order that the advantage to which the wife was entitled may not be interfered with. For those judges who, after the dissolution of the marriage, formerly granted to wives an action in rem to recover the immovable property of which an ante-nuptial donation was composed, do not appear to Us to have acted unreasonably, as We consider this practice to be praiseworthy,
but hereafter judges must not longer observe it. We do not wish creditors to make use of crafty methods to induce wives to consent for immovable property composing ante-nuptial donations to be hypothecated to them, and thus to be deprived of their rights; for the consent of the wife either to hypothecation, sale, or alienation of such property shall be of no benefit whatever to the person who obtains it; and as We have stated with regard to women becoming sureties, it is necessary for its validity that, after the lapse of two years, a new declaration in writing, confirmatory of the first, be made by her, and then the transaction which has already taken place shall be
ratified.
(2) If the wife should consent to the encumbrance of the property, as in the case where she becomes surety, she shall be entirely exempt from all liability, unless (as We have just stated) she gives her consent a second time. For deception is often practiced to obtain consent in the first place, and a wife readily deceived by the representations of her husband may be negligent of her own rights, while after some time has elapsed, she can reflect upon the matter, and perhaps become more cautious.
(3) Still, We do not make this statement without any reservation, for We do not subject the wife to the risk of losing the immovable property of which the donation is composed, on account of her second consent; provided her husband has other property out of which it is possible for her to be indemnified for either the personal or real property of which the ante-nuptial donation is composed, and which is in the hands of a third party by virtue of some alienation or encumbrance; but, on the other hand, if there is no other in his hands, We do not permit the wife to sustain any loss; for even though she may consent a second time, or several times, to the hypothecation of the property of the ante-nuptial donation, her right to it shall still remain secure, and the alienation will not be valid; unless, We repeat, there is sufficient property remaining in the hands of the husband to make up the amount of the ante-nuptial donation.
We establish this rule not only for the purpose of protecting the interests of wives, but even more to safeguard the rights of husbands, as, in a great number of instances, the property composing the ante-nuptial donation is set apart for the benefit of the common children, and reverts to the husband, thus becoming part of his estate; and in this way the law is advantageous to both husband and wife. The rule is still more applicable to dowries, where any property belonging to them is either alienated or hypothecated; but provisions relating to dowries have already been sufficiently described and
explained.
(4) Nor do We, in any respect, neglect the rights of third parties who make such contracts; for as We desire the alienation of property to which wives are entitled to be held not to have taken place, or to have been committed to writing, so We also desire the transfer of the property of husbands, when obtained by anyone through alienation or hypothecation, to be considered void.
We preserve the rights of women unimpaired, so far as the immovable property composing ante-nuptial donations and the other property of their husbands is concerned; and the privileges which We have already granted shall remain in full force, even in the case of the woman herself if she should institute legal proceedings, for We have never previously granted any privileges of this kind to anyone else, nor do We at present do so.
EPILOGUE.
Your Eminence will communicate to all persons the matters which it has pleased Us to insert in this Imperial law, by availing yourself of edicts published in the customary manner, in order that no one may be ignorant of what has been ordered by Us; and the Most Glorious Urban Prefect will see that this is done in this Most Fortunate City.
TITLE XVII.
CONCERNING CONSULTATIONS. SIXTY-SECOND NEW CONSTITUTION.
Concerning the Order of Senators (as inscribed in certain books) or concerning consultations (according to the new manuscripts of Contius) or as Antonius Augustinus, in his work on the Florentine Code, states concerning Senators.
The Epitome of this novel has been partly taken from that of Halo-ander, and partly from that of Julianus collected by Antonius Contius, for in scrimgerus nothing exists but the title.
This novel was published in the Latin language, the opinion of Julianus and Haloander being that it had no preface.
This constitution orders that appeals for consultations shall not only be argued before magistrates, but before all the senators, to enable the entire Senate to hear and determine the matter, even though each senator may keep silent, and not openly give his opinion; for consent is held to be indicated by silence. Therefore senators will hear cases on appeal in the presence of the Holy Gospels, and the decision of that body shall be referred to the Emperor, in order to be confirmed by Imperial sanction.
(1) The Senate shall meet in the hippodrome.
(2) The Urban Prefect shall take precedence of all other officers, that is to say, he shall be seated before them. After the Prefect, the other Patricians shall take their places, and the Consuls, and those who are decorated with the Consular insignia, shall be seated in accordance with the Consular rank and prerogatives, in such a way that the ordinary Consuls will be placed before the honorary ones. Next after them shall be seated the Prefects, the Generals of the army, and Illustrious persons, all of whom shall have the right to give their opinions in the Senate. Those magistrates who, on account of the offices which they occupy, are honored with the rank of senator, shall be seated with them; even after they have retired from office. Illus-
trious men shall be permitted to receive the commissions of patrician, although they may not have formerly been either Consuls or Prefects. The modification of the rule on this point shall not only be applicable to the future, but also to the past.
(3) It is certain that senators shall be required to give the third part of their fees upon their accession to office, and all other contributions which it has been customary to give in consideration of any promotion whatever shall remain without alteration.
Those who violate the present constitution shall be punished with a fine of fifty pounds of gold, and this penalty shall not only be imposed upon the actual violators of it, but also upon those who permit
this to be done.
Given at Constantinople, after the second Consulate of Belisarius, and following the edition of Haloander, during the month of January, the second year after the Consulate of Belisarius.
TITLE XVIII.
CONCERNING NOTICE OF A NEW WORK WHICH OBSTRUCTS THE VIEW OF THE SEA.
SIXTY-THIRD NEW CONSTITUTION. The Emperor Justinian to Longinus, Prefect of This City.
PREFACE.
We think that it is just to forbid and correct an abuse which has been introduced into this Royal City, and relates to the construction of edifices. The Constitution of Zeno, of pious memory, provides that houses shall be separated from each other by a certain space, and We also have ordered something of this kind. The result of this is, that in this Royal City a rule has been established prohibiting anything that may obstruct the view of the sea from being erected at a distance of a hundred feet from it, which is extremely acceptable to all. This rule, however, is evaded by means of a very ingenious expedient. Certain persons, leaving a space of a hundred feet or more, erect buildings without any other purpose than to use them as a kind of screen, and when, on their own authority, they have shut off the view of the sea, as they no longer violate the law which provides that the distance of a hundred feet shall be observed, they build without any interference; and, having obtained what they desire, they demolish the first building which they have fraudulently erected, and thus having evaded the law, they construct other houses for occupancy. We desire that nothing of this kind shall take place in the future.
CHAPTER I.
But if anyone should wish to plan and execute a fraudulent act of this kind, he shall not do so merely as a pretext, but if he has made a beginning, he must actually construct the entire edifice, at
the prescribed distance (that is to say a hundred feet) just as if it was really necessary and indispensable to him; and he shall not build walls merely for the annoyance of his neighbor, and for the purpose of deceiving him, and depriving him of the view of the sea. For as We naturally entertain a dislike for those who appropriate the property of others by force, and think that they deserve punishment, We are also of the opinion that anyone who attempts to deprive another of a view of the sea does not exhibit less malice; therefore, if persons are bold enough to rob others of property of little value, thereby incurring the penalty of quadruple damages through the actio vi bonorum raptorum brought against them, why should it not be necessary for anyone who forcibly deprives his neighbor of the view of the sea to be liable to even a more severe penalty? Hence We decree that such a person shall be liable to a fine of ten pounds of gold, to be paid into the Treasury of the theatres (which is under the supervision of Your Highness), in order that a wicked neighbor may not escape and make a jest of the law, as not being subject to its provisions.
EPILOGUE.
Therefore Your Highness will hasten to cause to be executed in this Most Fortunate City the matters which it has pleased Us to promulgate by means of this Imperial law, and see that the latter is hereafter always obeyed; as the penalty of ten pounds of gold which it provides shall be imposed not only upon those who violate it, but also upon the officials who permit this to be done.
Given at Constantinople, on the seventh of the Ides of March, during the eleventh year of the reign of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE XIX.
CONCERNING THE GARDENERS OP THE CITY OF CONSTANTINOPLE.
SIXTY-FOURTH NEW CONSTITUTION. Interpreted by Antonius Contius.
The Same Emperor to Longinus, Most Glorious Prefect of This Fortunate Royal City.
PREFACE.
Many accusations have for a long time been brought before Us from every quarter against the gardeners of this Fortunate City, and its environs, and no one seems to be free from their malice. What they are accused of is as follows.
CHAPTER I.
It is said that the appraisers of values (or experts) belonging to the Association of Gardeners are frequently guilty of grave irregularities. For when the owner of a garden transfers it to a gardener
in consideration of the payment of rent, the value of nothing more than the plants and vegetables existing therein is estimated, and this is always done for the benefit of the gardener or lessee. At the expiration of the lease, however, when the garden is returned, the said appraisers make a very careful appraisement of what it contains, so that they increase its actual value six times and often much more, for example, when it contains plants and vegetables which are worth fifty aurei, they estimate their value at three hundred, and sometimes above that sum. They frequently do not confine themselves to this exaggeration of value, but, alleging that the lessee has manured the land and that it is greatly improved thereby, they raise its value as much as they can, and they also increase it by the estimation of the value of plants and treesalthough when the lessee obtained the gardens from the owners no such expense was taken into consideration_even if the gardener stated generally in the lease that he would keep up the number of growing trees, and plant new ones; and if the same appraiser should, a short time afterwards, be employed in estimating the value of the same property, he will be guilty of such dishonesty that if the unfortunate owner is not careful, when his property is returned to him and he has leased it to another gardener, the latter will subject him to a loss of a third or a fourth of the appraisement, and he will thus be exposed to the cupidity of the new gardener, and run the risk of losing the ownership of his garden, and of being deprived of what belongs to him.
He is also subject to a still greater injustice, for if, after this, the owner increases the second gardener's rent, the latter, at the termination of his lease, will make the entire amount larger, just as if this was the result of his own exertions, while, in fact, the land was not augmented in value through his care, because in the beginning the appraisement was made too low by reason of the imprudence and negligence of the proprietor. This abuse appears to Us to be characterized by surpassing malice and audacity, and We desire that it be repressed by Your Excellency, who will observe this Our law, and see that gardeners return the gardens in the same condition in which they received them.
Whenever a garden contains plants and vegetables, an estimate should be made of their value, and one should also be made of the same when it is returned; and the gardener shall only be entitled to the actual excess over and above the first appraisement. But where there are no plants or vegetables, and the gardener receives the land absolutely without any crop, whether any manure has been placed upon it or not, it should be returned in the same condition, and, both when it is leased and given up, the lessee shall return it just as he received it, without the owner of the same being subjected to any loss.
The appraisement shall not be made by gardeners alone, but by officials called summarii, who are experts in matters of this kind, and who shall give their opinion upon the Holy Gospels. For We do not wish owners to be deprived of their possessions on account of the malice and greed of lessees.
Therefore you will explain these things to the gardeners when called together, and will not permit any fraud to be committed against the owners, but see that the latter are, under all circumstances, kept free from damage and loss. For We wish the reciprocal relations of owners and gardeners to be the same, for which reason We have established absolute equality in these matters, in order that neither party may sustain any injury.
CHAPTER II.
When anyone rents land which is thorny and neglected, and cultivates it, he shall be rewarded for his labor, and receive the true value of the vegetables which may be found there at his departure; and he must terminate his lease without any controversy, and without any display of avarice or deceit on his part.
We desire that, by means of this Imperial pragmatic sanction the execution of which is entrusted to Your ExcellencyWe may, in the future, remain without annoyance from complaints of this description, and that such cares may not distract Our attention from other things connected with the government of the Empire. For there is no part of the administration of either great or small importance which does not demand Our attention; We perceive everything with Our mind and Our eyes, and We do not desire anything to remain neglected, confused, or ambiguous.
You will impose a fine of five pounds of gold upon any person who may hereafter commit an act of this kind, or allow it to be committed.
Given at Constantinople, during the Consulate of John.
TITLE XX.
LANDS, HOUSES, OK VINEYARDS WHICH HAVE BEEN LEFT TO THE MOST HOLY CHURCH OP MYSIA FOR THE REDEMPTION OF CAPTIVES OR THE MAINTENANCE OF THE POOR MAY BE ALIENATED IN ACCORDANCE WITH THE DISTINCTION SET FORTH IN THIS LAW.
SIXTY-FIFTH NEW CONSTITUTION.
This Novel, with the exception of the title, is entirely lacking in Scrimgerus. It was first written in Latin. The Greek Epitome is in Haloander, the Latin in Julianus.
PREFACE.
We are aware that We have formerly promulgated a law upon this subject. But this constitution is local, and has been enacted with reference to the Church of Mysia. It orders that if anyone should give or bequeath any immovable property to this church, the revenue from which is certain, and should add that it shall be applied to the relief of the poor (and Haloander adds also to the redemption of captives),
the said legacy, inheritance, or donation shall, under no circumstances, be alienated.
Where, however, the income from it is uncertain, and the building or vineyard which has been left is quite a distance from the city in which the church to which the said legacy or donation was made is situated, it shall then be permissible to sell the property. If the house or the land should be either within the city, or outside its walls, and the testator desired it to be sold and the purchase-money used for the redemption of captives, or the support of the poor, then the sale can take place in accordance with his will. Such a disposition is perfectly valid. If anyone, after having been sued, should not appear, he shall be condemned as having a bad case, where he has first been summoned, brought into court, and lawfully called, and does not obey
the notice.
Published during the month of April, during the fourteenth year of the reign of Justinian, and the Consulate of John.
TITLE XXI.
NEW CONSTITUTIONS SHALL BECOME OPERATIVE Two MONTHS AFTER THEY HAVE BEEN RECORDED. INDULGENCE Is SHOWN TO TESTATORS WHO HAVE NOT LITERALLY COMPLIED WITH THE PROVISIONS OF CONSTITUTIONS RELATING TO WILLS, WHERE THEY HAVE LEFT LESS THAN A FOURTH OF THEIR ESTATES TO THEIR CHILDREN, AND HAVE NOT AFFIXED THEIR SIGNATURES, OR MENTIONED THE NAME OF THE HEIR.
SIXTY-SIXTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Events which constantly occur afford Us the occasion of enacting laws, for many additions have been made by Us to the Constitutions which We have drawn up with reference to successions, (for instance, "it is necessary for a testator to write the name of the heir with his own hand; of how many twelfths the Falcidian portion must consist which parents leave to their children, where they are three, four or more in number"), and many wills run the risk of being considered void if their provisions are not complied with. But as statutes, although enacted, are not known in the provinces, or, perhaps, have not yet been published in this city, or communicated to anyone, We have deemed it necessary to correct this by means of a brief law.
CHAPTER I.
Therefore We decree that Our Constitutions relating to wills shall become operative from the date of their publication. We also decree that they shall be applicable in the provinces from the moment that they have been promulgated by the metropolitan, or immediately afterwards, in order that (as has previously been stated) men who make wills may not appear to have acted in disobedience to the law. And in order that this may be more clear, We hereby order that where a law of this kind is drawn up on this subject, it shall become operative everywhere within two months after having been recorded, either in this Most Fortunate City, or in the provinces, as this term is sufficient to make it known to all persons after it has been placed upon record, so that the notaries may become familiar with its contents, and that Our subjects, being informed of its provisions, may comply with them. In this way no one will have any good reason for not obeying Our law. We do not wish the wills of deceased persons to be disregarded, and, indeed, We use every effort to cause them to be observed. For why should We blame those who are ignorant of the enactment of Our Constitution, where testators have died only a short time after the law was made, and when, as yet, its existence was not known to them, and for this reason they did not write the names of their heirs with their own hands, or left only three, instead of four-twelfths of their estates to their children; and whether a law has or has not yet been enacted, but has not yet been published, is it not on this account justly ignored?
(1) Therefore, although up to this time an ancient constitution existed, which was included in the Code of Constitutions bearing Our name, and provides that the name of the heir shall be written in the hand of the testator himself, still many persons have made wills in violation of this provision simply because they were not aware of it. Information of these omissions has, hitherto, frequently been communicated to Us, but We have always been indulgent to those who were at fault, as it happened that the laws which were violated had not yet been published. We have issued Imperial pragmatic sanctions with reference to this matter, granting those who ask for it proper relief.
And in order to be no longer annoyed, and compelled every day to promulgate pragmatic sanctions on this subject, We hereby decree (as already stated) that the ancient law included in the Justinianian Code shall become operative in this city from the date of its record, and in the provinces from the time it was despatched to, and published in, each capital or other city. For, Our Code having been sent to every part of the Empire, after the expiration of a considerable time its contents cannot legally be ignored.
(2) We desire that the other Novel which is included among the number of the constitutions issued after the Code, and which sets forth what should be left to children, shall take effect in this Most Fortunate City, and in the provinces, two months after it has been
recorded, as We have already stated. We have made two uniform copies of this Novel, one of which is written in Greek, on account of the large number of persons to which this language is familiar; and the other is in Latin, which is better adapted to the proceedings of the government; and the said law is dated on the Kalends of March, but was not recorded at that time, but was, on the Kalends of April, addressed to Solomon, Most Glorious Praetorian Prefect of Africa.
(3) For the reason that the copy written in Greek was not immediately published, and was not addressed in this city to its Most Glorious Pratorian Prefects, or recorded by them until the month of May, We direct that the legislation which it introduces with reference to the share to be left children by will may be observed in this city after the Kalends of May, to which time We add two months; and in the provinces, We also add two months more from the date of its publication, after it has been recorded.
If it has not yet been despatched to all the provinces, this shall be done immediately, together with the other constitutions which have not yet been sent, and those which, with the aid of God, We may hereafter promulgate, in order that Our Constitutions may now and hereafter become known in all metropolitan cities. As soon as the Governors of provinces receive them, they must despatch them to all cities within their jurisdiction, so that, for the future, no one may have an opportunity to allege ignorance of their existence.
(4) Therefore wills previously executed shall be entitled to just indulgence; the testamentary dispositions of deceased persons shall be carried out as they desire them to be, even though they have recently been made, and testators did not, in accordance with the provisions of the present law, write the names of their heirs with their own hands, or did not mention them in the presence of witnesses, or did not leave more than three-twelfths of their estates to their children. For (as We have previously stated) We do not desire the testamentary dispositions of deceased persons to be disregarded, but We absolutely confirm them; so that if wills have been executed shortly after the enactment of the law, and when it was not yet promulgated, even though surviving testators may have made no change in them, they shall still be valid, just like those which have been executed in the beginning in compliance with already existing laws; and they shall have full effect, and shall not be contested on the ground that the testators did not change them during their lifetime. For We are not Our own masters, and have not always time to make a final disposition of our property, for frequently men are attacked by death, and are deprived of the power of testation. Wherefore We think that testamentary dispositions which have been regularly made in the first place, and not subsequently changed, should not be rewritten, or considered void, but that the wishes of testators should always be considered valid, and remain unaltered; as, indeed, it would be absurd for what had been properly done in the first place to be afterwards changed,' when a new law had not yet been published.
(5) Therefore, in short, it may be said that (where anything of this kind happens) the children shall receive the three-twelfths left to them by the wills of their fathers, whether this has been done before or after the enactment of the law, but previous to its communication to the magistrate. If it was added in the will that the lawful share due to the children was left to them in accordance with the laws then in force, the children shall take it in conformity to the ancient laws; so that if anything should be lacking to the three-twelfths to which they are entitled, this shall be supplied in compliance with the said law, but they shall not obtain four-twelfths of the estate, for the law providing for this was, at that time, not yet known.
EPILOGUE.
Therefore Your Eminence will, by means of suitable proclamations, communicate the matters which it has pleased Us to enact by means of this law to all the inhabitants of this great city and its suburbs; in order that what We have authorized for the public welfare may become clear to everyone.
Given at Constantinople, on the Kalends of March, during the eleventh year of the reign of Justinian, and the Consulate of John.
TITLE XXII.
No ONE SHALL BUILD HOUSES OP WORSHIP WITHOUT THE CONSENT OF THE BISHOP. ANYONE WHO DOES So MUST FIRST PROVIDE SUFFICIENT REVENUE FOR THE MAINTENANCE AND REPAIR OF THE CHURCH WHICH HE BUILDS. BISHOPS SHALL NOT ABANDON THEIR CHURCHES. CONCERNING THE ALIENATION OF IMMOVABLE ECCLESIASTICAL PROPERTY.
SIXTY-SEVENTH NEW CONSTITUTION.
The Same Emperor Justinian to Menna, Most Holy and Blessed Archbishop of Constantinople, and Patriarch of Its Entire Jurisdiction.
PREFACE.
Although We have included matters having reference to the most holy churches in numerous laws, We still have need of another to dispose of difficulties which have arisen, and provide for emergencies. For many persons build churches in order to perpetuate their names, and not with a view to utility, and they do not take care to furnish sufficient means for their expenses, their lights, and the maintenance of those charged with Divine service, but after the churches are constructed they leave them to be either destroyed, or entirely deprived of the ministrations of the clergy.
VO
CHAPTER I.
Therefore We order, before all things, that no one shall be allowed to build a monastery, a church, or an oratory, before the bishop of the diocese has previously offered prayer on the site, erected a cross, conducted a public procession, and consecrated the ground with the knowledge of all persons. For there are many individuals who, while pretending to build houses of worship, contribute to the weakness of others, and become not the founders of orthodox churches, but of dens for the practice of unlawful religious rites.
CHAPTER II.
PERSONS WHO BUILD CHURCHES MUST PREVIOUSLY PROVIDE THE REVENUES FOR THEIR MAINTENANCE, THEIR
CONSECRATION, AND THEIR PRESERVATION.
We decree that no new church shall hereafter be constructed before having recourse to the bishop, and determining the amount requisite for lighting, for the holy service, and for keeping the building in good condition, as well as for the maintenance of those who have charge of it; and if the amount given appears to be sufficient, the preliminary donation shall be made, and the church erected. Where, however, the person desiring to do this does not offer sufficient funds for the purpose, and wishes to be styled the founder of the church, and has the ambition to accomplish something of this kind (for there are many churches in this Royal City as well as in the provinces which, instead of being properly maintained, run the risk of being ruined by age, or which are of very small dimensions, and badly provided for owing to the negligence of the clergy assigned to them), the proposed founder shall, with the consent of the bishop and the orthodox clergy, be permitted to rebuild one of these churches, which shall bear his name as the founder of a religious house; but nothing shall be expended by him out of his own property by way of endowment, as the revenues already set apart for this purpose shall continue to be paid by those who previously furnished them.
CHAPTER III.
CONCERNING THE BISHOPS WHO Do NOT RESIDE IN THEIR OWN CHURCHES. AFTER THE EPITOME OF JULIANUS.
In accordance with the law already enacted by Us, We decree that bishops shall stay in their churches; shall not abandon them; shall not sojourn for a long time in this city, and compel stewards to send them the money for their expenses, and the Holy Church to furnish it; and this the bishops themselves shall not tolerate. Hence We order that the law already promulgated by Us shall continue to remain in full force. For if a bishop should absent himself from his church for a longer period than that which is prescribed, his expenses shall not
be sent to him from the provinces, but the money shall be used for pious purposes, and for the benefit of the Most Holy Church. Thus a bishop who may come to this city will not be supported by his church; and if he remains absent for too long a time, what We have previously decreed with reference to this matter shall be observed.
CHAPTER IV.
CONCERNING THE ALIENATION OF IMMOVABLE ECCLESIASTICAL PROPERTY.
As We have already provided that if anyone should make an alienation of immovable ecclesiastical property in the provinces, this must be done after a decree has been issued, which should take place in the presence of both the bishop of the city and the clergy of his diocese, as well as in that of the metropolitan bishop; and, moreover, We direct that if the Most Holy Metropolitan Bishop should sell any immovable ecclesiastical property, even where the most holy stewards of his church consent to the sale, two bishops selected by the metropolitan from the synod under his jurisdiction shall be present at the time, and in addition to this, all the formalities previously prescribed shall be strictly observed.
The metropolitan bishop and his synod shall then be considered to have made the sale, and as he, by his presence, confers sufficient power upon the prelate under his jurisdiction, so the representation of the synod by the two bishops aforesaid shall be held to have confirmed the sale made by the metropolitan, which sale shall, in this way, be witnessed by the synod.
EPILOGUE.
Your Holiness will, by means of suitable letters, cause this Our law to be communicated to the other Most Holy Patriarchs and metropolitans under Your jurisdiction, who must, in their turn, notify the bishops subject to their authority, so that no one may be unaware of what has been decreed by Us.
Given at Constantinople, on the Kalends of May, during the twelfth year of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE XXIII.
THE CONSTITUTION OF THE MOST HOLY EMPEROR CONCERNING THE SUCCESSION TO PROPERTY OBTAINED BY MARRIAGE, WHICH TREATS OF WHAT ARE CALLED AP^E-DLE, THAT Is TO SAY, THE ESTATES OF DECEASED CHILDREN. IT SHALL BECOME OPERATIVE IN CASES WHICH MAY ARISE AFTER ITS PROMULGATION, BUT THE CONSTITUTION OF LEO SHALL BE APPLICABLE TO THOSE WHICH HAVE ALREADY OCCURRED.
SIXTY-EIGHTH NEW CONSTITUTION. Interpreted by Antonius Contius.
PREFACE.
We are aware that a Constitution of Leo, of pious memory, has been enacted with reference to persons who contract second marriages, whether they be men or women, by whose provisions the nuptial property of the first marriage is carefully preserved for the issue of the same, and stipulates that the parent shall only be entitled to the usufruct of it; but the said constitution, while reserving the ownership of the property for the children, directs that if all the children or grandchildren should die without leaving any survivor, through whom the parent who has married a second time may be deprived of said property, then the ownership of it shall be reunited with the usufruct of which the parent already has the enjoyment.
CHAPTER I.
We have recently amended this constitution by enacting other provisions, being desirous that the heirs of deceased children or grandchildren, whether they be relatives or strangers, shall receive some benefit from their appointment, and acquire, by the right of ownership, whatever would be obtained by the surviving parents because of the death of the children, in accordance with the terms of the agreement where there are no survivors; but that the residue shall go to the heirs of the deceased children or grandchildren, without any change being made by Us with reference to the usufruct.
(1) We wish this constitution to take effect now and for all time, except Where the children have died before it was promulgated. For when the property obtained by marriage has, through the death of the children, entirely come into the hands of the parent who has married a second time, and this occurred before the law was enacted by Us, the latter will have no force, and will only become operative in cases to which the Constitution of Leo is applicable. Hence parents who have married a second time will, under such circumstances, solely be entitled to what they would have acquired by the death of their children or grandchildren; but if any property should have passed into the hands of a third party, they can recover it under the law which applies to owners. Thus, by briefly recapitulating these laws, We resolve any doubts to which they may have given rise, in order that We may no longer be annoyed with such matters; and, returning to the subject by a general law, We dispose of all difficulties; desiring the legislation which preceded that introduced by Us to remain applicable to such preceding cases as are entitled to its benefit.
EPILOGUE.
Your Excellency will take measures to have this law communicated to all persons by means of suitable proclamations and notices.
Given on the eighth of the Kalends of June, during the twelfth year of the reign of Justinian, and the Consulate of John.
TITLE XXIV.
ALL PERSONS SHALL OBEY THE PROVINCIAL JUDGES IN BOTH CRIMINAL AND PECUNIARY CASES, AND PROCEEDINGS SHALL BE CONDUCTED BEFORE THEM WITHOUT ANY EXCEPTION BASED UPON PRIVILEGE, AND PROVINCIALS SHALL NOT BE SUED HERE UNLESS THIS Is AUTHORIZED BY AN IMPERIAL PRAGMATIC SANCTION.
SIXTY-NINTH NEW CONSTITUTION. The Emperor Justinian to the People of Constantinople.
PREFACE.
One of the most perfect of all human virtues is that which dispenses equity, and is designated justice, for no other virtue, when accompanied with this, is worthy of the name; therefore We do not praise fortitude, which is not united with justice, and although the Roman language calls virtue courage in battle, if justice is excluded from it, it becomes a vice, and is productive of no good.
As we have ascertained that justice is treated with contempt in Our provinces, We have deemed it necessary to re-establish it in a proper condition, by means of a law which will be acceptable to God. For very many persons availing themselves either of Imperial letters, special privileges, pragmatic sanctions, or orders issued by magistrates, employ their time causing annoyance, and while continuing to dwell in the provinces, make a pretense of instituting litigation elsewhere. How can any man, no matter where he may suffer damage or lose part of his property, conduct a lawsuit involving boundaries, possession, hypothecation of his land, or on any other right whatsoever, in a strange place, and produce evidence to substantiate his allegations? Persons who do this only exert their power; they think that they act without injustice; they believe that they are invested with some kind of perpetual authority; and they do not take into account the thousand or ten thousand examples in which We see robust children born to feeble and impotent parents, and those who are rich spring from others who are indigent; and, in almost all ages, We have seen weak children born to powerful parents, and poor ones derive their origin from those who are wealthy. The injustice of parents is thus punished in their offspring, and those who commit crime do not reflect that, in making use of their authority for this purpose, they prejudice their posterity, for the power which they enjoy is not always transmitted to their descendants.
CHAPTER I.
After having considered all these matters, We have thought it necessary to enact the present law; and We hereby order all magistrates subject to Our authority in the provinces, and who are distributed throughout the Empire, which looks upon both the rising and the setting sun, and extends from north to south, to see that each
person is tried in the province where he has committed a crime, or is a defendant in a civil or criminal action having reference to the boundaries or the ownership of land, the possession or hypothecation of property, or any other matter whatsoever (for provisions have been made in an inconsistent and irregular manner on this subject by preceding legislators, which We have already taken into consideration) in order that no one may attempt to conduct litigation outside
of his province.
