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. XVII.
CINCINNATI
THE CENTRAL TRUST COMPANY Executor of the Estate Samuel P. Scott, Deceased
PUBLISHERS
CONTENTS OF VOLUME XVII.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
EIGHTH COLLECTION.
TITLE I. PAGE
CONCERNING THE TIME AVAILABLE WHEN MONEY FORMING PART OF THE DOWRY HAS NOT BEEN PAID.
ONE HUNDREDTH NEW CONSTITUTION ................................ 3
PREFACE ........................................................ 3
I. CONCERNING DOWRIES WHICH HAVE NOT BEEN PAID .............. 3
II. .............................................................. 4
TITLE II.
CONCERNING DONATIONS MADE BY DECURIONS TO THEIR SUCCESSORS EITHER AB INTESTATO OR BY WILL.
ONE HUNDRED AND FIRST NEW CONSTITUTION ....................... 5
PREFACE ........................................................ 5
I. ............................................................. 6
II. ............................................................. 6
III. ............................................................. 7
IV. ............................................................. 8
TITLE III.
CONCERNING THE GOVERNOR OF ARABIA. ONE HUNDRED AND SECOND NEW CONSTITUTION ...................... 9
PREFACE ........................................................ 9
L, ............................................................. 10
II. ............................................................. 11
III. ............................................................. 11
TITLE IV.
CONCERNING THE PROCONSUL OF PALESTINE. ONE HUNDRED AND THIRD NEW CONSTITUTION ....................... 12
PREFACE ........................................................ 12
I. ............................................................. 13
II. ............................................................. 13
III. ............................................................. 14
TITLE V.
CONCERNING THE PRAETOR OF SICILY. ONE HUNDRED AND FOURTH NEW CONSTITUTION. .................... 15
TITLE VI.
CONCERNING CONSULS.
ONE HUNDRED AND FIFTH NEW CONSTITUTION ....................... 16
PREFACE ........................................................ 16
I. CONCERNING THE SEVEN PROCESSIONS OF THE CONSULS ............ 17
II. CONCERNING THE WIFE AND THE MOTHER OF THE CONSUL. ......... 17
TITLE VII.
CONCERNING MARITIME INTEREST. ONE HUNDRED AND SIXTH NEW CONSTITUTION. ...................... 21
PREFACE ......................................................... 21
I. ............................................................... 22
TITLE Vill.
CONCERNING IMPERFECT WILLS EXECUTED BY PARENTS WITH REFERENCE TO THEIR CHILDREN; AND CONCERNING THE DISTRIBUTION OF THE ESTATE OF A FATHER MADE AND SIGNED BY His CHILDREN IN His PRESENCE.
ONE HUNDRED AND SEVENTH NEW CONSTITUTION .................... 23
PREFACE ........................................................ 23
I. CONCERNING THE WISHES OF PARENTS AS TO THE DISTRIBUTION OF
THEIR ESTATES .......................................... 23
II. ............................................................. 24
III. ............................................................. 24
TITLE IX. CONCERNING TRANSFERS.
ONE HUNDRED AND EIGHTH NEW CONSTITUTION ...................... 25
PREFACE ........................................................ 25
I. .............................................................. 25
II. .............................................................. 26
TITLE X.
CONCERNING THE DOTAL PRIVILEGES WHICH ARE NOT GRANTED TO WOMEN WHO ARE HERETICS.
ONE HUNDRED AND NINTH NEW CONSTITUTION ...................... 27
PREFACE ........................................................ 27
I. .............................................................. 28
II. .............................................................. 28
TITLE XI. CONCERNING MARITIME INTEREST.
ONE HUNDRED AND TENTH NEW CONSTITUTION ...................... 29
PREFACE ........................................................ 29
I. .............................................................. 29
TITLE XII.
THIS CONSTITUTION REPEALS THE ONE WHICH GRANTED TO RELIGIOUS PLACES FREEDOM FROM PRESCRIPTION, UNLESS A HUNDRED YEARS HAD ELAPSED.
ONE HUNDRED AND ELEVENTH NEW CONSTITUTION ................... 30'
PREFACE ................................:....................... 30
L ............................................................... 3O
TITLE XIII.
CONCERNING PROPERTY IN LITIGATION, AND THE BOND FOR THE TENTH PART OF THE VALUE OF THE OBJECT IN CONTROVERSY WHICH MUST BE FURNISHED BY THE PLAINTIFF. ONE HUNDRED AND TWELFTH NEW CONSTITUTION .................... 31
PREFACE ........................................................ 31
I. WHAT PROPERTY is SUBJECT TO LITIGATION ...................... 32
II. CONCERNING THE BOND WHICH SHOULD BE FURNISHED BY THE
PLAINTIFF BEFORE SERVING NOTICE ON THE DEFENDANT. ...... 33
III. AFTER THE LAPSE OF A YEAR AND THE PUBLICATION OF THREE EDICTS, A DECISION SHOULD BE RENDERED WITH REFERENCE TO THE CLAIM OF THE PLAINTIFF WHO is GUILTY OF CONTUMACY. . 34
TITLE XIV.
IMPERIAL PRAGMATIC SANCTIONS OR ORDERS SHALL NOT BE GIVEN CONSIDERATION IF INTRODUCED DURING THE HEARING OF A CASE, BUT SUITS SHALL BE DECIDED IN CONFORMITY WITH GENERAL ANCIENT LAWS. ONE HUNDRED AND THIRTEENTH NEW CONSTITUTION ................. 35
PREFACE ........................................................ 35
I. ............................................................. 36
II. ............................................................. 37
III. ............................................................. 37
TITLE XV.
IMPERIAL ORDERS SHALL BEAR THE SIGNATURE OF THE MOST GLORIOUS QUAESTOR.
ONE HUNDRED AND FOURTEENTH NEW CONSTITUTION ................. 38
PREFACE ........................................................ 38
I. .............................................................. 38
A SHORT EPITOME OF THE SAME NOVEL. ............................ 39
TITLE XVI.
WHEN A JUDGE HEARS AN APPEAL, HE SHOULD DECIDE IN CONFORMITY WITH THOSE LAWS WHICH WERE IN FORCE AT THE TIME WHEN THE DECISION WAS RENDERED, AND NOT IN ACCORDANCE WITH THOSE WHICH WERE SUBSEQUENTLY PROMULGATED; AND CONCERNING OTHER MATTERS. ONE HUNDRED AND FIFTEENTH NEW CONSTITUTION .................. 39
PREFACE ........................................................ 39
I. CASES TAKEN UP ON APPEAL SHALL BE DECIDED IN ACCORDANCE WITH THE LAWS IN FORCE AT THE TIME WHEN THE DECISION APPEALED FROM WAS RENDERED........................... 40
II. CONCERNING THOSE WHO STATE THAT THEY HAVE OTHER ALLEGATIONS TO MAKE, AFTER THEIR ADVERSARIES HAVE FORMALLY DECLARED THAT THEY HAD NOTHING MORE TO ADVANCE. ..... 40
III. WHAT ARE JUST CAUSES FOR THE DISINHERITANCE OF CHILDREN ... 41
IV. WHAT ARE GOOD REASONS FOR THE DISINHERITANCE OF PARENTS ... 45
V. A CREDITOR SHALL NOT BE PERMITTED TO ANNOY THE HEIRS OF A DECEASED PERSON ON ACCOUNT OF THE DEBT BEFORE TEN DAYS HAVE ELAPSED AFTER His DEATH .......................... 46
VI. CONCERNING THE ACKNOWLEDGMENT OF A DEBT ALREADY DUE .... 48
TITLE XVII.
No SOLDIER OR ALLY SHALL BE KEPT IN THE PRIVATE HOUSE OR POSSESSION OF ANYONE.
ONE HUNDRED AND SIXTEENTH NEW CONSTITUTION ................... 48
PREFACE ........................................................ 48
I. .............................................................. 49
TITLE XVIII.
A MOTHER, GRANDMOTHER, AND OTHER KELATIVES SHALL BE PERMITTED TO DISPOSE OF THE REMAINDER OF THEIR ESTATES IN ANY WAY THEY MAY DESIRE, AFTER HAVING LEFT TO THEIR CHILDREN THE SHARE PRESCRIBED BY LAW; AND CONCERNING SEVERAL OTHER MATTERS.
ONE HUNDRED AND SEVENTEENTH NEW CONSTITUTION ............... 50
PREFACE ........................................................ 50
I. WHERE ANYONE APPOINTS A SON UNDER PATERNAL CONTROL His HEIR, SUBJECT TO THE CONDITION THAT THE FATHER OF THE LATTER SHALL NOT HAVE THE USUFRUCT OF THE ESTATE. ... 50
II. CONCERNING ONE WHO WAS EEFERRED TO AS A CHILD IN SOME INSTRUMENT ............................................ 51
III. CONCERNING A WOMAN WHO MARRIES WITHOUT ANY DOTAL CONTRACT ................................................ 51
IV. CONCERNING THE MARRIAGES OF ILLUSTRIOUS PERSONS, AND WHEN
THEY ARE CONTRACTED BY MEANS OF DOTAL INSTRUMENTS. . 52
V. WHEN A MARRIAGE is CONTRACTED WITHOUT A DOWRY AND THE SURVIVING HUSBAND is POOR, HE SHALL BE ENTITLED TO THE FOURTH PART OF THE ESTATE OF His DECEASED WIFE ...... 52
VI. CONCERNING THE CONSTITUTIONS ENACTED BY THE EMPEROR LEO
AND THE EMPEROR CONSTANTINE ......................... 53
VII. How AND BY WHOM CHILDREN ARE SUPPORTED AFTER A MARRIAGE
HAS BEEN DISSOLVED BY REPUDIATION .................... 53
Vill. CONCERNING THE JUST CAUSES FOR WHICH A HUSBAND is PERMITTED TO OBTAIN A DIVORCE ........................... 54
IX. CONCERNING THE JUST CAUSES FOR DIVORCE WHICH ARE GRANTED
TO THE WIFE .......................................... 55
X. IT SHALL NOT BE LAWFUL TO DISSOLVE A MARRIAGE BY COMMON
CONSENT, UNLESS FOR SOME PLAUSIBLE REASON ........... 56
XI. FOR How LONG A TIME A WIFE SHOULD WAIT BEFORE MARRYING
AGAIN WHILE HER HUSBAND is ABSENT ON AN EXPEDITION .. 57
XII. FOR WHAT REASONS A MARRIAGE is DISSOLVED WITHOUT A PENALTY ................................................. 57
XIII. WHERE A WIFE HAS GIVEN NOTICE OF REPUDIATION TO HER HUSBAND WITHOUT JUST CAUSE ............................. 58
XIV. WHERE ANYONE PUNISHES His WIFE BY BEATING HER. ......... 59
XV. WHERE A HUSBAND SUSPECTS ANYONE OF WISHING TO ATTACK
THE MODESTY OF His WIFE .............................. 59
NINTH COLLECTION.
TITLE I.
CONCERNING HEIRS WHO SUCCEED AB INTESTATO, AND THE ABOLITION OF THE RIGHT OF AGNATES.
ONE HUNDRED AND EIGHTEENTH NEW CONSTITUTION ................. 61
PREFACE ........................................................ 61
I. CONCERNING THE SUCCESSION OF DESCENDANTS. ................. 61
II. CONCERNING THE SUCCESSION OF ASCENDANTS. .................. 62
III. CONCERNING THE SUCCESSION OF COLLATERALS ................... 63
IV. CONCERNING THE ABOLITION OF THE RIGHT OF AGNATES TO INHERITANCE ................................................. 64
V. CONCERNING THE LEGAL GUARDIANSHIP OF CHILDREN, AND CONCERNING THE MOTHER AND GRANDMOTHER ....................... 64
VI. CONCERNING THE FORCE AND AUTHORITY OF THIS CONSTITUTION
WITH REFERENCE TO PERSONS AND THINGS ................. 65
TITLE II.
AN ANTE-NUPTIAL DONATION SHALL BE CONSIDERED A SPECIAL CONTRACT, AND CONCERNING DIVERS OTHER MATTERS.
ONE HUNDRED AND NINETEENTH NEW CONSTITUTION ................. 65
I. AN ANTE-NUPTIAL DONATION DOES NOT REQUIRE TO BE RECORDED 66
II. A MINOR CAN MANUMIT SLAVES BY WILL ..................... 66
III. No CREDIT SHALL BE GIVEN TO A WRITTEN INSTRUMENT IN WHICH ANOTHER INSTRUMENT is MENTIONED, UNLESS THE LATTER is PRODUCED ........................................... 66
IV. CONCERNING APPEALS ...................................... 66
V. CONCERNING THE REVIEW OF DECISIONS RENDERED RY PRAETORIAN
PREFECTS ............................................. 67
VI. WHERE A MINOR OF TWENTY-FIVE YEARS OF AGE WISHES TO DEMAND RESTITUTION AGAINST THE ACCEPTANCE OF AN ESTATE 67 VII. CONCERNING PRESCRIPTIONS, OR, IN OTHER WORDS, CONCERNING
THE BAD FAITH OF A POSSESSOR WHO ALIENATES PROPERTY .. 68 Vill. CONCERNING PERSONS WHO ARE ABSENT AND PRESENT WHERE A
DECENNIAL PRESCRIPTION is INVOLVED. .................. 68
IX. A TESTATOR SHALL NOT BE COMPELLED TO WRITE THE NAMES OF
His HEIRS WITH His OWN HAND. ....................... 68
X. CONCERNING IMMOVABLE PROPERTY WHICH BELONGS TO RELIGIOUS
PLACES .............:................................. 69
XI. CONCERNING THE FALCIDIAN LAW, WHICH DOES NOT APPLY TO
PROPERTY WHOSE ALIENATION is PROHIBITED ......:...... 69
TITLE III.
CONCERNING ALIENATION, EMPHYTEUSIS, LEASE, HYPOTHECATION, AND DIVERS OTHER CONTRACTS HAVING REFERENCE TO SACRED PROPERTY EVERYWHERE. ONE HUNDRED AND TWENTIETH NEW CONSTITUTION .................. 69
PREFACE ........................................................ 70
I. CONCERNING THE ALIENATION AND EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY ....................................... 70
PAGE
II. WHEKE ANYONE DESIRES TO ACQUIRE THE USUFRUCT OF PROPERTY
BELONGING TO A CHURCH ............................... 71
III. IT SHALL BE PERMISSIBLE TO LEASE ECCLESIASTICAL PROPERTY FOR
NOT MORE THAN THIRTY YEARS ......................... 71
IV. IT SHALL BE PERMITTED TO ENCUMBER IMMOVABLE ECCLESIASTICAL PROPERTY BY GIVING IT IN PLEDGE .................... 71
V. CONCERNING THE EMPHYTEUSIS AND HYPOTHECATION OF ECCLESIASTICAL PROPERTY 72
VI. CONCERNING THE PROPERTY OF OTHER CHURCHES SITUATED OUTSIDE THE CITY OF CONSTANTINOPLE. ..................... 72
VII. CONCERNING THE EXCHANGE OF ECCLESIASTICAL PROPERTY. ...... 75
Vill. WHERE THE EMPHYTEUTA OF THE CHURCH DOES NOT PAY His
KENT FOR Two YEARS................................... 76
IX. CHURCHES SHALL BE PERMITTED TO ALIENATE IMMOVABLE PROPERTY FOR THE PURPOSE OF REDEEMING CAPTIVES. .......... 76
X. CONCERNING THE SACRED UTENSILS OF ANY CHURCH OR ORATORY 77
XI. To WHAT PENALTY PERSONS WILL BE LIABLE WHO VIOLATE THE
PRESENT CONSTITUTION ................................. 78
TITLE IV.
PARTIAL PAYMENTS OF INTEREST SHALL BE DOUBLED. ONE HUNDRED AND TWENTY-FIRST NEW CONSTITUTION ............... 79
PREFACE ........................................................ 79
I. .............................................................. 79
II. .............................................................. 80
TITLE V.
EDICT OF OUR MOST Pious LORD JUSTINIAN, WITH REFERENCE TO THE REGULATION OF ARTISANS.
ONE HUNDRED AND TWENTY-SECOND NEW CONSTITUTION ............. 80
PREFACE ........................................................ 80
I. .............................................................. 81
TITLE VI.
CONCERNING THE MOST HOLY BISHOPS AND THE MOST REVEREND CLERGY AND MONKS.