(1) Whether the question at issue relates to a serious or a trifling offence, or involves merely the validity of a contract, the citations as well as the petition, when there is need of one, shall be issued and filed in the province, and the trial of the case shall also take place there, to render the production of evidence more easy, no matter whether the illegal act is of great or little moment; for when the defendant has no good ground for defence in cases of small importance, he tries to transfer the proceedings to another province, in order to answer the petition of the plaintiff there, and have the latter summoned, who, being absent, and perhaps out of the province, cannot conveniently appear, either on account of the power of his adversary, or because of his own infirmities. And, indeed, is there anything more oppressive than for a private individual who is injured by the theft of an ox, a horse, or some other beast of burden, or an animal forming part of a flock, or (to descend to small things) of a domestic fowl, to be compelled to plead, not in the place where the theft was perpetrated, but in another province where proof of his allegations will be required of him, and he must adopt the alternative either of being subjected to much greater expense than the value of the property which was taken from him amounts to, or be reduced to poverty ? A multitude of such persons complain to Us every day, and We are frequently annoyed in this manner on account of matters which are insignificant by crowds of unfortunates of both sexes who, called from their homes, come to this Most Fortunate City, many of whom are greatly afflicted and reduced to beggary, and some of whom die here.
CHAPTER II. CONCERNING DEFENDANTS WHO APPEAR.
Therefore, where both the plaintiff and defendant reside in the same province, the case shall not be transferred to another nor to this Fortunate City by virtue of any pragmatic sanction or order, but shall be decided in the said province. Where one of the parties is present and the other absent, and the one who is present has suffered damage from one of the household of the former, he who has committed the injustice (whether he be a curator, a lessee, or some other person representing the absent party) shall, by all means, be sued; and shall be permitted to notify the absent party, and be granted time to do so, in proportion to the distance from the province, and in accordance with the general law formerly enacted with reference to continuances.
(1) Where, however, the absent party is in a neighboring province, distant only one or two days' journey, the term of four months shall be granted him, and six months if he is farther away; and if he is in Palestine, in Egypt, or in any other distant province, the term of eight months will be sufficient. When he is in one of the Western or Northern provinces, or in Lybia, he shall then be entitled to nine months, in accordance with the provisions of former legislators; so that if he has confidence in the person who notifies him, he can entrust him with the conduct of the defence. If, however, he should not have confidence in him, he can employ someone else to accept service, and execute any judgment which may be rendered, when the case is either of great or small importance, and no appeal is taken.
Where the agent or lessee has given notice to the absent owner, and the latter permits the prescribed time to elapse without doing anything, then the said agent or lessee upon whom service was made will have the right to defend the case, as the representative of the absent party, and the judge shall compel him to appear before his tribunal, even involuntarily; he must hear the case in his presence, and render judgment against him if he seems to deserve it; and, if there is ground for doing so, he shall also condemn the absent party who, despite his notification, was not willing to attend to the matter in the province. If the said agent or lessee is wealthy, his property will be subject to execution; but if it is not sufficient to satisfy the judgment, the remainder shall be paid by taking the property of the absent person in execution at the instance of him who has obtained judgment in his favor.
CHAPTER III. CONCERNING DEFENDANTS WHO ARE ABSENT.
When, however, he who is directed to represent the principal party in the action, or who is compelled to appear for him, does not do so, he shall be duly called, and if he fails to answer, the absent party shall be condemned under the rule styled peremptory, that is to say, applicable to one who has abandoned the case, for he who is contumacious is considered to be absent. If, on the other hand, the defendant should appear, or should send anyone to represent him, and the plaintiff does not come, then the defendant shall be discharged, and the court shall compel the false accuser to pay all the expenses incurred. In this way men will become more reasonable, they will cease to commit crime, and they will no longer think that the power of wealth can prevail over justice.
(1) We are well aware that what We decree may perhaps be insufficient perfectly to remedy the abuse which We have endeavored to correct, as judges are accustomed to favor powerful persons rather than those who come from the provinces to have their cases heard. Still, We know that many instances of injustice can be prevented by similar legislation, and that it will provide remedies for much that We are not able to effect. For We do not appoint magistrates to office
without compelling them to take oath to judge all men with equity, and to keep themselves pure from corruption. And I do not think that after this constitution any further legislation will be necessary, if magistrates decide with justice and with due regard to the law and
their oath.
CHAPTER IV.
CONCERNING THE ABOLITION OF THE PRESCRIPTION OF THE PLACE.
No person who avails himself of any special privilege, of his power, or of a pragmatic sanction, shall be authorized to remove anyone who has committed violence from the jurisdiction of the judges of his province, unless he has previously obtained from Us an Imperial pragmatic sanction based on the public welfare, and which states that the defendant shall be notified to appear here, or, at least, that the plaintiff shall not notify him under the law, as when an appeal is involved; although We have, to a great extent, made provision for such matters by appointing many superior judges in the provinces, in order that when cases are not of much importance, appeals may be brought before them rather than in this great city.
(1) In enacting this law, We shall render it still more just by not permitting anyone to avail himself of any privilege against it, even though the privilege may have been granted to one of the most holy churches, to a sacred hospital, or other religious establishments, or even to one of the Imperial houses, to the Imperial domain, or to special sacred rites, which deservedly occupy the first place after the honor due to what belongs to the Most High; or to a judge, or other person in authority, or to anyone subject to Our orders. Everyone must obey this law and subject himself to the approval of justice; he shall honor and observe it in every respect, and not only consider it individually, but also with reference to his posterity; remembering that almost nothing remains stable in Nature, which is always inconstant, and introduces many changes which are neither easy to foresee, nor possible to provide for; and that only God, and after him the Emperor, is able to exercise control over these things.
(2) If, however, anyone should make use of any Imperial authority, whether contained in pragmatic sanctions or communicated in other ways, permitting him to take his case before another magistrate, it shall be entirely void; judges will render themselves liable to a severe penalty if they receive it, and do not only think of what has been done but also of what ought to be done; for if, after the enactment of this law, a pragmatic sanction authorizing the transfer of a case should be obtained by one of Our subjects, or be employed by any person to whom We may have previously granted it, and among whom We include (as has already been stated) churches, holy monasteries, religious houses, the sacred rites of private persons, and the Imperial patrimony, it shall be absolutely void. This law shall be applicable everywhere, and provides expressly for the future as well as for the past.
(3) Therefore you, Our subjects, the government of whom God has entrusted to Our ancestors and to Us, are hereby informed that We are enacting this legislation in order to render you secure in every respect, and that you may hereafter not longer be fatigued by long journeys, or weep on account of the oppression of the great, or apply to Us to correct abuses; but that each of you, seeing that a penalty is immediately imposed for any loss or injury which you may sustain, may praise the Great and Good God who has induced Us to enact such a just and beneficial law. This penalty shall be imposed upon those who violate it, and judges who suffer this to be done shall lose their offices, and be fined ten pounds of gold.
EPILOGUE.
Therefore, as soon as Our Most Glorious Imperial Praetorian Prefects appointed throughout the extent of the entire Roman Empire receive notice of this law, they will publish it in all the departments of their government, that is in Italy, Libya, the Islands, the East, and Illyria; in order that all persons may know how greatly We have their interests at heart. We dedicate this law to God who has inspired Us to accomplish such great things, and who will recompense Us for having enacted this constitution for the security of Our subjects. It shall also be communicated to Our citizens of Constantinople.
Given at Constantinople, on the Kalends of June, during the twelfth year of the reign of Justinian, and the Consulate of John.
TITLE XXV.
THE ORDINARY URBAN PREFECTURES AND THE Two PRAETORIAN PREFECTURES AT PRESENT IN EXISTENCE SHALL HAVE AUTHORITY TO GRANT RELEASES FROM CURIAL REQUIREMENTS, BUT HONORARY PREFECTURES SHALL NOT POSSESS THIS POWER.
SEVENTIETH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Many legislative provisions which were formerly enforced are at present neglected, and not readily observed by the government, nor are they any longer considered laws, or regarded as forming any part of legislation. We are aware that there was formerly a species of prefecture which was designated honorary, and was conferred by commissions granted by the government, which was so called because it only bestowed honor upon those to whom it was given, and did not
release them from curial obligations unless they actually discharged official duties; and, so far as the most glorious generals of the army are concerned, We know that none of them is released from the requirements of the curial condition unless he performs the functions of his office (the laws state that the command of soldiers is a prefecture, and that the simple commissions granted to officers only confer rank, without releasing them from liability), thus with regard to the prefectures, in order that anyone may be released from his condition, it is necessary for him to be appointed to actively exercise the duties of his office.
CHAPTER I.
Therefore We renew the law relating to this subject, and decree that whenever it seems proper for the government to honor a de-curion, and enable him to be released from the obligations of his status, and it grants him a commission of administration, it prepares him to occupy the Urban Prefecture of either Ancient or Modern Rome, or one of the Praetorian Tribunals of the East or West, as well as Lybia and Illyria, all of which God has subjected to Our dominion; and that by this means he may enjoy freedom, as those who are raised to such eminence have a right to ride in chariots, hear the proclamations of public criers, occupy the chairs of judges, and in this way be released from the requirements of their order.
When, however, the government only wishes them to be invested with the dignity of the office, commissions to this effect shall be issued and given to them; and the Imperial generosity shall only cause the person who is thus distinguished to be regarded as a member of the great curia,, but not released from the duties of the provincial one, nor have his name erased from the tablet; but he shall continue in his former condition, and only enjoy the honor of the position, and must render thanks to God as well as to the government which has caused him to be promoted to a post of greater tranquillity and distinction. This shall be considered an act of Imperial munificence which does not affect the rights of the public, deprive the decurion of his condition, or release him from the duties to which he is accustomed ; and he who is worthy of it shall receive this honor as an addition to that of his former status, and will be entitled to greater eminence, but will only take precedence of other decurions.
EPILOGUE.
Your Highness will hasten to cause what We have been pleased to enact to be observed, being aware that We do not diminish the privileges of decurions, but, on the other hand, render the office more honorable; in order that the cities may learn from your proclamations what the government has decreed.
Given at Constantinople, on the Kalends of July, during the twelfth year of the reign of Justinian, and the Consulate of John.
TITLE XXVI.
ILLUSTRIOUS PERSONS AND THOSE WHO ARE OP HIGH RANK MUST UNDER ALL CIRCUMSTANCES BE REPRESENTED BY ATTORNEYS IN PECUNIARY CASES, AND IN THOSE RELATING TO CRIMINAL INJURY. THOSE WHO ARE KNOWN AS CLARISSIMI SHALL BE PERMITTED TO APPEAR IN PECUNIARY CASES EITHER IN THEIR OWN PROPER PERSON OR BY ATTORNEYS.
SEVENTY-FIRST NEW CONSTITUTION.
The Same Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Certain laws enacted with reference to the honor attaching to offices are excellent in their way; still, as their application, instead of increasing the distinction of officials, is injurious to them, We deem it proper to correct this by means of a brief law.
Some constitutions forbid persons of the rank of clarissimi to personally appear in court, and order them to do so by an attorney. This provision was enacted in ancient times to maintain the honor of persons of eminence; but We see that many individuals who have been invested with the rank of clarissimi, for instance, counts, tribunes, and other dignitaries of this kind, are men of very moderate means, and that their resources are far from being sufficient to employ attorneys and meet the expenses incurred by doing so.
CHAPTER I.
Therefore We order that the following provisions shall be observed with reference to the most magnificent persons of illustrious rank, namely: that they shall, by all means, have pecuniary cases in which they are interested as well as others relating to criminal injuries tried by their attorneys, in accordance with the privilege previously conferred upon them. We decree this in order that they may not be compelled to be seated with the magistrates, when the latter decide their cases, or to stand before them as litigants, which would be equally improper; for then either litigants who are persons of rank will sustain injury, or judicial dignity will not be maintained. But, with the exception of the most magnificent illustres, We desire that all those who wish to do so can either appoint attorneys, or conduct their own cases in person, without molestation or rendering themselves liable to any loss or penalty.
EPILOGUE.
Your Eminence will, in the customary manner, communicate to all persons the matters which We have seen proper to enact by this Imperial law.
Given at Constantinople, on the day before the Nones of June, during the twelfth year of the reign of Our Lord the Emperor Justinian, and the Consulate of John.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SIXTH COLLECTION.
TITLE I.
THOSE To WHOM THE PROPERTY OF MINORS HAS BEEN HYPOTHECATED, OR WHO ARE THEMSELVES INDEBTED TO MINORS, SHALL NOT HAVE THEM UNDER THEIR CONTROL. CURATORS SHALL UNDER No CIRCUMSTANCES ACCEPT ASSIGNMENTS AGAINST THOSE WHOSE AFFAIRS THEY ARE ADMINISTERING, OR WITH WHOSE CURATORSHIP THEY ARE INVESTED. THESE PROVISIONS SHALL BE GENERALLY APPLICABLE TO EVERY SPECIES OF CURATORSHIP, AND TO ALL PERSONS To WHOM THE LAWS GRANT CURATORS. CONCERNING THE ADMINISTRATION OF SUMS OF MONEY BELONGING TO THOSE WHOSE BUSINESS is TRANSACTED BY CURATORS, AND UNDER WHAT CIRCUMSTANCES THEY SHOULD BE PLACED ON DEPOSIT OR LOANED, AND WHAT SHOULD BE DONE WITH THE INCOME FROM SAID SUMS
OF MONEY.
SEVENTY-SECOND NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
The legislator of a government should direct his attention everywhere, should see that everything is properly conducted, and that nothing is neglected. Documents affecting the rights of minors, or which relate to the care of their property, should be specially taken into consideration by those to whom permission has been given by God to enact laws; We mean by this him who is invested with sovereignty.
We have heard of many cases in which transfers have been made by curators against the interests of minors, where they had arrived at puberty, where they were under that age, and where they had not yet attained their majority; and the result of this was that the curators became the owners of their property, either by accepting claims against them, which perhaps were fraudulent; or by obtaining transfers of extremely fragile articles at a very low price, or by concealing receipts for the property of minors, and of negotiating transfers of objects under many and various pretexts. For what will a man who has once been guilty of dishonesty not contrive in order to appropriate the property of minors?
CHAPTER I.
WHO CANNOT BE EITHER THE GUARDIANS OR CURATORS OF MINORS OR YOUTHS.
We desire to correct all these things by means of the law, and especially to prevent anyone who has a claim against a minor or his property from obtaining the curatorship of the same, or accepting it, even if called to do so by law. For who is there who would not act in his own behalf if he had control of the minor, and was the actual custodian of the property of his adversary? Hence We order that if it is perfectly clear that he who is given charge of his property is indebted to the minor, he shall not be his curator, lest he may steal the evidence of an obligation, or destroy other proofs of claims belonging to the minor, and the care of the property of the latter be productive of loss. We provide for this by a most beneficial law, and decree that none of those persons to whom the property of the deceased, or of the minor himself, is known to be encumbered, shall be invested with the curatorship, or shall be authorized to administer it.
CHAPTER II.
A CURATOR SHALL BE ADDED TO A GUARDIAN WHEN THE
LATTER HAS BECOME EITHER THE DEBTOR OR CREDITOR
OF His WARD.
Where, however, anyone who is administering a curatorship subsequently becomes the creditor of a minor, for instance, through the acceptance of an estate to which the minor is indebted, or under some other circumstances of this kind, as he will no longer be considered faithful to the interests of the minor, or youth, so far as the curator-ship is concerned, another guardian or curator shall be joined with him (which We have found that the laws in most cases prescribe), that he may see that nothing is done to prejudice either the youth, or his property, and that no injury is committed against either by him to whom he is indebted. The curator shall discharge this duty, and at the time of his appointment must swear to do so; and if he should disregard his oath, he will be liable to the penalty resulting from his treacherous conduct.
CHAPTER III.
No ONE SHALL BE RELEASED FROM THE DUTIES OF
GUARDIANSHIP OR CURATORSHIP UNDER THE PRETEXT
OF A DEBT, UNLESS HE CAN PROVE IT.
In order that all men may not be afforded a pretext for their release from the duties of guardianship and curatorship, by merely stating that they are the debtors or creditors of minors, We decree that if anyone should allege that he has a claim against the minor or his property, or that the parents of the minor are indebted to him, he
must prove this before the magistrate who appointed him curator within the time granted for denial, and shall then be discharged; or, if he cannot prove it, he must swear on the Holy Gospels that he believes he is actually a creditor of the minor; and after he has done this, We are unwilling for him to be charged with either the guardianship or curatorship, or allowed to have anything to do with the property, in order that We may not give the minor an enemy instead of a curator.
CHAPTER IV.
WHERE A GUARDIAN OR CURATOR, WHO Is EITHER THE
DEBTOR OR CREDITOR OF A MINOR, DOES NOT MENTION
THIS IN THE BEGINNING.
Where anyone, in the beginning, conceals the fact that he is the creditor of a minor, and is appointed his curator, he is hereby notified that he will be deprived of every right of action, even though it be genuine, against the said minor, for the reason that he purposely attempted to evade the present law to his own advantage. And if anyone should conceal the fact that he is indebted to the minor, he also is . notified that the penalty incurred by him will be that he shall not be permitted to avail himself of any credits, or other payments on his debt, which he may, perhaps, have fraudulently made during his administration.
CHAPTER V.
CURATORS SHALL NOT ACCEPT TRANSFERS OF ANY KIND CONTRARY TO THE INTERESTS OF MINORS.
If anyone who (as has already been stated) has been appointed a curator should afterwards attempt to obtain the property of the minor, and accept a transfer of the same to himself by donation, sale, or any other means; he is informed that such a transfer will be absolutely void, whether it has been made directly to himself, or through the intervention of a third party, and that it will be just as invalid as if it had never been made at all. For it is perfectly evident that if a curator attempts to acquire the property of the minor, he will be considered as only having done so for his own benefit, and for the destruction of his soul.
(1) This rule not only applies to curators, whom We forbid to accept transfers of property of this kind during their administration, but We also prohibit them from accepting them even after its termination, lest the curator, remembering that he cannot acquire the property while he is administering the curatorship, may conceal the transaction which took place while he was in office; and, a short time after his curatorship has ended, produce the evidence of the transfer which he fraudulently caused to be made to himself, just as if he had received it when he was no longer curator, and thus deceitfully made arrangements for this purpose. For We decree that such a transfer
shall be void, and that no right of action assigned against the interest of the person with whose affairs the curator has previously been charged can legally be made use of; that the transfer shall be regarded as not having taken place; and that the former minor shall have the benefit of the profit resulting from the right of action which has been assigned, even though this assignment may have been made for good and sufficient reasons.
We also forbid that the right of action shall revert to the person who has assigned it, as would be the case if nothing had been done contrary to law; but that this right shall be extinguished on account of the violation of Our Constitution, and the minor shall be entitled to the property for the recovery of which suit was brought. For, if We did not impose this penalty, it would be easy to commit fraud; as the curator, by returning the property transferred to him who made the assignment of the same, would receive it again through the medium of him who assigned it, and by a fraudulent act of this kind would evade the law.
We order that these provisions shall be applicable to all curators whom the laws entrust with the administration of the property of spendthrifts, or insane and demented persons, even though other provisions may have been enacted on this subject, and unforeseen cases may arise.
CHAPTER VI.
CONSIDERING THE CARE OF MONEY BELONGING TO WARDS
OR MINORS.
But as We see that curators who have the fear of God before their eyes hesitate to accept the office (while many others are anxieus to do so for the reason that they wickedly desire to convert the property of the minors to their own use, which is something greatly coveted by and acceptable to them), and as their duties are especially distasteful to them because of the necessity of collecting interest, We order that curators shall not be required by Our laws to lend the money of minors at interest, but that they shall carefully deposit it and see to its preservation. For it is more advantageous for minors to have their money kept safely than to run the risk of losing it through the desire for interest; or to subject the curator to liability if he uses the money in trade, or lends it at interest, and the debtor becomes insolvent. When, however, the curator desires to lend the money on his own responsibility, for instance, taking pledges or other security which is considered of undoubted value, he shall be granted the term of two months during which he will not be liable to account for interest, which the laws call a "postponement," but he is notified that a loan of this kind will be at his own risk.
CHAPTER VII.
If the income of him who is under curatorship is only sufficient for his maintenance, the curator shall spend the whole of it, and if it is more than sufficient for that purpose, he must deposit the surplus.
If the property of him who is under the control of the curator consists of movables, the curator will only be required to lend a sufficient amount to meet the expenses of the minor or his business, and must deposit the remainder. He will, however, be allowed to search for something that will return a certain income, which may be subject to moderate public taxes; and if he finds a suitable vendor, and the property is productive, We authorize him to purchase it for the minor; but he is notified that if he neglects to observe any of these provisions the sale will be at his own risk.
CHAPTER Vill.
Where, however, the property of the minor consists of money, and the interest of the same is barely enough to support him and his family, then We are necessarily impelled to authorize curators who have the fear of God before their eyes to manage this money just as if it belonged to them. For We desire that when a decree entrusting a curatorship to anyone is issued, the appointee shall swear on the Holy Gospels that he will use every means to promote the welfare of the minor; that he will not fail to render an account; that he will not violate the law; that he will furnish a bond to insure the honesty of the administration, and that he will always consider himself bound by the remembrance of his oath.
We enact the present law to provide for the security of those who have need of curators, and if We should subsequently think of any other salutary measure, We shall not hesitate to include it in this law, in order that We may act as a father to those who We think cannot assist themselves.
EPILOGUE.
Your Eminence will, by means of suitable edicts, communicate the matters which We have deemed advisable to include in this law to all persons throughout the provinces within your jurisdiction in order that no one may be ignorant of what has been decreed by Us for the benefit of Our subjects.
Given at Constantinople, on the Kalends of June, during the seventh year of the reign of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE II.
CONCERNING THE SECURITY AND RELIABILITY OF INSTRUMENTS, AND IN THE FIRST PLACE CONCERNING DEPOSITS,
LOANS, AND OTHER PRIVATE TRANSACTIONS WHICH TAKE PLACE EITHER WITH OR WITHOUT WITNESSES ; AND CONCERNING INSTRUMENTS PUBLICLY EXECUTED, AND THE COMPARISON OP THE HANDWRITING OF INSTRUMENTS EXECUTED BY ILLITERATE PERSONS, OR THOSE OF SLIGHT EDUCATION ; CONCERNING VERBAL CONTRACTS AND THOSE IN WHICH AMOUNTS UP TO A POUND OF GOLD ARE INVOLVED; AND CONCERNING AGREEMENTS MADE IN THE FIELDS ; CONCERNING THE APPLICATION OF THIS LAW TO DOCUMENTS AND CONTRACTS THAT ARE TO BECOME OPERATIVE AT SOME FUTURE TIME.
SEVENTY-THIRD NEW CONSTITUTION.
The Same Emperor to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We remember certain laws which We have enacted, which provide that the genuineness of documents shall be established by comparison of handwriting, and We are aware that certain Emperors, influenced by the constantly increasing fraudulent efforts of persons who are in the habit of altering documents, have forbidden such changes to be made. We are, however, of the opinion that forgers generally confine themselves to the imitation of writing, for the reason that forgery is nothing else but an imitation of the truth.
We have, during Our reign, discovered innumerable forgeries in many cases which have been brought to Our knowledge, one of which, that originated in Armenia, has been investigated in Our presence. In this instance an exchange was made, and the instrument evidencing it was decided to be forged, but as the witnesses who had been present when it was executed and had signed it were found, and acknowledged it, the document was held to be genuine; but this was an unusual occurrence, as the writing was decided to be false, and the answers of the true witnesses coincided with the truth, so that the document was only considered worthy of confidence on account of these statements which were, to some extent, held to be reliable. We are, however, aware that the comparison of handwriting must be very carefully made, since age very often causes dissimilarity in handwriting, for that of a young man who is strong and robust does not resemble that of one who is old, whose hand trembles and who often writes with feebleness; and, indeed, We can say that the change of pen and ink removes entirely the resemblance of handwriting; nor can We find words to express how many new cases nature causes to arise which furnish Us occasion for the enactment of laws.
(1) Therefore as God rules the Empire of Heaven, in order that he may afford good solutions to perplexing questions, and interpret the laws in accordance with the variety of nature, We have thought it is proper to draw up this statute, and render it generally applicable to Our subjects, whom God has originally entrusted to Our care, and to whom he is always making additions, from time to time. And, as certain doubts have arisen with reference to deposits evidenced by written instruments, and We have ascertained that controversies have arisen in consequence, it becomes necessary for Us to provide for all these matters, and therefore We are going to begin with the contract of deposit.
CHAPTER I.
CONSIDERING THE SECURITY OF AND THE CONFIDENCE TO
BE REPOSED IN WRITTEN INSTRUMENTS; AND, IN THE
FIRST PLACE, CONCERNING DEPOSITS, AND IN WHAT WAY
THEY CAN BE MADE WITH SAFETY.
Hence when anyone desires to make a deposit with safety, he will not confine himself solely to the written contract of him who receives the deposit (which is also legally required, for when anyone does not acknowledge the instrument to be in his handwriting, the matter becomes extremely complicated, and he who makes the denial will be compelled to furnish other writing; and when this appears to resemble that of the instrument in question, only partially, but not entirely, then the matter is inconclusive, so far as the writing is concerned), but the person who makes the deposit shall, as soon as possible, call witnesses who must be honorable and deserving of confidence, and not less than three in number, in order that he may not solely rely upon the written instrument, and his examination of the same, and to enable the judges to have the assistance of witnesses; for We admit testimony of this kind, where the witnesses state that he who made the instrument signed it in their presence and they acknowledged it. If We should find that there are less than three witnesses worthy of credit, We do not forbid the instrument from being declared genuine, as We do not enact this law for the purpose of abridging evidence, but with a view to rendering it more reliable.
CHAPTER II.
IN WHAT WAY AN INSTRUMENT EVIDENCING A LOAN OR
A DEPOSIT CAN BE DRAWN UP WITHOUT THE PRESENCE
OF A NOTARY.
If anyone should draw up an instrument evidencing a loan or any other contract whatsoever, without desiring to have it become public, this instrument, as We have just stated with reference to a deposit, will not, of itself, be considered worthy of credit, unless it was executed in the presence of at least three witnesses, who attest its genuineness by their own signatures, or who prove that the instrument
was written in their presence, for it will become worthy of confidence in either of these instances; and if the examination of handwriting is not absolutely rejected, it will not be sufficient alone, and must be confirmed by the testimony of the witnesses.
CHAPTER III.
WHERE A DISCREPANCY EXISTS BETWEEN THE CONTENTS
OP A WRITTEN INSTRUMENT AND THE STATEMENTS OP
THE WITNESSES.
But if anything resembling what has taken place in Armenia should happen, and the comparison of handwriting should prove one thing, and the evidence of witnesses another, We have then thought that the sworn oral testimony is more trustworthy than the written instrument by itself. Still, the wisdom and conscientiousness of the judge should, under such circumstances, induce him to decide in favor of what appears to be better entitled to credence, and We have come to the conclusion that the genuineness of documents should be established in this manner.
CHAPTER IV.
CONCERNING INSTRUMENTS EXECUTED WITHOUT SECURITY.
When, however, anyone who makes a deposit lends money, or contracts in any other way, is satisfied with the written instrument alone of the other party to the transaction, he is hereby notified that the said instrument, by itself, will not be worthy of any confidence whatever, unless, in accordance with Our law, its genuineness is confirmed by the presence of the witnesses before whom it was executed; or by the last resort in such a case, that is to say, by the sanction of an oath.
We do not, however, under such circumstances, declare the instrument to be void; and We only require these formalities to be observed for the reason that We are apprehensive of forgeries and imitations, and do not trust to mere written instruments. Nor do We desire by this rule to deprive persons of their confidence in others with whom they have contracted in this way, but We make this provision in order to avoid perfidy and artifice, as much as possible, and in every way that We can.
CHAPTER V.
How NOTARIES SHOULD DRAW UP INSTRUMENTS THAT WILL BE SECURE.
Whenever public documents are concerned, although the requisite number of notaries may be at hand, it must be stated in writing before the completion of said documents (as has already been set forth), that they were executed in the presence of witnesses.
CHAPTER VI.
CONCERNING THE COMPARISON OF NOTES.
Whenever judges find any notes inserted in documents, they must examine them, and attempt to read them. For We have learned that there are many documents which, for the reasons already mentioned, are proved with difficulty by comparison with other written instruments.
CHAPTER VII.
CONCERNING THE COMPARISON OP HANDWRITING.
But where all the witnesses are absent, or there is any reason to doubt the genuineness of their signatures, or if the notary who drew up the document is no longer living (that is if it was executed in public), or cannot himself appear as a witness, or is not in the city, then it will be absolutely necessary to subject the handwriting of those who have signed the document to comparison; and it is proper to do this as soon as possible (for We by no means forbid such comparisons), and proceed with extreme care, and if the judge should think that one should be made, he must first tender the following oath to the plaintiff, namely: "That none of his allegations have been prompted by malice; that he has not acted fraudulently in having a comparison of handwriting made; and that he will act in such a way that nothing whatever may remain concealed; and that no subterfuge of any description will, under any circumstances, be employed."
(1) Whenever documents are to be proved, and a notary is present, he shall give his evidence under oath, but if he himself did not draw up the document in question, but this was done by one of his clerks, the latter shall appear and testify, if he is willing, and it is possible for him to do so; and nothing shall excuse him from coming, unless it is, for instance, a severe illness, or some other unavoidable accident to which mankind is liable.
When a banker has an instrument of this kind, he himself shall be present, in order that three witnesses, and not one alone, may testify concerning it. But if no banker should be interested in the document, and a notary has written it all himself, or caused this to be done, and signed it, and neither he nor his clerk is living, or cannot be present, then the notary shall swear to the fact that he drew up the said document, and there will be no ground for a comparison of handwriting. In this way documents will obtain credibility, and the oral testimony of the notary given under oath will be conclusive.