ONE HUNDRED AND TWENTY-THIRD NEW CONSTITUTION ............... 81
PREFACE ........................................................ 81
I. CONCERNING THE CONSECRATION OF BISHOPS .............. 82
II. CONCERNING THE ACCUSERS OF BISHOPS .................. 83
III. WHERE A BISHOP OFFERS His PROPERTY TO THE CHURCH EITHER BEFORE OR AFTER His CONSECRATION, AND WHAT SHALL BE PAID FOR THE RIGHT OF THE SEE. .......... 84
IV. THE EPISCOPATE RELEASES A MAN FROM THE CONDITION OF
SLAVE OR SERF .................................... 85
V. CONCERNING PRIESTS, DEACONS, AND SUBDEACONS, CALLED BY THE RIGHT OF COGNATION TO DISCHARGE THE DUTIES OF GUARDIANS OR CURATORS. ........................... 85
VI. MEMBERS OF THE CLERGY SHALL NOT PERFORM THE DUTIES
OF PUBLIC OFFICE, OR TRANSACT ANY SECULAR BUSINESS 85
VII. A BISHOP SHALL NOT BE BROUGHT INTO COURT FOR THE PURPOSE OF TESTIFYING ................................ 86
J. AVJ.U
Vill. A BISHOP SHALL NOT BE BROUGHT BEFORE A SECULAR JUDGE
FOR ANY REASON WHATSOEVER. ...................... 87
IX. BISHOPS SHALL NOT LEAVE THEIR OWN CHURCHES. ....... 87
X. ARCHBISHOPS AND PATRIARCHS SHALL FREQUENTLY HOLD
COUNCILS AND SYNODS DURING THE COURSE OF A YEAR. . 87
XI. No ONE SHALL BE EXCOMMUNICATED BEFORE His CASE HAS
BEEN DISPOSED OF ................................. 88
XII. WHO THOSE ARE THAT SHOULD BE ORDAINED PRIESTS. ..... 88
XIII. CONCERNING THE AGE OF PRIESTS AND OTHER MEMBERS OF
THE CLERGY ....................................... 89
XIV. CONCERNING THE WIVES OF MEMBERS OF THE CLERGY ...... 89
XV. UNDER WHAT CIRCUMSTANCES DECURIONS CAN BE ORDAINED
MEMBERS OF THE CLERGY. ........................... 89
XVI. ORDINATIONS SHALL BE MADE GRATUITOUSLY .............. 90
XVII. IN WHAT WAY A SLAVE OR A SERF MAY BE ORDAINED A MEMBER OF THE CLERGY ................................. 91
XVIII. CONCERNING THE FOUNDERS OF CHURCHES. ............... 91
XIX. ALL MEMBERS OF THE CLERGY SHALL HAVE CONTROL OF
THEIR OWN PROPERTY ............................. 92
XX. To WHAT PENALTY ECCLESIASTICS ARE SUBJECTED WHO GIVE
FALSE TESTIMONY ................................. 92
XXI. ECCLESIASTICS SHALL BE SUED BEFORE THEIR OWN BISHOPS 92
XXII. BISHOPS SHALL BE SUED BEFORE THEIR OWN METROPOLITAN AND SHALL NOT BE REQUIRED TO FURNISH SECURITY WITH REFERENCE TO LITIGATION ..................... 93
XXIII. STEWARDS AND OTHER ADMINISTRATORS SHALL BE SUED BEFORE THEIR OWN BISHOP ............................ 94
XXIV. BISHOPS SHALL BE SUED IN THE PLACE WHERE THE CAUSE OF
ACTION AROSE ..................................... 94
XXV. CONCERNING APOCEISIARII ............................... 94
XXVI. BISHOPS SHALL NOT BE SUED DURING THE TIME THEY ARE
ACTING AS DELEGATES .............................. 95
XXVII. MONKS SHALL DEFEND THEMSELVES BY AN ATTORNEY; AND
CONCERNING THE AMOUNT OF FEES TO BE PAID ........ 95
XXVIII. CONCERNING THE AMOUNT OF COSTS TO BE PAID WHERE MEMBERS OF THE CLERGY ARE CONCERNED ................. 96
XXIX. NEITHER CLERKS NOR BISHOPS SHALL HAVE SUPERINDUCED
WOMEN IN THEIR HOUSES ........................... 96
XXX. CONCERNING DEACONESSES .............................. 97
XXXI. CONCERNING THOSE WHO ARE GUILTY OF ABUSE OF A BISHOP
OR OTHER MEMBERS OF THE CLERGY IN A CHURCH ...... 98
XXXII. THE LAITY SHALL NOT TAKE PART IN RELIGIOUS PROCESSIONS WITHOUT THE PRESENCE OF THE BISHOP, THE CLERGY, AND THE CROSSES. .......................... 98
XXXIII. ...................................................... 98
XXXIV. AN ABBOT SHALL BE. CHOSEN NOT So MUCH ON ACCOUNT OF His TERM OF MONASTIC SERVICE AS BECAUSE OF His GOOD REPUTATION .................................. 99
XXXV. CONCERNING THE NOVITIATE OF MONKS. .................. 99
XXXVI. MONKS SHALL OCCUPY THE SAME ROOM .................. 100
XXXVII. WHERE ANYONE ENTERS A MONASTERY, THE FACT THAT HE is MARRIED AND HAS CHILDREN WILL MAKE No DIFFERENCE .......................................... 100
XXXVIII. PERSONS WHO ENTER A MONASTERY DEDICATE THEMSELVES
AND THEIR PROPERTY TO THE SAME. ................. 101
XXXIX. WHENEVER A BETROTHAL BECOMES OF No EFFECT ON ACCOUNT OF THE ENTRANCE OF ONE OF THE PARTIES INTO A MONASTERY, THE BETROTHAL GIFT SHALL BE RETURNED 101 XL. WHENEVER A HUSBAND OR A WIFE ENTERS A MONASTERY. .. 101 XLI. PARENTS SHALL NOT BE PERMITTED TO DISINHERIT THEIR CHILDREN ON THE GROUND OF INGRATITUDE WHEN THE LATTER ENTER MONASTERIES ....................... 102
XLII. CONCERNING A MONK WHO ABANDONS His MONASTERY ..... 102
XLIII. CONCERNING THE EAVISHERS OF NUNS .................... 103
XLIV. LAYMEN AND ACTORS SHALL NOT BE PERMITTED TO MAKE
USE OF A MONASTIC HABIT .......................... 103
TITLE VII.
LITIGANTS SHALL SWEAR AT THE BEGINNING OF AN ACTION THAT THEY HAVE NOT PROMISED TO GIVE ANYTHING TO THE JUDGES AND THAT THEY WILL GIVE NOTHING HEREAFTER. CONCERNING FEES. REFERENDARIES WILL Do WHAT THEY ARE ORDERED WITHOUT INTERFERING WITH THE JUDGMENTS RENDERED, WHICH THEY THEMSELVES MUST SEE ARE EXECUTED.
ONE HUNDRED AND TWENTY-FOURTH NEW CONSTITUTION ............. 104
PREFACE ........................................................ 104
I. ............................................................. 104
II. WHERE A LITIGANT, REPENTING OF His ACT, MENTIONS THE NAME
OF PERSONS TO WHOM HE GAVE SOMETHING. ............... 105
III. CONCERNING THE PROHIBITION OF ILLEGAL FEES. ................ 105
IV. A JUDGE SHALL NOT COMPEL PERSONS TO EFFECT A COMPROMISE. .. 106
TITLE Vill.
JUDGES SHALL NOT WAIT FOR IMPERIAL ORDERS, BUT SHALL DECIDE IN WHATEVER MANNER THEY THINK BEST.
ONE HUNDRED AND TWENTY-FIFTH NEW CONSTITUTION. .............. 107
PREFACE ........................................................ 107
I- .............................................................. 107
TITLE IX.
A COPY OF THE IMPERIAL FORM HAVING REFERENCE TO APPEALS. ONE HUNDRED AND TWENTY-SIXTH NEW CONSTITUTION ............... 108
PREFACE ........................................................ 108
I. ............................................................. 108
n. ............................................................. 108
HI. ............................................................. 109
TITLE X.
BROTHERS' CHILDREN SUCCEED JUST AS BROTHERS Do, EVEN WHEN THERE ARE ASCENDANTS LIVING. THE RIGHTS OF WOMEN ARE NOT PREJUDICED FROM THE FACT THAT THE ANTE-NUPTIAL DONATION WAS NOT RECORDED, BUT WHERE THE HUSBAND DOES NOT OBSERVE THIS FORMALITY HE WILL GAIN No PROFIT FROM THE MARRIAGE IF HE DEMANDS IT. WOMEN WHO Do NOT MARRY A SECOND TIME ARE ENTITLED TO THE OWNERSHIP OF A SHARE OF THE ANTE-NUPTIAL DONATION EQUAL TO THAT OF ONE OF THEIR CHILDREN. THE PENALTIES TO WHICH BOTH HUSBAND AND WIFE ARE LIABLE SHALL BE THE SAME WHEN NOTICE OF REPUDIATION is SERVED WITHOUT REASONABLE CAUSE. ONE HUNDRED AND TWENTY-SEVENTH NEW CONSTITUTION ............ 110
PREFACE ........................................................ 110
I. THE CHILDREN OF BROTHERS SHALL BE CALLED TO THE SUCCESSION EVEN WHERE THERE ARE SURVIVING ASCENDANTS OF THE FIRST DEGREE ................................................. 110
II. WHEN A DONATION IN CONSIDERATION OF MARRIAGE SHOULD BE
RECORDED ............................................... Ill
III. A WOMAN WHO DOES NOT CONTRACT A SECOND MARRIAGE SHALL BE ENTITLED TO AS MUCH OF THE ANTE-NUPTIAL DONATION AS ONE OF HER CHILDREN ................................... Ill
IV. MARRIAGE SHALL NOT BE DISSOLVED WITHOUT CAUSE. ............ 112
TITLE XI.
CONCERNING TAXPAYERS AND OTHER MATTERS.
ONE HUNDRED AND TWENTY-EIGHTH NEW CONSTITUTION ............. 112
I ........ .............................................. 112
II. ........................................'.................. 113
III. .......................................................... 113
IV. .......................................................... H3
V. .......................................................... 114
VI. .......................................................... H4
VII. .......................................................... 114
Vill. .......................................................... 114
IX. .......................................................... H5
X. .......................................................... 115
XI. .......................................................... 115
XII. .......................................................... 115
xiii. ...........................................:.............. us
XIV. .......................................................... 116
XV. .......................................................... H6
XVI. .......................................................... 116
XVII. .......................................................... 117
. XVIII. .......................................................... H7
XIX. ........................................................... 117
XX. .......................................................... H8
XXI. .......................................................... 118
XXII. .......................................................... 118
XXIII. .......................................................... 118
XXIV. .......................................................... 119
XXV. .......................................................... 119
TITLE XII.
CONCERNING THE SAMARITES.
ONE HUNDRED AND TWENTY-NINTH NEW CONSTITUTION. ............. 120
PREFACE ........................................................ 120
I. ............................................................. 120
II. ............................................................. 121
III. ............................................................. 121
IV. ............................................................. 121
TITLE XIII. IN WHAT WAY SOLDIERS MUST ENTER AND PASS THROUGH CITIES.
ONE HUNDRED AND THIRTIETH NEW CONSTITUTION ................... 122
PREFACE ........................................................ 122
I. ........................................................... 122
II. ........................................................... 123
III. ........................................................... 123
IV. ........................................................... 123
V. ........................................................... 123
VI. ........................................................... 124
VII. ........................................................... 124
Vill. ........................................................... 124
IX. ........................................................... 124
TITLE XIV.
CONCERNING ECCLESIASTICAL TITLES AND PRIVILEGES, AND VARIOUS
OTHER MATTERS.
ONE HUNDRED AND THIRTY-FIRST NEW CONSTITUTION. ............... 125
PREFACE ........................................................ 125
I. CONCERNING FOUR HOLY COUNCILS ............................ 125
II. CONCERNING THE PRECEDENCE OF PATRIARCHS. ................. 125
III. CONCERNING THE ARCHBISHOP OF THE FIRST JUSTINIANIAN ...... 125
IV. CONCERNING THE JUSTINIANIAN BISHOP OF CARTHAGE ........... 126
V. CONCERNING THE PRIVILEGES OF ECCLESIASTICAL POSSESSIONS. ... 126
VI. CONCERNING THE PRESCRIPTION OF FORTY YEARS CONCEDED TO RELIGIOUS ESTABLISHMENTS ............................... 126
VII. CONCERNING THE CONSTRUCTION OF CHURCHES. ................ 126
Vill. THE SACRED KITES OF THE CHURCH SHALL NOT BE CELEBRATED IN THE SUBURBS OF TOWNS, OR IN HOUSES, FIELDS, OR PRIVATE PLACES ............................................... 127
IX. LEGACIES BEQUEATHED TO GOD SHALL PASS TO THE CHURCH OF
THE DIOCESE IN WHICH THE TESTATOR HAD His DOMICILE ... 127
X. WHERE ANYONE ORDERS AN ORATORY TO BE BUILT .............. 127
XI. LEGACIES BEQUEATHED FOR THE RANSOM OF CAPTIVES SHALL BE
EMPLOYED BY BISHOPS, ETC .............................. 128
XII. THE FALCIDIAN LAW DOES NOT APPLY TO LEGACIES LEFT FOR
Pious USES ........................................... 129
XIII. BISHOPS SHALL NOT, BY WILL, DISPOSE OF ANY PROPERTY WHICH
THEY MAY HAVE ACQUIRED DURING THEIR EPISCOPATE ...... 129
XIV. HERETICS SHALL NOT ACQUIRE IMMOVABLE PROPERTY, UNDER ANY CIRCUMSTANCES, FROM CHURCHES OR PRIVATE INDIVIDUALS, NOR ERECT BUILDINGS FOR THE CELEBRATION OF THE RITES OF THEIR FAITH .......................................... 130
XV. SUPERINTENDENTS OF ORPHAN ASYLUMS RESEMBLE GUARDIANS,
AND MUST DRAW UP INVENTORIES JUST AS THEY Do........ 131
TITLE XV.
CONCERNING THE PROHIBITION OF HERETICAL ASSEMBLIES. ONE HUNDRED AND THIRTY-SECOND NEW CONSTITUTION ............... 131
PREFACE ........................................................ 132
TITLE XVI.
IN WHAT MANNER MONKS SHOULD LIVE. ONE HUNDRED AND THIRTY-THIRD NEW CONSTITUTION ............... 132
PREFACE ........................................................ 132
I. ............................................................. 133
II. ............................................................. 134
III. ............................................................. 134
IV. ............................................................. 135
V. ............................................................. 136
VI. ............................................................. 137
TITLE XVII.
No JUDGE SHALL BE PERMITTED TO HAVE A DEPUTY IN His STEAD, UNLESS FOR CERTAIN REASONS AN IMPERIAL ORDER ISJSSUED FOR THAT PURPOSE.
ONE HUNDRED AND THIRTY-FOURTH NEW CONSTITUTION. CONCERNING DEPUTIES ................................................... 138
PREFACE ........................................................ 138
I. No MAGISTRATE SHALL BE PERMITTED TO APPOINT A DEPUTY .... 138
II. ..:........................................................ 139
III. ........................................................... 140
IV. ........................................................... 140*
V. PERSONS GUILTY OF CRIME SHALL BE SUMMONED BY MEANS OF
LAWFUL EDICTS ....................................... 141
VI. A JUDGE SHALL CARRY INTO EFFECT WHAT HAS BEEN ORDERED
BY His PREDECESSOR ................................... 141
VII. No CREDITOR SHALL PRESUME TO RETAIN THE CHILD OF His
DEBTOR AS SECURITY FOR THE DEBT. ...................... 142
Vill. CONCERNING WOMEN WHO ACT AS SURETIES. .................. 142
IX. WOMEN SHALL NOT BE CONFINED IN PRISON ................... 142
X. WHAT PENALTY is INCURRED BY AN ADULTERESS ............... 143
XI. PENALTIES FOR UNJUST REPUDIATION ......................... 144
XII. ........................................................... 145
XIII. CONCERNING THE MITIGATION OF ALL PENALTIES ............... 145
TITLE XVIII. No ONE SHALL BE COMPELLED TO MAKE AN ASSIGNMENT OF
His PROPERTY. ONE HUNDRED AND THIRTY-FIFTH NEW CONSTITUTION ................ 146
PREFACE ........................................................ 146
I. ............................................................... 147
i
TITLE XIX. PAGE CONCERNING THE CONTRACTS OF BANKERS. ONE HUNDRED AND THIRTY-SIXTH NEW CONSTITUTION ............... 148
PREFACE ........................................................ 148
I. ............................................................. 148
II. ............................................................. 149
III. ............................................................. 149
IV. ............................................................. 150
V. ............................................................. 150
VI. ............................................................. 151
TITLE XX.
CONCERNING THE ORDINATION OF BISHOPS AND OTHER MEMBERS OF THE CLERGY.
ONE HUNDRED AND THIRTY-SEVENTH NEW CONSTITUTION. ............ 152
PREFACE ........................................................ 152
I. ............................................................. 152
II. ............................................................. 154
III. ............................................................. 155
IV. ............................................................. 155
V. ............................................................. 155
VI. ............................................................. 156
TITLE XXI. INTEREST SHALL NOT BE CALCULATED FOR AN AMOUNT MORE THAN
DOUBLE THE PRINCIPAL. ONE HUNDRED AND THIRTY-EIGHTH NEW CONSTITUTION. ............. 157
TITLE XXII.
CONCERNING THE INDULGENCE GRANTED WHEN MARRIAGES ARE ILLEGALLY CONTRACTED.