(2) If the notary should be dead, the document shall be proved by comparing its writing with that of others. But when the clerk who drew up the document is living, as well as the banker who is interested in it, they must appear if they are not absent, and the genuineness of the document shall be established by a comparison of notes and the statements of witnesses. Where, however, none of these persons are alive, then a comparison of handwriting should be made; still, this
will not be sufficient for the purpose, as other specimens of the writing of the contracting parties and witnesses must be examined, so that the document may be proved not only by the comparison of the body of the same with those of others, but also with different specimens of the writing of the witnesses and contracting parties.
(3) But when the genuineness of documents cannot be established in any other way than by their comparison, the rule observed up to this time shall remain in force. He who offers a document for comparison shall be solemnly sworn, and in order that the greatest confidence may be assured, he who demands a comparison shall make oath that, as no other method is available, he has recourse to a comparison of instruments; and that he does not do this through malice, or with any intention of concealing the truth. The contracting parties can be released from all the formalities which We have just enumerated if, in the first place, both of them consented to have the instruments recorded, and have made them public by filing them in the Bureau of Registry, so as to prevent any suspicion of bad faith, corruption, or falsification from attaching thereto; for it is for the purpose of suppressing every kind of fraud that We promulgate the present law. Everything that We have previously ordered with reference to handwriting in private instruments shall remain in full force; and We also confirm what has been established with respect to illiterate persons, as this has already been subjected to a sufficient judicial examination.
CHAPTER Vill.
IN WHAT WAY PERSONS IGNORANT OF LETTERS CAN SAFELY MAKE CONTRACTS.
It is necessary, in the case of persons who are ignorant of letters, for witnesses, and by all means for notaries, to be present in those places where there are any; and it is indispensable that the witnesses should be known to the contracting parties, and that other persons should write for such as are entirely illiterate, or have very little education, or state that the instruments were drawn up in their presence, and that they were acquainted with said illiterate persons; and in this way the legality of such instruments shall be established and proved; for there ought not to be less than five witnesses present, including the person who drew up the instrument entirely, or merely affixed the signature as directed by the illiterate contracting party, who was unable to write. In this way nothing will be omitted to insure the validity of documents.
CHAPTER IX.
CONCERNING CONTRACTS ENTERED INTO WITHOUT WRITING.
We have made these provisions with reference to written instruments, but when anyone desires to make a contract without committing it to writing, it is clear that he must establish its genuineness
either through witnesses, or by oath; and the plaintiff shall produce the witnesses, and the defendant take the oath, or tender it to the plaintiff, as the judge may decide.
But in order that nothing may be unprovided for, it is advisable to add to the law that these provisions need not be observed in a case of contracts involving property to the amount of only one pound of gold, but the agreement will be valid as entered into between the contracting parties, in order that men may not be subjected to great expense where articles of trifling value are concerned.
We desire that all these rules shall be observed in cities, for in the country (where there is much simplicity, and comparatively few persons who know how to write are available as witnesses), whatever has been valid up to this time is hereby confirmed, and We have also made the same provision with reference to wills, to which We are accustomed to pay special attention. Hence this law shall only be valid so far as any instruments and contracts which may hereafter be entered into are concerned; for why should any disposition be made regarding what has already taken place?
The multitude of legal disputes which have arisen have necessitated the enactment of this law, which has been promulgated by Us to prevent men from daily contending with one another, and, by means of the legislative formalities, to remove every cause of altercation.
EPILOGUE.
Wherefore it is proper for Your Eminence, as soon as you receive this law, to communicate it to all persons both here and in the provinces ; and We have addressed it to the other Most Glorious Prefects in the West in Lybia, and in the North (We mean Illyria) so that what We have decreed for the purpose of preventing controversies among Our subjects will become known throughout the entire Empire.
Given at Constantinople, on the day before the Nones of June, during the twelfth year of the reign of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE III.
IN WHAT WAY NATURAL CHILDREN MAY BECOME LEGITIMATED AND INDEPENDENT, IN ADDITION TO THE METHODS PRESCRIBED BY FORMER CONSTITUTIONS.
SEVENTY-FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Prastorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
It has very properly been stated by Our predecessors, and above all by the most learned Julianus, that no law or decree of the Senate has ever been promulgated by the Roman government which, from the
beginning, has been sufficient to provide for all cases; but that laws have need of much correction in order to be adapted to the inconstancy and perversities of Nature. Hence We have published various enactments concerning natural children upon whom legitimacy has been bestowed. But when We consider the character of each individual case, We find that there is always something lacking to what has already been provided, and We desire to supply this by means of the present law. For where anyone, induced by pure affection, has formed an union with a woman and has children by her, and after their birth, enters into a nuptial contract with her, and then begets legitimate children, those previously born do not continue to be illegitimate, but are included among those who are legitimate, for the reason that chance has caused them to be born such.
This law, however, has undergone an amendment, for certain persons claimed that when the second children, born after the dotal contract was executed, die, those born previously obtained no advantage through them; which difficulty We have removed by also giving the first children the right of legitimacy, even when the second are longer living; and (for the reason that this point also was ambiguous) We have added that even if no children were born after the dotal contract was entered into, those previously born should, nevertheless, be included among the legitimate offspring, because their father desired it.
(1) But another similar instance occurred; that is, where natural children were born of an union of this kind, and their father wished them to be legitimated in the manner introduced by Us, that is to say, by the execution of a nuptial contract, but, while he was deliberating on this subject the woman died, and the rule established by Our Constitution was not applicable, for she with whom the nuptial contract should be entered into was no longer living, and hence the natural children remained such, notwithstanding the wish of their father.
Another case of the same description arose among persons with whom We are not acquainted; for a certain man, having begotten children illegitimately, to whom he was deeply attached, desired to have them legitimated in accordance with law, but their mother did not bear a good reputation, and he did not think that she who had committed an injury upon herself was worthy of obtaining a lawful name, which statement is sufficient for the purpose.
This is another way in which children can be made to suffer; in the first instance, on account of the death of their mother, and in the second, because of her misconduct.
(2) A third instance has also come to Our knowledge. A father desired to render his children legitimate, and made arrangements to do what We have prescribed with reference to dowries; but the children, being aware that their mother might unexpectedly acquire certain property (through a certain rich relative, although she was not a lawful wife), were guilty of wicked and deceitful conduct, for they concealed their mother, so as to make it impossible for their father to legitimate them, and if their mother should die, that they might be able to enjoy the usufruct of her property, a privilege which the law
grants to a father. We enact the present constitution for the purpose of preventing fraudulent acts of this kind.
CHAPTER I.
CONCERNING VARIOUS WAYS OF LEGITIMATING NATURAL
CHILDREN, AND CONCERNING LEGITIMATION BY MARRIAGE
OR WHERE MARRIAGE is CONTRACTED WITH THE MOTHER
OP NATURAL CHILDREN BY THEIR FATHER.
Where anyone has no legitimate children, but only natural ones, and desires to render them legitimate, and the mother of said children is dead; or if living, she has been guilty of bad behavior; or if she does not appear, or some law forbids the father from marrying her; We authorize him to confer upon his natural children the right of legitimacy in a new way which We now propose; provided he has no surviving lawful offspring. For as Our predecessors devised a certain method of bestowing upon freedmen the privilege of free birth, and of liberating them from their condition by giving them the right to wear gold rings, and restoring them to the condition of Nature, which, in the beginning, did not distinguish a slave from a freeman, but created the entire human race free, so We introduce a new method of legitimation, and a father is authorized to make use of it, just as he is entitled to do with reference to the different ways which We have prescribed, even though some other similar instance may arise, for the innovations of Nature are innumerable, as We have already stated.
Therefore a father who has no lawful issue shall be permitted to restore his children to a natural condition and original free birth, in order to render them legitimate for the future, and to have them under his control; for in the beginning (before there were any written laws), when Nature alone was supreme, and no distinction existed between a natural and a legitimate child, the progeny of Our first parents were legitimate as soon as they were born. And as, so far as children are concerned, Nature renders them all free, and because slavery was derived from warfare, so Nature has only produced legitimate offspring, and it is the tendency to concupiscence which has mingled natural offspring with them. Therefore as the origin of all children is attributable to certain passions, it is necessary for a remedy to be found for both classes; that is, for the condition of servitude introduced by Our predecessors, and for this condition which We have herein provided for.
CHAPTER II. CONCERNING LEGITIMATION BY WILL.
Therefore if the mother of children is left in her former condition, and she actually appears to have been guilty of misconduct (for otherwise We do not permit this to be done in cases of this kind), and if any fraud has been practiced, or she is not living, or remains concealed, or anything else happens which may prevent her from appearing and entering into a nuptial contract, the father shall be permitted
to provide for his children, and petition the Emperor for this purpose, giving the reasons why he desires to have them restored to their natural condition and original free birth, and become legitimated, so as to remain under his control, and in no respect differ from children lawfully begotten. Hence We desire that children shall enjoy a solace of this kind, and that they may not be able to defraud their father, and, by concealing their mother, reject the right of legitimacy.
This is one expedient which We have adopted for the benefit of those who have no lawful issue, as well as to provide for the excesses and perversities of Nature, thereby both granting relief to such as have no legitimate offspring, and correcting these eccentricities by this short and effective remedy.
(1) Where, however, a father who has only natural children does not apply to the Emperor on account of some fortuitous event, and, dying under one of the aforesaid circumstances, states in his will that he desires his children to be his lawful heirs, his wish shall be complied with; but his children must, nevertheless, present a petition to the Emperor after their father's death, stating everything that has taken place; and they shall also produce the will, under the terms of which they were appointed heirs; and they will then receive from the Emperor what their father desired them to obtain; so that what takes place shall, at one and the same time, be the gift of both their parent and their sovereign, that is to say, of Nature and law; and We establish this rule without the annulment of any former method of legitimation.
In cases in which these former methods are not available on account of the existence of legitimate children, and natural children are subsequently born, or where natural children are born in the first place, We add that the right of legitimacy shall, by no means, be acquired by them, unless this is done by virtue of Our Constitutions which have introduced the method of legitimation through dotal instruments.
CHAPTER III.
CONCERNING LEGITIMATION BY ADOPTION.
We are well aware that the form of adoption introduced in ancient times by Our Imperial predecessors, for.the purpose of legitimating natural children, was not considered contrary to nature; but Our Father, of pious memory, has criticized it as such, in one of his constitutions, and We desire that what he decreed in this respect shall remain in full force, as he had the greatest regard for chastity, and it is not well for anything which has once properly been excluded to be restored in the administration of the Empire.
CHAPTER IV.
WHO CANNOT CONTRACT MARRIAGE WITHOUT THE EXECUTION OF DOTAL INSTRUMENTS (JULIANUS No. 243).
We think that the following provisions are preferable to what has previously been enacted on the subject, and have decided their adop-
tion to be advisable, after much experience with many cases; and, indeed, the numerous and incessant lawsuits which have been brought to Our notice have induced Us to enact this law. For, as it has been set forth in ancient constitutions, and also established by Us, that marriages celebrated without dotal agreements and prompted by affection alone, are valid and durable, but as the country is already full of fraudulent contracts (for witnesses are constantly introduced who, incurring no risk, testify that a man has called a woman with whom he is living his wife, and that she has also alluded to him as her husband, and by means of such statements marriages are presumed, which in reality have never taken place), it now becomes Our duty to provide for these cases in accordance with natural law. For We have learned, although We are lovers of chastitya virtue which We recommend to Our subjectsthat there is nothing more powerful than the passion of love, and that it is a part of perfect philosophy to restrain it, and to foresee and moderate the natural impetuosity of passion, in order that those who are subject to its influence may resist the importunities of those to whom they are attached, and not yield to their blandishments; and the legislators who have preceded Us have been so thoroughly acquainted with such affections of the mind that they have even prohibited donations to be made during the existence of marriage, for fear that, having been conquered by the overwhelming power of concupiscence, married persons may secretly and by degrees deprive themselves of their property. Hence We think that it is proper to regulate these matters by means of a chaste law.
(1) Therefore We forbid persons who are occupying high positions, no matter what they may beand this applies to Ourselves, as well as to senators and persons of illustrious rankto marry without any dotal contract. We also desire that a dowry and an ante-nuptial donation shall, by all means, be stipulated for, whenever marriages of persons of this description take place, as well as everything that is proper and becoming under such circumstances.
But so far as others who occupy places of less importance and discharge honorable duties, or are members of respectable professions are concerned, if they should desire to lawfully marry women without entering into ante-nuptial contracts, they shall not do so indiscriminately, without security, and without proof; but they must repair to some house of worship, and declare their intention to the defender of the Most Holy Church, who, in the presence of three or four most reverend ecclesiastics, must draw up a statement in which shall be set forth that, during a certain indiction, month, day of the month, and year of Our reign, under Such-and-Such a Consul, So-and-So and So-and-So appeared before him in such-and-such a place of worship, and were united with one another. If both the parties interested approve of this attestation, whether they both appear or only one, they shall subscribe the above-mentioned statement, along with the defender of the holy church, and the three other ecclesiastics, or more of the latter if it is desired, but never less than three.
(2) Where, however, the parties interested do not agree to this statement, the defender of the church shall, nevertheless, deposit it,
bearing its aforesaid signature, among the archives of the most holy church (that is, where the sacred vessels are kept), in order that the proof of this transaction may be manifest to all, and the parties may not be considered as having been united by marital affection in any other way; and that the marriage may be established by documentary evidence; and when these formalities have been complied with, the marriage and the issue of the same shall be legitimate.
We do not, however, order that this rule shall be observed when no dotal contract or ante-nuptial donation is made, for We enact the present law for the reason that We consider a marriage which can be only proved by witnesses as suspicious.
(3) Anyone who is of abject condition, is the owner of little or no property, and is hardly able to obtain the necessaries of life, shall have permission to marry without making any contract. Nor do We investigate closely the marriages of farmers, or soldiers in military service whom the law styles caligati (that is to say, of low and obscure rank), who are ignorant of civil formalities for the reason that they are only occupied in agricultural pursuits, or devote themselves exclusively to the operations of war; and this is justly worthy of praise; for as persons of abject condition, soldiers in active service, and farmers, are authorized to contract marriage with one another without a written contract, so the children born of marriages of this kind are legitimate.
CHAPTER V.
WHERE ANYONE SWEARS UPON THE HOLY GOSPELS THAT HE WILL MAKE A WOMAN WHO is IN His OWN HOUSE
His WIFE.
Among the petitioners who frequently apply to Us We have heard the complaints of many women, who say that men who profess love for them take them into their houses, swearing upon the Holy Gospels or in the churches that they will eventually marry them; and that these men, after having lived with them for a long time, and had children by them, as soon as they are tired of them, drive them out of their houses without their children, hence We have deemed it proper to provide that if a woman can prove by lawful evidence that a man has taken her into his house with the promise of marrying her, and making her the mother of legitimate children, he shall not be permitted to eject her without observing the formalities of law; but, on the other hand, that she shall be his lawful wife, and his children shall also be legitimate; and if she has received no dowry, she shall enjoy the benefit of Our Constitution, and be entitled to the fourth of her husband's estate whether he discards her or dies before she does.
We make no distinction whether he expels her by serving notice of repudiation or not, for it is improbable that anyone who denies a marriage would serve notice of repudiation; but where the husband drives his wife away without any reason, this shall be a good ground for an accusation against him; and she can, under such circumstances,
serve notice of repudiation upon him, and exact from him the fourth of his property, if she can prove that she has been his wife, even though, relying upon his oath, she may not have stipulated for a dowry. For when a woman is unable to furnish a dowry in the first place, what else can she do than to provide one for herself?
(1) The issue of such a union will be legitimate, even against the consent of the father. For he who has been instrumental in having the marriage take place, and has begotten children in order that the woman may become the mother of lawful offspring, cannot reject these children as being illegitimate; nor when, after the death of his wife, or her repudiation, he contracts another marriage, can he render only the issue of this marriage legitimate, and exclude that of the first one, of whom he is also the father, God having been the witness of the first, and the law of the second.
This constitution has been promulgated by Us to provide for the security of those who contract such marriages, and where any children are born of them, they shall have the protection of the laws enacted for the benefit of those who are legitimate.
CHAPTER VI.
WHO ARE LEGITIMATE CHILDREN, WHO ARE NATURAL
CHILDREN, AND WHO BELONG TO NEITHER CLASS, THAT
is TO SAY, ARE THE ISSUE OP A PROHIBITED UNION.
If any violation of this law should take place, the issue of the marriage contracted under such circumstances will be natural children, and will be entitled to the shares of their father's estate which they have been granted by Us, whether by virtue of a will or in case of intestacy. Children, however, born of unions which are odious to Us, and which We have prohibited, shall not be called natural, nor be allowed to participate in Our clemency, and their parents shall be punished by knowing that their offspring cannot obtain anything on account of the indulgence of their wicked concupiscence.
EPILOGUE.
Your Highness will, by suitable proclamations, communicate to all persons the matters having reference to the relief of mankind and the assistance of Nature, which We have been pleased to include in this law; so that Our subjects may learn from it the way in which the affairs to which it relates should be conducted, and reflect upon Our foresight in this respect, for by its enactment We have made every provision for their welfare.
Given at Constantinople, on the Nones of June, during the fifteenth year of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE IV.
CONCERNING APPEALS TAKEN IN SICILY. SEVENTY-FIFTH NEW CONSTITUTION.
The quaestor shall hear and determine appeals taken in Sicily, and shall confirm by decrees the defenders and municipal magistrates who may be elected in this part of Our dominions.
EPITOME OF THE SAME NOVEL, FROM JULIANUS. CONCERNING APPEALS TAKEN IN SICILY.
We order that appeals taken from the decisions of a Praetor, general, or any other magistrate in Sicily, shall be brought in this royal city before the quaestor; and We desire that the latter shall hear the causes of appeal, render the decision, and refer it to Us, in order that it may be affirmed. If any other civil matter should arise, such, for instance, as the confirmation of a defender, or the decree of a municipal magistrate of a Sicilian city, application must also be made to the quaestor, and the confirmation shall be made by him, for he is invested with Our full authority.
TITLE V.
THIS CONSTITUTION INTERPRETS A PREVIOUS ONE WHICH TREATS OP THOSE WHO ENTER MONASTERIES AND THEIR PROPERTY, AND FROM WHAT DATE THE AFORESAID CONSTITUTION SHALL BECOME OPERATIVE.
SEVENTY-SIXTH NEW CONSTITUTION.
The Same Emperor to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
A case has arisen which We think justifies Us in making a suitable interpretation of a previous law, as well as an addition to its provisions; for We have learned that a woman having had a child by a lawful marriage desired to leave the world and retire to a monastery, and, by so doing, greatly benefit the nuns who were resident therein. But as a constitution enacted by Us states that persons of either sex, who betake themselves to monasteries, can dispose of their property as they please before entering them, but cannot do so afterwards, as they are no longer owners of said property, and as We have also ordered that persons of this kind, when they enter a monastic institution, shall devote their bodies, souls, and fortunes to these establishments, and when they leave them their property shall remain in the
monastery, and as Our preceding Constitution was promulgated a considerable time after the entrance of the said women into the monastery, she, fearing that opposition would be made to the transfer of her property to her son, asked that the legislation on this subject should be interpreted, and that this should be made clear by Our law, in order that, so far as her succession was concerned, neither she nor her son should sustain any injury on account of the enactment of the said constitution.
CHAPTER I.
Therefore We order that if anyone of either sex has lived in a monastery before the promulgation of Our preceding Constitution, or if he or she is living there at present, and has any children, he or she shall not be compelled to leave his or her fortune to the monastery, hence in this instance the woman can transmit it either wholly or in part to her son or daughter, or dispose of it otherwise as she pleases (for a subsequent law cannot injuriously affect those who have entered a monastery before its promulgation, or cause them to forfeit privileges which have previously been granted them) ; this constitution, however, is only designed for the purpose of interpreting the former one, without annulling any portion of it. For it is not possible for anyone to be compelled to dispose of his property before entering a monastery; for if the woman entered the monastery before such a law was enacted, how could the legal order be inverted, and it be required of those who had previously entered a religious house to do things which were not yet known, and which have subsequently been changed by the publication of Our Constitution?
It is then proper to consider everything at the proper time, and only to examine whether what has been done after the law was passed is in accordance with its provisions; for when anything occurs before a law is enacted, it should neither be altered nor hypercritically examined, but should be preserved in its original form.
(1) Hence this law is promulgated for the useful interpretation of Our former Constitution, so that the latter may become operative after its adoption, and may only apply to such men and women as have entered the monastic life subsequent to its enactment. We do not captiously scrutinize what has taken place before its promulgation, as men and women who had previously entered monasteries, or were residing in them at the time, were permitted to dispose of their property in any way they chose, especially if they had living children.
EPILOGUE.
Your Eminence will, by means of suitable proclamations, hasten to formally communicate to all persons what We have pleased to enact by this Imperial law.
Given on the Ides of October, during the twelfth year of Our Lord the Emperor Justinian, and the Consulate of John.
TITLE VI.
MEN SHALL NOT COMMIT THE CRIME AGAINST NATURE,
NOR SWEAR BY GOD'S HEAD, OR ANYTHING OP THIS KIND,
NOR SHALL THEY BLASPHEME GOD.
SEVENTH-SEVENTH NEW CONSTITUTION. The Emperor Justinian to the People of Constantinople.
PREFACE.
We think that it is clear to all men of good judgment that Our principal solicitude and prayer is, that those who have been entrusted to Us by God may live properly, and obtain Divine favor. And as God does not desire the perdition of men, but their conversion and salvation, and as He receives those who, having committed sin, have repented, We invite all Our subjects to fear God and invoke His clemency, for We know that all those who love the Lord and are deserving of His pity do this.
CHAPTER I.
Therefore, as certain persons, instigated by the devil, devote themselves to the most reprehensible vices, and commit crimes contrary to nature, We hereby enjoin them to fear God and the judgment to come, to avoid diabolical and illicit sensuality of this kind;1 in order that, through such acts, they may not incur the just anger of God, and bring about the destruction of cities along with their inhabitants; for We learn from the Holy Scriptures that both cities as well as men have perished because of wicked acts of this kind.
(1) And as, in addition to those who commit these offences which We have mentioned, there are others who utter blasphemous words, and swear by the sacraments of God, and provoke Him to anger, We enjoin them to abstain from these and other impious speeches, and not swear by the head of God, or use other language of this kind. For if blasphemy when uttered against men is not left unpunished, there is much more reason that those who blaspheme God himself should be deserving of chastisement. Therefore We order all men to avoid such offences, to have the fear of God in their hearts, and to imitate the example of those who live in piety; for as crimes of this description cause famine, earthquake, and pestilence, it is on this account, and in order that men may not lose their souls, that We admonish them to abstain from the perpetration of the illegal acts above mentioned. But if, after Our warning has been given, anyone should continue to commit these offences, he will in the first place render himself unworthy of the mercy of God, and will afterwards be subjected to the penalties imposed by the laws.
(2) We order the Most Glorious Prefect of this Royal City to arrest any persons who persist in committing the aforesaid crimes, after the publication of Our warning; in order that this city and the State may not be injured by the contempt of such persons and their impious acts, and inflict upon them the punishment of death. If, after the publication of this law, any magistrates should become aware of such offences, and not take measures to punish them, they shall be condemned by God. And even if the Most Glorious Prefect himself should find any persons doing anything of this kind, and not punish them in accordance with Our laws, he will, in the first place, be subjected to the judgment of God, and afterwards sustain the weight of Our indignation.1
1 This was considered by the Romans as well as by modern legislators as one of the most odious and reprehensible of crimes. "Peccata contra naturam sunt gravissvma."ED.
1 The Canon Law treated the crime of blasphemy, which it denned as the uttering of curses and insults against God, Christ, the Virgin Mary, or the Saints: "Quicunque Deo palam, sen publice maledixerit, contumeliosisque ac obsccenis verbis Dominum nostrum lesum Christum, vel gloriosam Virginem Mariam eius Genitricem expresse blasphemauerit," with great severity. Ecclesiastics were temporarily or permanently deprived of their livings, and rendered incapable of reinstatement. Members of the laity were heavily fined, and might be imprisoned for life, or sentenced to the galleys. Sometimes they were compelled to stand for an entire day before the principal door of the church wearing a paper mitre, mitra in/amis, as a token of disgrace. Secular judges who were remiss in prosecuting offenders rendered themselves liable to the same penalties. (Corpus Juris Canonici VII, Deer et V, Vill.)
Every hierarchy has naturally legislated against blasphemy as being an attack upon the foundation of its authority. It was a capital offence among the Hebrews: "And he that blasphemeth the name of the Lord, he shall surely be put to death, and all the congregation shall certainly stone him; as well the stranger, as he that is born in the land, when he blasphemeth the name of the Lord, shall be put to death." (Leviticus XXIV, 16.)
The old Castilian Codes in this, as in many other instances, regulated the punishment in accordance with the rank and wealth of the culprit. A nobleman forfeited the use of his land for a year for the first offence, for two years for the second, and for all time for the third. Similar penalties were imposed upon vassals. Citizens were heavily fined and banished. Those belonging to the lowest order of the people were scourged, branded on the lips, or condemned to have their tongues amputated. "E si fuere otro ome de los menores que non ayan nada, por la prvmera vez denle cinquenta agates, por la segunda senalenle con fierro caliente en los begos, que sea fecho a semejanca de B. E. por la tercera vegada quo lo faga, cortenle la lengua." (Las Siete Partidas VII, XXVIII, II.)
Blasphemy was an indictable offence at Common Law, punishable by fine and imprisonment; "as Christianity is part of the laws of England." The first prosecution for it was instituted in 1617, during the reign of James I, before justices of the peace; but the case was dismissed, after reference to the Attorney General, for want of jurisdiction. (Vide Archbold, Criminal Procedure II, Page 209.) In England, the publication of heretical doctrines was long considered as inferentially blasphemous, and the writings of their advocates as libels. Political considerations were always more or less involved in those accusations, as the king was the head of the Church, and the promulgation of false religious dogmas was considered a blow at his supremacy. The penalty, while often severe, was not always as drastic as might seem justifiable under such circumstances. As late as 1812, a man convicted of blasphemy was sentenced by Lord Ellenborough to stand in the pillory for two hours every month, during eighteen months.
The offence is described by a leading English authority as follows: "A wilful intention to pervert; insult, and mislead others by means of contumelious abuse applied to sacred subjects, or by wilful misrepresentations and artful sophistry
TITLE VII.
FREEDMEN SHALL NOT HEREAFTER REQUIRE A GOLD RING TO BE RESTORED TO THEIR ORIGINAL NATURAL CONDITION OF LIBERTY. CONCERNING THE EXECUTION OF DOTAL INSTRUMENTS WITH REFERENCE TO FREEDWOMEN. SUCH A MARRIAGE AND THE CHILDREN BORN FROM IT SHALL BE LEGITIMATE, AND IF THE WIFE WAS ORIGINALLY A FEMALE SLAVE, SHE SHALL BECOME FREE WHEN THE DOTAL INSTRUMENT is DRAWN UP, AND HER MARRIAGE SHALL BE LEGAL, AND THE ISSUE OF IT LEGITIMATE.
SEVENTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Among the most extraordinary benefits which Almighty God has conferred upon Us We think should be classed the impulse We have to add to Our laws that the freedom of slaves (when they are released from their former condition by their masters) shall in every respect be pure, unqualified, and perfect; and for this reason We have already removed the stigma attaching to dedititii; have excluded the freedom of the Latins as imperfect; have shown repetitions to be superfluous; and We detest both the Lex Junia and the Larginian Decree of the
calculated to mislead the ignorant and unwary, is the criterion and test of guilt." (Starkie on Libel, Page 593.) This is the basis of the American doctrine that the feelings of the hearers must be respected. The penalty is excommunication and imprisonment for not more than six months.
Scotch law punished the blasphemer capitally, if he remained recalcitrant. "Blasphemy, Railers against God, or any of the Persons of the blessed Trinity, shall be likewise punishable by death, if they obstinately continue therein." (Mackenzie, The Laws and Customes of Scotland in Matters Criminal III, V.) The penalties now are mere imprisonment or fine, or both, at the discretion of the court. The offence includes atheism. (Vide Erskine, Principles of the Laws of Scotland IV, IV, 7.)
Blasphemy, concisely defined by Kent as "maliciously reviling God or religion," has a more limited application in the United States than elsewhere, in general. "The weight of authority is that blasphemy is only indictable when uttered in such a way as to insult the religious convictions of those at whom it is aimed. The gist of the offense is the insult to the religious sense of individuals, irrespective of the truth of those religious views or the extent of their prevalence." (Wharton, A Treatise on Criminal Law, Page 2121.)
The German Code prescribes a term of imprisonment, not exceeding three years, upon anyone convicted of blasphemy. (Strafgesetzbuch fur das Deutsche Reich, Art. 166.) The penalty in Austria is imprisonment for from one to ten years (Allgemeines Strafgesetz, Art. 123) ; in Spain, it is for one year, a month and twenty-one days, to a year and two months, and a fine of from 250 to 2500 pesetas (Codigo Penal de Espana, Art. 240) ; in Italy, the penalty is detention for not more than one year, and a fine of 100 to 3000 lire (Codice Penale del Regna d'ltalia, Art. 141); in Denmark, it is imprisonment for one month, and, where aggravating circumstances exist, a fine in addition (Almendelig Straffelov, Sec. 156).ED.
Senate, as the latter was originally introduced to no purpose, and was afterwards very properly repealed.
We have desired that the mere bestowal of the right of Roman citizenship should confer freedom without considering either the reason for it, the place where it was granted, the age of the person enfranchised, or anything else whatever connected with the same. And as We always endeavor to improve the condition of Our subjects, We have thought it desirable to increase the most admirable enactments of Our predecessors by means of certain additions.
CHAPTER I.
CONCERNING THE RIGHT TO WEAR A GOLD RING GRANTED TO ALL FREEDMEN IN GENERAL.