ONE HUNDRED AND THIRTY-NINTH NEW CONSTITUTION. .............. 157
PREFACE ........................................................ 157
I. .............................................................. 158
TITLE XXIII.
MARRIAGE CAN BE DISSOLVED BY COMMON CONSENT. ONE HUNDRED AND FORTIETH NEW CONSTITUTION .................... 158
PREFACE ........................................................ 158
I. .............................................................. 159
TITLE XXIV. EDICT CONCERNING THOSE WHO COMMIT THE CRIME
AGAINST NATURE. ONE HUNDRED AND FORTY-FIRST NEW CONSTITUTION. ................ 160
PREFACE ........................................................ 160
I. .................................._......;..................... 160
TITLE XXV. PAGE CONCERNING THOSE WHO MAKE EUNUCHS. ONE HUNDRED AND FORTY-SECOND NEW CONSTITUTION ............... 161
PREFACE ........................................................ 161
I. .............................................................. 162
II. .............................................................. 162
TITLE XXVI.
CONCERNING A WOMAN WHO SUFFERS HERSELF TO BE CARRIED AWAY. ONE HUNDRED AND FORTY-THIRD NEW CONSTITUTION. ............... 164
PREFACE ........................................................ 164
TITLE XXVII.
CONCERNING THE SAMARITANS.
ONE HUNDRED AND FORTY-FOURTH NEW CONSTITUTION ............... 166
PREFACE ........................................................ 166
I. .............................................................. 166
II. .............................................................. 166
TITLE XXVIII.
NEITHER THE DUKE NOR THE BIOCOLYTE OF LYDIA AND LYCAONIA SHALL HEREAFTER BE PERMITTED TO INTERFERE IN THE AFFAIRS OF EITHER THE PROVINCES OF BOTH PHRYGIAS AND PISIDIA. ONE HUNDRED AND FORTY-FIFTH NEW CONSTITUTION ................. 168
PREFACE ........................................................ 168
I. .............................................................. 168
TITLE XXIX.
HEBREWS SHALL BE PERMITTED TO READ THE SACRED SCRIPTURES ACCORDING TO THEIR LAW IN LATIN, GREEK, OR ANY OTHER LANGUAGE. PERSONS WHO Do NOT BELIEVE IN THE LAST JUDGMENT OR THE RESURRECTION, AND WHO SAY THAT THE ANGELS ARE CREATURES OF GOD, SHALL BE EXPELLED FROM THEIR COUNTRY.
ONE HUNDRED AND FORTY-SIXTH NEW CONSTITUTION ................. 169
PREFACE ........................................................ 169
I. ............................................................. 170
• II. ............................................................. 171
III. ............................................................. 172
TITLE XXX.
CONCERNING THE REMISSION OF BALANCES DUE ON PUBLIC TAXES, AND THE ABOLITION OF CERTAIN ACTIONS.
ONE HUNDRED AND FORTY-SEVENTH NEW CONSTITUTION .............. 172
PREFACE ........................................................ 172
I. .............................................................. 172
II. .............................................................. 173
TITLE XXXI.
CONCERNING THE RELEASE FROM THE PAYMENT OF PUBLIC TAXES IN ARREARS.
ONE HUNDRED AND FORTY-EIGHTH NEW CONSTITUTION ............... 174
PREFACE ........................................................ 174
I. .............................................................. 174
II. .............................................................. 174
TITLE XXXII.
BISHOPS, ALONG WITH THE NATIVES AND EESIDENTS OF PROVINCES, SHALL NOTIFY THE EMPEROR WHOM THEY DESIRE TO HAVE AS GOVERNORS. THE SAID GOVERNORS SHALL BE GRATUITOUSLY APPOINTED, BUT WILL BE REQUIRED TO FURNISH A BOND TO THE TREASURY ; AND WHERE THE BISHOPS AND INHABITANTS OF PROVINCES NEGLECT TO ASK FOR A GOVERNOR, THEY CANNOT COMPLAIN OF HIM WHO is SENT TO THEM IN THIS CAPACITY, No MATTER WHAT HE MAY Do WITH REFERENCE TO THE COLLECTION OF PUBLIC TAXES. ONE HUNDRED AND FORTY-NINTH NEW CONSTITUTION ............... 175
PREFACE ........................................................ 175
I. ............................................................ 176
II. ............................................................ 176
III. ............................................................ 177
TITLE XXXIII.
CONCERNING A WOMAN WHO MARRIES HER RAVISHER. ONE HUNDRED AND FIFTIETH NEW CONSTITUTION .................... 178
TITLE XXXIV.
No DECURION OR COHORTAL SHALL BE BROUGHT INTO COURT OR COMPELLED TO OBEY A JUDICIAL DECISION WITHOUT AN ORDER OF THE EMPEROR COMMUNICATED TO THE PREFECTS. ONE HUNDRED AND FIFTY-FIRST NEW CONSTITUTION ................. 178
PREFACE ........................................................ 178
I. .............................................................. 178
TITLE XXXV.
IMPERIAL ORDERS RELATING TO PUBLIC MATTERS WILL BE OF No FORCE OR EFFECT, UNLESS THEY HAVE PREVIOUSLY BEEN COMMUNICATED TO THE MOST GLORIOUS PRAETORIAN PREFECT, FOR THEN ONLY CAN THEY BE EXECUTED.
ONE HUNDRED AND FIFTY-SECOND NEW CONSTITUTION. ............... 179
PREFACE ........................................................ 179
I. .............................................................. 179
TITLE XXXVI.
CONCERNING CHILDREN WHO ARE EXPOSED. ONE HUNDRED AND FIFTY-THIRD NEW CONSTITUTION. ................ 180
PREFACE ........................................................ 180
I. .............................................................. 180
TITLE XXXVII.
CONCERNING THOSE WHO CONTRACT UNLAWFUL MARRIAGES IN OSDRCENA.
ONE HUNDRED AND FIFTY-FOURTH NEW CONSTITUTION ................ 181
PREFACE ......................................................... 181
I. ........................................................'.!!.!. 181
TITLE XXXVIII.
MOTHERS SHALL BE REQUIRED TO RENDER ACCOUNTS OF THEIR GUARDIANSHIP.
ONE HUNDRED AND FIFTY-FIFTH NEW CONSTITUTION ................. 182
I. .............................................................. 183
TITLE XXXIX.
CONCERNING THE DIVISION OF CHILDREN AMONG PARENTS WHO ARE SERFS.
ONE HUNDRED AND FIFTY-SIXTH NEW CONSTITUTION ................. 184
PREFACE ........................................................ 184
I. .............................................................. 184
TITLE XL.
CONCERNING SERFS WHO CONTRACT MARRIAGES ON THE PREMISES OF OTHERS.
ONE HUNDRED AND FIFTY-SEVENTH NEW CONSTITUTION .............. 185
PREFACE ........................................................ 185
I. .............................................................. 185
TITLE XLI.
THE RIGHT OF DELIBERATION SHALL BE TRANSMITTED TO CHILDREN UNDER THE AGE OF PUBERTY.
ONE HUNDRED AND FIFTY-EIGHTH NEW CONSTITUTION. .............. 186
PREFACE ........................................................ 186
I. .............................................................. 187
TITLE XLII.
FIDUCIARY RESTITUTIONS SHALL BE LIMITED TO AN ESTABLISHED DEGREE.
ONE HUNDRED AND FIFTY-NINTH NEW CONSTITUTION ................ 187
PREFACE ........................................................ 187
I. . . ..... ................................................... 190
II. ............................................................. 190
III. ............................................................. 191
TITLE XLIII.
COPY OF THE IMPERIAL PRAGMATIC SANCTION CONCERNING INTEREST. ONE HUNDRED AND SIXTIETH NEW CONSTITUTION .................... 192
PREFACE ........................................................ 192
I. ............................................................... 192
TITLE XLIV.
CONCERNING THE GOVERNORS OF PROVINCES. ONE HUNDRED AND SIXTY-FIRST NEW CONSTITUTION .................. 193
PREFACE ........................................................ 193
I ........................................................ 193
II. ............................................................. 194
TITLE XLV.
PRAGMATIC SANCTION CONCERNING DIVERS MATTERS ADDRESSED TO DOMINICK, MOST GLORIOUS PREFECT.
ONE HUNDRED AND SIXTY-SECOND NEW CONSTITUTION ............... 195
I. CONCERNING DONATIONS ...................................... 195
II. ............................................................. 196
III. ............................................................. 197
TITLE XLVI.
CONCERNING THE RELEASE FROM PUBLIC TRIBUTE. ONE HUNDRED AND SIXTY-THIRD NEW CONSTITUTION. ................ 197
PREFACE ........................................................ 197
I. ............................................................. 198
II. ............................................................. 198
TITLE XLVII. CONCERNING HEIRS.
ONE HUNDRED AND SIXTY-FOURTH NEW CONSTITUTION ............... 199
PREFACE ........................................................ 199
I. .............................................................. 200
TITLE XLVIII.
GENERAL LAW HAVING REFERENCE TO THE VIEW OF THE SEA, ADDRESSED TO DOMINICK, MOST GLORIOUS PRAETORIAN PREFECT.
ONE HUNDRED AND SIXTY-FIFTH NEW CONSTITUTION ................. 201
TITLE XLIX.
CONCERNING ADDITIONS, THAT is TO SAY, CONCERNING THE TRANSFER OF TAXES FROM STERILE LANDS TO THOSE THAT ARE FERTILE.
ONE HUNDRED AND SIXTY-SIXTH NEW CONSTITUTION ................. 201
TITLE L.
GENERAL LAW OF Bissus RELATING TO POSSESSION, AND IN WHAT WAY IT MUST BE ACQUIRED.
ONE HUNDRED AND SIXTY-SEVENTH NEW CONSTITUTION .............. 202
TITLE LI.
CONCERNING PERSONS WHO ARE IN POSSESSION OF DIFFERENT LANDS FORMERLY BELONGING TO THE SAME OWNER.
ONE HUNDRED AND SIXTY-EIGHTH NEW CONSTITUTION ................ 202
THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
CONSTITUTION I. INTRODUCTION ................................................... 204
EVERYONE WHO EXERCISES THE PREROGATIVE OF JUDGING SHALL DECIDE IN ACCORDANCE WITH THE LAWS WHICH WE HAVE COMPILED, AND SHALL NEVER HAVE RECOURSE TO THOSE WHICH WE HAVE ANNULLED, IN ORDER THAT No AMBIGUITY MAY ARISE UNDER SUCH CIRCUMSTANCES ............................................. 205
CONSTITUTION II.
WHERE ANYONE is WORTHY OF A HIGH SACERDOTAL DIGNITY, HE SHALL NOT BE EXCLUDED FROM IT, MERELY BECAUSE HE HAS LEGITIMATE CHILDREN ................................................... 206
CONSTITUTION III. ONE CAN ONLY MARRY BEFORE ENTERING THE PRIESTHOOD. .......... 207
CONSTITUTION IV.
NOT ONLY PRIESTS BELONGING TO THE CHURCH IN GENERAL BUT ALSO THOSE ATTACHED TO ANY PARTICULAR EDIFICE DEDICATED TO CHRISTIAN WORSHIP CAN LAWFULLY CELEBRATE THE SACRED MYSTERIES, AND PERFORM ALL THE RITES OF DIVINE SERVICE IN A PRIVATE CHAPEL WHEN THEY ARE SUMMONED FOR THAT PURPOSE. ....... 208
CONSTITUTION V.
A MONK CAN, BY WILL, DISPOSE OF THE PROPERTY WHICH HE HAS ACQUIRED ................................................... 210
CONSTITUTION VI.
A BOY OF TEN YEARS OF AGE CAN BE ADMITTED INTO THE MONASTIC ORDER ...................................................... 212
CONSTITUTION VII. No CLERK CAN AFTERWARDS BECOME A LAYMAN. .................... 213
CONSTITUTION Vill.
CONCERNING MEMBERS OF THE CLERGY WHO ABANDON A MONASTIC LIFE AND ARE ENROLLED AMONG THE ATTENDANTS OF GOVERNORS OF PROVINCES .................................................. 213
CONSTITUTION IX.
CONCERNING SLAVES WHO BECOME MEMBERS OF THE CLERGY WITHOUT THE KNOWLEDGE OF THEIR MASTERS ............................ 214
CONSTITUTION X.
CONCERNING SLAVES WHO ADOPT A MONASTIC LIFE WITH THE KNOWLEDGE OF THEIR MASTERS ...................................... 214
CONSTITUTION XL
CONCERNING A SLAVE PROMOTED TO THE EPISCOPATE WITHOUT THE KNOWLEDGE OF His MASTER .................................... 215
CONSTITUTION XII. CONCERNING THE USE OF THE SHOPS OF THE GREAT CHURCH .......... 215
CONSTITUTION XIII. CONCERNING PERPETUAL EMPHYTEUSIS ............................. 216
CONSTITUTION XIV. CONCERNING THOSE WHO LEAVE A MONASTERY UNFINISHED, .......... 216
CONSTITUTION XV.
IT SHALL BE LAWFUL TO CONFER THE SALUTARY RITE OF BAPTISM IN ANY PRIVATE CHAPEL WHATSOEVER. ........................... 218
CONSTITUTION XVI.
ANYONE CAN BE CREATED A SUBDEACON WHO HAS REACHED His TWENTIETH YEAR ................................................. 218
CONSTITUTION XVII.
WOMEN IN CHILDBED CANNOT TAKE PART IN THE CELEBRATION OF DIVINE MYSTERIES, AND THEIR INFANTS CANNOT BE BAPTIZED UNTIL AFTER FORTY DAYS, UNLESS SOME URGENT NECESSITY REQUIRES THIS TO BE DONE ........................................... 219
CONSTITUTION XVIII.
THE PENALTY INCLUDED IN THE CONTRACT OF BETROTHAL SHALL BE EXACTED .................................................... 220
CONSTITUTION XIX.
CONCERNING THE CONTRACT OF A FATHER BY WHICH A SON BECOMES ENTITLED TO A SHARE OF His ESTATE EQUAL TO THAT OF THE OTHER HEIRS ...................................................... 221
CONSTITUTION XX.
NEITHER HUSBAND NOR WIFE SHALL, IN CASE OF THE DEATH OF ONE OF THEM, BE ENTITLED TO ANYTHING EXCEPT THE DONATION GIVEN IN CONSIDERATION OF MARRIAGE ............................... 222
CONSTITUTION XXI.
THE PROMISE OF A DOWRY SHALL BE FULFILLED BY THE DELIVERY OF PROPERTY BELONGING TO THE FATHER'S OR MOTHER'S ESTATE. ..... 224
CONSTITUTION XXII.
A WOMAN WHO DOES NOT MARRY A SECOND TIME SHALL BE ENTITLED TO THE SHARE OF A SINGLE CHILD OUT OF HER HUSBAND'S ESTATE, AND WHERE THE FATHER SURVIVES HE SHALL ENJOY THE SAME PRIVILEGE ................................................... 225
CONSTITUTION XXIII.
GOVERNORS SHALL NOT CONTRACT MARRIAGES WITH FEMALE MEMBERS OF THEIR HOUSEHOLDS WHILE IN THEIR PROVINCES. ............. 226
CONSTITUTION XXIV.
NATURAL CHILDREN CANNOT CONTRACT MARRIAGE WITH OTHERS WHO ARE ADOPTIVE ............................................... 227
CONSTITUTION XXV. CONCERNING EMANCIPATION AND THE RESTITUTION OF THE DOWRY. .... 227
CONSTITUTION XXVI. EUNUCHS CAN ADOPT............................................. 229
CONSTITUTION XXVII. ALL PERSONS ARE EQUALLY PERMITTED TO ADOPT. ................... 230
CONSTITUTION XXVIII.
AT WHAT AGE AND TO WHOM THE ADMINISTRATION OF THEIR PROPERTY SHOULD BE GRANTED TO MINORS. ............................... 231
CONSTITUTION XXIX.
THE CHILDREN OF FEMALE SLAVES BORN UPON THE LAND OF ANOTHER BELONG TO THEIR MASTERS .................................... 232
CONSTITUTION XXX.
CONCERNING A WOMAN WHO CONTRACTS ANOTHER MARRIAGE DURING THE LIFETIME OF HER HUSBAND. ............................... 233
CONSTITUTION XXXI.
A WOMAN WHO THROUGH HATRED TO HER HUSBAND PRODUCES AN ABORTION UPON HERSELF MAY BE REPUDIATED BY HIM ........... 234
CONSTITUTION XXXII. CONCERNING PERSONS TAKEN IN ADULTERY. ........................ 235
CONSTITUTION XXXIII.
THE WIVES OF CAPTIVES SHALL NOT BE PERMITTED TO MARRY OTHER MEN ....................................................... 236
CONSTITUTION XXXIV. CONCERNING A GUARDIAN WHO CORRUPTS His FEMALE WARD. ......... 237
CONSTITUTION XXXV.
CONCERNING THE PUNISHMENT OF THE RAVISHER OF A VIRGIN AND His ACCOMPLICES ................................................ 238
CONSTITUTION XXXVI. THE SON OF A CAPTIVE SHALL BE His HEIR. ........................ 239
CONSTITUTION XXXVII.
A SLAVE WHO is MANUMITTED BY THE WILL OF His MASTER HAS TESTAMENTARY CAPACITY, EVEN IF HE DOES NOT KNOW THAT His MASTER is DEAD AND THAT His ESTATE HAS BEEN ENTERED UPON ........ 240
CONSTITUTION XXXVIII.
THE SLAVES OF THE EMPEROR CAN DISPOSE OF ANY PROPERTY BELONGING TO THEM IN ANY WAY THAT THEY MAY DESIRE ............. 241
CONSTITUTION XXXIX. A SPENDTHRIFT CAN DISPOSE OF His OWN PROPERTY. ................ 241
CONSTITUTION XL. CAPTIVES HAVE TESTAMENTARY CAPACITY. .......................... 242
CONSTITUTION XLI.
IN CITIES FIVE WITNESSES, AND ON A JOURNEY AND IN THE COUNTRY THREE, SHALL BE SUFFICIENT TO ESTABLISH THE VALIDITY OF A WILL ....................................................... 244
CONSTITUTION XLII.
WHERE THERE is A SUFFICIENT NUMBER OF WITNESSES THE WILL SHALL BE VALID, EVEN THOUGH THEY MAY NOT HAVE ATTACHED THEIR SIGNATURES OR SEALS TO THE INSTRUMENT ...................... 245
CONSTITUTION XLIII.
WILLS CAN BE WITNESSED BY PERSONS WHO Do NOT KNOW How TO WRITE ...................................................... 247
CONSTITUTION XLIV. BY WHOM WILLS OUGHT TO BE SIGNED ............................. 247
CONSTITUTION XLV.
JUDGES MUST COMMIT THEIR DECISIONS TO WRITING AND SIGN THEM WITH THEIR OWN HANDS. .................................... 248
CONSTITUTION XLVI.
ABROGATION OF CERTAIN LAWS ENACTED WITH REFERENCE TO CURIAS AND DECURIONS ............................................. 248
CONSTITUTION XLVII.
ABROGATION OF THE LAW AUTHORIZING THE SENATE TO APPOINT PR^E-TORS, AND DECURIONS TO APPOINT PREFECTS ..................... 249
CONSTITUTION XLVIII. WOMEN SHALL NOT ACT AS WITNESSES IN THE EXECUTION OF CONTRACTS 249
CONSTITUTION XLIX. SLAVES SHALL NOT BE PERMITTED TO GIVE TESTIMONY. ............... 250
CONSTITUTION L.
DONATIONS WHICH HAVE NOT BEEN REDUCED TO WRITING SHALL ONLY BE VALID WHERE SUMS UP TO FIVE HUNDRED AUREI ARE INVOLVED 251
CONSTITUTION LI. To WHOM TREASURE TROVE SHOULD BELONG. ....................... 251
CONSTITUTION LII.
MONEY COINED BY ANCIENT AS WELL AS MODERN SOVEREIGNS SHALL BE CURRENT, PROVIDED IT Is OF LEGAL WEIGHT AND OF PROPER MATERIAL ...................................................... 252
CONSTITUTION LIII.
ANYONE SHALL BE PERMITTED TO BURY THE DEAD WITHIN CITIES AS WELL AS OUTSIDE THE SAME .................................. 253
CONSTITUTION LIV. ALL PERSONS SHALL ABSTAIN FROM LABOR ON SUNDAY. ............. 254
CONSTITUTION LV. JEWS SHALL LIVE IN ACCORDANCE WITH THE RITES OF CHRISTIANITY .. 255
CONSTITUTION LVI. CONCERNING THE SHORES OF THE SEA ............................... 256
CONSTITUTION LVII. How FAR FROM ONE ANOTHER SHOULD FISHING NETS BE PLACED?. .... 256
CONSTITUTION LVIII. FOOD SHALL NOT BE COMPOSED OF BLOOD. ...................."....... 257
CONSTITUTION LIX. REPEAL OF THE LAW WHICH PERMITS A FREEMAN TO SELL HIMSELF. ... 257
CONSTITUTION LX. IN WHAT WAY PERSONS WHO CASTRATE OTHERS SHOULD BE PUNISHED. . 258
CONSTITUTION LXI.
WHAT PENALTY SHALL BE INFLICTED UPON THE COLLECTORS OF TAXES WHERE THEY DEMAND MORE THAN is DUE. .................... 259
CONSTITUTION LXII.
CONCERNING THE PENALTY INCURRED BY ONE WHO SELLS ANY PUBLIC PROPERTY WHATSOEVER ....................................... 260
CONSTITUTION LXIII.
CONCERNING THE PENALTY TO WHICH THOSE ARE LIABLE WHO TRANSFER FORBIDDEN THINGS TO THE ENEMY. ............................ 260
CONSTITUTION LXIV.
CONCERNING THE PENALTY TO BE IMPOSED UPON THOSE WHO SUPPRESS INFORMATION OF A SHIPWRECK ................................ 261
CONSTITUTION LXV. CONCERNING THE PENALTY TO WHICH ENCHANTERS ARE LIABLE ....... 262
CONSTITUTION LXVI. CONCERNING THE THEFT OF SLAVES. ............................... 263
CONSTITUTION LXVII.
CONCERNING THOSE WHO Go OVER TO THE ENEMY AND VOLUNTARILY RETURN .................................................... 263
CONSTITUTION LXVIII.
MONKS AND OTHER MEMBERS OF THE CLERGY CAN BE APPOINTED GUARDIANS, BUT THEY SHALL BE DEPRIVED OF THE CONTROL OF THEIR WARDS AS WELL AS OF THE ADMINISTRATION OF THEIR PROPERTY. .. 264
CONSTITUTION LXIX. BLIND MEN CAN MAKE WILLS SECRETLY. ........................... 265
CONSTITUTION LXX. CONCERNING ROBBERY ............................................ 266
CONSTITUTION LXXI.
CONCERNING THOSE WHO INTEND TO BUILD UPON TILLABLE LAND OR IN VINEYARDS ............................................... 267
CONSTITUTION LXXII.
CONTRACTS SHALL BE VALID EVEN WHERE No PENALTY is ATTACHED TO THEIR VIOLATION ............................................ 268
CONSTITUTION LXXIII. No ONE SHALL LIVE WITH WOMEN IN HOUSES ATTACHED TO CHURCHES 268
CONSTITUTION LXXIV.
No NUPTIAL BENEDICTION SHALL BE CONFERRED UPON PERSONS WHO ARE BETROTHED BEFORE THE TIME WHEN THEY CAN BE MARRIED. . 269
CONSTITUTION LXXV.
A PERSON WHO HAS REACHED THE AGE OF TWENTY YEARS CAN BE CREATED A SUBDEACON ....................................... 269
CONSTITUTION LXXVI.
CONCERNING THE PENALTY IMPOSED UPON PRIESTS WHO COMMIT PERJURY ....................................................... 270
CONSTITUTION LXXVII. CONCERNING THE PENALTY FOR FORGERY. ........................... 270
CONSTITUTION LXXVIII. No DECREE OF THE SENATE SHALL BE ENACTED HEREAFTER. .......... 271
CONSTITUTION LXXIX.
CONCERNING THE PENALTY TO BE IMPOSED UPON PRIESTS, DEACONS, AND SUBDEACONS WHO MARRY AFTER HAVING BECOME MEMBERS OF THE ECCLESIASTICAL ORDER ....................................... 271
CONSTITUTION LXXX. CUTTINGS AND PIECES OF PURPLE CLOTH CAN PUBLICLY BE SOLD. ...... 271
CONSTITUTION LXXXI.
THE MANUFACTURE OF ANY ARTICLE OUT OF GOLD OR PRECIOUS STONES Is, IN GENERAL, PROHIBITED. .................................. 272
CONSTITUTION LXXXII. CONCERNING OPENED WILLS. ...................................... 272
CONSTITUTION LXXXIII.
A LOAN OF MONEY BEARING INTEREST AT FOUR PER CENT CAN LEGALLY BE MADE .................................................... 273
CONSTITUTION LXXXIV.
MAGISTRATES OF CITIES SHALL BE PERMITTED TO TRANSACT BUSINESS, TO CONSTRUCT BUILDINGS, AND TO ACCEPT DONATIONS ............ 274
CONSTITUTION LXXXV.
FATHERS WHO Do NOT MARRY A SECOND TIME WILL BE ENTITLED TO A SHARE EQUAL TO THAT OF ONE OF THEIR CHILDREN .............. 275
CONSTITUTION LXXXVI.
CONCERNING THE PENALTY TO BE IMPOSED UPON BISHOPS, PRIESTS, AND OTHER MEMBERS OF THE CLERGY WHO DEVOTE THEMSELVES TO THE PRACTICE OF LAW, TO THE NEGOTIATION OF MARRIAGES, TO THE REDEMPTION OF SLAVES, AND TO OTHER MATTERS OF THIS KIND. ..... 275
CONSTITUTION LXXXVII.
CONCERNING THE PENALTY TO BE INFLICTED UPON ECCLESIASTICS WHO INDULGE IN GAMES OF CHANCE. ............................... 276
CONSTITUTION LXXXVIII.
INSTITUTION OF CERTAIN FESTIVALS IN HONOR OF MEN CELEBRATED IN THE CHURCH ................................................ 276
CONSTITUTION LXXXIX.
MARRIAGES SHALL NOT BE CONFIRMED WITHOUT THE SACRED BENEDICTION ........................................................ 277
CONSTITUTION XC.
PERSONS WHO CONTRACT A THIRD MARRIAGE WILL INCUR THE PENALTY OF THE SACRED CANONS ....................................... 277
CONSTITUTION XCI. IT SHALL NOT BE LAWFUL TO KEEP A CONCUBINE .................... 278
CONSTITUTION XCII.
CONCERNING THE PENALTY TO WHICH A PERSON is LIABLE WHO INTENTIONALLY BLINDS ANOTHER ................................... 278
CONSTITUTION XCIII.
WHERE A WOMAN is FOUND TO BE PREGNANT BY SOMEONE ELSE THAN HER HUSBAND, THE MARRIAGE CAN BE ANNULLED ............... 280
CONSTITUTION XCIV. ABROGATION OF THE LAW RELATING TO THE CONSULATE ............... 280
CONSTITUTION XCV. CONCERNING THE DISPLACEMENT OF SOIL. .......................... 281
CONSTITUTION XCVI. CONCERNING THE VIOLATION OF SEPULCHERS. ................:...... 282
CONSTITUTION XCVII.
PARTIES LITIGANT SHALL BE SWORN WHEN ISSUE is JOINED IN A CASE, AND MAGISTRATES SHALL TAKE AN OATH WHEN THEY ASSUME THE DUTIES OF THEIR OFFICE. ..................................... 283
CONSTITUTION XCVIII.
CONCERNING THE PENALTY TO BE INFLICTED UPON EUNUCHS IF THEY SHOULD MARRY .............................................. 283
CONSTITUTION XCIX.
HE WHO TENDERS AN OATH MUST HIMSELF FIRST SWEAR THAT HE Is NOT ACTUATED BY MALICE ..................................... 285
CONSTITUTION C. CONCERNING SLAVES WHO MARRY PERSONS WHO ARE FREE ............ 286
CONSTITUTION CI.
WHERE ONE OF Two SLAVES WHO WERE MARRIED OBTAINS His OR HER FREEDOM ................................................... 286
CONSTITUTION CH.
CONCERNING MARITIME LANDS WHERE THE SPACE is NOT SUFFICIENT FOR THE PLACING OF SEPARATE NETS, ALL PERSONS, EVEN AGAINST THEIR WILL, MUST UNITE FOR THIS PURPOSE .................... 287
CONSTITUTION GUI.
CONCERNING THOSE WHO MAKE USE OF THEIR MARITIME LANDS IN COMMON FOR THE PURPOSE OF STRETCHING NETS. ............... 288
CONSTITUTION CIV.
CONCERNING FISHING NETS BETWEEN WHICH No SPACE is KEQUIRED
BY LAW ..................................................... 289
CONSTITUTION CV.
WHERE A MAGISTRATE is CONVICTED OF HAVING PLUNDERED THE TREASURY ........................................................ 289
CONSTITUTION CVI.
CONCERNING THE AMOUNT TO WHICH WOMEN WHO ARE UNENDOWED SHALL BE ENTITLED OUT OF THE ESTATES OF THEIR DECEASED HUSBANDS .................................................. 290
CONSTITUTION CVII.
A PLAINTIFF MUST, BEFORE JOINDER OF ISSUE, AND WHEN HE FILES His COMPLAINT WITH THE JUDGE, PROVE THAT HE DOES So IN GOOD FAITH ................................................. 291
CONSTITUTION CVIII.
CONCERNING ONE WHO DOES NOT APPEAR IN COURT AFTER HAVING BEEN NOTIFIED THE FIRST TIME. .............................. 291
CONSTITUTION CIX.
A BETROTHAL CANNOT TAKE PLACE BEFORE THE PARTIES HAVE REACHED THEIR SEVENTH YEAR, NOR CAN A MARRIAGE BE CELEBRATED BEFORE MALES HAVE ATTAINED THEIR FIFTEENTH YEAR AND FEMALES THEIR THIRTEENTH ................................................ 292
CONSTITUTION CX.
A WOMAN AFTER HER MARRIAGE HAS BEEN DISSOLVED SHOULD DRAW UP AN INVENTORY CONTAINING HER DOWRY, THE ANTE-NUPTIAL DONATION, AND ALL THE REMAINING PROPERTY OF HER HUSBAND; AND HAVING PRODUCED IT, CAN ASK TO BE INDEMNIFIED FOR ANY Loss TO HER PROPERTY WHICH SHE HAS SUSTAINED AT THE HANDS OF HER HUSBAND, BUT IF SHE FAILS TO FILE SUCH AN INVENTORY, OR OFFER CONVINCING PROOF OF HER ALLEGATIONS, SHE CAN NEITHER CLAIM NOR RECOVER ANYTHING. ...................... 293
CONSTITUTION CXI.
IF A WIFE SHOULD LOSE HER MIND AND THIS is DUE TO THE MALICE OF HER HUSBAND, OR WITHOUT ANYONE ELSE HAVING CAUSED IT BY WITCHCRAFT WITH HER HUSBAND'S KNOWLEDGE, AND HER AFFLICTION SHOULD LAST MORE THAN THREE YEARS, THE MARRIAGE MAY BE DISSOLVED, AND THE HUSBAND SHALL BE AT LIBERTY TO MARRY AGAIN ...................................................... 293
CONSTITUTION CXII.
WHERE THE HUSBAND BECOMES INSANE DURING MARRIAGE IT CANNOT BE DISSOLVED UNTIL AFTER THE EXPIRATION OF FIVE YEARS; BUT AFTER THIS PERIOD HAS ELAPSED, IT MAY BE DISSOLVED IF HE STILL REMAINS DEMENTED .................................... 295
CONSTITUTION CXIII.
GALLERIES, COMMONLY CALLED BALCONIES, SHALL BE CONSTRUCTED AT A DISTANCE OF TEN FEET FROM A NEIGHBORING BUILDING, AS THIS HAS BEEN PROVIDED BY LAW WITH REFERENCE TO OTHER STRUCTURES ...................................................... 296
AUTHENTIC OR NEW
CONSTITUTIONS OF OUR LORD
THE MOST HOLY EMPEROR JUSTINIAN.
EIGHTH COLLECTION.
TITLE I.
CONCERNING THE TIME AVAILABLE WHEN MONEY FORMING PART OF THE DOWRY HAS NOT BEEN PAID.
ONE HUNDREDTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
Our laws have left without consideration all cases where sums expected to be paid have not been counted out and delivered, but We have abridged the prolixity and length of these, lest men may be enabled to take advantage of their negligence under such circumstances, or even be guilty of fraud; for evidence is not always available by those who wish to make use of it, and time disposes of many things. Wherefore We have, in certain instances, abridged the length of complaints in cases where the money was not paid over, which may be collected under laws already enacted; for, as the entire time of the existence of the marriage was granted to husbands to demand a dowry which had not been paid, and another year was conceded for this purpose after their death, or after repudiation, We have deemed it proper by means of a short and useful law to abridge the time during which the claim for a dowry which was not paid shall be made, and release women from the necessity of proving, after a long period had elapsed, that this had been done.
CHAPTER I. CONCERNING DOWRIES WHICH HAVE NOT BEEN PAID.
Therefore where a man lives with his wife for the term of two years or less, and does not receive his dowry, his silence shall not prejudice the rights of himself or his heirs; but a demand for the dowry can be made within another year, as the brief duration of the marriage impels Us to enact this legislation. Where the matrimonial union lasts longer than two years, but less than ten, We give the hus-
band permission to present his claim during the existence of the marriage, and to state that the dowry has not been paid to him, either wholly or in part. Where he has once formulated his demand, under such circumstances, and his wife does not prove that she paid the dowry, the husband shall transmit his right of action to his heirs.