Therefore We order that if anyone, when manumitting a male or female slave, should declare him or her to be a Roman citizen (and, indeed, he is not allowed to do otherwise), he is hereby notified that, in accordance with the terms of this law, the person who received freedom shall at once, and ever afterwards, have the right to wear a gold ring, and be classed as originally freeborn; that he shall not be required to petition the Emperor for this purpose, or to observe any other formality, but all these things will result from his grant of freedom; and this Our law shall become operative from the present day. We do not criticize any previous enactment on this subject, but ratify all preceding laws, and direct that they shall remain in force, and order that the present provisions may hereafter be observed.
CHAPTER II.
CONCERNING THE REVERENCE AND RESPECT WHICH
SHOULD BE MANIFESTED BY FREEDMEN To THEIR
PATRONS, ETC.
We add that this law does not in any way encroach upon the rights of patrons, but We preserve them with reference to all kinds of persons, unless he who conferred liberty upon his freedman also granted him these rights, either under the terms of a trust, or at the time when he manumitted him; for if he made such a concession in his favor, the freedman will, for this reason, be absolutely released from the claims of patronage. Those who deserve freedom will therefore enjoy all these privileges, but they will, even after the enactment of this Our Constitution, be compelled to show every mark of respect and reverence enjoined by Our laws upon him who has honored them in this manner.
Moreover, freedmen must not lay violent hands upon their patrons, or plot against them, or commit any act whatever to their injury; and if they do, they shall be restored to their former condition, and again be reduced to slavery, in accordance with the laws promulgated on this subject. For if We have absolutely permitted no one whom-
soever, even though he may have been born free, to display ingratitude towards a donor, but in the laws which We formerly promulgated, as well as in those daily enacted by Us, have declared gifts bestowed under such circumstances to be void, why should We suffer an emancipator, who bears to his freedman almost the relation of a father, to be subjected to any ill treatment on his part, or to any rude or indecent abuse, or to suffer great loss? If, then, a patron should be able to prove by lawful evidence that either he or his children have been injured in this manner by his freedman, We restore the latter to his former condition, as soon as this has been established. For in this way We restrain all freedmen from indulging in the use of opprobrious names, or vilification, and maintain justice and equity everywhere; thereby accomplishing what is proper for a legislator to do, as well as what is acceptable to God, the freedman, and the former master. (1) Wherefore both freedmen and freeborn personswhether the right to wear a gold ring was conferred upon them expressly when they were manumitted, or whether they have obtained this privilege in consequence of the enactment of this lawmust conduct themselves just as if they were originally freeborn, and honor those who manumitted them as they ought to do, and not subsequently render themselves liable to be deprived of their liberty, as guilty of want of affection and gratitude, and condemned by law. For if they entertain sincere and unalloyed reverence and attachment for those who liberated them and their children from slavery, they will always remain freeborn, and will never again be reduced to their former condition.
CHAPTER III. WHERE A PATRON DESIRES TO MARRY A FREEDWOMAN.
Where anyone invested with any dignity whatsoever desires to marry a freedwoman, and make her his lawful wife, he must draw up a marriage contract with her. We add this sole requirement after manumission, and any children previously born, as well as those born after the dotal contracts have been executed, will be free, freeborn, and proper heirs; they will be the successors of their father, and, by the demand of gold rings, they will be released from the condition of their birth; for We make no distinction between matrimonial unions of this kind and those of other freeborn persons. The freedom of the mother, in addition to the nuptial contract, will show that the offspring of the marriage is free, freeborn, and entitled to succeed to the estate of the father.
CHAPTER IV. WHERE ANYONE HAS CHILDREN BY His FEMALE SLAVE.
Children born under such circumstances are so absolutely free that, where anyone has issue by a female slave, and desires to manumit her and enter into a dotal contract with her, the right of freedom, as well as that of proper heirs and children, will be conferred from the very moment when the marriage contract has been executed. And it
is not necessary for freedom expressly to be granted to the children, nor that they be manumitted, either with their mother, or afterwards, or previously, for We grant them their liberty solely by reason of the execution of the marriage contract. For what greater indication of the freedom of his children can a father exhibit than to show that his wife is free, and his lawful spouse, and that he has entered into a marriage contract with her?
If a soldier, when bequeathing a legacy to one of his slaves, is held to have given him his freedom by the sole fact of this bequest, how much more reason is there that a father who has made a nuptial contract should not also, by this act alone, have rendered his children free, and his lawful successors? For there is no one who will think that a man who has rendered the mother of his children legitimate would desire to exhibit such a conclusive proof of licentiousness as to leave the children whom he has had by her in servitude.
(1) We direct that these rules shall apply both to emancipators and to persons who receive their liberty, for if We do not preserve for emancipators the rights which they formerly enjoyed, We shall perhaps render men more reluctant to bestow it. We are using every effort to encourage and confirm grants of freedom, and the increase of such acts in Our Empire, for the desire of this has prompted Us to undertake great wars in Lybia, and in the West, the object of which has been the maintenance of the true religion of God and the liberty of Our subjects.
CHAPTER V.
REASON FOR THE . ENACTMENT OF THIS CONSTITUTION.
In the enactment of this constitution We do not introduce anything new, but follow Our distinguished predecessors, the Emperors. For as Antoninus, surnamed Pius (from whom this title has descended to Our times), having been petitioned by each of his subjects, and afterwards by those designated strangers, to give them the right of citizenship by making them freeborn Romans, conferred this privilege upon all his subjects; and after Constantine, the Founder of this Most Holy City, Theodosius the Younger, also bestowed upon all his subjects the right of free birth, as he had been requested to do, so also, as the right to wear a gold ring, and restoration to the original condition of freedom which We formerly granted to everyone who requested it afforded occasion for injury and excessive formality, and, besides, since those who bestowed freedom required to be authorized to do so, We now grant it equally to all Our subjects, by the terms of this law. We restore to their original freeborn status all persons who are worthy of the privilege, not separately, indeed, but We render freeborn all those who, in the future, may deserve freedom from their masters, by conferring this great and universal benefit upon Our subjects.
EPILOGUE.
As soon as Your Highness is informed of this law, which We have been pleased to enact through love for Our subjects, you will publish
it here and in the provinces, by means of special proclamations, in order that Our people may be aware of Our special regard for all their interests, and of the provision We make for their welfare.
This law shall be effective in every case which may hereafter arise, for We do not pay any attention to what has passed.
Given at Constantinople, on the fifteenth of the Kalends of February, during the fifteenth year of the reign of Our Emperor Justinian, and the Consulate of Ario.
TITLE Vill.
BEFORE WHOM THE CASES OF MONKS AND ASCETICS SHALL BE TRIED.
SEVENTY-NINTH NEW CONSTITUTION.
The Emperor Justinian to Menna, Archbishop of Constantinople, and Universal Patriarch.
PREFACE.
Being aware of an abuse which exists in this Royal City We have thought it proper to correct it by a general law, which We make applicable to this Most Fortunate City, as well as to all the provinces of Our Empire. Certain persons, desiring to corrupt the purity of the orthodox faith, bring suit before civil judges whenever they have any controversies with monks or hermits, and these judges despatch executive officers, who venture to penetrate into holy places, remove monks by force, annoy the inmates of monasteries, ascetics, and even nuns who have entirely withdrawn from the world; and, in consequence of this, great injury and confusion are caused in religious establishments.
CHAPTER I.
WHERE ANYONE ATTEMPTS TO SUMMON A MONK OR AN ECCLESIASTIC TO COURT.
Therefore We decree that when anyone is engaged in litigation with a venerated ecclesiastic, a holy virgin, or nun actually resident in a monastery, he must notify the reverend Bishop of the City. The ecclesiastic with whom he has the controversy shall be sent for, and must appear, and state his ground of defence, as decorously as possible, by means of an abbot, a responsal, or any other person whomsoever; and the bishop shall hear and examine the case with all due sacerdotal dignity, and absolutely without the assistance of civil judges, for the bishops of every city are qualified to decide honorably and sacerdotally, in accordance with Our laws and the rules of the Church, when legal proceedings are instituted against monks. For in this way those who think that they have good cause to proceed shall obtain justice, and the respect due to sacred things shall remain intact and inviolate.
CHAPTER II.
CONCERNING THE ENFORCEMENT AND OBSERVANCE OF THIS CONSTITUTION AND THE DETERMINATION OF THE LEGAL CONTROVERSIES IN WHICH MONKS ARE CONCERNED.
Litigation in which monks are involved shall be speedily disposed of. This law is of general application, and its enforcement shall be committed to the Most Glorious Prefects having jurisdiction in all dioceses, namely: those of Illyria, Italy, the entire West and those of both Romes, as well as by the Most Glorious Praetors of the People, and the magistrates of the provinces, with their subordinates; and it shall not be evaded in any way but must be observed unchanged for the honor of the most reverend monks.
As soon as Your Holiness is informed of its enactment, you will cause it to be obeyed in this Most Fortunate City and its environs, and, by means of suitable letters, will communicate it to the metropolitans of the cities (from whom you yourself have received ordination), and the latter will notify all the bishops subject to their jurisdiction; so that, by means of few notices, this law may be transmitted to every portion of Our dominions. We direct that all lawsuits in which monks are interested shall be quickly terminated, in order that their minds may not be occupied by the cares of litigation, but may be speedily freed from them, and they be enabled to resume their sacred duties.
CHAPTER III. CONCERNING THOSE WHO VIOLATE THIS CONSTITUTION.
Those who do anything contrary to these provisions are hereby notified that when a judge has presumed to render such a decision, he shall be deprived of his office, as having been guilty of an insult to Divinity, and shall, with his subordinates, be fined ten pounds of gold, to be paid into Our Imperial Treasury; and if any executive officers should attempt to serve an illegal notice, they shall be prevented from doing so, shall be detained in the places called decaneta, be subjected to suitable punishment, and not be permitted hereafter to perform their official functions.
EPILOGUE.
This law shall be applicable where anyone has a case against a most reverend monk, virgin, or nun residing in any venerated monastery. We have already enacted laws concerning members of the clergy stating the manner in which they may be sued, and these We desire to remain valid and unaltered under all circumstances.
A copy of this constitution has been addressed to John, Illustrious Praetorian Prefect of the East, twice Consul and Patrician; and another to Basilides, Most Glorious Master of the Imperial Offices; and still another to Longinus, Most Glorious Urban Prefect.
Given at Constantinople, on the sixth of the Ides of March, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE IX. CONCERNING QUAESTORS.
EIGHTIETH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect, Twice Consul and Patrician.
PREFACE.
We constantly, with the aid of God, make every provision to preserve from injury the subjects whom He, in His clemency, has placed under Our care. Therefore We enact laws that will enable them to have absolute justice, and hasten to re-establish whatever may have fallen into desuetude. Moreover, We have found certain administrations entrusted with suppressing what is not honorable, and punishing offences of inferior importance, and these duties are discharged by the Praetors of the People in this Most Fortunate Capital, whose great experience in affairs has acquired for them the approval of all the inhabitants of this Our Royal City. The benefits resulting from their administration have induced Us to consider it as worthy of the law and judicial office to investigate any other matters which are in need of correction. We have found that the provinces are being deprived of their inhabitants by degrees; and that, on the other hand, this great city is becoming much more populous on account of the arrival of vast crowds of different kinds of men, and above all of farmers, who abandon their towns and crops to come here.
CHAPTER I. CONCERNING THOSE WHO COME TO CONSTANTINOPLE.
These matters have induced Us to enact the present law, and to create an office which is, to a certain extent, an innovation, for We do not hesitate to make an allowance from the Public Treasury for the benefit of the person who will occupy it; to assign to him a sufficient number of officials; and to render him responsible for his negligence. We give this official the name of Quaestor, the one by which he was originally designated (We mean in former times), when they called those who perform such duties Ereunades. We desire those appointed to this office to be animated by the fear of God, of Us, and of the law, to seek out all persons who resort to this great city, no matter in what province they reside, or whether they be men, women, clerks, monks, nuns, advocates of foreign cities, or to whatever other civil status they may belong; and that the said magistrates shall ascertain who they are, and from what place, and for what reason they come here.
We also decree that if any of these persons are farmers, the Quaestor shall send them before the magistrates having jurisdiction over them, and the latter must threaten them, and promptly deliver them from the litigation on account of which they have visited this city, and send them back to their homes immediately after their cases have been properly disposed of.
CHAPTER II. CONCERNING FARMERS.
If cultivators of the soil, who are under the control of masters and are useful to them, should come to this Royal City, the Quaestor shall cause their masters to speedily decide the cases on account of which they have come here, and send them back as soon as they have obtained justice. Where, however, the said cultivators of the soil are here on account of some controversy with their own master and conduct their case against him, and there is a multitude of them, the Quaestor shall immediately send the greater number back to their province, and only allow two or three to remain, who, in conformity with the rule relating to litigants, shall conduct the proceedings; and he shall urge the magistrate having charge of the case to dispose of it as quickly as possible, in order that the time of their stay may not be prolonged, for their presence here is superfluous, and the cessation of their agricultural duties is injurious to their masters.
CHAPTER III.
But if it is not a multitude of farmers, but other persons, or even individual litigants, who have brought suit against one another, who are sojourning in this city, the Quaestor shall not remain idle, but shall use every effort to prevail upon judges to hasten to release these persons from their contentions, and when freed from their lawsuits, send them back to live in their own towns and provinces. If, however, when the magistrate has appointed judges to hear a case or the masters of the said farmers have been appointed judges by Us, in order that the said litigants may have their cases decided, and the judges or masters defer doing this, and do not speedily release them from the litigation in which they are involved, then the Quaestor himself, who has been appointed by Us, shall call the litigants, or those who demand something from their masters before him, and examine whether their claims are meritorious or not, and quickly dispose of the matters on account of which they have repaired to this great city, and send them back to their country, and to the places from whence they came; nor shall any question of privilege or contest of jurisdiction be available under such circumstances.
CHAPTER IV.
But where any persons who are not involved in litigation have come to this city to obtain a livelihood, and improve their condition,
or if, for the reason they have not sufficient property to enable them to accomplish what they desire, they should commit crime, the Quaestor shall examine their physical condition, and ascertain whether they are in good health and able to work; and if they are slaves, he shall learn to whom they belong, and shall, even if they are unwilling, cause them to be restored to their masters; but if they are free, he must return them to the cities or provinces in which they were born.
CHAPTER V. CONCERNING STURDY BEGGARS.
When the persons in question belong to this neighborhood, and, being strong in body, do not lead a proper life, the Quaestor shall not permit them to be a burden to the community, but shall see that they are promptly turned over to the officials having charge of the public works, that is, to the directors of the bankers, of the posts, of the public gardens, or to other different bodies of trades or manufactures, in which they can at the same time work, be supported, and change an idle life for one that is preferable.
(1) If any such persons should refuse to work in the factories to which they are assigned, the Quaestor shall drive them out of this Royal City. We direct that this shall be done for the sake of being indulgent to them, in order that idleness may not induce them to commit illegal acts, and the laws not subject them to punishment, and that they may not render themselves liable to be brought before Our judges. Still, We order that persons of either sex, who are not sound in body, or are seriously ill, shall not be molested in Our city, but, on the other hand, that they shall be cared for in an humane manner.
Moreover, the Quaestor shall ask each one of those who resort to this city what reason has induced him to do so; so that, this being ascertained, he will be able to make a proper disposition of them, and that those who are lazy may not remain here, but, after having finished their business, they may return to their own provinces.
CHAPTER VI. CONCERNING FEES.
If any inhabitant of this Royal City, or even a stranger, should accuse certain persons of having caused him loss and injury, by means of what are called sportulss, and he alleges that the said persons have in this way evaded Our laws, or have served notice on him without an order of court, the Quaestor shall diligently seek the individuals who have committed this offence, and, no matter what may be their rank or office, or to what employment they may have been assigned, he shall, at once, cause them to be arrested, and after they have been convicted by proper evidence, he shall subject them to the punishment prescribed by Our laws. No judge can interfere to protect them, and the Quaestor must use as much diligence in preventing those from
being injured who have suffered injustice, by causing what has been taken from them illegally to be returned, as well as in collecting the fines prescribed by Our Constitution, and of seeing that they are paid, where We have decided that this should be done.
CHAPTER VII. CONCERNING FORGERY.
In addition to this, when anyone brings a complaint of forgery, or what is called false writing, the Quaestor shall, under all circumstances, make an investigation; shall cause those who are accused of the crime to be arrested; and shall punish them in accordance with the evidence; for We authorize him to hear and determine such cases. But where anyone injured in this manner has, in conformity with the terms of the present law, applied to the Quaestor and not obtained justice, and he is, in consequence, compelled to accuse him to Us, or to the government, the Quaestor is hereby notified that he will personally be responsible for the property claimed by the injured party whom he neglected to treat with equity, and that he will, in addition, incur Our righteous indignation, because he had the presumption to disobey Our orders.
CHAPTER Vill.
CONCERNING THE SALARIES OP THE QUAESTOR AND His SUBORDINATES.
The official appointed to this office shall always take the greatest pains to avoid corruption, and see that the attendants of his court are not avaricious, and ready to accept disgraceful gifts; and he must take measures to see that they act honestly and liberally, and if he should find that in the discharge of their duties they have committed any unlawful act of this kind, he must punish them, and in this way exhibit his firmness and his integrity.
We allow ten pounds of gold to the Quaestor for his expenes; a hundred solidi to his counsellor; and three hundred and thirty solidi, by way of salaries, to his attendants. We order that a list of these different salaries shall be appended to the present law; and We desire that the Quaestor, his counsellor, and his officers, being satisfied with the allowance made to them by the Treasury, shall refrain from accepting anything else. In this way they will show their respect to God and to Us at the same time, by enjoying the advantages of Our foresight, discharging the duties of an administration of celestial origin, and deciding cases readily and in accordance with law.
CHAPTER IX. CONCERNING MAGISTRATES AND GOVERNORS.
We grant authority to the Quaestor to resist magistrates when necessary, to report their acts to Us, and to do what he considers
proper under the circumstances; in order that, not being accused of weakness or want of resolution, he may appear worthy of the judgment which We have formed concerning him. We also give him permission to despatch public letters to the governors of provinces, notifying them to compel persons who have come here without legal process to return to their own country where they have been sent away by him; or to enable the said persons to receive the lawful aid to which they are entitled.
Where, however, persons who have been relieved of litigation, and have returned to their province, again repair to this Most Fortunate City, the Quaestor shall inflict suitable punishment upon them, and forcibly send them back once more. In this way Our distant cities will remain inhabited, and the capital be relieved of the confusion now existing therein.
If the Quaestor should deem it advisable to station certain of his officers in that portion of the territory of this city, which is situated beyond the sea, in order to be informed of the movements of those who come from a distance, and to return to the provinces persons who are journeying thither, he can do so, having in view whatever is for the public welfare.
CHAPTER X.
We decree all these matters with the intention of benefiting Our subjects, and to prevent them from abandoning their provinces and coming here to ruin themselves and die, after having been deprived of their property, as well as forfeiting the right to be buried with their fathers; hence preceding legislators, and those who founded the government, carefully provided for this contingency. In those days measures were taken to prevent idleness; the magistrates kept accounts of all foreigners; and Our enactments on this subject are not new or thoughtlessly promulgated, but, on the other hand, they are of ancient origin; although it is true that sometimes, through culpable negligence, they were not enforced, and would have run the risk of being gradually forgotten and entirely destroyed if We, knowing them to be useful and advantageous, had not again introduced them into the government. For, as We wish the Quaestor to be incorruptible, and his subordinates to accept nothing beyond the salaries which We assign to them, We order that they shall be entirely exempt from pecuniary obligations; that they shall pay nothing for their commissions, their emoluments, or anything else, either to Our Imperial Palace or to the Court of Your Highness; and that they shall not, either now or in the future, contribute anything on account of any commissions or allowances of any kind, or for any emoluments allotted to them; but We desire that whatever is bestowed by Our liberality shall be given absolutely and without any restriction; for he who is appointed to this office should act in such a way as to benefit the entire community.
EPILOGUE.
Therefore, as soon as Your Highness is informed of what it has pleased Us to enact, you will hasten to carry it into effect, and will approve of Our foresight, because We have introduced a new office, and have constantly in view the welfare of Our subjects.
Given at Constantinople, on the seventh of the Ides of May, during the twelfth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE X.
CONCERNING EMANCIPATION. A CONSTITUTION WHICH RELEASES FROM PATERNAL CONTROL A SON WHO is INVESTED WITH OFFICE AND THE EPISCOPACY.
EIGHTY-FIRST NEW CONSTITUTION. The Emperor Justinian to the Holy Senate of this Royal City.
PREFACE.
We constantly reflect upon what can contribute to the welfare and the adornment of the government which God has confided to Us. Therefore We have recently drawn up a law with reference to Our Most Glorious Patricians, which declares them to be free from paternal control when office is bestowed upon them; for We have no thought that it was becoming for those whom We raise to the dignity of Our Senators to be subjected to the authority of others. Moreover, if the act of emancipation was formerly accomplished by means of what were called legal actions, children were released from the ties of paternal control through abuse and blows, how much more reason is there for the most honorable offices bestowed by the government, the highest authority of all, to deliver them from such restrictions?
Having at present the most indulgent and favorable opinion of the Glorious Consuls, whose names always follow that of the Emperor, as well as for those who are only honored by consular commissions, and for magistrates who can release citizens from curial requirements, for instance, the prefect, and generals of the army (only having reference, however, to such magistrates as are in active service), We hereby decree that every similar charge or office obtained by any persons whomsoever, where such charge or office releases persons from obligations vto the curia, shall also liberate those who are under the control of their fathers or grandfathers. For if We have provided that when a slave is worthy of an office, and his master is aware of the fact, or he is invested with any dignity whatsoever, he shall immediately be freed from the power of the latter, and be restored to the condition of free birth, would it not be unjust for a son who has rendered himself worthy of a position of this kind not also to be released from paternal authority?
CHAPTER I.
Therefore, in providing this most honorable law, We direct that when ordinary consuls are under paternal control, they shall become independent from the very moment in which their offices are conferred upon them; and that where persons who, while under the control of their fathers, are honored by the government by the bestowal of consular letters, these letters shall also be the means of rendering them free.
We desire that the same rule shall apply to Our Most Glorious Praetorian Prefects, whom We may appoint in all dioceses, as well as to those whom We may promote to the Prefecture of the two Roman Capitals, or to any other military magistracy whatsoever; for We consider it unworthy of Our laws and of Our age for a magistrate who has jurisdiction over such a large number of persons, and has so many officials under His command, not to be included in the number of those who enjoy complete independence.
(1) Generally speaking, however, as has already been stated, We decree that every office or magistracy which has authority to free anyone from curial obligations can also liberate those who are the recipients of public honors from the power of others, and make their fathers appear even more noble. Where persons honored with offices of this kind throughout the Empire are under the control of their fathers, and We do not release them from their authority, they should petition the Emperor for this purpose; and whether the said persons now enjoy the honors or dignities which We have previously enumerated, or whether this may take place hereafter, they shall acquire the right of independence; the father shall give a peculium to the son, and leave him to the exercise of his own judgment, and shall furnish him with means to creditably administer the public employment conferred upon him by the government, and justify the opinion he entertains of him. By doing this the father will deserve great praise, and the distinction obtained by his son will be a source of rejoicing to him.
CHAPTER II.
PERSONS WHO ARE RELEASED FROM PATERNAL CONTROL
BY REASON OF THEIR OFFICE SHALL RETAIN THEIR LEGAL
RIGHTS UNIMPAIRED.
We provide by this law that the same results shall not be accomplished which are effected by emancipation, but We confer a certain privilege with reference to the exercise of such powers. For We do not wish him who becomes his own master to lose any of his lawful rights, but that he shall always belong to his own family, and be entitled to the legal share of his father's estate which can be claimed by children, and also, that the rights of nature shall be preserved. The children of fathers who have been invested with office shall come under the control of the latter after the death of their grandfather, just as if their fathers had become their own masters by the death of their
fathers, and not in accordance with the present law. And it is only proper that officials should, after the death of their own fathers, have their children subjected to their authority, in order that they may not forfeit any of the privileges conferred by the Government, and because it is just that the benefits bestowed upon men by God, or the Emperor_who comes immediately after himshould remain unaltered, and free from every kind of artifice or restriction.
CHAPTER III.
A SON SHALL BE RELEASED FROM PATERNAL CONTROL BY THE BISHOP.
It is clear that no one is ignorant that bishops become their own masters by the mere fact of their consecration; for how can the spiritual fathers of all persons be under the control of others? Hence it is expedient that they should enjoy an honor of this kind, as well as the benefit of this Our legislation.
EPILOGUE.
Therefore, 0 Venerable Fathers, We desire that the provisions which We have enacted for the promotion of your reverence and dignity shall forever shine in Our Republic, as an example of the generosity which We have manifested towards Our Senators, Consuls, and
Bishops.
Given at Constantinople, on the fifteenth of the Kalends of April, during the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE XI.
CONCERNING JUDGES, AND THE FACT THAT No ONE CAN BE SELECTED A JUDGE WHEN AN OATH is TAKEN TO ABIDE BY His DECISION. JUDGES SHALL RECEIVE ALL APPEALS AND THEY SHALL NOT STOP IN THE MIDST OF THE TRIAL OF A CASE IN OBEDIENCE TO A PRAGMATIC SANCTION DIRECTING THEM How TO DECIDE.
EIGHTY-SECOND NEW CONSTITUTION.
The Same Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
A law was enacted by Zeno, of pious memory, with reference to magistrates, which introduced many alterations in subsequent times; but this law has almost entirely fallen into disuse, for those who were appointed ordinary judges are all dead, and most of the decisions ren-
dered by them on points of law are no longer cited, as they have not sufficient merit to deserve preservation, and this having been ascertained, practice has produced other rules.
Therefore We, being aware that the entire order of judges is in confusion, have deemed it necessary, by means of this law, to determine how proper procedure may be restored. For We have not considered it necessary to preserve the names of certain judges, and especially of those who are ignorant of law, and without any experience in the trial of cases. Assessors are present with Our magistrates for the purpose of explaining the laws, and assisting them in their duties, for the reason that many of these magistrates are often absent on account of their being required to preside in Our court, and their presence is supplied by the assessors. But when judges do not hold other offices, and have no duties to discharge in Our court, and are unable to distinguish what is equitable, they dishonor the judicial office; and would it not be extremely injurious to the government not to entrust the disposal of litigation to those who themselves ought to know what to do, but permit them to seek for others from whom they may be able to learn what they themselves should be familiar with in rendering judgment? These things have, with good reason, induced Us to enact the present law, as We consider the interests of Our subjects, and desire that legal controversies in which they are interested should readily be heard, and ended without delay.
CHAPTER I. CONCERNING JUDGES SELECTED BY JUSTINIAN.
Hence We have absolutely done away with the ancient order established by the Constitution of Zeno, of pious memory, which was applicable to certain judges in every Praetorian jurisdiction. We have determined to choose for the judicial office persons of good repute, who shall have jurisdiction of all cases, and, with this end in view, We hereby appoint as judges Anatolius, a distinguished man, who for a long time has practiced as an advocate, and who is now one of the Advocates of the Treasury; Flavianus, who is also an advocate of the Treasury; Alexander, Stephen, and Menna, most eloquent advocates and ordinary judges of your tribunal; and another Alexander, whom We have known as an ordinary judge attached to the court of the Most Glorious Praetor and Master of the Imperial Offices, and two other advocates of your bar, Victor and Theodore of Quizicum. These are the judges whom We have selected from among the advocates.
(1) But as it is proper that the Superior Judges should be exalted in rank through their experience in numerous cases, and by long exercise of important magisterial duties, We have noted among the Most Glorious Patricians, Plato, who long occupied the office of Urban Prefect, and has been appointed to this prefecture for a second term; and also the Most Glorious Victor, who has been Governor of Great Greece, as well as of the noble city of Alexandria, has discharged the
duties of the Urban Prefecture of the city, and is thoroughly learned in the law; and Foca, already numbered among Our judges, a man worthy of all praise, who knows how to control himself, and, in addition to this, is well versed in the law. With these We also include the Most Magnificent Marcellus, whose observation of the rules of justice and attachment to Us has excited Our admiration; for We know that these are the qualities of a magistrate which are demanded by almost all who apply to Us, and that he makes use of the services of a counsellor of renown to enable him to decide cases in conformity with the laws; that is, the eminent Appio, Advocate of the Treasury, who bears an excellent reputation not only among others, but also with Us.
CHAPTER II.
ONLY JUDGES APPOINTED BY THIS LAW SHALL BE PERMITTED TO DELEGATE CASES.
We desire judges appointed by Us to take rank after Our own magistrates, and We shall delegate to them such matters as We may think proper. If, however, one of Our judges should desire to delegate cases, he must assign them to the ordinary judges, but to no one else; unless he has submitted certain special points to his councillors for consideration, and then he shall render a decision with reference to the entire matter.
CHAPTER III.
CONCERNING THE ORDER AND THE TIME IN WHICH JUDGES SHALL SIT.
Ordinary judges shall sit continually, they shall hold court in the Royal Basilica and in the various halls where they at present preside, they shall hear cases in the morning, in the middle of the day, and in the evening, and shall take cognizance not only of matters which may be brought before them subsequent to the enactment of this law, but also of any other proceedings instituted under former rules, before other magistrates, and with which We have now entrusted them with jurisdiction.
CHAPTER IV. CONCERNING APPEALS.
It must be observed that where appeals are taken from decisions rendered' by ordinary judges, or by the Most Eminent Magistrates, and the hearing of said appeals is delegated by Us in accordance with the value of the property involved, or in conformity to the usual practice, this assignment shall be to other magistrates, under the rules laid down by the Imperial Constitution. But where any of Our Most Glorious Magistrates delegate cases for decision to the judges whom We have just mentioned, appeals from said cases shall be returned to them, and be disposed of by them in their prescribed order.