(1) When, however, the dowry is not demanded within ten years, We forbid the husband, on account of his silence, to claim it after this period has elapsed, and We do not grant a year to his heirs for this purpose. We do not establish this rule as a penalty against anyone, but on account of the solicitude which We entertain for the liberty of Our subjects. For when the husband can demand the dowry during so long a period (We mean the term of ten years), but prefers to remain silent, it is perfectly clear that, although he has not received it, it was his intention to entirely relinquish it himself, or allow his heirs to do so.
The provisions of this law shall be applicable even in case the marriage should be dissolved by repudiation. We make no distinction where the woman herself has stipulated for the dowry; for whether this be the case, or some other person has constituted it for her; since, as We have previously stated, lapse of time will invariably produce its effect, and will either confer or take away the right to bring the action to collect the dowry.
It is, however, unnecessary for the demand for the dowry merely to be made verbally (for often indignation or some other incentive induces the husband to make it in this way, or it may even happen that he does not demand it at all, and that witnesses who have been purchased make false statements), but the demand must be made in writing. If anyone should desire to bring suit for this purpose, he shall absolutely be required to notify the woman or whoever is obliged to pay the dowry, as there is nothing which prohibits the husband from personally making the demand. The wife should not disregard the notice, she cannot anticipate it, and he who is about to file the complaint should not leave her in ignorance of the fact.
CHAPTER II.
Therefore, generally speaking, it must be said that where a marriage is dissolved either by death or repudiation within two years, the husband himself, as well as his heir, can, during another year, apply to the court on the ground that the money has not been paid. If, however, the marriage should last more than two years, and less than ten, We do not grant the husband or his heir a longer term than three months in which to make a demand for the dowry. But when ten years have elapsed, then neither the husband nor his heir shall be permitted to claim the dowry, and this time shall be sufficient to insure its retention by the woman. Where the husband is a minor, and has not claimed the dowry, We allow him a term not exceeding twelve years from the date of his marriage to do so; for We are aware that marriages of this kind are not contracted before the age of fifteen years; hence it follows that if the minor has passed his twenty-fifth
year, he can, until his twenty-seventh, claim the dowry on the ground that it has not been paid, and if he should die during this time, his heirs shall have a year for that purpose.
(1) But where the heirs of anyone who is either of age or a minor did not demand the dowry themselves and are minors, they will only have five years in which to claim it on the ground of its not having been paid; and this time will be sufficient for them without waiting for the majority of all the minors. The following circumstance induced Us to enact the present law, namely: A certain woman married a boy of fourteen years of age, and twenty years after the death of the latter, she, taking an improper advantage of the age of the minor son, whom she had had by him, demanded the return of her dowry. The son, however, opposed this by alleging that the dowry had not been paid, but he did so twenty-four years after his mother's marriage, a case which, after due consideration, We had already provided for.
Under the present law We allow minors the term of five years in which to avail themselves of the claim that the dowry was not paid; nevertheless, a husband who has given a receipt for the dowry cannot proceed in this manner, and all cases of this kind shall be decided after the time of majority or minority has elapsed. This rule is applicable to all future marriages, for, so far as those at present existing are concerned, if they last less than ten years and more than two, the husband, in order to demand a dowry which has not been paid, will be entitled to the time granted him after the expiration of the said terms. But where the marriage lasts less than two years, or more than ten, afterwards, then We grant the husband two years in which to claim the unpaid dowry and We allow his heirs three months after the dissolution of the marriage for this purpose, in order that justice may be done to them in every respect.
EPILOGUE.
Your Highness will hasten to see that what We have been pleased to enact by this Imperial Law is executed.
Given at Constantinople, on the thirteenth of the Kalends of January, during the thirteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE II.
CONCERNING DONATIONS MADE BY DECURIONS TO THEIR SUCCESSORS EITHER AB INTESTATO OR BY WILL.
ONE HUNDRED AN.D FIRST NEW CONSTITUTION. The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
An application made to Us by certain decurions has afforded Us the opportunity of promulgating a good law. And We enact it, not
merely as applicable to certain decurions but to those who are subject to Our authority. We mean to such as are in the East, as well as to all who are included within the limits of the Empire. For, remembering that Our predecessors were solicitous for the welfare of decurions, and to the collation of their property in the curise, the result of this has been that some persons have become members of the curia, and others have been released from curial obligations. We now grant permission to decurions to appoint heirs, not only among the decurions of the same city (for they are permitted to do this at the present time), but even to appoint as heirs persons who are not subject to curial duties, when they desire to do so; but on the condition that he or they who are designated shall, in every respect, take the place of the deceased, that is to say, shall be invested with the curial status, and perform the functions of decurions; and, under these circumstances, those who are appointed heirs shall be entitled to the estate without opposition.
We are sure that the amendment included in the present law will have such an effect that the curia will thereby acquire great wealth; that the decurion and his property will, in the future, derive substantial benefit from this legislation; and that the curia will flourish on account of the large number of its members to whose fortunes it will be entitled.
CHAPTER I.
Therefore We order that when decurions make their wills, they shall be permitted to designate as heirs either any persons whom they may select, or other decurions of the same city (We authorize them to do this by Our law), or any members of their families or even strangers, whether they are decurions or not; and We permit them to appoint the said heirs to any share under nine-twelfths of their estates, or to all of them, under the condition, however, that they shall give themselves to the curia, join the body of decurions, and discharge their official duties.
This rule shall be applicable to children, grandchildren, and other descendants; but it shall not be observed in the same way prescribed by the constitution having reference to those who offer themselves to the curia, which directs that the offspring of persons who have offered themselves in this way shall not belong to the curial condition; but persons who bind themselves to the curia shall be deeurions, just as if they had been so from the beginning, and as if they had, through their families, been united with the curia, had had their names inscribed upon its register, and had been included in the body of decurions. For there is no difference whatever between appointing as heir one who is a member of the same curia, or appointing one who will soon become such.
CHAPTER II.
But where a blood-relative is living who, being exempt from curial obligations, may be called to the succession of a decurion that died intestate, and he wishes to become a member of the curia,, he shall
be permitted to do so, and he can have his name inscribed upon the register within six months. He will then become a decurion; along with his successors his property will pass to the Order, and will be the heir of the deceased; for as the fortune of anyone who has once succeeded to an inheritance (whether he is already a decurion, or becomes one hereafter) belongs to the curia, he can claim nothing of the estate of the deceased, so far as one-fourth or nine-twelfths of it are
concerned.
But where anyone has given a large portion, or nine-twelfths of his property, to a decurion of the same city, or to anyone else, and then offers himself together with the remainder of his estate and the offspring which he already has, or which he may have hereafter, to the cwriu to which he belongs, We decree that this generous act shall take effect only under the condition that the donee becomes a decurion, for We desire constantly to take precautions to prevent the property of decurions from being in any way diverted from the curia, of which they are members.
CHAPTER III.
But in order that these things may take place without the appearance of collusion, and that certain persons, having obtained the estates of decurions either through donations or by will (as We have previously stated), or where they pass in case of intestacy, may not, by virtue of such gifts, attempt to enjoy said property without offering themselves to the curia,, We order that if, as has already been stated, the donor has made a gift, the property shall not immediately be transferred to the donee, but shall remain in possession of the donor until the person who has accepted the donation has bound himself to the curia, by means of an instrument executed gratuitously, and without expense, before the judge of the province, in the manner already prescribed; and that as soon as his name is inscribed upon the register of decurions his property shall be delivered to him. But where the donor has already transferred the property to the donee, and the latter has not yet announced his intention of becoming a member of the curia, three-fourths of the said property shall be reserved, which We desire, by all means, to be acquired by it.
(1) If anyone who is not a decurion should be entitled to the estate of a member of the Order either by will or ab intestato, the curia, will share the inheritance with him; and immediately after the death of the decurion, an inventory shall be drawn up without any loss resulting therefrom, in the presence of the defender of the city and of the person called to the succession; the property shall be de-' livered to the curia under the seal either of the defender or of the bishop; and when the aforesaid statement has been committed to writing before the judge of the province, and the heir has (in conformity with what has frequently been stated) become a member of the curia, and his rights and any offspring which has been or may subsequently be born to him have been duly transferred to the curia, he shall then receive the property given and become the owner of the same, just as
if he had been a decurion in the first place, and he will not appear to differ from one born in that condition. The judge of the province will receive without compensation or expense the document by which the obligations to the curia are assumed.
We do not promulgate this law for the purpose of injuring the curia,, and subjecting it to loss, but, on the contrary, for its benefit, and We desire that it shall be valid for all time, since through the accession of wealth and numbers it increases the power and the resources of decurions. Where, however, he who is called to the succession of a decurion who died intestate is not himself a member of the Order, and is unwilling to accept the estate, and devote himself to the curia, the latter shall be entitled to three-fourths of the property, and the heir shall be the owner of only the one-fourth, which the previous law allots to him, even thougTi he may not be a decurion. Where several heirs in the same degree are called to the succession of a decurion, and some of them become members of the curia, and others refuse, he or they who devote themselves to it shall be entitled to three-fourths of the estate, and the heirs at law shall obtain the other fourth; for We are desirous that three-fourths of the same shall pass without diminution to the decurions of the city.
CHAPTER IV.
But if a decurion should die leaving a daughter who is married to another decurion of the same town, there is no doubt that she will receive the entire estate of her father, or at least three-fourths of it, when he desires to leave one-fourth to someone else; but where she had not already become the wife of a decurion, and he who married her consents to become one and assume the curial obligations, the marriage will be valid; the husband will unquestionably be entitled to administer three-fourths of the estate on account of his good- will to the curia, for which reason We wish three-fourths of the property to be transferred to his wife; and he shall assist in the conduct of the affairs of the municipality.
But when there are several daughters, some of whom are married to men who are already decurions, or to others who become such by the assumption of curial duties, three-fourths of the estate shall be divided among them, and one-fourth among the other daughters; but the men who have married the daughters of the decurion shall use their property for the benefit of the curia, even though the ownership of said property may be vested in their wives; for We have given the estate of the father to the latter in order to compel their husbands to perform the functions of decurions. When a woman married to a man who has become a decurion dies, and she has had male children by him, the estate will pass to these children, who themselves will become members of the curia, and the transmission of the estate will take place without further ceremony.
(1) If, however, the children should be daughters, and some of them have married men who are already decurions, or who have devoted themselves to the curia in the same town, they shall also be
entitled to the estate without any hindrance, by reason of being subjected to the performance of the curial duties through the medium of their husbands. But if, among the daughters whom the wife of the deceased decurion has left, there should be any who are not married to decurions, and others who are the wives of men that are already decurions, or will become so hereafter, then, in accordance with the division formerly established, the daughters married to decurions will have a right to three-fourths of the estate, and their husbands shall discharge the curial functions in their behalf, and the other daughters will be entitled to one-fourth.
Where, however, a woman married to a decurion leaves either male or female children, her husband will enjoy the usufruct of the property as long as he lives, on condition of his discharging curial duties. If he marries a second time, and becomes the father of male or female children, and his daughters marry decurions, his children shall also hold the property for the benefit of the curia; and if he dies, or does not contract a second marriage, or if, having daughters, he does not marry them to men who are already decurions, or who will become such, then the curia will acquire the property in regular order. For We never allow this share of an estate and the functions of decurions to be alienated, or where this kind of a succession passes to several persons, We desire that three-fourths of the estate shall be reserved for the curia by all the lineal descendants, either through the male children of decurions, or the sons-in-law of the latter who assume curial obligations.
This law shall be observed for all time in cases which are still pending and have not been decided by judicial decision or amicable intervention.
EPILOGUE.
Your Excellency will hasten to cause to be observed what has seemed to Us to be proper to promulgate by this Imperial Law, and you will especially make provision for everything which concerns the public welfare.
TITLE III. CONCERNING THE GOVERNOR OF ARABIA.
ONE HUNDRED AND SECOND NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Pratorian Prefect of the East, twice Consul and Patrician.
PREFACE.
As We have already given a better form to the greater portion of the magistracies of the provinces which were previously in an inferior and abject condition, and not adapted to the proper transaction of any public business, and as We have afterwards appointed to them officials who were more qualified in every respect, and the latter have begun to
conduct the administration of affairs in such a way that everything shows great improvement; and as We have revived a large number of ancient titles, such as those of Proconsul, Prator, and Governor, and have increased the emoluments of these magistrates, as well as added to their authority; and as We have, above all, forbidden them to wrong Our subjects, or to employ a multitude of hands to plunder them; and, with a view to prevent this, We have required them to take the most terrible of oaths, and it is not until they have done so that We have placed them in office, considering that they are only then worthy of receiving their commissions; for all these reasons We now turn Our attention to the country of the Arabs, where similar changes are necessary because the people are in great want, and in direct correspondence with the unhappy state of this nation, large numbers of its inhabitants apply to Us for relief, all of them giving utterance to lamentations, some, on account of thefts and robbery committed; others, because of injuries sustained, and others again, on account of losses which have been inflicted upon them; and We have ascertained that the cause of all this evil can be traced to the incapacity and impotence of the magistrates entrusted with the government. For those who are invested with civil magistracy have so little power that they are, by a custom in some respects of a servile character, subjected to the authority of a military commander, and rendered dependent upon him, while he himself is not, properly speaking, a magistrate. Hence it necessarily follows that during the long period when there was no civil magistrate in Arabia, the military commander discharged his duties, while he was not competent to perform the functions of either this office or his own; and instead of trying to benefit Our subjects in any way, he confined himself to the collection of the salaries of both employments.
CHAPTER I.
These things have induced Us to promulgate the present law, and, availing Ourselves of it, We impart to the magistracy of Arabia a better form, and kindly grant to him who is invested with its administration the name of Governor (which We have also done in Pontus), and We also confer upon him the title of spectabile magistrate, in order that he may not be, in any respect, inferior to the military commander. He must supervise with great diligence the collection of taxes, as well as pay particular attention to the welfare of private persons; he must not allow Our subjects to suffer loss at the hands of the military commander, the tribune, the retainers of any powerful person, the officials of Our own Imperial domain, or those having charge of Our private property, or even the members of Our Imperial household. He must not too readily consent to anything, or be influenced by fear; he must govern Our subjects with firmness, and, above all, keep his hands clean towards God, Ourselves, and the law; as We desire him to take the same oaths required by Us or other magistrates. He will receive, along with his commission, the Imperial instructions employed by Our predecessors, and adopted by the ancient Republic, and which We have renewed after they had fallen into
desuetude. He will always regulate his official conduct by them, and will obey Our orders. If he observes these regulations in every respect, there will be no reason for his not discharging his duties with propriety and sagacity; and, with the aid of God, to acquire great skill and readiness in the administration of justice.
CHAPTER II.
Therefore (as We have already stated), the Governor of Arabia will principally devote himself to the collection of taxes, and manifest a kind and paternal regard for those who are required to pay them; but he must display great energy and severity towards such as are shown lax in discharging their pecuniary obligations. He shall also administer the affairs of the government in such a way that everything will be conducted in an orderly manner; he shall see that the Bostreni and other peoples do not take part in any tumults or seditions, and that the festivals whose celebration has been sanctioned from ancient times are not turned into scenes of rage and slaughter. He will also, in conformity to Our mandates, have soldiers under his command (whom he shall be at liberty to select here), and he will not fail to do whatever is conducive to the public welfare. We desire him to be installed with the same honors which We have bestowed upon the Governor of Pontus. He shall be of spectabile rank, and be invested with various titles and many other distinctions. We grant him emoluments similar in character to those of the Governor of Pontus above mentioned, as We wish him to receive fourteen pounds of gold by way of salary, besides other emoluments, and his assessor to receive five, and the members of his court nine. He will govern in accordance with the Imperial Mandates (as We have just stated) and make use of his soldiers for that purpose.
Your Highness will see that a large number of soldiers stationed in this part of the Empire are subjected to the orders of the Governor of Arabia, and the latter must obey him, and execute his orders. Hence the distinguished general of the army will have absolutely no control over the soldiers whom We place under the command of the Governor, nor over any civilian; he must not interfere with any lawsuit which persons may have with one another, or where anyone is brought into court, nor shall he interest himself in cases, as a great distinction exists between civil and military jurisdiction. The Governor, as well as the general, shall then confine themselves respectively within the limits of their authority, as Our predecessors have prescribed and directed in the organization of the government. The general is hereby notified that if he meddles in civil affairs he will not retain his command, but will be deprived of it, reduced to the condition of an ordinary citizen, and subjected to the authority of the civil magistrate.
CHAPTER III.
This is what has been laid down by Us with reference to the magistracy of Arabia. We are satisfied that the government will,, with the
assistance of God, be better administered hereafter. We do not spare money to accomplish this purpose; the salary of the office has increased, and We have no doubt that, for this reason, the Governor will exert every effort to see that the public taxes, instead of being a source of loss to the Treasury, will, on the other hand, be extremely profitable to it.
We especially desire that the distinguished general of the army shall receive his emoluments from the official appointed by the Governor of the province for that purpose, and that he shall not be permitted to collect them himself, in order that a base inclination may not induce him to take more than he is entitled to; and if he should disobey these rules, he is hereby notified that he will be fined fifteen pounds of gold.