CHAPTER V. CONCERNING THE JURISDICTION OF ORDINARY JUDGES.
All ordinary judges shall hear and determine cases by annotation, where the value of the property involved does not exceed three hundred solidi. Thus actions will be more promptly decided, and litigants will be freed from circuitous jurisdiction and protracted delay. It is, however, evident that although these judges may hear cases by annotation, they must still render written decisions which will set forth their opinions, appeals from which will be forbidden to no one, unless a party may desire to appeal for the third time in succession, or has been judged contumacious; for under these circumstances he cannot proceed.
CHAPTER VI.
PARTIES SHALL BE ENTITLED TO THE TERM OF Two
MONTHS IN WHICH TO FILE AN APPEAL, BUT AFTER THE
LAPSE OF THAT TIME No CORRECTION OF A DECISION
CAN BE MADE.
We desire that in this great city, appeals from ordinary judges shall be taken within two months, which term is final, and after it has expired, what the laws call the correction of a decision can no longer be made.
CHAPTER VII.
THE SCHEDULE OF FEES INTRODUCED BY THE LAW OF JUSTINIAN SHALL BE PRESERVED.
No one shall venture to disobey what We have decreed with reference to the fees and costs of litigation, but all magistrates must remain content with what is given them; and in case they violate the law, they will have reason to apprehend the punishment prescribed by Our Imperial Constitutions.
(1) There are certain officers whose number, dependent upon the nature of their employment, has remained fixed up to the present time. Thus, each judge is entitled to two clerks, and two bailiffs, and no larger number can be assigned to him. These officers should be wealthy and persons of good reputation, in order that they may not be tempted to commit crime, or act dishonorably for the purpose of gain. In the selection of executive officers attendants, and clerks employed by judges, the latter shall be held strictly responsible, and if they commit any offence the magistrate will be liable, and must indemnify persons who have been subjected to any injury on their part. When a judge ascertains that some illicit act has been committed by one of his officers, he shall expel him from his court, and appoint another for whom he will be equally responsible, as We have previously stated.
CHAPTER Vill.
ANOTHER JUDGE SHALL BE APPOINTED BY THE EMPEROR TO TAKE THE PLACE OF ONE WHO HAS BEEN REMOVED.
Where any one of the most glorious or most eloquent judges has been removed from office for any cause or reason whatsoever, his place shall not be supplied by anyone but the Emperor, by whom he will be charged with the hearing of cases.
CHAPTER IX.
ORDINARY JUDGES SHALL BE ENTITLED TO Two AUREI AT THE BEGINNING OF A CASE AND Two AT THE END.
On account of the work performed without compensation by Our ordinary judges, We decree that in every case tried before them even if they have been appointed to hear it by the Emperorthey shall receive two aurei from each party to the suit at its beginning, and also two at its end. We, however, desire (as Our predecessors also provided) that they shall be satisfied with this amount, and We preserve in their entirety the rights granted to certain persons concerning the diminution of the expense of litigation; for what We now decree only applies to cases where the amount involved exceeds the value of a hundred aurei. For We do not intend that judges shall collect anything in cases where the amount is less than this; for if they should receive compensation in actions where very little is at stake, success would result in considerable loss to the victorious party.
We do not, however, limit Ourselves to this, but We also provide for these magistrates out of Our own Treasury, hence We assign to each ordinary judge two pounds of gold, which he shall receive from the office of Your Highness; and We wish him to remain satisfied with this sum and not allow justice to be purchased, but absolutely to despise money. On this account We have preferred to remunerate them out of the Treasury, so that each judge, being content with Our liberality towards him, and with the four aurei which he will receive for every case, may keep his hands pure towards God, Ourself, and the Law, always bearing in mind the rules prescribed by former legislators on this subject.
CHAPTER X. , THE JUDGE MUST EXAMINE THE BILLS OF COSTS.
Judges must, by all means, examine the bills of costs. And, for the reason that this regulation has been very properly established by Zeno, of pious memory, We have not disdained to include it in this Our present law. Hence, what has been decreed by this Emperor shall remain in full force, and We only add that if the judge should tender to the successful party the oath having reference to the costs, that is to say the amount that he has expended on account of the lawsuit
(which the laws call taxatio), he to whom the oath is tendered shall take it, and the judge shall not be authorized to fix a smaller sum than that which was sworn to, or to exhibit more indulgence than the law prescribes under such circumstances. If, however, a judge should conclude that the costs ought to be taxed in accordance with the nature of the suit, he must state this in his decision.
All other matters relating to appeals, as well as to the rejection of judges, where the contents of appeals have not been filed promptly and as required, but this has taken place after twenty days have elapsed, and anything else that We have decreed with reference to this subject shall, as We have previously stated, remain in full force.
CHAPTER XI.
ARBITERS SHALL BE CHOSEN BY COMMON CONSENT AND NOT UNDER OATH.
Numerous questions are addressed to Us by persons who have selected judges absolutely ignorant of the law, and wholly destitute of experience, and the said persons swear without the slightest hesitation that they are content with the arbiters whom they have agreed upon, while no one else has the slightest confidence in them, and they finally take the oath to abide by their decision, although the arbiters whom they have chosen are neither acquainted with what is just, nor understand how to decide it. And as such persons, after they find that they have been injured, desire their cases to be heard a second time, thereby being unmindful of what they swore to, this matter seems to Us worthy of correction.
(1) And because that We have learned from experience that this is not an advisable course to pursue, We decree that hereafter no arbiter shall be appointed and decide any case, by virtue of the oath taken by the parties to the action to abide by his decision, in order to prevent men from being compelled to perjure themselves on account of the ignorance of their judges; but those who choose an arbiter or arbiters shall do so with a penalty, so that the parties may be responsible to one another, and be obliged either to accept the award, or pay a fine, if one of them should wish to appeal; for then the one who is dissatisfied with the judgment will be authorized to appear before another court.
Those of Our judges to whom an appeal is taken under such circumstances shall begin proceedings by exacting the penalty, which they shall collect from those who have rendered themselves liable, and pay it over to the persons entitled to it. If the litigants who chose arbiters should not observe this rule, do not stipulate for the payment of any penaty, and consider the surety of the oath as sufficient, they are notified that as they have designedly acted in this way, the penalty of perjury shall be inflicted upon them by God. Where, however, they suffer from the ignorance of their arbiter, their oath will in no wise prejudice them, for, in this instance, We do not wish the penalty for perjury to be inflicted upon anyone, nor do We permit litigants
to be any longer injured by the ignorance of arbiters through the respect due to an oath.
Everything which has been provided by ancient legislation, and all that We Ourselves have enacted concerning judges appointed by common consent, or with reference to arbiters, without the oath of the parties being necessary, shall remain in full force, and shall by no means be repealed by this Our law.
CHAPTER XII.
CONCERNING APPEALS AND THE REQUIREMENT IMPOSED UPON MAGISTRATES TO RECEIVE THEM.
We order Our judges, by all means, to receive appeals. No one shall be authorized to reject an appeal, with the exception of Your Eminence, to whom from the beginning this privilege is conceded, Your tribunal being a court of last resort.
CHAPTER XIII. CONCERNING DIFFERENT LETTERS ADDRESSED TO JUDGES.
Every judge or magistrate invested with judicial authority shall observe the laws, and render judgment in conformity to them; even if, in the meantime, he should have received an order, an Imperial notice, or a pragmatic sanction from Us directing him to decide in a different manner, for We desire that what Our laws prescribe shall be observed. Where a case is taken up on appeal, the judge shall receive it and shall, by all means, entertain the appeal, and shall not be excused from deciding it in any instance where the parties have the right to appeal, but he must come to the relief of all. In this way he who finds himself injured by a decision can have it corrected either by the appellate judges, or by Ourselves, if the appeal is referred to Us.
CHAPTER XIV.
CONCERNING REFERENCES.
If the judges who hear a case should think any point to be ambiguous, We grant them permission to communicate it to Us, and consult Us and in this way be informed of whatever is necessary, and be enabled to explain what should be done, so that just and reasonable decisions may be rendered by them.
EPILOGUE.
Therefore Your Eminence will publish here in the Imperial Basilica, and in the other parts of Our Royal City, the provisions which it has pleased Us to enact for the welfare of Our subjects, in order that they may become known to all persons, and that they may learn that We are using every effort to be useful to them, as well as to treat them with equity.
Given during the Consulate of Ario.
MEMBERS OF THE CLERGY SHALL FIRST BE SUED BEFORE THEIR OWN BISHOPS AND AFTERWARDS BEFORE CIVIL
JUDGES.
EIGHTY-THIRD NEW CONSTITUTION.
The Same Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Having enacted many Imperial Laws concerning bishops and other orders of the clergy, as well as with reference to different members of the priesthood, and having lately published a constitution by which We have provided that monks shall be sued only before the bishops under whose supervision their monasteries are placed, We have requested Menna, Archbishop of this Most Fortunate City, and Universal Patriarch, to grant the following privilege to the most reverend members of the clergy; namely, that if any person should bring an action for money against one of them, he must first apply to the archbishop having jurisdiction over the ecclesiastic, who shall direct the latter to appear before him, and a verbal decision shall be rendered; and when this has been done, the said ecclesiastic shall not be subjected to further annoyance or be brought before a civil tribunal, or be obliged to desist from the performance of his ministerial duties; but the case shall be determined without any expense, and a written decision shall not be rendered, unless the litigants desire and demand it, and the parties shall be released from the necessity of making arguments.
(1) When, however, on account of the nature of the case or for any other reason, it is not possible for the bishop to decide it, then permission shall be granted to appear before the civil judges, and all the privileges which the Imperial Constitutions confer upon the most reverend members of the clergy shall be maintained, the case shall be heard, an examination made, and judgment rendered. In this way the case will become familiar to the illustrious judges who can decide it.quickly and magnanimously, with due regard for Our Constitutions and laws; and, under these circumstances, there will be no reason for members of the clergy not to manifest the respect which they owe to their superiors, for they must appease God and observe sacerdotal propriety; nor shall they be detained before the tribunals by their controversies, or subjected to the annoyances which litigants are usually compelled to undergo.
(2) Where, however, ecclesiastics are sued in criminal cases, or even in civil ones, this shall be done before competent judges, and in the provinces either before their Governors or magistrates. The proceedings shall not be protracted for a period longer than two months after they have been begun, for We desire them to be concluded as rapidly as possible. It is perfectly clear that if the Governor of the
province should find the defendant guilty, and decide that he ought to be punished, the ecclesiastic must first be stripped of his sacerdotal office by the bishop, and then be placed in the hands of the law.
CHAPTER I.
When an offence committed by an ecclesiastic requires sacerdotal castigation and fine, the bishop shall take cognizance of it without the assistance of the illustrious provincial judges, as We do not desire civil magistrates to hear cases of this kind under any circumstances, for they must be tried ecclesiastically, and the souls of the delinquents punished by means of an ecclesiastical fine, in accordance with the sacred and divine rules which even Our laws have not disdained to follow. Where, however, any actions have already been begun, they shall be tried according to the preceding practice, and be promptly disposed of. All the provisions which We have heretofore enacted, whether with reference to the most holy churches, or the bishops, clergy, or monks, shall remain in full force.
EPILOGUE.
Therefore Your Eminence will, by means of suitable proclamations, communicate to all persons the matters that We have seen fit to include in this Imperial law, which shall be perpetually observed.
Given at Constantinople, on the fifteenth of the Kalends of April, during the reign of Our Lord the Emperor Justinian, and the Consulate of Apio.
TITLE XIII. CONCERNING FULL AND HALF BROTHERS.
EIGHTY-FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Nature, everywhere inclined to the production of numerous innovations (this prelude has often been employed in legislation, but will be constantly repeated until the points to which it gives rise are finally settled), has induced Us to enact many laws. The ancient authorities deriving their opinions from the ancient law have discussed direct and collateral successions, which opinions have come down to Us; We have corrected a great many of these, and at present a question of the same kind has been proposed to Us for solution.
(1) A certain man married a wife and had children by her, and she having died, he married another, by whom children were also born to him, who were related on the father's side, but not on the mother's; then the man contracted a third marriage, by which he also had issue, and, after his death, his widow married a second husband
by whom she had children, who, instead of being related by blood on the father's side, were only related through the mother to those born to the first husband; and it happened that after the death of the mother, a brother born of the third marriage died childless, and intestate, leaving several brothers, some of whom were related on the father's side, others on the mother's side, and others again on both sides. This is, to some extent, a new case produced by Nature. We shall, under such circumstances, be permitted to provide for others, which may originate through different marriages, either by the death of the husband or that of the wife, or as the result of some other legal separation. The question to be solved is, whether all the brothers who are related on the father's or mother's, or on both sides, should be called to the succession of the deceased brother.
CHAPTER I.
Therefore, after having examined all the ancient laws which We have compiled, as well as those which We Ourself have enacted on this subject, We have not found that this question was raised; hence it is proper to settle it by means of a law, and to consider which one of the brothers was related to the deceased by the rights of cognation, which We have, in certain instances, assimilated to legal rights, for the reason that others were joined to him by these same legal ties; and formerly, when some brothers were related to the deceased through the father, and others through the mother, and still others were assisted both by Nature and by law because they were the issue of the same fathers and the same mothers, and the mark of full brothers shown upon them from every side; a brother of this kind desired to release from litigation persons entertaining a doubt as to the law, he made a will, and having thus manifested his wishes, those whom he appointed his heirs would be called to the inheritance. But as in this instance, the brother in question either was unwilling or unable to do this (for innumerable anxieties and sudden deaths are the common lot of mankind), the present law will settle the point.
(1) It therefore provides that brothers related on the side of both father and mother are more entitled to the succession of the deceased than those who are related on the side of only one of their parents; and the singular variety of the operations of Nature does not permit Us to hesitate, but We consider this conclusion to be just, and decree that it shall prevail; as it gives the preference to full brothers, and does not suffer others, whose title is inferior, to be placed on the same footing with them.
(2) Many reasons have impelled Us to adopt this opinion. In the first place, one of Our laws provides that if a son should die without leaving any children, and any maternal property should be included in his estate, which was not acquired by his father through a nuptial contract or in any other way, the brothers who are the issue of the same marriage shall be called to the inheritance; and after them, others born of a preceding marriage; and next, the father; which shows that Our legislation has, for a long time, approved of such a
disposition. For if, during the life of the father, the brothers related through both their parents take precedence of their father, and children who are the issue of another marriage, the result is that, although the father may no longer be living, but only the brothers survive, those who are related on both sides will be preferred to the brothers who are only related to the deceased through a single parent. Hence it is proper that what has long since been settled with reference to maternal property, or that derived from a nuptial contract and which was not acquired by the father, should remain in force, and be observed, even with respect to the other property of the deceased, and this has been decreed by Us.
Therefore in this instance the law shall not be altered, and, as in the case stated, there are three marriages, the unusual condition originating in Nature will offer no impediment, even if anyone should suggest that there were only two marriages, and that some of the brothers were related on the mother's side, and others related on both sides; or where the objection was made that there were more than three marriages. This constitution shall be applicable to all cases of this kind where there are several kinds of brothers; and We decree that those who are related to the deceased on both sides shall exclude those who are only related to him on one.
CHAPTER II.
Where, however, this is not the case, but another arises where a brother, when dying, leaves brothers only on his mother's, or on his father's side, in this instance, the question must be decided by former laws which have treated of their successions. This law is not only applicable to this case, which has given rise to the question, but also to all others which may occur hereafter. Where, however, there are other cases which have already been disposed of either by a judicial decision or a compromise, they shall be finally terminated, and the relief granted by this constitution will be of no advantage to them.
EPILOGUE.
Your Eminence will, by means of suitable letters, hasten to communicate to all persons the matters which We have seen fit to include in this Imperial Constitution, and see that they are observed for all time.
Given at Constantinople, on the fifteenth of the Kalends of June, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE XIV.
CONCERNING ARMS.
EIGHTY-FIFTH NEW CONSTITUTION.
The Emperor Justinian to Basilides, Most Glorious Master of the Imperial Offices.
PREFACE.
Always invoking the aid of Omnipotent God and Our Saviour Jesus Christ, We exert every effort to preserve from all injury and calumny the subjects whose government God has entrusted to Us, and to prohibit the wars which men privately conduct against one another; for, by means of these wars, they cause much reciprocal suffering and are exposed to the double penalty of mutual injury, as well as of undergoing the punishment prescribed by the laws.
CHAPTER I.
Therefore, desiring to prevent men from killing each other, We have thought it proper to decree that no private person shall engage in the manufacture of weapons, and that only those shall be authorized to do so who are employed in the public arsenals, or are called armorers ; and also that manufacturers of arms should not sell them to any private individual.
Nor do We permit any persons who, styled deputati, are enrolled in the army for the purpose of caring for the arms and are paid out of the Treasury, to manufacture or sell them to anyone whomsoever; but We desire that they shall only have charge of the arms of soldiers, in accordance with the duties assigned to them. If, however, they should manufacture any new weapons, these shall be taken from them, and either deposited in Our Imperial arsenal or in the armory.
CHAPTER II.
We also desire that those who are called battistarii, and whom We have stationed in different cities, and authorized to manufacture weapons, shall only repair and place in good condition those belonging to the government, which are deposited in the public arsenals of each town. Where any workmen have manufactured arms they must surrender them to the baMistarii, to be placed with those belonging to the public, but they must by no means sell them to anyone else. The bal-listarii shall, at the risk of the municipal magistrates of the cities to whom they are subject, observe what We have decreed, and the responsibility for this, as well as for the preservation of the public arsenals, shall attach to these magistrates; and where any of the workmen called deputati, or armorers, have been detected in selling weapons, the local magistrates shall subject them to punishment; shall deprive the purchasers of these weapons without refunding the price paid for them; and shall claim them for the benefit of the public.
CHAPTER III.
Therefore, God directing Our thoughts, We decree by the present law that no private individual, or anyone else whosoever shall, in any province or city of Our Empire, have the right to make or sell arms, or deal in them in any way, but only such as are authorized to manufacture them can do so, and deposit them in Our armory.
We order that this rule shall be obeyed by Your Highness, as well as by those who may succeed you in office, and We appoint five of the chief chartularies subject to your authority in the Bureau of Armorers, who are skillful and of good repute, who shall be charged on their own responsibility to seek men who are manufacturing arms in this Most Fortunate City, and in the other towns of Our Empire, in order to prevent private persons, or anyone else whomsoever, from doing so, with the exception of workmen employed by the armory; and in order that, if they should find, anywhere in any place, private individuals who are rash enough to make any weapons, they may seize them and deposit them in the Arsenal of the Treasury. But if among private workmen the said chartularies should discover any persons who are thoroughly skilled in their trade, they shall employ them in the manufacture of arms, if the workmen are willing, and shall inscribe their names upon the list of armorers, and notify Us of this fact, in order that the said workmen may be assigned by an Imperial Rescript to the Public Arsenal, for the purpose of manufacturing arms, and receive remuneration from the Treasury. If the aforesaid persons scrupulously comply with what We have ordered, private individuals residing in towns, or peasants who are living in the country, will not be permitted to make use of arms against one another, thereby endangering their lives; men will cease to commit homicide; work on public buildings will not be suspended; and the fear of death will no longer compel the cultivators of the soil to resort to flight.
(1) Therefore those selected from the above-mentioned Bureau of Armorers, who are directed by Your Highness to prevent private persons from making weapons, shall be sworn by the local magistrates, their subordinates, the defenders of towns, and decurions, that they will allow nothing which We have forbidden to take place in the future, and that they will comply with the provisions of the present law, for the said magistrates will be liable to a pecuniary penalty, as well as a corporeal one, if they should violate it.
We order that, if the judge of the great City of Alexandria should fail to observe these provisions, he shall be liable to a fine of twenty pounds of gold, and shall be deprived of his office. His court shall also incur a similar penalty, as well as be subjected to capital punishment. So far as the magistrates of other provinces are concerned, they, together with their courts, shall incur a fine of ten pounds of gold and the loss of their offices. The defenders of municipal magistrates of cities shall pay a fine of three pounds of gold, and run the risk of being put to death if, after having learned of violations of this law; they permit them to remain concealed instead of punishing them, or notifying magistrates who can do so.
CHAPTER IV.
But in order that what has been forbidden by Us to private persons and all others may become clear, We have taken pains to enumerate in this law the different kinds of weapons whose manufacture is forbidden. Therefore We prohibit private individuals from either
making or buying bows, arrows, double-edged swords, ordinary swords, weapons usually called hunting knives, those styled zabes, breast-plates, javelins, lances and spears of every shape whatever, arms called by the Isaurians monocopia, others called sitinnes, or missiles, shields, and helmets; for We do not permit anything of this kind to be manufactured, except by those who are appointed for that purpose in Our arsenals, and only small knives which no one uses in fighting shall be allowed to be made and sold by private persons.
Your Highness will publish this general law in this Royal City, as well as in the other cities of Our Empire, in order that all persons, being aware of the provisions which We have been pleased to enact, may observe them.
CHAPTER V.
We notify the chartularies who have been appointed from the aforesaid Bureau of Armorers personally to see that this law is obeyed, for their negligence will not only expose them to pecuniary penalties, but they will also be subjected to corporeal punishment, as well as be deprived of their offices; for We shall not permit them to longer remain in the Bureau of Armorers, but will appoint others in their stead.
EPILOGUE.
Your Highness, and those who may hereafter succeed you, will hasten to cause what it has pleased Us to enact by the present law to be carried into execution; for unless you take measures for the observance of what is so advantageous to the public welfare, you will have reason to fear the effects of Our indignation.
TITLE XV.
THE DIFFERENT JUDGES SHALL BE COMPELLED BY THE BISHOPS TO HEAR THE ALLEGATIONS OF THOSE WHO APPLY TO THEM, AND WHEN ANY SUSPICION OF A JUDGE Is ENTERTAINED THE BISHOP OF THE CITY SHALL HEAR THE CASE WITH HIM ; AND CONCERNING OTHER PRECAUTIONS WHICH THE BISHOP MUST BY ALL MEANS TAKE.
EIGHTY-SIXTH NEW CONSTITUTION. Edict of the Emperor Justinian.
PREFACE.
God having placed Us over the Empire of the Romans, We are exceedingly desirous to govern the subjects whom He has entrusted to Our care as well as We can; and so to act that they may be delivered from all difficulties, injuries, and anxieties, as well as to prevent them from being compelled to leave their country, and suffer inconvenience in foreign lands on account of litigation.
CHAPTER I.
Hence We have deemed it advisable to address the present edict to all Our subjects, and to make it clear to the inhabitants of all cities and villages. We decree that when any private person has a controversy, with another, either with reference to a pecuniary claim or to the deprivation or seizure of movable or immovable property, or of such which can move itself, or where a criminal matter is involved, the said private person must first apply to the illustrious Governor of the province, and ask him to examine the matter in dispute, in accordance with Our laws, and see that both parties obtain justice; but if, after having applied to the Governor, he should not obtain justice, We direct that he can then have recourse to his most holy bishop, who must instruct the illustrious judge of the province to hear the complainant, and dispose of his case in conformity to Our laws, and not reduce him to the necessity of travelling to a great distance from his country.
If, however, after the Most Holy Archbishop has notified the judge to decide the case of the litigants equitably, and he does not proceed or does not treat the litigants with justice, We order the most holy bishop to give letters in Our name to the party who has been treated with injustice, which letters must state that the judge whose duty it is to hear the plaintiff and decide between him and the defendant in the case has neglected to do so. Being then informed of this failure of justice, We will impose a penalty upon the provincial judge who, having been applied to by the plaintiff, and notified to proceed with the case by the Most Holy Archbishop, did not dispose of the matter in controversy.
CHAPTER II.
If, however, any of Our subjects should entertain any suspicions with reference to the judge, We order the Most Holy Archbishop to hear the case with him, so that both of them may, by means of an amicable agreement, resolve any doubts which have arisen, whether this be done by annotation or conditionally; provided the parties are treated with equity, and the decision is based upon justice and law, and Our subjects are not compelled, for any reason of this kind, to depart from their own countries.
CHAPTER III.
Where any private individual, thinking that he has a right of action against someone else, does not apply to the illustrious judge of the province, or appear before the Most Holy Archbishop of the city, but comes here without letters from the archbishop, he is hereby notified that he will be liable to the same punishment to which the judge would be subjected if, after having been applied to by him, he had not taken measures to render justice.
We have considered it Our duty to make these provisions for the welfare of the inhabitants of towns and villages, in order to prevent private individuals from leaving their provinces to endure hardships
in foreign lands, as well as lose their property. For We appoint judges gratuitously, and order them to take an oath, so that they may, in accordance with Our laws, dispense justice to everyone who applies to them for this purpose.
CHAPTER IV.
Where, however, any one of Our subjects sustains injury at the hands of the Governor of the province, We order him to have recourse to the most holy bishop of the city, and the latter to decide between the said illustrious Governor of the province and the person who is alleged to have been injured by him. If the most holy bishop should legally and justly decide against the judge, the latter must, by all means, satisfy the litigant who has complained of him. But if the judge should refuse to do this, and the controversy should be referred to Us, and We should find that the judge, after having been regularly and legally notified by the most holy bishop, did not comply with the decision rendered against him, We direct that he shall be punished with death, because while it was his duty to relieve the oppressed, he himself is found to have been guilty of oppression.
CHAPTER V.
We decree that the court, which is under the control of the Governor and the executive officers of his jurisdiction, shall permit litigants to depart without accepting from them anything more than is provided by Our laws. If they do not observe this rule, We order them to be subjected to punishment.
CHAPTER VI.
If, however, We should ascertain that any most holy bishop has, through favor to someone, failed to render justice, We direct that the prescribed castigation should be inflicted upon him; in order that bishops actuated by the fear of God may use every effort to decide justly, and prevent men who do not obtain justice from leaving their cities and provinces, and repairing to other places.
CHAPTER VII.
In cities where there are no judges, We order those who have cases to apply to the defender, and We direct him to decide between them; but when the parties litigant desire the defender to hear a case along with the most holy bishop, We decree that this shall be done.
CHAPTER Vill.
We forbid monks, clerks, and bishops to come to this city without letters from their most holy patriarch. If, however, they should do so, they are notified that they will render themselves unworthy of remaining in their order.
CHAPTER IX.
Where the subordinate of a magistrate or a prefect, no matter what his rank may be, accepts fees in excess of those prescribed by
Our Imperial Constitution, We order that the judge of the province shall, in accordance with Our law by all means, be responsible, and that he shall inflict punishment upon the person who has presumed to do this. If the judge himself should not punish him, We grant permission to the most holy bishop of every city to notify Us of what has occurred, and inform Us of the office or dignity of the person who has been disobedient; in order that We may render the judge responsible for contemptuously permitting Our orders to be disobeyed, and that We may take measures to punish him.
TITLE XVI.
CONCERNING DONATIONS MORTIS CAUSA MADE BY DECURIONS.
EIGHTY-SEVENTH NEW CONSTITUTION. Interpreted by Antonius Contius.
PREFACE.
We desire, by all means, that the frauds of decurions shall not in any way result in loss to the government, and that their schemes shall be frustrated by law. For We have ascertained that, after having deprived decurions of the power to make donations, and forbidden them to give possession of movable property, or to leave by will more than three-twelfths of their estates, and directed them to preserve nine-twelfths of the same for their curias, they are constantly committing fraud in violation of law.
We, being aware that the ancient legislators entertained a doubt whether a donation mortis causa was really a gift or a legacy, some of them considering it to be one thing, and some another, have adopted the general opinion of the most eminent jurists by deciding without hesitation that such a donation is a legacy, and has no need of being recorded, and that the donor is at liberty to restrict it in any way that he chooses, and even to renounce his right of revocation, and insert in a donation mortis causa whatever he may think propera rule laid down by Julianus, which We Ourselves have inserted in the Thirty-ninth Book of Our Digest, for We have condensed in a small compass whatever it has pleased the ancients and Ourself to formulate. Therefore decurions, knowing this, have attempted to make donations mortis causa, and to insert therein the clause having reference to the power of revocation; and thus have given to their donations another object more in conformity with their purposes, in order to render their donations irrevocable, and in this way diminish their estates.
CHAPTER I.
But while We have already provided by law that decurions shall be deprived of every means of diminishing the nine-twelfths of their
estates through bequeathing them by will, or alienating them by making donations, still, in order that We may be able more effectively to prevent the commission of fraud, We now decree that none of them shall be permitted to alienate anything whatever by a donation mortis causa; and We only authorize them to bestow property as an antenuptial donation for the benefit of their own children, or to grant it by way of dowry, as provided by Our Constitution, or to give it to their daughters on the occasion of their marriage, for it is certain that they cannot otherwise dispose of their immovable property; but, on the contrary, such property must always remain in their possession, and be liable to curial obligations, and they are only permitted to sell it, and this must be done in accordance with the terms of Our New Constitution.
Other donations mortis causa shall, however, retain all their force, and men who are not decurions can make them in favor of any persons whom they may select, and are authorized to impose any conditions, and revoke the donation (if they should desire to do so), for everything concerning the conditions imposed upon a donation mortis causa shall be complied with, and all such donations shall remain firm and stable, as We have decreed in the first place, and now ratify by law; for at present We only interpret them, and confirm them with reference to all other persons, with the sole exception of decurions, as has already been stated; and We are induced to make this provision on account of Our solicitude for and interest in the welfare of the Empire.
EPILOGUE.
Your Glory will take pains to cause the rules which We have been pleased to enact and which are set forth in this law to be observed, and you must be the first to provide for what is beneficial to the government.
TITLE XVII.
CONCERNING DEPOSITS, NOTICES TO TENANTS, AND THE SUSPENSION OP THE PUBLIC DISTRIBUTION OF PROVISIONS.
EIGHTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We have recently heard and determined a lawsuit (for We sit most frequently in public in the Empire) with reference to which a question arose which We immediately disposed of, and having learned that numerous points of the same description are constantly presenting themselves, We have deemed it proper to provide for them by means of a common and general law.