TITLE IV. CONCERNING THE PROCONSUL OF PALESTINE.
ONE HUNDRED AND THIRD NEW CONSTITUTION.
Addressed to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
We have already granted greater power to the Governors of other provinces who, formerly deprived of much of their authority, were not capable of acting with energy; We have bestowed upon them the rank of spectabile; We have increased their salaries, as well as those of their assessors and subordinates; and, among all the distinctions which We have conferred upon them We have included that of hearing appeals; We have honored some of them with the title of Proconsul, others with that of Count, others again with that of Praetor, and still others with that of Governor; and We add, so to speak, new ornaments to Our Empire by the splendid appointments which are constantly being introduced.
We have especially directed Our attention to the metropolis of Caesarea, the capital of First Palestine, which province should, above all others, enjoy great distinction, for the reason that it was formerly governed by a Proconsul with the title of Prefect, although he was subsequently reduced to an inferior rank. Palestine, at first, only constituted a single province, but when it was divided into three parts, it did not retain the Proconsulate, but was placed under the jurisdiction of an ordinary magistrate (as he is called). Without considering that this capital is very ancient, its name was always celebrated, either because Strato first founded it and constituted it a city; or for the reason that the distinguished Emperor Vespasian, the father of Titus, of pious memory, gave it the name of the Caesars instead of that of the Tower of Strato, which it was formerly called because Strato resided there after the Hebrew victories between the emperors; an act which alone would be sufficient to invest him with the greatest glory.
(1) We are aware that Palestine is inhabited by a great and estimable people, and forms no inconsiderable part of Our Empire, both because of the amount of taxes which it pays, and by reason of its exceeding loyalty; that it includes cities of great renown; produces good citizens versed in all kinds of knowledge, as well as eminent among the priesthood; and that, finally (which is more important than everything else), Our Lord Jesus Christ, the Creator of the Universe, the Word of God, and the salvation of all the human race, redeemed us in Palestine, and it was there that He designed to become responsible for our sins.
CHAPTER I.
Therefore, why should We not increase the consideration due to this province, by adding to the dignity of the magistrate who governs it, and why should We not elevate him to the Proconsulate? Why should We not concede to him the title of this office? And this is what We now do, by means of the present Pragmatic Sanction, which We desire to be styled the Privilege of the Csesareans. Hence We hereby create the Governor of Palestine a Proconsul; We confer upon him the rank of spectabile magistrate, and all the attributes peculiar to that office; he shall hear appeals brought before him from every part of both Palestines, where the value of the property involved is not over ten pounds of gold; and his rank will enable him to execute Our orders with more distinction and greater authority. He will assume the venerable and antique veneta (that is to say, the purple stole), and he will wear it during the sacred monthly festivals; being invested with so much honor, he will render himself agreeable to his subordinates ; he will command a large number of soldiers, and do whatever is most useful to the government and advantageous to Our subjects. We also bestow upon him, by way of salary, twenty pounds of gold, which he shall freely divide between himself, his assessor, and his attendants. He will notify Us of the division to be made of it, in order that We may confirm its distribution by means of an Imperial Pragmatic Sanction, as We are not willing for the Governor of Palestine and his assessor to be paid the moderate emoluments which they formerly received, or that his attendants, who are occupied with such large collections of taxes, and have considerable risk to run on this account, should be deprived of all means of assistance, especially when the Proconsul, his assessor, and the members of his court are well disposed toward Us, diligently collect the public tributes, and abstain from unjust exactions.
.CHAPTER II.
In addition to this, the distinguished military commander of Palestine at the time shall not, in any way, interfere with civil cases, or the disbursement of taxes, but the Proconsul himself shall decide all public and private litigation (as has already been stated) ; he must especially see that the public revenues are paid without delay or loss, and keep his hands clear of all corruption.
What We decree will be carefully observed, for Stephen, whom We appoint the first Proconsul of Palestine, is deserving of great praise, and Our experience with him in former times induces Us to believe that he will discharge the duties of this office with wisdom. He must be especially careful to maintain order in the cities, and see that no popular tumult is excited therein. For this was one of his duties when he was invested with the magistracy; and he, having obtained the government of a province prone to sedition due to difference of religion, as well as other causes, pacified it, and entirely delivered it from all kinds of tumults and troubles, which is what We enjoin him to do now. If it should become necessary for him to visit Second Palestine, for the purpose of suppressing disorder, he must not permit anything improper to take place there, and above all, in that part of the province in which We are aware that widespread disturbances exist, the results of which are serious.
CHAPTER III.
If he should be in need of any soldiers stationed in the province, We hereby place those under his command whose energy We know has been tested as much in protecting the citizens of the town as in preserving peace among the inhabitants of the country, and in collecting the public taxes.
We confirm in all its force the Imperial Pragmatic Sanction which was originally promulgated on this subject, and by which the distinguished departmental commander, or the most glorious general of the army is prohibited from depriving the Proconsul of the military authority conferred upon him, for fear that tumults or sedition may arise in the city. For tumults will never take place while the Proconsul administers the civil magistracy, if he maintains strict discipline among the collectors of tribute, and is careful to provide soldiers ready to execute his commands, whenever this becomes necessary, and suppresses crimes committed by these persons or by others.
(1) The eminent general of that department, and he who is invested with Proconsular magistracy, shall be entirely distinct from each other, so far as their respective duties are concerned. For the former will have charge of the troops known as limitanei, and fcederati,1 and of the entire body of soldiers in the province, with the exception of those allotted to the service of the Proconsul; while the latter will have jurisdiction over private persons as well as civil matters, and will command the military forces placed at his disposal. No one can evade his jurisdiction in matters relating to public taxes or popular sedition.
1 The limitanei were soldiers entrusted with the defence of the frontiers. In return for this dangerous service, and in addition to their regular pay, they were given lands taken from the enemy, in perpetuity, which descended to their heirs, solely on condition that the latter embraced the military profession, and these lands could, under no circumstances, be held by person's in civil life. (Vide Spartianus, Pescennius Niger, VII; Lampridius, Alexander Severus, LVII.)
The Proconsul will command and direct all his subordinates, none of whom shall disobey his rules or orders, or, under any pretext, be permitted to defraud the public, or injure the citizens in any way; the promoter of public sedition shall not avail himself of his rank, his dignity, his sacerdotal character, or any other privilege whatsoever, to enable him to escape the consequences of his acts, but he can only avoid liability and punishment when he has not committed any offence.
(2) Thus (as We have already stated) We grant these powers to the above-mentioned magistrate, and We desire then to be perpetually recognized by means of this Imperial Pragmatic Sanction. In order that the authority of Your Excellency may be undisputed, We order this Decree to be inscribed upon the registers of your office, so that all the future inhabitants of the province may know that the Proconsular office has been restored to them; that the highest rank of Proconsul has again been established in First Palestine; and that this magistrate, who was formerly deprived of the pomp attaching to the office, is now invested with all due honor and distinction.
EPILOGUE.
Your Excellency will see that what it has pleased Us to enact by this Imperial Law is carried into effect.
TITLE V.
CONCERNING THE PRAETOR OP SICILY. ONE HUNDRED AND FOURTH NEW CONSTITUTION. The Epitome of the One Hundred and Fourth Novel is partly taken from Haloander, and partly from Julianus.
Sicily shall have a Praetor who will be entrusted with the administration of civil matters, and have charge of the military establishment.
(2) The collection of the public taxes of Sicily shall not be one of the duties of the Praetor, but shall devolve upon the Count of the Patrimony of Italy.
(3) Appeals from Sicily to this Capital shall be heard by the Most Excellent Quaestor; and decrees of the defenders of the city or of the municipal magistrates shall be confirmed by this illustrious dignitary, whenever this is necessary.
The fosderati were the inhabitants of certain states of Italy connected with Rome under the terms of treaties, which, while not exactly tributary or subject to Roman sovereignty, nor even colonists, were, nevertheless, obliged to provide a specified number of soldiers for the army. The Latini were the most prominent of these allies. Their original exclusion from citizenship, as well as the fact that their dependent condition exacted the hardships, dangers, and expense of war without adequate compensation, was productive of much dissatisfaction, sometimes resulting in resistance and bloodshed. All fcederati, through the undiscriminating indulgence of the emperors, ultimately became cives.—ED.
TITLE VI.
CONCERNING CONSULS.
ONE HUNDRED AND FIFTH NEW CONSTITUTION.
The Emperor Justinian to Strategius, Count of the Imperial Largesses, Ex-Consul and Patrician.
PREFACE.
The Romans, in ancient times, established the title and office of Consul for the purpose of employing these officials against their enemies, and it was in pursuance of decrees which created them according to the laws of the Republic that the Consuls immediately drew lots for the provinces, in which the Romans were at war; and it was also by virtue of these decrees that they, in like manner, acquired the fasces. When the authority to make peace or war was subsequently transferred to the most pious Emperors, the rights of the Consuls were restricted to the practice of moderate liberality, not exceeding a fixed amount. But, gradually, certain Consuls assumed great ostentation, and displayed undue magnificence, without reflecting that, up to that time, this had riot been done; for great riches which surpass the conceptions of the mind, and which are not derived from the office of the person who possesses them but from private resources, are not the lot of many men. Therefore, as We see that this title which, from the most distant times, and for nearly a thousand years, has been preserved with the Roman government is in a fair way to be lost, We think that some provision should be made with reference to the consuls, in order to diminish their enormous expenses and render them easy to be borne, so that the Consulate may continue to exist among the Romans, and be obtainable by all good citizens whom We consider worthy of being honored in this manner.
Hence, taking all these matters into consideration, We have decided what sum should be given under such circumstances. The distinguished Emperor Marcian promulgated a law forbidding Consuls to distribute money among the people, and this law was the first one of his Constitutions. But We have ascertained that after it was enacted, certain Consuls observed it, and no longer made such popular donations, while others requested permission to bestow gifts in this manner, and, after it was granted, they did as they pleased in this respect, scattering sums that were excessive in amount; others, however, practicing moderation, limited themselves to the distribution of largesses of inferior value. As a just medium was regarded by Our predecessors as preferable, and all extremes are dangerous, We have deemed it proper to. establish a suitable rule with reference to this subject, in order that nothing may be inordinate or irregular, and unworthy of Our reign.
CHAPTER I. CONCERNING THE SEVEN PROCESSIONS OF THE CONSULS.
Therefore We direct that every annual Consul, whom We appoint, shall bestow upon the people by way of largess, distribution, and expenses as much as he can afford; and We set forth in this Constitution everything relative to such presents made by the Consuls. We give the force of law to the following regulations, and anyone who violates them shall be punished.
We desire, in the first place, that there shall be seven Consular processions. For when anyone intends to give entertainments to the people for their enjoyment, We provide for this by means of circuses, animal combats, and the concerts of musicians, and do not permit them to be deprived of any of these amusements.
The first Consular procession shall take place on the Kalends of January, when the person entitled to the Consulate receives the commission of his office. After this procession, a second exhibition, that is, one of horse contests (called mappze) shall be given. Then a third, theatrical in character, is to be exhibited, but only once; next, the one known as "For the Entire Day," shall be represented for the delectation of the people; this exhibition, called in Greek wayxpanov, and, consisting of combats of men with wild beasts, requires great courage, as the animals must, by all means, be killed. The course of the fifth procession is directed to the theatre called Adorna, where comedy, tragedy, concerts by musicians, and all kinds of performances take place. The Consul shall then give another exhibition of contending horses, called hippomachia. This is the sixth procession. Finally, when he relinquishes the honor conferred upon him, he does so by means of a solemn ceremony.
In this manner the celebration of seven nights of processions proceeds without any of the observances prescribed by antiquity being omitted. And if, not being content with what was originally the custom, We have provided for a second contest of horses, and have continued the two theatrical exhibitions, it is certain that We have introduced no innovation by doing so. What We have directed shall then be considered to be sufficient; each exhibition shall be given publicly; and the number shall not be increased so as to render them obnoxious to the people, for what rarely occurs is regarded as wonderful.
These are the rules which We have laid down with reference to Consular expenses.
CHAPTER II.
CONCERNING THE WIFE AND THE MOTHER OF THE CONSUL.
If the Consul has a wife, We regulate her expenses also, for it is proper for her to share the distinction of her husband. But when he is unmarried, what We have already decreed shall be sufficient, unless his
mother is living, and she has not already participated in the honors of the Consulate, or her son wishes her to enjoy them with him. We only concede this privilege to his mother, hence no other woman than the wife and the mother of the Consul shall be distinguished in this manner; for the reason that wives, in accordance with law, share the distinction of their husbands, and mothers also enjoy it, if the Consul so desires.
This rule does not apply to the daughters, sisters, or daughters-in-law of Consuls, and still less to anyone who does not belong to his family, for this is absolutely prohibited.
(1) But how much should the Consul distribute among the populace during the seven processions? We shall decide this much better than was done by the Constitution of Marcian, of Divine memory. This Constitution forbids every exhibition of munificence, but We amend it by allowing the incumbent of the consular office to exercise his generosity. For when he does not wish to distribute anything among the people, We do not compel him to do so; just as when he desires to be liberal and honor them with gifts of silver coin, We do not prohibit it. We, however, forbid him to scatter gold coin about in either large or small sums, no matter what may be its weight or denomination; and he shall only distribute silver, as We have just remarked : for We grant the Empire the exclusive right to scatter gold, as the amount of its wealth permits it alone to despise this metal.
The Consuls will, therefore, restrict themselves to the distribution of silver among the people, which, next to gold, is the most precious metal; and We direct them to bestow it in the coins called missiles, cavese, thymelicse, quadrangul'se, and others of this kind; for the reason that the smaller the denomination of the coins distributed the greater will be the number of the persons who receive them.
Thus the liberality of the Consuls will be in proportion to the means and inclination of him who makes the donation, and he will be at liberty either to distribute nothing, or to use moderation, or to exhibit an excessive profusion. While enacting these provisions, We do not compel the Consuls to scatter money about against their will, just as We do not prohibit those who desire to do so.
This is a rule that We establish with reference to coins thrown to the populace. Hence if a Consul desires to be generous, he can distribute money during these processions as he may deem to be advisable, and he is only forbidden to distribute gold, which is a privilege solely reserved for the Emperor.
(2) We strictly prohibit any of the provisions which We have enacted in the present law from being violated, or others to be added to them. Hence, in order that We may prescribe no limits to the gift of money under such circumstances, We leave it to the discretion of those who bestow it; so that its distribution may absolutely depend upon the desire and pecuniary resources of the donor. What, however, .has once been prescribed and ordered by Us, Our law forbids to be disobeyed.
If anyone should presume to violate these provisions, he shall pay a fine of a hundred pounds of gold for having disregarded Our precepts, and evaded the intention of this enactment, as far as was in his power. For if it has been adopted solely to prevent the poverty of Consuls through their excessive liberality, and for this reason We have restricted these superfluous donations and reduced the expenses of processions for the entertainment of the people, as well as those of public exhibitions, to a more reasonable figure; and if, taking into consideration what is proper relating to the distribution of money, and We only authorize silver to be scattered, and allow Consuls to give nothing at all when they are unwilling; this has been done in order that We may have a larger number of these magistrates, and that they may always adorn Our reign with their names, and anyone who does not comply with these rules, and violates Our law, shall be considered worthy of punishment. For in this way We shall always have Consuls who will not hesitate to bestow immense gifts, and will under no circumstances have reason to fear and avoid the Consulate as an office involving certain risk. Hence We order that this law shall be observed in all its force.
(3) Therefore, no one shall presume to violate it, whether he be a man of great wealth, or one of Our judges, or a member of the Great Curia, or discharges the functions of any public employment whatsoever. For, taking all these matters into account, We have proposed to Ourselves to maintain equality in donations of this kind, permitting no one to exceed the limit fixed by this law, unless with reference to the amount of silver which Re is authorized to scatter or not to scatter among the populace, during the processions; which (as We have already stated) We leave entirely to the discretion of the Consuls themselves. Great favors are granted by this law of Ours to those who are accustomed to receive such gifts; for if they run the risk of receiving nothing from Consuls who neglect their duties, they will now obtain moderate presents, and will be indebted to this law, which is also indulgent to the Consul who bestows no largess.
We forbid the Most Glorious Consuls to scatter gold or great vases among the people, for We desire them to display their liberality by the distribution of the coins previously mentioned. We establish this rule through motives of humanity, and in order to consult the interests of the people; for if those who display their consular munificence do as We have directed, they will, by this means alone, conciliate the masses. Those who foment seditions through largely sharing in the generosity of the Consuls will no longer engage in contention; they will not come to blows, as they formerly did, by making use of clubs or stones, which conduct is especially odious to Us. For We see them use every effort to afflict one another with innumerable evils where various articles are thrown among and seized by them from which their households derive no benefit, but which they squander during the same day in drunkenness and debauchery. And whenever, in the hope of obtaining considerable profit, one of them incurs expense and afterwards obtains nothing from consular generosity, or less than the
amount he has disbursed, he is obliged to suffer loss to pay the debt which he had contracted; and, in addition, be subjected to the blows, wounds, and misfortunes which result. Where, however, the money scattered by the Consuls is distributed with moderation, the populace do not exert great efforts to seize it, and not making calculations for excessive gain they do not give one another blows, or inflict severe wounds, in order to obtain possession of what is bestowed.
Therefore We have, by means of this law, introduced a provision which is of general application and appropriate to the form of government; so that the course of time may always be indicated after the Empire is mentioned by the constant mention of the Consuls themselves. We also provide a suitable consolation for Our most glorious judges; for those who are members of the great curia; for Our people, and for all others (in that We release those whom We honor with the Consulate from being compelled to incur enormous expense) even though this may have been unexpected, and We suppress all superfluous outlay, so that We may render the Consulate immortal in the government.
(4) Therefore (as We have already stated) Our explanation of this law, copies of which shall be filed in the Court of Your Highness, to whom We have addressed it, hereinafter follows. We direct that the Most Glorious Consuls now in office shall receive from your tribunal alone a copy of the said explanation appended to this law, so that by means of the same everything which is done may be properly executed. We wish this to be issued by Your office in order that the Consuls may not be allowed to evade its provisions, nor those who are called compilers alter anything which We have decreed. A copy shall be given on the responsibility of those members of the Court of Your Glory to whom it is entrusted, which shall bear the signature of the magistrate exercising the functions of the office which you now occupy, in order that what We have provided may not, in any way, be changed. None of those persons called to the Consulate will experience any hesitation in accepting the place, if he always confines himself to moderate expenditures. For We, through Our generosity, continue to give to the Consuls everything which they have been, up to the present time, accustomed to receive from the court of Your Highness, or even from other sources, for, while reducing their expenses, We do not diminish Our liberality towards them.
The Emperor, however, is not subject to the rules which We have just formulated, for God has made the laws themselves subject to his control by giving him to men as an incarnate law; the Consulate belongs to him in perpetuity, whether he himself discharges its functions over all cities, peoples, and nations in pursuance of any private design by which he may be actuated, or whether he confers upon others the consular robe and attributes, as the office is always a part of the Imperial dignity.
EPILOGUE.
Your Highness will cause this law to be perpetually observed in accordance with its provisions.
To the law: One copy is addressed to John, Most Glorious Praetorian Prefect, twice Consul and Patrician. Another is addressed to Longinus, Most Learned and Most Glorious Prefect of this Capital City.
Given at Constantinople, on the fifth of the Kalends of July, after the Consulate of the most illustrious Belisarius.
TITLE VII. CONCERNING MARITIME INTEREST.
ONE HUNDRED AND SIXTH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious Praetorian Prefect.
PREFACE.
We have received a message from Your Highness for which We Ourself have given occasion. Two men, Peter and Eulogius, have applied to Us, stating that they are accustomed and it is their business to lend money to the masters of ships, or to merchants who are generally engaged in maritime trade. Our law ordinarily styles such transactions loans on transport, and it fears them, because they give rise to uncertainty; hence it is necessary that the custom in accordance with which they are practiced should become clear, and that We should make provision for rendering this custom a positive rule. Therefore, We, having designated you to ascertain the nature of the doubt, and report it to Us, to the end that We may be fully informed, Your Glory has, in accordance with the terms of your appointment, called together the shipmasters who are accustomed to make this kind of loans, and interrogated them as to the ancient custom. The said shipmasters, giving their testimony under oath, stated that there are various kinds of maritime loans, and that creditors have been pleased to impose a measure of wheat or barley for every solidus that they lend to shipmasters, who pay a certain sum to the receiver of public taxes, as well as to those who navigate ships without paying any taxes; that the creditors obtain this benefit from the money which they lend, and that, in addition, they collect by way of interest one aureus for every ten aurei; but they assume the risk of the sums which are loaned. When the creditors do not lend their money in this way, they demand as interest the eighth part of each aureus, not for a specified time, but until the ships return safely; the creditors take this interest when a vessel remains away an entire year, or almost that long, or when the duration of the voyage exceeds this term; whilst if the ship returns promptly, and without being absent more than one or two months, the creditors do not claim as interest more than three siliqute for each aureus. The same rule applies where the voyage was extremely short, or when the sum loaned is in the possession of some other person than the debtor.
Where the merchants undertake another voyage, the rate of interest is fixed accordingly, whether the money remains in the hands of the same merchant, or is transferred to someone else in accordance with the agreement entered into between the parties.
If, however, after the safe return of the vessel, the shipmasters should not be able to sail again on account of bad weather, a delay of only thirty days shall be granted by the creditors to their debtors, and they shall exact nothing by way of interest for the sums loaned until the cargo is sold; the merchants will be required to prevent the sums loaned to them from passing into the hands of other persons without paying interest to the creditors at six per cent; and unless they do this immediately and protect the loan by offering landed security, the creditors will not be liable for maritime losses.
These are the statements which have been made by shipmasters under oath, and which you have transmitted to Us in order that We may make such provision with reference to them as appears to Us to be proper. This is the question which you have referred to Us for Our decision,
CHAPTER I.
Therefore We, having read these statements and become familiar with the case, do hereby decree that the customs whose existence has been established in the presence of Your Highness, shall continue to be observed now and for all time to come, for the reason that they are not opposed to laws already in force, and that they shall have legal effect so far as shipmasters and merchants are concerned; that they shall be complied with in all litigation instituted with reference to maritime interest; that the risk shall be incurred in accordance with the terms of the aforesaid agreements; and that all other customs brought to the knowledge of Your Highness shall be applicable, so far as shipmasters and merchants are concerned; as it is not just that what has been practiced for a long time, and has been established in a permanent manner, as is shown by the testimony given before Your Glory, should not be observed in transactions which subsequently take place. For is it not equitable that the method followed up to this time should be observed in compliance with the terms of a special law, and without requiring any other positive enactment; that this law should be operative hereafter in all cases relating to shipmasters or merchants, and that it should constitute a form of legislation generally applicable to the masters of ships and merchants and their contracts ? It, then, shall constitute part of the laws which We have already enacted, and judges must render their decisions in accordance with its provisions.
EPILOGUE.
Therefore Your Highness will be careful to have what it has pleased Us to order to be perpetually observed.
•-»;
TITLE Vill.
CONCERNING IMPERFECT WILLS EXECUTED BY PARENTS
WITH REFERENCE TO THEIR CHILDREN ; AND CONCERNING
THE DISTRIBUTION OF THE ESTATE OF A FATHER MADE
AND SIGNED BY His CHILDREN IN His PRESENCE.
ONE HUNDRED AND SEVENTH NEW CONSTITUTION.
The Emperor Justinian to Bassus, Most Magnificent Count of the Domestics, who discharges the duties of John, Most Glorious Praetorian Prefect, twice Consul and Patrician.
PREFACE.
A law was promulgated by Constantine, of Divine memory, with reference to the confidence which should be reposed in conjectures; but as the nature of cases frequently varies, this law has need of amendment. It provides that the wishes of dying persons shall be strictly complied with by their offspring; but it permits the latter to interpret these wishes by directing that if the assertions made by the deceased are not clear, but can be explained by certain indications, conjectures, or writings, they shall be equally applicable to children who are independent, or emancipated.
Theodosius made the same rule operative not only where fathers, but also where mothers and other ascendants of either sex were concerned; and men took advantage of this to such an extent that they inferred, rather than interpreted, the intentions of moribund persons. Thus, although testators may not have written the names of their heirs, and may not have made any statements as to the disposition of their property, or estimated the amount of it, their heirs, nevertheless, thought that they were authorized to ascertain their wishes by means of inferences and probabilities.
CHAPTER I.
CONCERNING THE WISHES OF PARENTS AS TO THE DISTRIBUTION OF THEIR ESTATES.
Hence, desiring everything to be clear and well defined (for what is so appropriate to the laws as perspicuity, especially where the testamentary dispositions of deceased persons are involved?), We hereby direct that if anyone who knows how to write should wish to divide .his estate among his children, he must first put down the date with his signature; next he must inscribe the names of his children with his own hand; and then he must indicate the shares for which he appoints them heirs by completely writing them out, and not by merely expressing them in numerals, in order that said shares may be exactly known and free from all doubt. When he desires to make such distribution of all his property by either a general or special assignment of certain specified articles, he must reduce this to writing, so that every-
thing having been duly enumerated, there may be no ground for the children to institute a contest.
Where he wishes to leave legacies, trusts, or grants of freedom to his wife or to strangers, he shall write his dispositions to that effect with his own hand; and, finally, testators must declare in the presence of witnesses that they desire what they have stated in their wills to take effect, and be executed without any dispute, or the pretext being advanced that this is merely written on the paper, and that the other formalities required in wills have not been complied with. We make this single alteration in order that the hand and the tongue of the testator may have all the virtue attributable to the execution of a formal instrument.
CHAPTER II.
If a testator should continue to have this intention until death, no one shall afterwards be able to introduce witnesses to prove that he wished to alter his will, or do anything of this kind; as he was permitted to revoke it and draw up another containing the perfect expression of his wishes, and which alone would be carried into effect. For We grant him the power to expressly state in the presence of seven witnesses that he does not desire that the former will which he has made should remain valid any longer, but that he intends to make a new one; and he can then do this by executing a faultless testament with all the necessary formalities, or by the mere verbal expression of his wishes, and at his death his former will shall be regarded as void, and the second one as perfect.
CHAPTER III.
As We have ascertained that certain persons distribute their estates among their children, and induce the latter to agree to this by their signatures, We adopt this rule. Therefore, where anyone divides his property, and, calling his children together, causes them to consent to the apportionment which he has made, by attaching their signatures to a written instrument, this shall be considered valid, and will be advantageous to the children. A division of this kind must be confirmed in conformity with the constitution which We have promulgated on this subject, and which We ratify by the present law in all cases to which it is applicable. Where the father, alone, signed the instrument making the distribution, and which he has rendered clear by his signature, it also shall be valid; for the reason that this method has already been included in Our legislation. Hence it is evident that this law will be applicable to all cases which may hereafter arise.
EPILOGUE.
Your Highness, having been informed of the provisions which it has pleased Us to enact by this Imperial Law, will cause them to be generally published, in order that no one may be ignorant of what We have prescribed for the welfare of Our .subjects.
Given at Constantinople, on the Kalends of January, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE IX.
CONCERNING TRANSFERS.
ONE HUNDRED AND EIGHTH NEW CONSTITUTION.
The Emperor Justinian to Bassus, Most Magnificent Count of the Domestics, who is Discharging the duties of John, Most Glorious Praetorian Prefect.
PREFACE.
As We have heard of an instance in which an ambiguous testament had been submitted for interpretation, We have thought it proper that the decision of the question should be made the subject of a positive law; for We are accustomed to make such transactions the occasion for the enactment of better legislation.
(1) A certain man, when appointing his children heirs, desiring that the survivors should be substituted for those who might die before them, ordered that if any one of his children who would be his future heir should die without issue, everything which he left him, except that to which he was entitled by law, and all other property and rights of which he was possessed at the time of his death, should be transferred to the survivor of the other children, or to the offspring of the said survivor if the latter himself should die, releasing them from giving any bond or security, by reason of the substitution of the aforesaid property. The testator, having died, left as his heirs one son who had children, and another who had none. He who had children forbade the other to take the substituted property, on the ground that he would diminish its value. The latter, however, relying upon the words of the will, namely: "That he should deliver whatever was in his possession at the time of his death," claimed to have the right to use the property in any way he pleased, without being prevented from so doing in any way whatsoever.
(2) Therefore We, taking advantage of this opportunity, have deemed it necessary to dispose of the ancient legislation, and settle this matter for the future, to treat the subject with clearness, and to include this case in a law, in order that judges may learn how to hear and determine others of a similar character. We are aware that the most wise Papinianus, in the Nineteenth Book of his "Questions," allows ambiguous alienations to be made in instances of this kind; he discusses the point of ascertaining when it is necessary to prohibit, and he thinks that this should only be done where a trust is to be executed by the person who is charged with it. And the philosophical Emperor Marcus also disposed of a similar case in which the judgment of a good citizen seemed to be required to determine the meaning of words under such circumstances.
CHAPTER I.
Therefore We consider it advisable to establish the rule that where a testator, in general terms, directs the property to be delivered by the terms of a trust, what We have already decreed in cases of this
description shall be observed. When, however, the trust resembles the one which has been referred to Us, and the testator only subjected to delivery such property as might be found at the time of the death of the person charged with the execution of the trust, then what has been prescribed by former laws shall be complied with. When the bequest of the testator is of this nature, or in some respects resembles the one above mentioned, We order that he who is charged with the execution of the trust shall only be required to preserve for the substitute the amount of the Falcidian portion, the contribution of which is compulsory, and that he cannot absolutely deduct anything from the said Falcidian portion, but the three-fourths of the estate to which he was appointed heir shall remain in the hands of the trustee, and only a fourth of the same shall be reserved for the benefit of the substitute.
We do not permit the trustee to make donations, for the purpose (as Papinianus said) of defeating the object of the trust, in order to diminish the fourth of the estate referred to, but We decree that he shall preserve this portion of the trust for the substitute; that all of the remainder shall belong to him, and that he shall be at liberty to make use of it as the true owner, in whatever way he wishes.
If the heir charged with the trust should acquire the fourth that he ought to reserve, the reason for his doing so should be ascertained; and if having no other property he should desire to constitute a dowry or to make an ante-nuptial donation, he shall be permitted to do so, as is stated in the preceding law, by which We have not absolutely prohibit a trustee from making a diminution of this kind in a trust. He shall also have authority to diminish the fourth reserved by the substitute for the redemption of captives (for We make an exception in this instance and dedicate it to God), as We are actuated by motives of piety which seem to Us to be the most precious of all things.
CHAPTER II.
If, however, the trustee should not have enough to defray his expenses, he can, for that purpose, make use of the property to be delivered under the trust, and We grant him permission to do so (for this was the intention of the testator) desiring the remainder to be transferred, just as if the testator had expressly stated that delivery of the remaining property should be made after the expenses were paid. But where the trustee has no ground for encroaching upon the fourth of the estate which he is obliged to transfer, he will be compelled to preserve it all and deliver it to the substitute. If he has paid out anything on account of the substituted property, he must take enough from some other source to make up the said fourth, which, as has just been stated, shall, on no account, be diminished. When, however, the trustee has obtained the fourth of the substitution, and has nothing himself out of which to make up the deficiency, We, by the terms of this law, grant the substitute the right to bring an action in rem against the purchasers, or other persons who have received the property, in order that the terms of the trust may be complied with
through the recovery of said property, a privilege which we have already conceded with reference to legacies, by authorizing the legatee under Our Constitution to bring an action in rem in order to be able to execute the trust. Wherefore the heir charged with the trust must give security to preserve at least the fourth of the substituted property, unless the testator excuses him from doing so, as he did in the case referred to Us; for when the testator releases the heir not only from the necessity of furnishing security, but also from that of executing a bond, We will not act in conformity with his wishes if We prescribe otherwise.
EPILOGUE.
This decision is rendered with reference to the proceedings which gave rise to it, as well as to all others concerning wills, where the testators are dead; and it also applies to trusts which have not yet been carried out for the reason that the heirs charged with their execution are still living.
We decree that these provisions shall be observed not only so far as children are concerned, but also with reference to other relatives and strangers, who are charged with the execution of a trust of this
kind.
Your Glory will communicate this law to all Our subjects, so that they may learn how they should live, die, make wills, create trusts, and comply with the other provisions ordered under similar circum-stjincGS
Given at Constantinople, on the Kalends of February, during the fourteenth year of the reign of Our Lord the Emperor Justinian, under the Consulate of Basil.
TITLE X.
CONCERNING THE DOTAL PRIVILEGES WHICH ARE NOT GRANTED TO WOMEN WHO ARE HERETICS.
ONE HUNDRED AND NINTH NEW CONSTITUTION. The Emperor Justinian to John, Most Glorious Pratorian Prefect of the East, twice Consul and Patrician.
PREFACE.
We are convinced that Our sole hope of the permanency of the Empire during Our reign depends upon the favor of God, for We . know that that hope is the source of the safety of the soul, and the preservation of the government. Wherefore Our laws should be based upon it, and constantly take it into consideration, for it is their beginning, middle, and end. Everyone is aware that those who have ruled before Us, and especially Leo, of pious memory, and Justin, Our Father, of pious memory, in their constitutions, forbade all heretics to have any share in public employments or offices, in order that they might not have an opportunity to make use of them against the Holy
and Apostolic Church of God. We, also, have forbidden this, strengthening it in every way by the authority of Our Constitution. Our predecessors denned as heretics, and We also designate as such those who are the members of different heterodox sects, and among the latter We include persons who adopt the insane Hebrew doctrines of Nestorius the Eutychian, the Acephali, who endorse the evil dogmas of Dioscorus and Severus; those who renew the impiety of Manichseus and Apollinaris; as well as all such as are not affiliated with the Catholic and Apostolic Church of God, in which the most holy bishops, the patriarchs of the entire earth, of Italy, of Rome and of this Royal City, of Alexandria, Antioch, and Jerusalem, along with all the holy bishops subject to their authority, preach the true faith and ecclesiastical tradition.