CHAPTER I.
If anyone should receive from another gold or any other property deposited on certain conditions, and these conditions are afterwards complied with, the depositary will be compelled* to return the gold or other property entrusted to him; and no one not interested in the deposit shall have the right to seize the property or prevent its restitution; and while many other privileges have, in cases of deposit, been granted by preceding legislators, as well as by Ourself, anyone who opposes the return of the deposit shall no longer be permitted to annoy the owner of the property, as he who has possession is the one to be sued, and obtain justice and the benefit of the law; and the third party, who opposes restitution, shall not be allowed to subject to serious loss him who was notified not to return the deposit, for the latter will not be obliged to request the depositor to defend the case, or be responsible for the result, nor can he conduct it conjointly with the depositor; and if the depositary should do anything of this kind (for We do not entirely limit Ourselves to prohibiting such offences, as Our duty is rather to inspire transgressors with just apprehension), and the property or money deposited should be lost, and this loss should be proved, or the third party referred to should cause any other accidental damage whatsoever, he will be liable for it; and he will, besides, through the mere fact of his opposition to the restitution of the deposit, be compelled to pay interest at the rate of four per cent on the money deposited, whether the deposit consists of gold or other property.
We establish this rule in order that the fear of being punished for their perversity may prevent men from committing wrong in cases of deposit.
CHAPTER II.
CONCERNING THOSE WHO OPPOSE THE PUBLIC DISTRIBUTION OP PROVISIONS OR THE PAYMENT OF RENT.
We have taken legal steps to provide for everything having reference to mandates. For We see that it frequently happens, and especially in this Royal City, that certain persons wishing to interfere with the public distribution of provisions seize the tickets issued for this purpose in the hands of the Prefect of Subsistence, and thus those who are only supported in this manner are deprived of the necessaries of life.
But an abuse more grave and embarrassing still exists, for many persons owning houses in this Most Fortunate City, who do not live in them,1 but expect to receive rent for the same, are annoyed by notices given their tenants directing them not to pay it. The tenants comply with these notices, but some of them, through poverty, use the money composing their rent to purchase food; and others, for the reason that they are exiles from this great city, fail to send the rent upon which their landlords are, perhaps, wholly dependent for their subsistence, which same thing takes place in the public distribution of provisions, as We have already stated.
(1) We grant no one permission to serve notices of this kind, and if any person should commit such an act, his perversity shall not go unpunished; for he is informed that he will be responsible for the cessation of the distribution of bread, or the payment of rent, from the very moment when he notified the tenants or the distributers of provisions, or from the time that the said distribution was suspended, for We do not wish any of these things to occur. If anyone should give notice that such distributions or payments must not take place, We order that he shall be liable for any loss sustained by the owner of the property, as well as for interest at the rate of four per cent on the money or articles, on account of which the loss resulted.
No one can prohibit the distribution of provisions, the payment of rent, or the return of deposits, for it is not easy for every person to furnish a surety, and it is provided by Our laws that no interdiction shall be valid unless security is furnished at the time of the notice.
Therefore We desire that the present law shall be observed from this day and for all time, to promote the security of Our subjects, and that it may be an eternal source of support to the government, which We have constantly had in mind during its formulation and enactment.
EPILOGUE.
Your Eminence will hasten to carry into effect, and have perpetually observed, what We have been pleased to promulgate by means of this Imperial Law.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
SEVENTH COLLECTION.
TITLE I.
IN WHAT WAY NATURAL CHILDREN BECOME LEGITIMATE, AND CONCERNING THEIR SUCCESSION TO THEIR FATHERS EITHER UNDER THE TERMS OF A WILL OR IN CASE OF
INTESTACY.
EIGHTY-NINTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
In former times, the attention of Roman legislation was not directed to natural children, nor was any humanity manifested towards
them, but their name was considered to a certain extent foreign to the Republic; but during the reign of Constantine, of pious memory, they were mentioned in the Books of Constitutions. Then the Emperors, proceeding by degrees to a greater exhibition of indulgence and clemency, promulgated laws with reference to them; some permitted them to be given and left property by their fathers; others devised the method by which, being removed from their condition of natural children, they became legitimate, and heirs to the estates of their parents. This legislation was gradually extended until it included grandchildren, and as these laws have been observed in Our time as well as under the reign of the Emperors who have immediately preceded Us, they have been interpreted in many different ways. We have had the double privilege of conducting many persons from slavery to freedom, and of raising natural children to the rank of those who are legitimate; for neither vengeance nor interdiction should render them objects of contempt, but what is necessary should be attended to, what is evil should be avoided, and in every instance what is best should be accomplished. Therefore, for the reason that in the Code of Constitutions which We have compiled from the entire legislation of former Emperors, certain provisions have been made with reference to natural children, and others, since inserted in the Book of Institutes which We have drawn up, have been decided to be complete; and as We Ourselves have adopted many rules with reference to this subject, some of which have been embodied in former laws, and others promulgated subsequently, in order that this legislation may not be dispersed, We have thought it proper to combine it all in one Constitution, which may be sufficient to maintain the rights of all natural children, and to correct and establish whatever relates to them.
CHAPTER I. CONCERNING NATURAL CHILDREN.
It is clear that there are some men who are at once free and legitimate; others who do not enjoy freedom at first, but afterwards have it conferred upon them, and in this way from being slaves become free, and from being natural children become legitimate; others again, by the very fact that they are natural children, are entitled to certain successions; and still others do not deserve to be called natural, but are considered to be unworthy of this name. Hence it is necessary for Us to promulgate a constitution, in order that no one may be ignorant of the legal position of natural children; and, in beginning this law, ,We shall state in what ways natural children become legitimate (for We have found numerous methods by which this can be done), what their rights of succession are, how harshly ancient legislation has treated them, and how humanely We have acted with reference to this matter. Nor shall We neglect those who, as We have previously remarked, are unworthy of the appellation of natural children. For in the first place, before any laws had yet been enacted, Nature, in sanctioning the procreation of children, treated them just
as if they were free and freeborn. The children of Our first parents were originally all free and legitimate from their birth, but wars and legal controversies, as well as licentiousness and concupiscence, brought about a different condition of affairs. For slavery was a consequence of war, and loss of chastity was the cause of natural children; but the law, again taking cognizance of faults of this kind, bestowed freedom upon slaves, treating the subject at great length, and introducing ten thousand methods of liberating them, while the Imperial Constitutions have opened different ways for legitimation to those who were not legally begotten.
We do not promulgate this decree with the intention that it shall be temporary, nor do We desire the rights of Our subjects to be neglected by its provisions.
(1) Men leave lawful successors through the marriages which they contract, either with or without dotal instruments; even when they are united with their wives in such a way that they have, from the beginning, such an affection as proceeds from lawful wedlock. We, being well aware that this sometimes gives rise to litigation, do decree by this law that proof of legitimate marriage shall take place in compliance with the prescribed forms, when the parties concerned are of high rank; and in another way when they are of an inferior social condition; and We also decree what privileges shall be granted to the people hereafter with reference to this subject. Therefore, where marriage has taken place, successions from this very fact are certain, and when the children are legitimate, the law immediately introduces certain degrees of succession, treating these at great length. This, then, is the right of legitimacy. When this condition does not exist, but the child is free, although it may not be the issue of lawful marriage, or was even born in slavery, if it is worthy of freedom, it, nevertheless, remains natural; and under such circumstances various methods are employed to render it legitimate, which We shall hereafter enumerate, as well as establish others.
CHAPTER II.
CONCERNING THE FIRST METHOD OF LEGITIMATION, THAT Is TO SAY, BY AN OFFER MADE TO THE CURIA.
The first method of obtaining the right of legitimacy, and which is extremely advantageous to municipalities, is the one which Theodosius, of pious and recent memory, introduced. For it was decreed by him that one can offer any or all of his natural children to the curia, or marry his daughters to decurions; but as this method was not prescribed by ordinary legislation, but became established in different ways through obligations to the curia, and by means of successions, as well as on account of the necessity of ascertaining the right of children to inherit, whose heirs they are, and, again, who are to inherit from them, We think that in drawing up the first chapter of legislation on this subject, it is only just to treat of other methods of legitimating children, which are very easy to explain.
(1) Therefore, where anyone is the father of natural children, whether he himself be a decurion, or free from duties to the curia, or whether he has other children who are legitimate, or only natural ones, he shall be permitted to offer all his natural children or only some of them to the curia, even though the said children may have been invested with a distinguished office; provided, however, that this office is not one which will release men from curial obligations. But where the father, while still in his lifetime, offers his son to the curia (for this method has been employed in the case of Philocalus, a natural son, and a decurion through his father, in the City of the Bos-terni), as is stated in the constitution enacted by Leo, of pious memory; or where anyone has been proclaimed a decurion by his father in this way; or where a father offers his son by having his name inscribed in the Bureau of Public Documents; or where at the time of his death he inserted in his will that his son must become a decurion, and he afterwards attached his signature to the instrument, his son will immediately become legitimate, and will no longer be subject to the disabilities attaching to natural children.
Such children will also become legitimate and decurions if, after the death of their father, who left no lawful issue, they should offer themselves to the curia. Hence the father, although he may have legitimate children, can offer his natural children to the curia, but a natural child cannot do this himself except when there is no legitimate offspring living.
We also include in this law whatever has reference to offers to the curia, a subject which has previously been treated by Us in a desultory manner, for We do not merely provide for an offer to the curial status, as it is necessary to introduce methods which are perfectly clear, by means of which children may be offered as aforesaid.
(2) Therefore, anyone born in any town whatsoever, whether he be a decurion, or free from this condition, shall be permitted to offer his natural son to the place of his nativity. But where he is not a citizen, but was born in the country, or in some village, the son can be offered by his father to the city, or he can offer himself to the curia of the town to which the said country or village is tributary. It is, however, evident that if the father, grandfather, or any other relative in the ascending line has free children and desires to offer them to the curia, he can do so; but where the child wishes to offer himself, We do not permit this, unless he has no other legitimate brothers. If, however, any one of those desiring to offer their natural children to the curia was born in this Capital, or in ancient Rome, We permit him to make the offer in whichever metropolis he may select; and he must observe these rules everi with regard to his daughters, and shall be required to marry them to decurions who are either residents of the city where he was born, or of that to which the country or the village which is his birthplace pays tribute; or, where the father is at the same time free and a Roman or Byzantine citizen, he must marry his daughters to decurions of any other city, provided it is a metropolis.
Such is the solicitude which We evince for decurions, and this method of legitimation is pleasing for the reason that We grant exclusively to a father who has only natural children (even though he may have them by a slave) the power of making them free, and of offering them to the curia, as has just been stated.
We direct this law to become operative to such an extent that if his father should not make the offer, but the son should become free, he can offer himself to the curia, even though he may not be the legitimate offspring of his father.
CHAPTER III. CONCERNING THE SUCCESSION OF DECURIONS.
And as various provisions have been enacted with reference to the succession of persons of this description, it does not seem absurd to Us to determine their hereditary rights, as We have already stated. Hence if a natural child should become a decurion by means of this method (that is to say, through being offered to the curia), he will become the heir of his father both by will and in case of intestacy; he will not differ in any respect from legitimate children; and he will be entitled to property through a donation of his father; still, he will not have a right to more than the smallest share of any of those children who have always been legitimate. When children have once been offered to the curia, they are immediately raised to the rank of legitimate offspring, but We do not permit them to reject the estate of their father, or refuse to accept a donation made to them and which they are empowered to receive, nor to renounce their status. Therefore they will continue to be decurions, and, as We have previously stated, will be entitled to the share which has been either left or given to them.
(1) If, however, the children have, from the beginning, rejected the offer to the curia, preferring to remain free but natural children rather than to become more powerful and decurions, and if it should afterwards be ascertained that they either possess, or have alienated all or a portion of the property which has been given or bequeathed to them, they shall, even against their will, be strictly required to fulfill their curial obligations; otherwise We must consider them as fraudulently evading Our legislation by attempting to appropriate to their own use the property acquired through the offer to the curia, and as refusing to comply with the conditions by means of which they have obtained this advantage.
We decree that these rules shall be applicable not only to males offered to the curia, but also to females who marry decurions, for it makes no difference whether a father complies with curial obligations through the instrumentality of his male children, or through that of his sons-in-law, and that he desires, by means of the issue of the latter, to add others to the number of the former decurions.
CHAPTER IV.
We decree that a son rendered legitimate in this manner shall be such only so far as his father is concerned, and shall not legally be connected with his father's relatives (We mean by this those to whom the father is born, his collateral relatives, and his descendants), for We make the said son a cognate by means of a legal fiction. We direct that where a natural son is offered to the curia, he becomes the legitimate heir of his father alone; but We do not intend that this right shall apply to either the ascendants, descendants, agnates, or cognates of his father, or that he shall to any extent share in their estates. We, however, grant him an equitable privilege, for as he does not succeed to his father's relatives, the latter, on the other hand, can lay no claim to his succession, unless he may have appointed them heirs, or has been appointed by them, for those who are offered to the curia only become legitimate so far as their father is concerned, and are considered cognates.
CHAPTER V.
Therefore provision should be made for those who, having been rendered legitimate, become successors. If any person of this kind should have children or grandchildren who are the offspring of lawful wives, and they have been regularly created decurions, they will by all means succeed to his estate; for what is more legal than that a son should be called to the succession of his own father? If, however, he should have children who are not decurions, then the legal share of his estate will pass to the Treasury and the curia, and the remainder, no matter how much it may be, will go to the children who are not decurions. But where the deceased does not leave any offspring whatever, and dies intestate, the curia and the Treasury will be entitled to three-fourths of his estate, as We have long since decreed, and the heirs called by law shall receive the other fourth; or if the deceased made a will, the said fourth shall be acquired by the testamentary heirs. When the law has once accepted a decurion, and his name has been inscribed in the registry of the curia, it grants him rights of inheritance and every other succession or advantage. But where anyone who is a relative or a stranger happens to be appointed heir, and desires to apply to the government and to offer himself to the curia, he shall be permitted to do so. He will then be entitled to the share of the property allotted to the curia, and he will become a successor to the status as well as to the duties of a decurion, provided the municipality consents.
CHAPTER VI.
Where, however, a decurion has no legitimate children but only natural ones, he shall be permitted to appoint them heirs by bestowing upon them the honor of the curia. The appointment shall take the place of every offer, and shall not require compliance with ancient laws, or any offering, as long as the parents are living; and by the very fact of the appointment of natural children, when they are free,
they at once become decurions and heirs, and will be entitled to three-fourths of the property of their father, in accordance with the distribution which the latter may have made among them; but if their father wishes to leave them his entire estate, it will be better for him to do so; still, under all circumstances, he must leave them nine-twelfths, being well aware that if he should leave them any less than this, the deficiency will be made up by the law out of his estate, and then if the children are willing they shall become decurions: but if some of them desire to become decurions, and others refuse, the shares of the latter will accrue to the others.
Where, however, all of them refuse, the curia shall be entitled to the entire nine-twelfths of the estate, just as if there were no living children. But if the father should die intestate, without leaving lawful issue, then the legal share of the estate shall pass to the heirs at law, and if any or all the natural children desire to do so, they can offer themselves to the curia, and nine-twelfths of the estate will pass to him or them who become decurions. Where, however, the children were the issue of a female slave, and their father either manumitted them during his lifetime, or offered them to the curia under his will, they shall be accepted, and become decurions in accordance with the desire of the testator; or if they wish this to be done, they can offer themselves to the curia, and shall (as has already been stated) receive nine-twelfths of his estate; for We wish that, under all circumstances, whether the father makes a will or dies without doing so, those who become members of the curia shall receive nine-twelfths of his estate. But where the father only manumitted his children, and did not offer them to the curia, and either all, or some of them, wish to become members of it, then the nine-twelfths of his estate shall be given to him or them who become decurions. When none of the natural children either desires to become a member of the curia, or is offered to it, the curia shall be entitled to nine-twelfths of the father's property. For it is perfectly clear that the Treasury enjoys this right as laid down by the constitution enacted by Us.
These are the provisions made by Us with reference to natural children who become legitimate by means of their transfer to the curia, so far as they relate the manner in which they should be offered and to their successions.
CHAPTER VII.
Three other constitutions have been promulgated, one of them by Zeno, of pious memory, which did not fully prescribe rules for the future but only had reference to the past, and this We have permitted to be inserted into Our Code, in order not to deprive those persons whom this constitution favored, or their descendants, of the benefit conferred by the same. So far as the Constitution of Anastasius, of pious memory, which provided for the adoption of natural children, is concerned, We do not permit it for the future to cause any annoyance to Our subjects, and We only allow it to become operative where it is advantageous to different persons, as We do not wish to be
thought to have deprived anyone of these privileges by means of Our laws. For it is always necessary to begin by introducing what is beneficial, and not to annul useful regulations which have previously been established by legislators. We approve the Constitution of Our Father which recommends moderation, has been drawn up in an orderly manner, and prohibits the adoption of natural children; which adoption, however, is extremely absurd and inconsiderately places certain natural children in a superior class to those who are legitimate.
CHAPTER Vill.
CONCERNING THE SECOND METHOD OF LEGITIMATION BY MEANS OF DOTAL INSTRUMENTS.
There are other methods which have been introduced by Us, and which We shall enumerate, which grant the right of legitimacy to children who are originally illegitimate; but We do not discuss their successions, for in rendering them legitimate We confer upon them the same rights of inheritance as those enjoy who are legitimate from the time of their birth. Where anyone has entered into a dotal contract with a freeborn woman, or with a freedwoman with whom he is allowed to live in concubinage, whether he is already the father of legitimate children, or has only natural ones, We decree that marriages of this kind shall be lawful, and that the children born or conceived before such an union has taken place shall be legitimate, and that even though after that children may be born, or those who are already born may die, the first offspring shall, nevertheless, be legitimate. For the affection entertained for the second children is disclosed by the execution of the dotal contract, and the father who is induced to make it himself confers the right of legitimacy upon children born after the execution of the same, and it would be absurd for any circumstance favorable to the last children not also to be advantageous to those born before the contract was executed, and that they should be prevented not only from enjoying the right of legitimacy but also that of the inheritance of their father's estate, as the children born after the marriage become legitimate by operation of law under the terms of the dotal contract. Hence We make but one disposition of children born before and after the contract was executed, and We have for the future disposed of all controversies to which many constitutions gave rise by stating that although the father may not have had any children after the dotal contract was made, those that he already has are none the less legitimate. For as other offspring may be born to him, and he has been able to divest those, who came into the world before the dotal contract was drawn up, of the condition of natural children, the proof of his affection for them gives them the right of legitimacy, and there is no stigma which it does not effectually remove.
(1) In addition to this it is, for good reason, added that, if a child conceived before the dotal contract was drawn up should be born afterwards, it will be the lawful issue of him who was qualified to
execute such a contract in conformity with Our former Constitutions; and We have been induced to enact this provision because it relates to the order in which children are born. For as a doubt arose whether it was necessary to consider the date of conception, or that of the birth of children, We hereby decree that not the date of their conception but that of their birth must be taken into account, because of the benefit which will accrue to them by doing so. If, however, it should happen under certain circumstances that the date of conception will be more advantageous to them than that of birth, We then direct that the time which is more beneficial shall be considered.
CHAPTER IX.
CONCERNING THE THIRD METHOD OF LEGITIMATION BY MEANS OF IMPERIAL RESCRIPTS.
We also decree that where anyone desires to render his offspring legitimate, and their mother is no longer living, or if he is greatly attached to his children and their mother is not without blemish in his eyes, and he does not deem her worthy of lawful marriage; or because the mother is dead, or he has no respect for her; or he has been treated badly by his children who have designedly concealed their mother to prevent her estate from going to their father who would otherwise be entitled to it, and to prevent him on the death of their mother from enjoying the use and usufruct of her property by law, through having children under his control; under such circumstances where a father who has no legitimate children, but only natural ones, desires to render them legitimate, and if (as We have just stated) their mother is dead, or if she is living but bears an evil reputation; or where she does not appear; or in case it is impossible for the father to draw up a dotal instrument with her (as would be the case where either of the parties entered the priesthood), We grant him authority to legitimate his natural children if (as has already been stated) he has already no legitimate issue; for as there are methods of rendering slaves at the same time free and freeborn and restoring them to the condition of nature, so, if a father has legitimate children, whether they are the offspring of a freeborn woman or of one who has been manumitted, and he desires to restore them to their natural condition of freedom, render them legitimate for the future, and have them under his control, he can do so by virtue of an Imperial Rescript.
For in the beginning when Nature alone had power over men, and before any written laws were enforced, the distinction between natural and legitimate children did not exist, but the first children born to Our first parents, as well as those who subsequently came into the world (as We have stated in the beginning of the present law) were legitimate. So far as offspring are concerned Nature originally created them all free, and only produced legitimate children, and as wars were the cause of servitude, so it was the inclination of mankind to concupiscence which gave rise to the law relating to natural children.
Wherefore, since it is proper to correct similar passions by corresponding remedies, one has been introduced by Our predecessors, and the other by Us.
(1) Hence, in cases like those above mentioned, when a father leaves the mother of his children in her original condition, he shall be permitted to apply to the Emperor, stating that he desires to restore his offspring to nature and their former freedom and legal rights, and that he desires them to be under his control, and to differ in no respect from those who are legitimate. This having taken place, his illegitimate children shall hereafter enjoy the benefit of legitimation, for We desire to correct unnatural prejudices, and at the same time direct the course of those who have no lawful issue, so that by this brief provision such a violation of natural laws may be remedied.
CHAPTER X.
CONCERNING THE FOURTH METHOD OF LEGITIMATION BY MEANS OF THE WILL OF THE FATHER CONFIRMED BY THE
EMPEROR.
If, indeed, he who is only the father of natural children has not, on account of certain accidental circumstances, been able to render them legitimate in the ways which We have already mentioned, but at the time of his death desires, under any of the aforesaid conditions, to execute a will by which his children may become his lawful successors, We grant him the authority and permission to do so; but the children, after the death of their father, must petition Us, make a statement of the facts, and produce the will, and then they shall be heirs according to law, and shall obtain the gift of legitimation at the same time from their father and from the Emperor, that is to say, from both Nature and the law.
CHAPTER XI.
Generally speaking, We desire that this Constitution shall be applicable to all children who are rendered legitimate in the ways in which We have just enumerated. But if fathers are not permitted to relinquish the right of paternal authority without the consent of their children, there is much more reason that a child should not be subjected to such authority against his will, and as if he feared to follow the fortunes of his father by being placed under his control, whether through being offered to the curia by virtue of the execution of a dotal contract; or any other way; and We do not think that either the legislator or the government should have power to do this.
(1) Where, however, there are several children, and some of them desire to be under the control of their father, and others do not, those who wish to be legitimated shall have that right conferred upon them, and the others shall remain in their natural condition.
We establish this rule without abolishing any of the preceding methods of legitimation, and We only add it to the others in cases
where the latter are not available; for where there are only legitimate children and afterwards natural children are born, legitimation is not acquired by the latter, unless by offering them to the curia, or in accordance with Our Constitutions which have introduced the method of legitimation by means of dotal contracts.
(2) We do not think that the method of adoption formerly introduced by certain Emperors, Our predecessors, is reprehensible, but We abolish it in accordance with the terms of the Constitution promulgated by Our Father, as it does not pay sufficient regard to chastity; and, besides, it would not be advisable for regulations which have once been duly abrogated to be again introduced into the government.
Therefore these things having been ordered by Us, and We having stated in what way it is proper for the right of legitimation to be transferred to the Roman City, nothing need be provided with reference to the succession of children of this kind, for the same rule applies to these successions which governs those of other children who were legitimate at the time of their birth.
CHAPTER XII.
CONCERNING THE SUCCESSIONS OF ALL NATURAL CHILDREN.
Thus children who are rendered legitimate are to be distinguished from those who continue to remain natural, and We will now proceed to treat of the successions of the latter. It pleased Valentinian and Gratian, of Divine memory, to establish humane rules with reference to this subject; hence where the father of natural children has legitimate offspring, the above-mentioned Emperors rendered them capable of acquiring one-twelfth of his estate along with their mother, and forbade anything else to be given them by a last will. Where there were no natural children, they allotted only half of one-twelfth to the concubine, provided always that the man had no legitimate wife (and they made this provision applicable to men who had but one concubine) .
If, however, the fathers of natural children have no lawful issue, and the said children have neither father nor mother, they are permitted to leave or give their own natural children, conjointly with their mother, a share of their estate, up to one-fourth of the same; and where the natural children have received more than that amount, the surplus shall revert to those who are legally called to the succession. This is what the sons of the elder Theodosius decreed, although they were far from making it perfect.
(1) Therefore We, although We have already enacted a humane law, and have granted to natural children, through the generosity of their father, one-half instead of a quarter of his estate, when he has no legitimate children living, still, for subsequent reasons, after more careful consideration, and desiring to show greater indulgence, We enact the present law. As fraud was frequently committed, which is
indeed the case at the present time, We desire to free men from impiety, for certain parents who are not at liberty to leave their natural children as much as they wish select third parties whom they appoint their heirs, and direct to transfer their property to their children. The latter, however, often act in a wicked manner, and refuse to comply with the will of the testator, and (what is considered even more reprehensible) they perjure themselves. We have nothing to say with reference to what has been stated concerning individuals of high rank who, in former times, were guilty of similar offences.
(2) Hence, in order that We may not permit things of this kind to be done in the future, and that We may prevent natural children from performing acts that strangers and unknown persons are not allowed to perform, We order, by the present law, that where a father has legitimate issue, he cannot either leave or give his natural children more than one-twelfth of his estate (for We hold that this is the purport of Our former Constitution), and if he should, under any pretext whatsoever, attempt to give them anything more, it shall accrue to the legitimate children, or where there are no natural children but only a concubine, We permit one-twenty-fourth of the estate to be left or given to her.
(3) Where the father has no legitimate children, nor any ascendants to whom the law compels him to leave a specified share of his own estate, he will be permitted to appoint his natural children his heirs to all his property, to divide it among them at his pleasure, and to transfer it to them by ordinary or ante-nuptial donations, or by means of a dowry, or in any other lawful way whatsoever. Thus fathers will have no need to avail themselves of the services of a third party who may be inclined to dishonesty or perjury, but they can apportion their estates absolutely under the terms of the will.
Where, however, those whom We have previously mentioned have any ascendants, they must leave them the share that We and the law have prescribed, and they will be at liberty to bequeath all the remainder of their property to their natural children. We have made these rules applicable to persons who dispose of their estates by written and legal wills.
(4) If, however, anyone should die without leaving legitimate issue (We mean by this children, grandchildren, and their descendants), or a lawful wife, without making any disposition of his estate, and any cognates, or even his emancipator should appear and demand possession of the property, or even Our Treasury should do so (for We do not make any exception of it under these circumstances), and if, during his lifetime, the deceased had lived with a free woman in concubinage and had had children by her (We only make this rule applicable where the concubine resided in his house, or his children did so, and there was no question as to his affection for her), We grant them maintenance and the right to take one-sixth of the estate of their deceased father, in case he should die intestate; which said one-sixth shall be divided by their mother in such a way that the latter shall receive a share equal to that of each child.
We establish this regulation where the father lived with a single concubine, or had children either by her or some other concubine, who was either dead or had been separated from him, and whose children resided in his house; for then We grant them the right to claim one-sixth of his estate in case he should die without leaving a will.
(5) But in case a man was so given to concupiscence that he had several other concubines in addition to the first, and was in the habit of committing fornication with a multitude of women, who were harlots (for this is the proper expression to use), and when he died had children by them as well as several concubines, a man of this kind is utterly contemptible, and shall, together with his children and his concubines, be entirely excluded from the benefits of this law. For as, when anyone is married to a lawful wife, he cannot, during the existence of the marriage, contract any others, and by reason of them have legitimate children, so, neither after he has acknowledged the concubine in the manner in which We have mentioned, and has issue by her, and is guilty of any other act of licentiousness, We do not allow his children to be admitted to his succession, if he should die intestate. For if We did not provide for this, no difference- would exist between women for whom the deceased had entertained more or less affection, nor would any distinction be made between the children, and We do not enact this law for the benefit of debauched men, but for such as are reputable. Nor do We discriminate between male and female children, because, since Nature made no distinction between them, We do not enact one law for women and another for men.
(6) If anyone (for it is necessary to make use of every proper and pious resource) who has legitimate children leaves any natural ones, We desire that the latter shall be entitled to nothing whatever in case their father should die intestate; but We direct that they shall receive from the legitimate children a certain sum for their maintenance, in proportion to the value of the estate of the deceased, which shall be determined in accordance with the judgment of a good citizen.
This rule shall be observed even if the decedent had a wife, and his natural children, although they were born of a concubine who subsequently died, shall be supported by his successors.
What We have already decreed with reference to natural grandchildren shall remain in full force.
CHAPTER XIII.
In cases in which We have called natural children to the succession of their father, and also in those in which they show proper respect to their parents, the natural children shall be under the same obligations to their parents that the latter should entertain for them, so far as their succession or their maintenance is concerned, as We have previously provided.
CHAPTER XIV.
But as it has already been set forth in certain constitutions that curators must be appointed for children in order to administer prop-
erty given or left to them by their father, and as this rule should be preserved, We hereby confirm it; granting to the mother (in accordance with what has already been ordered) the right of administering the guardianship of the natural children, and of doing in this respect everything which has been enacted with reference to legitimate issue.
CHAPTER XV.
THE OFFSPRING OF INTERCOURSE PROHIBITED BY
LAW SHALL NOT BE ENTITLED TO SUPPORT BY
THEIR PARENTS.
This last part of Our law demands proper arrangement, and an enumeration of those who are unworthy of even the name of natural children. And, in the first place, all children who are born of the intercourse (for We do not call this marriage), which is either infamous, incestuous, or prohibited, are not designated natural, and should not be supported by their parents, nor shall they be entitled to share in any of the benefits of the present law. Wherefore, although certain provisions with reference to children of this kind were included in a Constitution addressed by Constantine, of pious memory, to Gregory, We do not adopt them, as they have been abolished by non-usage. For this Constitution refers to Phceniarchs, Syriarchs, magistrates, and illustrious persons, and does not provide that the issue of these should be natural, but even deprives them of the benefit of Imperial munificence. We absolutely repeal this Constitution.
(1) These things have been decreed by Us, in order that ignorance of Our laws may not exist, and that all persons may know what children are legitimate and what are natural, and how the latter are rendered legitimate; and that those who continue to be natural should be treated with humanity, and also how they become eligible to certain honors, and in what way they may be distinguished from those who are unworthy of being called natural.
EPILOGUE.
Your Highness will, by means of suitable proclamations, communicate to all persons the provisions which it has pleased Us to incorporate in this law, in order to correct the abuses prevalent among mankind, and supply the deficiencies of nature, so that in this way Our subjects may become familiar with these matters, and be informed of Our solicitude for their interests, and that We prefer their welfare to every other consideration.
Given at Constantinople, on the Kalends of September, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE II. CONCERNING WITNESSES.
NINETIETH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
The practice of introducing witnesses for establishing proof has long been prevalent in order to prevent plaintiffs from easily concealing facts, and to prevent actions from running the risk of being lost through the fraudulent inclinations constantly existing in the minds of men. For it is not merely for the purpose of rendering matters more clear that witnesses are introduced, but to increase the certainty of the testimony. For when persons, being well aware of what has taken place, make statements which are either contradictory or false, they show, by such a course, that they are unwilling that the truth should become known and judgment be rendered in accordance with it; for they state occurrences which never existed, and ask that their allegations shall solely be taken into consideration in the determination of the case. For when the parties, being aware of certain facts give conflicting evidence, or make statements that are absolutely false, they, by means of this very fact, show that they do not wish the truth to become known, or a decision to be promulgated in accordance with it; but they give evidence concerning matters that never existed, and seek to have judgment rendered upon such testimony. It would therefore be extremely inadvisable to exclude the testimony of experienced witnesses, since there are many facts which cannot become known except by the introduction of evidence. Former legislators, indeed, forbade persons of abject condition to testify, but they introduced many exceptions to this rule, and even deprived many of the privilege of giving testimony. But as, in spite of these prohibitions, the statements of witnesses are not always correct, We have deemed it proper to add something to this subject, and to diminish as far as possible the amount of false testimony.
We have just learned of a case which occurred before the illustrious judge of the Province of Bithynia with reference to a will, in which witnesses were convicted and found guilty of the worst kind of forgery; for at the time the will was executed the testatrix was actually dead, but some of the witnesses held her hand for the purpose of making a cross, so that she would be believed to have herself traced this venerable symbol, which they themselves had made upon the paper. Therefore We, having carefully considered this matter, thought that it was necessary to enact certain rules with reference to the production of witnesses, as well as others concerning their civil status. Hence We confirm, without exception, the regulations enacted by legislators with reference to certain persons being forbidden to testify.
CHAPTER I.
WITNESSES SHALL NOT BE ADMITTED TO TESTIFY UNLESS
THEY ARE OF UNBLEMISHED REPUTATION, OR JUDICIAL
WITNESSES.
We especially decree with regard to this Great and Most Fortunate City where (through the favor of God) there is a very large number of estimable men, that witnesses must be persons of good reputation, or not liable to suspicion because of their rank, office, wealth, or dignity ; and when they do not belong to these classes, that they shall be considered as worthy of confidence by both parties; and if this be the case they can testify. Artisans, however, whose employment is ignoble, or who belong to the lowest order of society and whose civil status is obscure, shall not be allowed to give evidence; and where any doubt as to their competency exists, it can easily be removed by showing that their lives are regular and blameless.
(1) If, however, any witnesses, who are absolutely unknown, appear to attempt to pervert the truth, they may be subjected to corporeal punishment; and if the judges are magistrates, they themselves can inflict it. But where they are not of such rank, they must, in this City, apply to an official of the Most Magnificent Praetor of the People, and, in the provinces, to the public defender; and by means of them scourge the witnesses until they no longer conceal the truth, or until they acknowledge that they have been induced to give their testimony in consideration of the payment of money, or that they have been actuated by malice.
CHAPTER II.
WITNESSES TO THE PAYMENT OF A PECUNIARY DEBT EVIDENCED BY A WRITTEN INSTRUMENT SHALL NOT BE SELECTED BY CHANCE; AND CONCERNING WITNESSES TO DOCUMENTS IN GENERAL.
Although We have, for a long time, forbidden oral evidence to be given of the discharge of an obligation contracted by a written instrument, unless in accordance with the rule which We have prescribed, We, nevertheless, now revoke this provision. For where a debt is based upon a written contract, and oral testimony given by witnesses of the payment of the same is produced by the parties interested, We desire it to be admitted by the judges, provided the witnesses are men worthy df confidence, and are called for the purpose of testifying as to the payment of the debt, arid to prove it was made to someone, or to testify concerning the admissions of the person who has received the property; for it is in this way that witnesses establish the facts by their evidence. But We do not desire that frivolous testimony, based upon what has been heard while people are passing, should, under any circumstances, be valid; or that the evidence of those who state that they met certain persons accidentally, and heard them say
that they had received money from someone, or that they were indebted to another.
Statements of this kind seem to Us to be absolutely suspicious, and deserving of no attention whatever; and We have sometimes encountered similar ones while dispensing justice, when, for instance, the claim is made that a large sum of money has been paid, and two notaries have alleged that they were present at the payment of the same (but there was no witness to this), and that the debt was contracted in writing, while it was well known that the creditor knew how to write, and could in his own hand have rendered the release of the debtor clear beyond all doubt. Hatred for occurrences of this kind has induced Us to enact the present law.
Another similar case has recently been brought to Our attention, in which a certain individual, in the presence of witnesses summoned expressly for that purpose, and before a notary, acknowledged that he owed a debt. He did this for money, having taken the place of the true debtor, and having afterwards died, the amount was collected from the first debtor, while it was actually due from the one who had acknowledged that he owed it. God does not allow a transaction of this kind to remain concealed.
CHAPTER III.
TESTIMONY SHALL BE REDUCED TO WRITING, AND WHY THIS is DONE.
Therefore We place no confidence in such testimony, nor (as We have already stated) in the statements of notaries, for the reason that when persons are educated and wish to acknowledge anything, they should do this in writing, or in court, and thereby render it indubitable. We do not permit evidence liable to suspicion to be accepted as true, and where any of this kind is given We do not admit it; but We require witnesses to testify as to the very transaction when they were called to acknowledge the execution of an instrument by the person who produces them; and it is necessary (which is the case where wills are concerned) that the witnesses should be summoned expressly for that purpose, and should be persons of good repute, for under such circumstances testimony obtained from them will be positive; but We forbid any statement to be admitted as to the execution of an instrument, when the witnesses were not present and did not sign it.
Where witnesses are not of high rank (as We have previously stated) they shall be subjected to torture; and where they openly contradict one another, the judges must be careful to notice this, and if they should ascertain that their statements are not true, they shall reject them, and accept such as they may decide to be more worthy of confidence, and which are established by the larger number of witnesses. If it should appear that the witnesses fraudulently and maliciously contradict one another, they shall not go unpunished,
unless it can be proved that this was due to an accidental error, and not through design.
CHAPTER IV.
WITNESSES SHALL NOT BE PRODUCED A FOURTH TIME WHEN WHAT THEY TESTIFY To Is ALREADY KNOWN; OR, IN OTHER WORDS, How MANY WITNESSES SHALL BE PRODUCED, AND IN WHAT WAY THIS SHOULD BE DONE.
For the reason that many persons repeatedly produce witnesses even up to three times, and then annoy Us by their applications, desiring to be permitted to take their testimony a fourth time, We direct Our judges to give special attention to this, and where witnesses have been produced three times, not to allow this to be done again by the party who has already offered them, and has accepted their testimony; since there is reason to fear that it may be set aside, and that he who demands a new hearing may be less desirous for the production of the witnesses than that some explanation or correction of the preceding evidence may be made.
But where anyone, after having produced witnesses, has not yet accepted their testimony, or they have not completed it whether he himself, or one of his advocates, is responsible for this, and his adversary alone has accepted the testimony, or has disputed it without, however, having communicated the fact to him who has already presented the witnesses three different times, and if the party who produced them suspects that they have not told everything, and demands that they add to their testimony, under such circumstances a fourth production of the witnesses shall be granted him; but he must first be sworn that neither he himself, nor his advocates, nor any other persons acting in his behalf, have suppressed any evidence or requested this to be done; and that it is not through fraud, design, or artifice that he asks that a fourth production of the witnesses may take place, but for the reason that he has not been able to avail himself of the testimony previously given. If he should do this, he will not have need of an Imperial order which was formerly necessary, but the provisions of this law will be sufficient, and he can cause the witnesses to testify a fourth time. He is, however, forbidden to produce them again, in order that an excuse may not be made to protract the litigation, for We desire the judge to dispose of it with all speed, in accordance with his good judgment.
(1) There is, however, no doubt that although he may have produced the witnesses only once or twice, if their statements have been contradicted, or if his adversary having done this, he should accept it as true, and in this way should have ascertained what the evidence was, he shall not be permitted thereafter to again produce the witnesses, even if an Imperial order should direct him to do so.
CHAPTER V.
WITNESSES SHALL ONLY BE EXAMINED IN THEIR OWN PROVINCE AND IN THE LOCALITY WHERE THEY ARE
CALLED.
We are aware that a law has long existed which provides that if anyone should bring suit in this City, the evidence must be given in the provinces where the witnesses reside; and that the plaintiff shall have the right (with the permission of the judge who shall grant a sufficient time) to take the testimony of the witnesses in the province; and that, after this has been done, the party in question shall bring the suit back to this City, in order that it may be decided by the judge having jurisdiction of the same. But many applications are made to Us asking that persons who are involved in litigation in the provinces and have witnesses here may have them heard under the law which We have just mentioned, and that the provincial judge may be empowered to direct that the witnesses residing in this City be produced and heard there, and that after this has been done, the case may again be submitted to him; and as it is also requested that this rule be made applicable in the provinces, in order that evidence may be obtained, We authorize provincial magistrates to have witnesses heard here, and that any evidence given by virtue of their decrees shall be taken by one of the most eloquent judges appointed by Us for £hat purpose; that the evidence can be given in a different province from the one where suit was brought, either before the defender or the Governor, by virtue of an order of the court having jurisdiction of the case; and that a final decision shall be rendered where proceedings were originally instituted.
We desire that what has been enacted with reference to witnesses whose production here has been ordered in the provinces shall also be applicable where such production is ordered from one province to another, or from a province to this city, and that authority to furnish evidence shall be granted to all persons. The testimony of witnesses shall not be given in a province without a written order being issued to those who have produced them, or to their adversaries. This order shall bear the seal of the Registry, and shall be despatched by the judges here or in the provinces, in order that if the nature of the litigation requires other witnesses, they may not be excluded on account of their statements.
We understand that all that has been previously said only relates to pecuniary cases, for where criminal proceedings in which there is great risk to run are instituted, We desire that witnesses shall invariably be produced before the judges having jurisdiction, as under such circumstances it may be necessary to employ torture and other measures.
CHAPTER VI.
THE TESTIMONY OF A WITNESS WHO is ALLEGED TO BE A
SLAVE SHALL BE RECEIVED, AND CONCERNING THE STATUS
OF WITNESSES.
If, however, the person who wishes to testify js said to be of servile condition, but he himself states that he is free, evidence as to his birth shall be furnished, and the trial of the case shall remain in abeyance until this has been done; so that if the status of the witness is provide to be servile, his testimony shall be just as if it had not been given at all. When, however, the witness alleges that he is free, he shall be compelled to produce the document by which freedom was conferred upon him, and after that he can testify. If he alleges that he received his freedom in another province, or that it is not easy for him to furnish proof of it, and he makes oath to this effect, his evidence shall be committed to writing; but where the instrument evidencing his manumission is not produced, the party who has called the witness cannot avail himself of his testimony.
CHAPTER VII.
WITNESSES SHALL BE EXCLUDED FROM TESTIFYING ON ACCOUNT OF THEIR ENMITY; AND CONCERNING HOSTILE
WITNESSES.
If, however, anyone should say that a witness who was about to testify is hostile to him, and he proves that, at the very time, he is involved in criminal proceedings with him, the hostile witness shall not be admitted to testify until the criminal case has been disposed of. When he is said to be hostile for some other reason, for instance, because he has been sued for a sum of money, his testimony shall be taken, but it will not be available until the litigation between the witness and the party to the action shall have been disposed of.
CHAPTER Vill.
MEDIATORS SHALL NOT TESTIFY UNLESS WITH THE
CONSENT OF THE PARTIES, AND CONCERNING THE
EVIDENCE OF BROKERS.
As We have enacted a law having reference to civil cases by which We forbade persons who have been mediators between parties litigant to testify, and certain magistrates carry the application of this rule too far, and do not permit the evidence of mediators to be accepted under any circumstances, We order that, if both parties consent, he who has acted as mediator between them shall be permitted to testify (for this kind of evidence is admissible), and that he may even be compelled to do so if he refuses, for the prohibition imposed by Our law upon mediators giving testimony is removed by the common consent of the parties.
CHAPTER IX.
THE PRODUCTION OF WITNESSES SHALL NOT TAKE PLACE EXCEPT IN THE PRESENCE OF THE ADVERSARY, AND AT WHAT TIME WITNESSES SHALL BE ADMITTED TO TESTIFY.
As We are aware that certain persons frequently appear before defenders or the illustrious Governors of provinces, or, indeed (as is usually the case) in this City before the Illustrious Master of the Census, and complain to these officials of having suffered injustice from someone, and of having been injured or subjected to loss, stating that they desire to produce witnesses to establish their allegations, We decree that hereafter witnesses shall only be opposed to those who have testified in the presence of one party, and that the defendant who resides in the city in which the evidence was taken shall be notified by the judge, or the defender, to be present when the testimony is taken.
If, however, the defendant should refuse to appear, with a view to rendering the evidence given in the presence of one party alone of no effect, We order that testimony of this kind shall be just as valid as if the defendant had been present when it was offered. For if he refuses to appear when the witnesses are heard (as their evidence is given in public), he will be considered to have been present, unless he may have been excused for some good reason; his bad faith will be of no advantage to him, but the proofs will be deemed to be sufficient, no matter what benefit may result from the insolence of him who produced them, and he will be allowed to make use of them though they may have been given only in the presence of one of the litigants; for he who did not appear cannot, by his presumption and audacity, prevent the evidence from having its effect.
All other provisions with reference to witnesses, which Our predecessors or Ourselves have prescribed, shall continue to remain in full force, and be observed by Our superior or inferior judges in this City, as well as in the provinces; in'order that by remedying, as far as possible, what relates to witnesses, We may cause litigation to be conducted with more regularity and purity than formerly.
We order all magistrates to take cognizance of cases in the presence of the Holy Gospels, and We also direct that plaintiffs, defendants, and advocates shall be sworn; for God always keeps in view the souls of judges, litigants, and witnesses, and His constant presence in lawsuits should remove all fraud, and place the parties to actions beyond suspicion.
We desire this law to remain in force for all time.
EPILOGUE OR PROMULGATION.
Your Eminence will hasten to carry into effect the matters which it has pleased Us to include in this Imperial Law.
Given on the fifth of the Kalends of October, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE III.
WHEN THE PAYMENTS OF THE DOWRIES OF THE FIRST AND SECOND WIVES ARE BOTH DUE, THE FIRST WIFE, OR THE CHILDREN WHO ARE THE ISSUE OF THE PRIOR MARRIAGE, SHALL BE PREFERRED; AND IF THE WIFE, OR SOMEONE WHO HAS PROMISED A DOWRY FOR HER, WAS WILLING TO PAY IT TO THE HUSBAND, AND THE LATTER NEGLECTED TO RECEIVE IT, THE WIFE CANNOT, AT THE DISSOLUTION OF THE MARRIAGE, EXACT THE PAYMENT OF THE ANTE-NUPTIAL DONATION.
NINETY-FIRST NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
The dowry of the first wife shall have preference over that of the second, whether she or her children demand it or not.
PREFACE.
When, a short time ago, We were hearing a case, a doubtful matter arose which requires amendment, and is not unworthy of more definite legislation. After a man had buried his wife, he obtained the dowry of another, and then died, leaving children by both marriages. The second wife, taking advantage of the privilege which We have granted, desired to collect the dowry which she had brought to her husband; the children by the first marriage, however, objected to this, at the same time claiming the dowry of their mother, and it was doubtful whether, as the first wife was no longer living, her children could be permitted to contest the payment of the dowry of the second; for We did not formerly, nor do We now grant this privilege to anyone else, even to heirs or creditors, for We confer it upon the children exclusively.
This case presented many difficulties, for the second wife stated that before her husband married her, he had already squandered the dowry of the first wife, and that it was not just that, as he had only left enough to pay her own dowry, she should be compelled to lose it, and that the children by the first marriage should receive a dowry which had already been wasted. The latter, however, on the other hand, pleaded the privilege of hypothecation, and stated that as long as any property of the deceased existed, prior hypothecation of the same should take precedence of subsequent ones.
CHAPTER I.
Therefore this question being involved in doubt, in order to arrive at certainty, it was decreed by Us that where any article included in a first or second dowry was still in existence, the children of the first or second marriage should respectively be entitled to it; or when the second wife was dead, her children should be entitled to whatever
they could prove belonged to them; for where dowries are still in existence, it is proper that each one should take what belongs to him without having need of any privilege. But where no article composing the dowry of either of the two women was still in existence, or if some of the articles were, and some were not, and both wives were living, for instance, where the first marriage had been dissolved by repudiation, in which case the wife would have a right to the dowry; or where both wives were dead, and had left children; or where only one of them was dead; We give preference to the older dowry, and, by way of compensation for property which is not to be found, We recognize the superior claim of the first wife, her children, grandchildren, great-grandchildren, and other successors, no matter who they may be; for in the case of public debts the older is preferred to the more recent, and it is actually necessary that in the case stated priority should be conceded to the first dowry over the second. We do not, however, give preference to one dowry over another, or to one hypothecation over another; but whatever is prior in point of time shall have greater force, and be entitled to privilege. We, by no means, permit hypothecations to be changed, annulled, or diminished.
We establish this rule, being well aware of having already enacted it in another part of Our jurisprudence, but as this case was brought before Us, and has given rise to different questions, We promulgate the present law rather with a view to elucidating Our legislation than for the purpose of prescribing something more advantageous.
CHAPTER II.
WHERE A HUSBAND is TO BLAME FOR NOT HAVING THE DOWRY PAID TO HIM.
It is also advisable to add to the law the following provision, as a question arose which has rendered it necessary for Us to do this. Where a woman owed her dowry, and she herself wished to pay it; or where someone, either a relative or a stranger, promised it for her, whether it be profectitious or adventitious (for these are the legal terms), but her husband or his father refused to accept it, and it is proved that the woman was ready to pay it, or even to do something in addition; as, for example, where she tendered the dowry, or, it consisting of movable property, she sealed it up, or deposited it in conformity with Our laws; or having herself appeared alone in court, she demanded that the dowry should be deposited, and the court officials subsequently notified her husband of the fact, and the latter was guilty of negligence; he cannot, after the marriage has been dissolved, refuse payment of the ante-nuptial donation under the pretext that he has not received the dowry.
Whenever a creditor, to whom a debt is tendered, refuses to accept it, he who has been willing to discharge the obligation in some respects resembles one who has paid, and so far as a dowry is concerned, a tender is equivalent to payment. For, where anyone who has prom-
ised a dowry refuses to give it, We permit the ante-nuptial donation also to be refused; and, for the same reason, when anyone who has promised a dowry is willing to give it, and he who is entitled to receive it fraudulently declines to do so, We grant the petition for the recovery of the ante-nuptial donation, since the husband is to blame for nonpayment of the dowry.
EPILOGUE.
Your Highness will hasten to carry into effect the matters which We have been pleased to include in this Imperial Law.
Given at Constantinople, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE IV.
CONCERNING IMMENSE DONATIONS MADE TO CHILDREN.
NINETY-SECOND NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We have recently enacted certain legislation having reference to the Falcidian Law and its portion, and have made no unimportant addition to it, for the reason that its provisions were inequitable, and it did not please Us; still, it is necessary to give preference to children whom the father may wish to favor, not, however, to such an extent as to render the diminution suffered by others intolerable.
CHAPTER I.
Therefore, as the law enacted by Us remains in full force. We desire that if anyone should make an immense donation to one or more of his children it will, in the distribution of the estate, be necessary to reserve for each one of them the share to which he or she was entitled by law before the father made the donation to the child or children whom he honored in this way. Hence, those who obtain their lawful share of the whole of their father's estate cannot claim any of the donation, but the shares of the children will be increased in proportion to the value of said estate, as it was before it was exhausted by the donations; the children to whom they were given cannot allege that they are content with these immense gifts, and that they will not claim their father's estate; and while it is true that, if satisfied with the donations, they cannot be compelled to accept the estate, still they will be forced to make up to their brothers the share which We have decreed by Our law, in order that the excessive amounts of the gifts may not deprive the lawful heirs of that to which they are legally entitled, especially where a father who acts wisely and judi-
ciously towards all his offspring is allowed to give more to the children for whom he entertains greater affection, but not to injure others by the immensity of his donations, as well as to disobey Us. And, indeed, this was Our idea from the beginning. But as We have allo'wed this parental injustice to continue for a considerable time, now that We have become more familiar with the human mind, and have seen parents give way to their passions, We make this addition to Our preceding laws.
(1) We decree that this rule shall apply to children who have shown proper respect to their parents, but not to those whom their father reproaches for veritable ingratitude. For if he should appear to suffer from it, and the existence of ingratitude should be established, what has been proved by the law with reference to ungrateful children shall remain in full force, and shall not be changed in any respect.
EPILOGUE.
Your Highness will hasten to provide for the execution of what We have been pleased to set forth in this Imperial Law.
TITLE V.
CONCERNING APPEALS. NINETY-THIRD NEW CONSTITUTION.
WHEN, AFTER A CASE HAS BEEN BROUGHT BEFORE AN APPELLATE JUDGE, THE LITIGANTS RESORT TO ARBITRATION, AND THE TERM OF Two YEARS HAS EXPIRED, THE APPEAL CAN BE RENEWED BEFORE THE SAID APPELLATE JUDGE, AND THE EXPIRATION OF THE SAID TERM OF Two YEARS CANNOT BE PLEADED.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
The demands of Our subjects afford Us an opportunity to enact laws for their benefit. A certain patron stated the following case, namely: A law is in existence which provides that where an appellant keeps silent, or a plaintiff does not prosecute his case for two years, he shall be deprived of the resource of appeal, and cannot proceed further with it, and the decision which has been appealed from shall be affirmed, and shall become obligatory upon both parties.
A certain Hesychius and his adversary had a lawsuit before an ordinary judge, and Hesychius, having had a decision rendered against him, took an appeal, which was brought before your tribunal. While the case was pending before you, the parties abandoned it, and appointed arbiters for its settlement; but this proceeding was also abandoned, and the parties did not conduct the case to a conclusion before them, and the two years having elapsed, the adversary of
Hesychius now alleges that the suit can no longer be prosecuted in your court by the party who lost it, but the decision must be ratified, as the said term of two years has expired; and he also states that Hesychius cannot proceed further in your tribunal for the reason that he had taken the case before arbiters.
CHAPTER I.
Therefore We order that the matter which We have just mentioned shall, in no way, be prejudiced by lapse of time, and that the decision of the first judge shall not be affirmed after an appeal has once been taken from it; but that the case shall continue to be conducted to judgment before Your Glory, even though two years, or ten thousand more, may have elapsed. Hereafter, in every instance in which anything of this kind happens, and, after a case has been brought before the appellate judge (or where this has not yet been done), arbiters are appointed, and a delay of two years subsequently takes place, within which term the appellate judges are required to dispose of litigation; and the suit should, for some reason or other, be returned to the court of appeal, all the parties to the same shall be allowed to conduct it to judgment, just as if they had not abandoned the appellate court to have recourse to arbiters, and without anyone being able to plead the expiration of the two years in bar of further proceedings. For it is not just for him who has once chosen other judges to be allowed to take advantage of the silence of the injured party, on the ground that he entrusted his case to arbiters, and did not prosecute the case before the appellate judge because it had been submitted to arbitration.
EPILOGUE.
We desire that these rules shall be observed in every transaction in your tribunal, as well as in every other in which appeals are determined, so that Our subjects may be subjected to no injustice. If, however, the term of two years should elapse after the parties have abandoned arbitration, then We wish the original decision to be affirmed in accordance with the provisions which We have laid down, and which shall hereafter be observed in every instance. All other laws which have heretofore been enacted with reference to proceedings on appeal and have been included by Us in Our Code of Laws shall remain in full force.
TITLE VI.
MOTHERS WHO ARE EITHER THE DEBTORS OR CREDITORS
OF MINORS MAY ADMINISTER THE GUARDIANSHIP OF THE
LATTER, AND SHALL NOT BE REQUIRED TO SWEAR THAT
THEY WILL NOT CONTRACT SECOND MARRIAGES.
NINETY-FOURTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Pratorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We have recently promulgated a law with reference to the curator-ship of minors (for in the investigation of cases brought before Us We have frequently become aware of frauds which have been committed against them), which law prohibits a debtor or creditor of minors to administer their curatorship, lest, having their property in his power, he may be guilty of some act to their disadvantage. This law is now confirmed by the present one.
CHAPTER I.
For the reason that mothers are desirous of having the curatorship of their children, and since they demand it in accordance with ancient law as well as in conformity with those which We Ourselves have enacted, and objection is made to this by certain persons under the pretext that a constitution of this kind is not just, We desire to state in this law that mothers are excepted under such circumstances. We were of the opinion, in the first place, that it was extremely absurd for this prohibition to be made on the ground of protecting the interests of minors, and it is not reasonable to make the same rule applicable to both the mother and to strangers, for natural love, more than anything else, relieves the former of suspicion so far as her children are concerned, while strangers have no reason to favor them, and it is not proper to deprive mothers of their right. For this reason they shall, after having hypothecated their property in accordance with the forms previously prescribed, be permitted to administer the estates of their children, and to have no fears of the former restriction; for everything will be just as if the law referred to had never been passed.
Hence, whether dowries or ante-nuptial donations have been exacted, or whether the mothers have other claims to the property of the minors, or the latter have any against their mothers, either acquired through their father on their own account (for anyone by making proper investigation can readily ascertain this), these claims shall in no wise be prejudiced, and can be collected in conformity with prior constitutions, whether the mother administers the guardianship of either her legitimate or natural children.
CHAPTER II.
For the reason that We fear that all women may not be willing to swear by the Omnipotent God not to marry again, and in order to prevent them from perjuring themselves, We think that the law providing that when mothers administer the guardianship of their children they shall make oath that they will not contract a second marriage should be amended; for We are aware that this law is disobeyed, and that perjury is committed almost as often as the oath is taken, for this is a fact known to everyone. It is not, however, because certain persons keep their oaths, that those who perjure themselves may embrace the opportunity of being guilty of impiety towards God. Legislators do
not confine themselves to instances which rarely occur (as is shown by ancient jurisprudence), but they take into account and provide for those which most frequently take place.
Therefore, We order that a different rule from the one applicable to mothers up to this time shall be observed, for We desire them to renounce the Velleian Decree of the Senate, and every other advantage; to comply with the regulations which have been prescribed in the first place; and not to take the oath, as the renunciation of the Velleian Decree of the Senate and other privileges will be amply sufficient. We wish, nevertheless, that as soon as the woman has contracted a second marriage she shall be deprived of the guardianship, and be treated just as if she had sworn to not marry again, had lied openly in court, and had preferred her second marriage to her own oath.
EPILOGUE.
Hence this law is based upon maternal affection, and has been enacted by Us in order that the honor of God may not in any respect sustain injury; it shall be valid from the present time, and Your Highness will publish it in all the provinces. We have transmitted the said law to the Most Glorious Prefect of this Most Fortunate City, who is charged with these matters; and We desire that it be executed from this very day by him and by the Most Illustrious Praetor of the People, to whom the care of this city is entrusted. In order that minors may be fully assured of the preservation of their property, inventories of the same shall be drawn up in the presence of the illustrious clerk and other persons who are usually summoned for this purpose under such circumstances; bonds shall be executed, and everything done exactly as provided by Our laws, through the instrumentality of the Most Illustrious Praetor having jurisdiction in this city. He shall publish the present law in Constantinople, so that all may become familiar with it, and no one be ignorant of what We have enacted, for We have had it proclaimed throughout the provinces by the Most Glorious Praetorian Prefects.
Given on the fifth of the Ides of October, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE VII. CONCERNING MAGISTRATES.
NINETY-FIFTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We are aware that a law previously enacted provides that magistrates invested with civil or military jurisdiction shall not, after they
have been deprived of their offices, abandon the province before having remained fifty days in the capital of the same, constantly appearing there in public and giving satisfaction to anyone who may bring suit against them; and that they shall not leave the province under the pretext that they are summoned here, and, in case they do leave it, they can be sent back. We have ascertained that certain magistrates are so bold that, in defiance of the law which We have just mentioned, they dare to leave their provinces and repair to this Most Fortunate City, before having even relinquished the insignia of their offices; and that they do this through apprehension of being prosecuted for the acts of their administration, and of incurring just punishment for their crimes.
CHAPTER I.
Hence We decree that no magistrate, no matter to what province he may belong, whether of the East, West, North, or South of the Empire, shall abandon it before having given up the insignia of his office; and after having done so (for We confirm the ancient custom), We wish him to show himself publicly for fifty days in the province which he has governed, and finish all matters begun during his administration, in order that it may be proved whether or not he is entitled to confidence.
(1) Where, however, anyone who is administering a civil or military magistracy, and having been removed from it, leaves the province without having been authorized to do so by Our order, he will be considered guilty of the crime of treason, and shall be sent back to the province; and, after he has satisfied all claims brought against him, he shall be subjected to the extreme penalty of treason. If, then, after having relinquished his office, he does not remain in the province for the prescribed time, and show himself in public every day, or flees from the province, what We have heretofore provided with reference to this shall be observed.
(2) We notify all magistrates that when they have once accepted an office they must discharge its duties; and We do not desire their successors to acquire the habit of sending what are called interdicts outside the boundaries of the province, or of removing Governors, delaying to take journeys, remaining here too long, visiting other provinces before having repaired to the one which they are called upon to govern, or of conducting themselves as indolent magistrates are accustomed to do. We wish them promptly to assume the administration of the government to which they were appointed, in order that during the interval between the departure of the retiring magistrates and the arrival of those who take their places, the province shall not remain without a judge.
We desire that, only two days before the magistrates arrive in the province where he whom they succeed is to be found, they send him a friendly letter notifying him to despatch an officer to meet them; that, up to that time, he who occupies the position shall be entitled to his salary; that the entry of a magistrate upon the duties of his
office shall not date from the moment when he receives his commission, or from that when your order has been dispatched; but that magistrates shall receive their salaries from the very moment when (as has already been stated) they enter the province itself; and that up to this time he alone who is administering the government shall be entitled to his own. For it is not practicable nor to be endured that the province should be left without a judge; that the magistrate appointed by Us should substitute for himself a man who perhaps has no experience; that he who surrenders his office should quit the province before the proper time, and be deprived of the emoluments to which he is entitled before he has relinquished his administration. Nor shall he do this before the arrival of his successor in the province, and only two days before the latter enters it.
EPILOGUE.
We desire Your Highness to cause these provisions to be forever observed, and that as soon as you ascertain that a magistrate has arrived in his province, you will transfer to him the emoluments of him whom he succeeds; otherwise, in accordance with what We have already prescribed, you will give said emoluments to the magistrate who relinquishes his office, until his successor coming into the province shows himself to those subject to his jurisdiction. Your Highness will hasten to have what it has pleased Us to include in this Imperial Law executed without delay.
Given at Constantinople, on the Kalends of November, during the fourteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE Vill.
CONCERNING PERSONS WHO MAKE A BUSINESS OP BRINGING LAWSUITS, AND CONCERNING THOSE WHO ARE SUED ONE OR MORE TIMES.
NINETY-SIXTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praitorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
As We detest everything relating to malicious prosecution and subterfuge, We have thought that there are some matters having reference to these subjects which are in need of legal correction. For We have ascertained that some persons, entitled to no cause of action, having established an understanding with certain individuals who make a business of instituting legal proceedings, sue others; and that they file complaints subjecting defendants to loss, and then desist, after having exposed their adversaries to great expense; an abuse
which has especially prevailed in the provinces where such plaintiffs and those who defend others have formed an association for profit.
CHAPTER I.
CONCERNING THE SUMMONS TO COURT, AFTER WHICH
THE PLAINTIFF MUST BE CAREFUL TO HAVE JOINDER OF
ISSUE TAKE PLACE WITHIN Two MONTHS.
In order to prevent these things from occurring in the future, We order that the plaintiff shall not file a complaint and give the defendant occasion for incurring expense without having previously furnished security to the latter or his representative that he will, within two months, join issue in court without fail; and if he should neglect to do so, that he will be liable to the defendant for double the costs; but the bond shall not be given for more than thirty-six aurei.
CHAPTER II. CONCERNING THOSE WHO ARE SUED ONE OR MORE TIMES.
The following matter is also worthy of amendment. Someone applies to Us, and states that he has brought an action against a debtor before one of Our judges; and that then the latter has, in his turn, summoned him who is indebted to him before another judge, the result of which is something astonishing, for each party to the suit appears as plaintiff; a state of affairs which is at once pitiable and ridiculous, for where one of the litigants desired to prosecute his own case, his adversary immediately sued him, and brought him before another court to whose jurisdiction the former was subject, so that the parties having sued each other were eternally involved in litigation.
(1) Therefore We decree that if anyone should think that another who has sued him is indebted to him, he shall not, in his turn, bring an action against him before another judge, but must bring it before the same one who already has cognizance of the case, who shall dispose of both transactions. If the judge before whom the action is brought is displeasing to him, he can reject him, and We grant him a delay of twenty days dating from the service of the complaint for this purpose, after which, and during the said twenty days, he will be permitted to reject the judge, and obtain another before whom both cases shall again be brought. In this way no more fraud will be committed, and each litigant can avail himself of his own right.
If, however, the defendant should keep silent, and should afterwards himself attempt to bring suit before another judge, he will be obliged to wait until the first action against himself has been decided, and then he can institute proceedings before a different magistrate.
We establish this rule to prevent litigants from being made the victims of the schemes and malicious prosecutions which they are accustomed to employ against one another.
EPILOGUE.
Your Highness will hasten to cause the provisions which We have been pleased to insert in this Imperial Law to be carried into effect.
Given at Constantinople, on the Kalends of November, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Appio.
TITLE IX.
CONCERNING THE EQUALITY OF THE DOWRY AND THE ANTE-NUPTIAL DONATION, As WELL As THE INCREASE OF THE DOWRY AND ANTE-NUPTIAL DONATION, AND THE PRIVILEGE OF THE DOWRY WHICH TAKES PRECEDENCE OF OTHER PRIVILEGES; AND How CREDITORS ARE EXCEPTED FROM THIS PRIVILEGE WHEN THEY HAVE FURNISHED MONEY FOR THE PURCHASE OF AN OFFICE ; AND CONCERNING THE RETURN OF THE DOWRY TO THE FATHER, AND ITS GIFT A SECOND TIME IN BEHALF OF THE SAME DAUGHTER ON HER MARRIAGE TO ANOTHER HUSBAND; AND CONCERNING THE COLLATION OF THE DOWRY WHEN THE HUSBAND DIES INSOLVENT.
NINETY-SEVENTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
As We see that many questions with reference to our original birth (that is to say, concerning marriage and the procreation of children), as well as respecting the end of life and what relates to the last wills and testaments of dying persons are discussed in the laws, We have resolved closely to examine what an ancient law prescribes with reference to dotal instruments, which provides that the nuptial contracts between both parties to a marriage shall transfer property of equal value; that, for example, one of them shall not stipulate for half, and the other for a third or a fourth of a certain sum, but an equitable course must be pursued, as prescribed by the law which provides-that the agreement made by each shall be equal, that is to say, that the profit obtained. by the parties severally shall be the half, the third, the quarter, or any other share whatsoever; but it does not require that the articles given should be the same in number, for it permits one of the spouses to stipulate for one or two thousand aurei, or more, and the other to stipulate for less, in such a way that the equality consists rather in the words or letters alone than in the articles themselves.
CHAPTER I.
CONCERNING THE EQUALITY OF THE DOWRY AND THE ANTE-NUPTIAL DONATION.
Therefore, when correcting all these matters, We desire above all things that whatever is given by these contracts shall be equal, so far as both the dowries and ante-nuptial donations are concerned; that the husband shall stipulate for an advantage as great as the wife; that this advantage shall be of as great a value as the parties desire, but the amounts must be equal. For the principles of justice and equity cannot be observed if the parties to the marriage deceive one another in a business transaction, where they seem to make equal stipulations, but the effect of the latter is unequal, and articles are not furnished by both of them in the same quantity. Thus, for instance, the law would be held to have been entirely evaded if the husband should agree to give two thousand aurei, and his wife agreed to bring him six thousand; or if the parties to the contract should stipulate to receive the fourth of what they consented to give, for in this instance the wife would only obtain five hundred aurei, that is to say, the fourth of what her husband had promised, while the latter would obtain fifteen hundred, which also is the fourth of the sum promised by his wife. In consequence of this, the fourth of one of the parties would be much larger than that of the other, and from this fictitious uniformity a great inequality would result.
Dotal contracts which have already been drawn up shall retain the form which has already been given them, as it is impossible for what has already taken place to be considered as not having been accomplished; but We desire that hereafter, in every donation, the stipulation for advantages shall be uniform on both sides, and that the husband and wife shall agree upon equal profits, which We decree in order that We may, in every respect, honor justice and equity. Where one of the parties is more wealthy than the other, he or she will be allowed to favor his or her consort by employing a different method, which is lawful and acknowledged by Our laws, but whoever does this is forbidden to grant his or her spouse a greater advantage by means of a stipulation, which, though appearing to be equitable, will in fact result in inequality.
These are the provisions prescribed by the present law with reference to this subject for the purpose of treating all persons with justice.
CHAPTER II.
CONCERNING THE INCREASE OF THE DOWRY AND THE ANTE-NUPTIAL DONATION.
We have examined and carefully considered matters relating to ante-nuptial donations, and We shall now treat of their increase. For, as preceding legislators as well as Ourselves have already discussed this subject, We have made use of many philosophical precepts which
it would be difficult to enumerate, by means of which We repress and correct frauds perpetrated by some persons under such circumstances, the justice of which precepts We now confirm. For We have granted to dowries the privilege of being preferred to hypothecations of older date, for the reason that when creditors have made contracts with their debtors, they only took into account the property of the latter, and not that of their wives, which perhaps did not yet belong to them.
We have likewise permitted persons to stipulate for increases (which was also done in ancient times), and We have granted this power to the husband and the wife; to both of them together if they so desire, or to one of them alone. And, at first, for fear some fraud might be perpetrated, We direct that where the increase of a dowry or a donation on account of marriage is desired to be made, one of the parties interested shall not be permitted to make it and the other confine himself or herself to the original stipulation, but both of them must agree to the increase at the same time; and compliance with this provision is not only enjoined upon each one but is required of both; and they must always keep the amount of the two increases the same, in accordance with the Constitution of Our Father. The reason which has induced Us to establish this rule is to prevent the augmentation from being simulated instead of genuine; especially on the part of the woman, who otherwise would be enabled to avail herself of her privilege, and thereby defraud her husband's creditors. When each of the parties owns land, it is preferable for the stipulation providing for the increase to be made for the same kind of property for which the stipulation was entered into at the time of the marriage, and that the increase subsequently made should be certain.
Where only one of the married persons has immovable property, the addition of the wife shall be made in land, in order that the dowry and its increase may be equally privileged, so far as other creditors are concerned, and that the existence of the augmentation may not be doubtful. The increase of the husband shall consist of personal property, for no injury to anyone can result under such circumstances. But where the estate of the woman consists of land, and she stipulates that the increase shall be furnished in movables, she is hereby notified that she will not be entitled to any other privilege than that attaching to her dowry in the first place, and that the increase in this instance is only fictitious. For stipulations made in the beginning are not absolutely liable to suspicion like those which are entered into afterwards to the prejudice of creditors, and for this very reason give rise to doubt; and We do not desire creditors to be injured by the privilege which We grant to dowries. Where, however, the husband is not indebted to anyone, and hence no suspicion of fraud toward his creditors can arise, the increase may be stipulated between the parties to consist of money or anything else that they wish; provided always that this is done equally so far as each of them is concerned, and in such a way that justice may be preserved. For how can there be a suspicion of fraud when the husband is not indebted to anyone, and the increases are agreed upon without deception?
CHAPTER III.
CONCERNING THE PRIVILEGE OF THE DOWRY, AND THAT
OF CREDITORS WHO HAVE ADVANCED MONEY FOR THE
PURCHASE OF AN OFFICE.
The determination of matters in doubt in cases of this kind is a legitimate consequence. For We are aware that certain hypothecations, although of more recent date, are preferred to those of older creditors on account of privileges granted by the laws, and this occurs when the creditor has, by advancing money, furnished them means to either purchase, build, or repair a ship, to erect a house, to buy a field, or to do something else of this kind; and he has also a prior lien over other creditors whose claims are much older than his. The question, however, arises, if when a woman, claiming to enjoy the privilege based upon a dowry and its increase, to which this privilege also applies (as has already been stated) wishes to be preferred to prior creditors, and, on the other hand, a creditor whose claim is actually of later date, but who, because a ship, a house, or a field has been bought or repaired with the money which he loaned, demands the same privilege with respect to the property which has been purchased or repaired, whether the dowry shall be preferred to the claim of a creditor of this kind, and will be privileged so far as he is concerned ; or whether, on the contrary, his claim shall be considered preferable for the reason that the property has been increased in value by the expenditure of his money. Therefore We, having devoted much attention to this point, decree that it is not just for the woman under such circumstances to yield to a privilege of this description. For We have seen (which is a legal absurdity) some females make a profit of their own bodies, and earn a livelihood by fornication, while others, who are opposed to such practices, and deliver themselves and their property to their husbands, so far from profiting by this, have their fortunes impaired, and when their husbands are unsuccessful in business, lose all hope of recovering their dowries.
Hence We decree that where a creditor has loaned money to repair a house, or to purchase a field, he cannot plead his privilege to the prejudice of a woman, for We are aware of the natural weakness of the sex, and how easily they are defrauded. Nor do We permit their dowries to be diminished, for it is sufficient for them to be deprived of their advantages (if they have obtained any) by a prior antenuptial donation, as this loss is considerable for them, and We do not wish them to run any risk of losing their dowries.
CHAPTER IV.
CREDITORS WHO HAVE LOANED MONEY FOR THE PURCHASE OF AN OFFICE SHALL BE EXCEPTED FROM THIS PRIVILEGE.
As inquiries have also been made of Us whether creditors who have loaned money for the purchase of offices shall be preferred, We
direct that if anyone has loaned money for the purchase of an office or for the establishment of an institution, or for any other purpose of this kind, and the reason for the loan is expressly stated in the instrument, and it was agreed that if the object was accomplished, the person who lent the money for the purchase should have a preferred claim to all others, it will take precedence of the privilege of the woman in this instance alone; the creditor, however, will not readily be believed, even if he can produce testimony, for a written instrument bearing the signatures of witnesses and drawn up solely with this end in view will be required. If the claim is derived from an obligation contracted in this way, no suspicion will arise, and the contracting parties will not be deprived of the benefit of their own agreement, but, under all other circumstances, wives will be preferred by virtue of the privilege which We have already conceded to them.
CHAPTER V.
CONCERNING THE DOWRY WHICH RETURNS TO THE
FATHER, AND Is AGAIN GIVEN IN BEHALF OF THE SAME
DAUGHTER TO HER SECOND HUSBAND.
As We have already enacted a law providing that fathers who give dowries for their daughters who are under their control or independent, which return to them in case of the death of their sons-in-law; some persons have made the inquiry whether, when a son-in-law dies and the dowry returns to the father by whom it was given, he can diminish it, if he offers it again when his daughter marries a second time; or whether he has no right to do this because he has once taken it from his own property; and also, whether he should give the same amount to his daughter when she contracts another marriage, just as if she had not become a widow? A case was stated to Us where a certain father when living had given thirty pounds of gold as a dowry for his daughter, and the latter, having become a widow, and marrying again, her father did not give her thirty pounds of gold but only twenty-five, for the reason that his daughter had obtained half of the ante-nuptial donation which consisted of fifteen pounds of gold; and hence he, instead of giving her thirty pounds of gold the second time out of his own estate, had only given her fifteen, as she had also obtained fifteen from the ante-nuptial donation. We do not think that this is just, but We desire that the daughter shall, in the division of the property of her father, obtain the profit of her ante-nuptial donation, and that she shall also receive the remaining fifteen pounds of gold from her father's estate,, which the latter deprived her of just as if he had intended to injure her. For what would the father have done if his son-in-law had lived, and his daughter had not contracted a second marriage; or how could he diminish the dowry which he had already given; and what right had he to appropriate the profit which belonged to his daughter; for as she had a right to include in her own possessions what she had acquired from her husband before his
death, and which might obtain for her another more wealthy husband, she would not only be entitled to thirty pounds of goldthat is to say, to the fifteen forming part of the ante-nuptial donation, and those given by her fatherbut to forty-five pounds, namely, the profit obtained through her deceased husband, the accession to her private property, and what had been received from the estate of her father, provided she kept all that the latter had given her.
We order that these rules shall be applicable where the estate of the father remains in the same condition in which it was originally, and if any accidental loss should have diminished it to the extent that, in spite of his good intentions, it would be impossible for him to give a dowry of the same value as he had done at first; and if he can prove this diminution, he shall not be compelled to bestow upon his daughter, when she marries a second time, more than his fortune will justify.
The daughter, however, shall be entitled to the entire profit obtained by the first ante-nuptial donation, and when contracting a second marriage, she shall receive from her father a dowry proportionate to his means.
It is clear that the father, at the time of his death, will be absolutely compelled to return to his daughter any profit which he may have obtained from the ante-nuptial donation of her first husband (of which We only grant the father the usufruct), and of which his daughter shall have the absolute ownership.
CHAPTER VI.
CONCERNING THE COLLATION OF THE DOWRY WHEN THE HUSBAND DIES INSOLVENT.
We have considered it necessary to decide the following question which has been raised in innumerable instances. A father or a mother constituted a dowry for his or her daughter, and she brought it to her husband; the latter died insolvent, and, after the death of the parents, a demand was made upon the daughter to surrender her dowry, or permit it to be deducted from her share of her father's estate. Where the husband dies solvent, this point is easily disposed of. But when the daughter has nothing left but the right of action against her husband, who is insolvent, and it is stated that a dowry has already been given for the daughter, and that she can only collate the right of action for its recovery, which cannot have any effect in law, this case appears to Us to be worthy of investigation. We are aware that the question has been decided with harshness in many cases, and the wife been compelled to place her dowry in the mass of the estate, or to receive that much less; the result of which was that she did not obtain anything of what was given her as dowry. We, however, come to her relief by amending Our other laws; for as We have already, where her husband had failed in business, granted her the power to recover her dowry during the existence of the marriage, and to administer it in
a suitable manner in accordance with the terms of Our Constitution, she herself will be to blame if, when her husband began to squander his fortune, she did not demand her dowry, and help herself (for she would have been able to recover her own property without any diminution, and collate it with her father's estate by taking that much less).
(1) Where, however, the daughter was under the control of her father, and could not do this without his approval; and if, after having applied to him and having informed him of the condition of affairs, it should be proved that he gave his consent for her to claim her dowry during her marriage, and retain it for the future, in this instance she will preserve all her rights as well as all her property, as We allow her to recover it, even including the ante-nuptial donation during the existence of the marriage, and to free herself from any subsequent risk.
But if it should be established that the father did not either give his consent, demand the dowry, or permit his daughter to do so, We are not willing that she should be subjected to any risk on this account, and she must collate the bare right of action which she has against the property of her insolvent husband, and the result of this action will be shared by herself and her brothers, nor shall she suffer any prejudice on account of the collation; a lawful share of her father's estate shall be given her, and she shall only place in the bulk of said estate the right of action which she has for the recovery of the dowry.
This action shall be brought by all the brothers, and any benefit derived therefrom shall be shared by all of them. But where the father gives the dowry under such circumstances, and the collation of it with his estate is demanded, the same rule shall apply. When the amount of the dowry is large, and the father is not willing either to demand it, or to permit his daughter to recover the same, then We desire that she herself shall proceed to do so; and if she should fail, she will not expose herself to the risk of losing anything through the insolvency of her husband.
We are aware that the most learned Ulpianus has rendered a decision of this kind, thereby coming to the relief of the wife when the husband is insolvent, and that he holds that she shall not be compelled to make collation except to the extent to which her husband is able to meet his obligations.
(2) As, however, many things have been omitted in the multitude of laws which existed before We compiled and arranged them in their proper order, and as magistrates render decrees at variance with these laws, in order to prevent abuses in this respect We have deemed it necessary to promulgate the present enactment which interprets that Constitution of Ours which comes to the relief of a wife even during the existence of the marriage; and in order that its effect may not be confined to certain private individuals, We decree that it shall be of general application. Hence collation shall be made by all those to whose succession it refers, whether they be fathers, grandfathers, mothers, grandmothers, or any other ascendants.
EPILOGUE.
Wherefore Your Highness will hasten to communicate to all persons, and cause to be perpetually observed the provisions which it has pleased Us to promulgate by means of this Imperial Law.
Given at Constantinople, on the fifteenth of the Kalends of December, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE X.
THE HUSBAND DOES NOT ACQUIRE THE OWNERSHIP OF THE DOWRY, OR THE WOMAN THAT OF THE ANTE-NUP-TIAL DONATION, BUT THEY ARE RESERVED FOR THEIR CHILDREN; AND, PROVIDED THE PARENTS Do NOT CONTRACT A SECOND MARRIAGE, THEY WILL ONLY BE ENTITLED TO THE USUFRUCT OF THE PROPERTY ; AND WHERE THEY MARRY A SECOND TIME AFTER REPUDIATION HAS TAKEN PLACE, AND OBTAIN EITHER THE DOWRY OR THE ANTE-NUPTIAL DONATION, THE OWNERSHIP WILL STILL BE PRESERVED FOR THEIR CHILDREN, AND THEY WILL BE COMPELLED TO EMPLOY THE USUFRUCT FOR THE SUPPORT OF THE LATTER. WHERE, HOWEVER, THE MARRIAGE Is DISSOLVED BY COMMON CONSENT, AND THE PARENTS RETAIN SOMETHING FRAUDULENTLY, WHICH MAY CAUSE Loss TO THEIR CHILDREN, THEY SHALL BE DEPRIVED OF SUCH PROPERTY, AND IT SHALL BE KEPT FOR THE BENEFIT OF THEIR OFFSPRING.
NINETY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
Such matters as are invariable do not require new legislation, for as they are simple, and not susceptible of change, they always remain the same, and being governed by eternal laws, are in need of no amendment. But whatever is subject to constant variation requires the exercise of controlling wisdom, which is obtained by means of laws; wherefore, as We are not loth to administer justice, We settle many que'stiohs brought before Us by different persons, and in disposing of such as We find ambiguous, We generally determine them by Our legislation as may be necessary. Hence as it appears that former legislators made certain divisions of the subject which will be hereinafter treated, We deem it advisable to render this more simple by means of a moderate law, which shall be operative from this day, but shall not be applicable to anything which has already been
decided; for We do not hesitate to enact other laws when they are better than those already existing, whose purpose is the same.
When a husband or a wife does not marry again, he or she retains the property acquired by marriage, and it is united to his or her estate; while if either one of them should marry a second time the said property belongs to the issue of the first nuptials. We now intend to annul this inconsistency by means of a simple and a better law. For as the husband or the wife who marries a second time preserves for the issue of the first marriage the ownership of the property which he or she has obtained by either the death or the repudiation of her consort (for the person who marries again may happen to have children by his or her second marriage), is it not unjust that married persons who, at their death, leave legitimate offspring, instead of preserving for them the property which they have acquired from their deceased parents, should have the right to transfer this property to strangers? For, indeed, what is more precious to parents than children who are not ungrateful?
CHAPTER I.
THE OWNERSHIP OF THE DOWRY AND DONATION GIVEN
IN CONSIDERATION OF MARRIAGE SHALL BE PRESERVED
FOR THE CHILDREN.
Therefore We order that if the wife should die, and the husband acquire the dowry, he must preserve it intact for her children, whether he contracts a second marriage or not; and, on the other hand, if the husband should predecease his wife, We desire that the latter should preserve for their children the property obtained by the ante-nuptial donation. Consorts, however, shall be entitled to the usufruct of nuptial property, and it is only the ownership of the same which shall be preserved intact for their offspring. The legislative provisions formerly enacted with reference to parents who marry a second time are hereby confirmed. Those included in the present law shall become operative from this day and for all future time, no matter in what way the marriage may be dissolved; and they shall also be applicable to marriages already dissolved either by death or otherwise, when either the husband or wife is still living. For where both of them are dead, We do not grant the benefit of this rule to their heirs, as what relates to them is at an end, and We leave them subject to the control of the ancient enactments.
It is certain that whenever there are children, and the law gives them a right to the ownership, they can acquire this ownership as well as other accessories and benefits by succession, as has been provided with reference to issue of the first marriage, who, where their parents marry again, have certain advantages conferred upon them by the laws.
CHAPTER II.
WHEN A MARRIAGE is DISSOLVED BY REPUDIATION OR BY COMMON CONSENT, ANY PROPERTY OBTAINED BY EITHER THE HUSBAND OR WIFE SHALL BE PRESERVED FOR TH.EIR CHILDREN; AND CONCERNING THE OBLIGATION OF PARENTS TO SUPPORT THEIR OFFSPRING.
We have also considered it necessary to dispose of a point which has been brought to Our attention, for as husbands and wives sometimes enter into agreements among themselves by means of which they fraudulently deprive their children of what they have obtained by their marriage, thereby reducing them to want, We have decided that it is absolutely necessary to enact a more stringent law on this subject, in order that the fear of punishment may deter persons from dissolving their marriages with a view to profiting by unjust gains, and neglecting their own children.
(1) For when a marriage is dissolved by consent or in any other manner, and there are no children, the preceding regulations shall remain in force; but if there are any children, what We are now about to enact shall be observed. For where parents, without feeling any compunctions in reducing their children to poverty, either voluntarily or by force enter into an agreement; as, for instance, the husband is to blame and he places himself in a position to forfeit the ante-nuptial donation, or when the wife runs the risk of losing her dowry, the husband shall not be entitled to the dowry, nor the wife to the antenuptial donation; but as soon as the loss of either of these takes place, the ownership of the property shall vest in the common children, and the usufruct of the same shall alone remain with the parents who are separated, and whichever one obtains it shall be obliged to support the children born of the marriage, and to provide them with all the necessaries of life, in proportion to the value of the property in question.
(2) We, however, are aware that whenever a marriage is dissolved by common consent, although the ante-nuptial donation reverts to the husband who stipulated to bestow it, and the dowry to the wife for whose benefit it was constituted, and they give one another a large amount of gold to which they are entitled, for example, by way of indemnity, or on some other ground, in such a way that this donation cannot be regarded as a gain resulting from marriage; under such circumstances it is not preserved for the benefit of the children in accordance with the laws on this subject, but the money is given by the husband as if derived from a foreign source, in order that the benefit of the same may be solely enjoyed by the person who receives it.
Therefore, with the intention of correcting the abuse and injury resulting from a fraud of this description, We decree that whenever it takes place and any profit is obtained .by either of the parties, the money shall also be preserved for the children, the ownership of the same shall be immediately acquired by them; and the husband or wife
who receives it shall only be entitled to the usufruct. Thus married persons will be induced to abstain from all fraud and every unreasonable desire of prejudicing the rights of their children, so that they can neither voluntarily, nor against their will, be able to injure them, but they will remain chaste, and preserve that marital affection which it is proper for those who are once united in matrimony to entertain for each other.
This law abounds in chastity, it is consistent with good morals, and has for its object the promotion of the love which fathers and mothers should bear to their children, and provides that the property which their parents do not voluntarily leave them shall be preserved for them by this means, with the sanction of God who is the common Father of all men, that is to say, is invested with universal dominion. Under these circumstances, the provisions which have long been established with reference to profits and successions are confirmed, as We do not make any changes in them except such as are expressly set forth in this Constitution.
EPILOGUE.
Your Highness will hasten to carry into effect what We have been pleased to enact by this Imperial Law.
Given at Constantinople, on the fifteenth of the Kalends of January, during the twelfth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Justin.
TITLE XL CONCERNING PERSONS JOINTLY LIABLE.
NINETY-NINTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
We remember to have long since introduced a law having reference to the selection of mandators, sureties, and bondsmen, that includes numerous provisions which are generally advantageous to Our subjects. Nevertheless, a portion of it seems to Us to require some explanations and additions, as it is, to a certain extent, imperfect and inconsistent.
CHAPTER I.
If anyone should give certain persons as his sureties to be jointly liable, but should not add that they shall be severally liable for the entire amount, they will all of them be obliged at the same time to comply with the agreement. If any provision like that above mentioned should be inserted in the instrument, it must be observed, but this need not immediately be done in such a way as to render each
debtor individually liable, but only the share for which he is respori-sible shall be collected from each, and suit should be brought against all of them, if they are solvent and present, and the creditor thinks this to be advisable. Where the debtors are solvent and at hand they must (every one of them, for himself) discharge the obligation which he assumed as a surety, and by reason of which they are all bound in full, and in this way the debt ov/ed by all will not become the individual debt of each.
But if all, or some of those who are jointly liable and were not sued, are partly or wholly insolvent, or if they are absent, each one who is jointly liable will be required to make up what the creditor cannot collect from the others. In this way the creditor will be able to obtain the entire debt, and will sustain no loss, even though the joint debtors may have, without his knowledge, made some agreement among themselves to his prejudice, and each joint debtor will be liable for what he became security for, at the time the document was drawn up, without being allowed to evade it by artifice, fraud, or agreement, all of which is prevented by this law.
(1) Where all the joint debtors reside in the same place, We order that the judge having jurisdiction shall immediately summon them before him, hear the case, and render judgment against them all. Thus the joint debtors will be compelled to discharge their obligations, their solvency will be established, and the debt be discharged in accordance with law and justice.
(2) If, however, the judge is not a Governor but some other magistrate, We authorize a competent judge to hear the case in this city, or in the provinces; and the illustrious Governor before whom the action is brought, or any other competent judge may, by means of an executive officer, compel the joint debtors to become parties to the suit, in order that the execution of this law may not be interfered with. It shall begin to be operative with reference to contracts from this very day, but We leave whatever is already partly to be disposed of by the laws already enacted on this subject.
EPILOGUE.
Your Highness will hasten to carry into effect whatever We have been pleased to insert in this Imperial Law.
Given at Constantinople, on the fifteenth of the Kalends of January, during the year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.