Hence We very properly call persons heretics who do not receive the holy sacraments from the reverend bishops in the Catholic Church; for although they may give themselves the name of Christians, still they are separated from the belief and communion of Christians, even when they acknowledge that they are subject to the judgment of God.
CHAPTER I.
Therefore the provisions enacted with reference to heretics are well known to all. But as We desire that persons who embrace and defend the orthodox faith shall have greater privileges than those who hold themselves aloof from the flock of God (as it is not just for heretics to enjoy the same advantages as the orthodox), We now address Ourselves to the present law. For as We have granted the privilege of the dowry to women, in order that they may be preferred to prior creditors, and that their claim shall be first in order and not liable to be barred by prescription, nor be pleaded with reference to ante-nuptial donations, according to the times for which they were made, We now, by this Imperial Law, decree that this privilege, tacit hypothecation, and all other rights which were granted by Our laws to women to enjoy and make use of, shall be conceded to those alone who profess Our adorable faith (We mean that of the Catholic and Apostolic Church), and who participate in its salutary communion.
We also absolutely forbid women who are separated from the Holy Catholic Church, and are unwilling to receive the Holy Communion from the hands of priests, beloved of God, to enjoy such privileges. For if they renounce the favors of God, and absent themselves from the Holy Communion, there is all the more reason why they should not enjoy them, and that We should not permit them to participate in the benefits of Our laws; hence they are declared incapable of doing so, and shall be deprived of all the advantages of Our Constitution.
CHAPTER II.
Women, however, who embrace a better doctrine and acknowledge the true faith, shall be permitted to share in the above-mentioned benefits.
These provisions must be observed throughout the entire Roman Empire, and their execution shall generally be promoted by the bishops and ecclesiastics beloved of God, by Our magistrates and superior and inferior judges, as well as by Your Highness, to whom they are addressed. Hence judges, before whom cases are brought against women, or by women who desire to avail themselves of any privileges, shall conform to the spirit of this law; and if it should be ascertained that the said women do not profess the orthodox faith, or receive the adorable communion in the Holy Catholic and Apostolic Church, at the hands of the reverend clergy, they shall not be permitted to enjoy the privileges conferred by Our Constitution.
EPILOGUE.
Therefore Your Highness, as soon as you have been advised of what it has pleased Us to promulgate by means of this law, will take measures to have it applied to all cases brought before you, and render it operative and effective; publishing it by means of solemn edicts and precepts, so that it may be brought to the knowledge of all, and that Our subjects in this Most Fortunate City, as well as in the provinces, may become aware of how great Our solicitude is for the preservation of the faith of Our Lord Jesus Christ, and the welfare of the people of the Empire.
Given at Constantinople, on the second of the Kalends of May, during the fourteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XI. CONCERNING MARITIME INTEREST.
ONE HUNDRED AND TENTH NEW CONSTITUTION.
The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.
PREFACE.
We are well aware that We have already enacted a law with reference to money loaned on property transported by sea, which law has been communicated to Your Highness.
CHAPTER I.
But several applications having subsequently been made to Us, We have learned that this law is not advantageous, and that it is the desire of Your tribunal that it should be rescinded; and We have also been informed that it has been recorded in all the provinces. We now wish to repeal it entirely, and We decree that if it has already been despatched to the different provinces, it shall not be executed there, but shall be considered void. We also decree that, hereafter, cases shall
proceed just as if the said law had never been written, and that everything shall be conducted in accordance with the legislation previously enacted by Us on the subject.
EPILOGUE.
Therefore Your Highness will hasten to carry into effect the provisions contained in this Imperial Law.
Given at Constantinople, on the sixth of the Kalends of May, during the reign of Our Lord the Emperor Justinian, and the Consulate of Belisarius.
TITLE XII.
THIS CONSTITUTION REPEALS THE ONE WHICH GRANTED
TO RELIGIOUS PLACES FREEDOM FROM PRESCRIPTION,
UNLESS A HUNDRED YEARS HAD ELAPSED.
ONE HUNDRED AND ELEVENTH NEW CONSTITUTION.
The Emperor Justinian to Theodotus, Prsetorian Prefect of the
East.
PREFACE.
The laws bear the same relation to business transactions as medicines do to diseases. Hence it sometimes happens that the effect is not what was anticipated, and that what was considered to be beneficial proves, through experience, to be worthless. This fact is established by the necessity which compels Us to enact the present law, in which We reconsider the privilege that a pious intention recently induced Us to grant, by the terms of a Constitution, to the Holy Churches of God, to monasteries, and other religious foundations. We ordered that these places should have the right to bring suit during the term of a hundred years, but the result of this has been that many actions were brought, just as new scars form on old wounds already healed, and the proceedings instituted failed of success on account of the insuperable difficulty of obtaining evidence; for, after the lapse of a century, one can no longer rely upon human testimony any more than force can then be imparted to contracts, confidence be reposed in documents, or life be restored to witnesses.
CHAPTER I.
And as a great number of matters demand Our attention, We decide with equity, and above all religiously, with reference to the aforesaid privilege; and as experience has taught Us to limit this privilege as much as possible, We hereby decree that in the case of suits against which formerly the prescription of twenty years could be pleaded, this term shall now be extended to forty in favor of venerable churches, monasteries, hospitals, orphan asylums, foundling hospitals and infirmaries for the poor; but the benefit of the prescription of thirty
years shall always be reserved for them against other persons and any actions which may be brought against them. We grant (as already stated) this extension of ten years solely to religious places, their rights, and their contracts, so that, after the expiration of this term, the right to institute personal as well as hypothecary actions shall be extinguished forever.
We do not in any way derogate from other exceptions; and the prescription for thirty years, as well as others, shall remain in full force. But, as previously stated, religious actions shall enjoy the privilege of not being prescribed except by the lapse of forty years, as aforesaid, in instances where Our Constitution granted them the right of not being barred until after the lapse of a hundred years. Where a judicial decision or a compromise has ended cases brought by Churches and other Holy places before the enactment of the present constitution, We do not desire that they shall be revived; but for the future this provision shall be pleaded in actions concerning which silence has been kept for eight lusters, or, where proceedings have been instituted but have not yet been disposed of.
EPILOGUE.
Therefore Your Illustrious and Magnificent Authority will communicate to all Our subjects the regulations which Our Eternal Majesty has prescribed by this general law.
Given at Constantinople, on the Kalends of July, during the fifteenth year of the reign of Our Lord the Emperor Justinian, ever Augustus, and the Consulate of Basil.
TITLE XIII.
CONCERNING PROPERTY IN LITIGATION, AND THE BOND FOR THE TENTH PART OF THE VALUE OF THE OBJECT IN CONTROVERSY WHICH MUST BE FURNISHED BY THE PLAINTIFF.
ONE HUNDRED AND TWELFTH NEW CONSTITUTION. The Emperor Justinian to Theodotus, Prsetorian Prefect of the East.
PREFACE.
The wisdom of ancient legislators, as well as Imperial Majesty, has promulgated many laws with reference to property in litigation. Judges have frequently petitioned Us to resolve doubts which have arisen among them on subjects of this kind, and to explain in a lucid manner the laws and constitutions applicable to the same, in order that it may hereafter be perfectly clear what things can properly be styled litigious.
CHAPTER I. WHAT PROPERTY is SUBJECT TO LITIGATION.
Therefore We decree that where a lawsuit is pending between a plaintiff and a possessor with reference to the ownership of any movable property which is capable of moving itself, either by judicial assignment or by petitions addressed to the Emperor which have been recorded in court, and communicated to the defendant by the petitioner ; or whether an appeal has been taken and the property decided to be litigious; under such circumstances, the preceding Constitution promulgated by Ourselves shall remain in full force; which said Constitution establishes a distinction between purchasers who are aware that the property which they purchased is litigious, and those who are not. We think that it should be added that when, during the course of the trial for the possession of a litigious article, the defendant dies, and his heirs wish to divide his estate, they shall be permitted to do so without any hindrance; for when property subject to litigation passes by succession to heirs, the division of it made between them should not be considered as an alienation.
But when it happens that when one of the parties to an action to recover such property dies, after bequeathing the ownership of the same, which is still uncertain, to anyone by his last will as a legacy, We order by Our present law that the legatee shall have a right to profit by the bequest, where the heir has been decided to be the owner of it, under the terms of a judicial decision; but when the heir loses his case in court, the legatee cannot demand of him other property in the place of the legacy, because, as the testator was aware that the object bequeathed was litigious, he, by that very fact, subjected the legatee to the result of the suit. For this reason We grant the legatee (provided he thinks that this will be advantageous to him) the privilege of being represented in the case, in order that he may not afterwards be able to charge the heir with negligence or fraud. We decree that hypothecated articles shall not be called litigious, and that this distinction shall be made whether the property specified is movable, immovable, or capable of moving itself. Where it is expressly subjected to hypothecation, the debtor is hereby authorized to sell it to anyone whenever he thinks it advisable to do so, provided, however, that he pays the creditor the amount of the debt out of the purchase-money; but if he should not pay him, the creditor who has preserved his lien upon the property sold can recover it for the purpose of satisfying his claim.
We order that this rule shall be observed, unless the said property has previously been encumbered to other creditors by a general or special hypothecation; for then, in accordance with the terms of Our Imperial Law, We direct that the privileges resulting from priority of obligations shall be observed for the benefit of each of the creditors. The necessary consequence of this is that We do not understand general hypothecation to be included in the term litigious, but desire that
hypothecary actions shall be decided in conformity to the provisions of former laws, whose force We order shall continue to be maintained.
We promulgate the present provisions with reference to property subject to litigation, as well as to special and general hypothecations, in order that hereafter no doubt may arise in court on these subjects, and that suits may be determined in accordance with the distinction which We have established.
CHAPTER II.
CONCERNING THE BOND WHICH SHOULD BE FURNISHED BY THE PLAINTIFF BEFORE SERVING NOTICE ON THE DEFENDANT.
Our foresight has devised another method of excluding the claims of those who institute malicious prosecutions, and of suppressing the frauds of those who make a business of doing so. For We order all judges, whenever any persons appear or are summoned before them, to add to their decrees that notice of the filing of complaints shall not be given to defendants, or fees be collected by bailiffs, unless the plaintiff signs the complaint himself or by notaries, and if he does not furnish a surety for whose solvency the court shall be responsible, and state that he will prosecute the case to the end, using every effort to do so either in person or by a lawful attorney, and he is afterwards proved to have brought suit unjustly, he shall pay the defendant, by way of costs and expenses, the tenth part of the value of the property mentioned in the complaint. When the plaintiff says that he cannot furnish a surety, We order him to swear to this on the Holy Gospels, in the presence of the judge who is to hear the case, and he must also give a juratory bond by which he promises what is above set forth.
(1) But when what We have previously stated is not observed in the manner prescribed, We do not require the defendant to answer him who has instituted the proceedings. If a magistrate, his court, or any of his executive officers should presume to sue anyone without complying with the aforesaid formalities, the magistrate and his court shall be fined ten pounds of gold, and the party responsible for the affair shall be sentenced to the confiscation of his property and to exile for five years.
The Magnificent Count of Private Affairs in office at the time shall be responsible for the collection and payment into the Treasury of the fine prescribed by this law. All the expenses incurred by the defendant on account of a citation made in violation to the terms of Our law shall be reimbursed him by the plaintiff at the risk of the judge before whom the plaintiff brought suit, as well as of the officials who execute his commands, in order that those who have absolute confidence in Our government and the majesty of the Most High may profit by this indemnity.
We, however, order that where any cases are brought in court by common consent, the penalty prescribed by this constitution shall not be incurred, and they shall be disposed of as directed by Our other laws.
CHAPTER III.
AFTER THE LAPSE OF A YEAR AND THE PUBLICATION OF
THREE EDICTS, A DECISION SHOULD BE RENDERED WITH
REFERENCE TO THE CLAIM OF THE PLAINTIFF WHO is
GUILTY OF CONTUMACY.
We desire all litigation to be promptly disposed of, and resist the malice of those who institute proceedings without intending to conduct them to final judgment, relying upon the law which provides that no one can, against his will, be compelled to exercise rights of action to which he is entitled. Therefore We, hastening to abolish this dishonorable practice, do hereby order that where persons bring suit against anyone, either by means of judicial notice, or through petitions addressed to the Emperor, presented to the judge, and communicated to the adversary, and a competent magistrate has begun to hear the case, they shall not take advantage of the aforesaid law; for it is unjust for him who has prepared for the action which he intends to bring, and summoned his adversary to court, to refuse to proceed, since this refusal is rather the privilege of the defendant than of the plaintiff. Hence, We direct that the plaintiff shall conduct the action which he has begun to the end.
If, however, he should delay, We grant the defendant authority to compel the judge before whom proceedings were instituted to notify the plaintiff to appear before his tribunal, either in his own proper person, or by a lawful attorney. If he does not appear in response to this notice, he shall be summoned by three publications of the Edict, which shall be made at intervals of at least thirty days from one another. We desire that ordinary judges shall, not only by the voice of criers, but also by the publication of edicts, call into court any of the litigants who may be absent, for there are comparatively few persons present who can hear the voices of criers, while every one can learn of edicts published in this way at intervals of several days. We also permit all other magistrates who have cognizance of cases by Imperial order to summon, by means of edicts, parties who do not appear in court, in order that litigation may not become interminable.
(1) But where the action has not yet actually been begun before a judge, but someone has only been sued by the filing of a complaint, or by means of a petition addressed to Our Clemency, and Our order has been communicated to the judge either in writing or by mandate, and notice has been served by the plaintiff upon his adversary, the defendant will also be permitted to appear before a competent magistrate, and through him summon the plaintiff in the manner already stated, in order that, after the latter has appeared, the suit may be tried in accordance with law and be terminated in a suitable manner.
(2) Where the plaintiff, after having been summoned to court by the publication of three separate edicts, is unwilling to proceed either in person or by an attorney (as already stated), then We grant him the term of a year within which, if he does not go on with the case, We permit the judge to examine the allegations of the party who is
present, in accordance with Our laws, even in the absence of the adversary, and, having ascertained the truth after careful investigation, to render a legal decision. If, however, he should appear within the aforesaid term of a year, and desire to try the case, We order that the judge shall, by all means, compel the plaintiff to pay to the defendant all expenses and costs which the latter has incurred on account of the litigation, until the suit was terminated in conformity with law. If he should appear, and desire, by paying the costs, to interrupt the course of the year, and withdraw from the suit, and not remain until it has been decided, We order that, after the publication of the edicts and the expiration of the year, he shall be entirely deprived of the right of action which he thought he had against the defendant; for the fraudulent conduct of one who abandons a case, the course of which has already been interrupted, is worse than that of him who only abandoned it once. Still, We permit those who have not instituted proceedings of this kind against others to enjoy the benefit of the law which does not require anyone to exercise rights of action to which he is entitled, if he is unwilling to do so.
EPILOGUE.
Our most dear and beloved relative, Theodotus, We decree that all these provisions shall become operative in suits which have not yet been disposed of by judicial decision, amicable compromise, or in any other way known to the law. Therefore Your Illustrious and Magnificent Authority will communicate this law, which We have enacted for all time, to all persons by means of edicts published in this Royal City, and by notices despatched to the provinces under Your jurisdiction, in order that Our subjects may be informed of and observe the regulations which We have established for their benefit.
Given at Constantinople, on the fourth of the Ides of September, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XIV.
IMPERIAL PRAGMATIC SANCTIONS OR ORDERS SHALL NOT
BE GIVEN CONSIDERATION IF INTRODUCED DURING THE
HEARING OF A CASE, BUT SUITS SHALL BE DECIDED IN
CONFORMITY WITH GENERAL ANCIENT LAWS.
ONE HUNDRED AND THIRTEENTH NEW CONSTITUTION. The Emperor Justinian to Theodotus, Imperial Praetorian Prefect.
PREFACE.
We, desiring that Our laws may be thoroughly executed, and taking proper care to maintain their force, have deemed it proper to publish the present decree, to insure compliance with these constitutions. For We have learned that certain judges desiring to delay those who have
cases before them, and with a view to concealing the reasons for such delay, frequently excuse themselves on the ground that they have received pragmatic sanctions, Imperial orders, or notices from Our illustrious referendaries, in accordance with which they are required to hear or determine the case.
CHAPTER I.
Therefore, We decree that when a case is tried, whether it relates to pecuniary, criminal, or any other matters here or in the provinces, no pragmatic sanction, Imperial order or notice, either written or verbal, issued in this Capital by Our illustrious referendaries, or by any other magistrate whomsoever, prescribing how judges must hear or decide an action which has already been begun, shall be communicated to the magistrate; and if this should be done, it shall be of no force or effect, as We desire cases to be tried and decided in conformity with Our general laws, for what is generally established has no need of regulation from other sources.
Where, however, any point already brought to the attention of a judge, or which, even before this was done, has been submitted to Us, and We Ourselves have decided it, it will not require consideration by another tribunal. For (as has already been stated) matters which have been disposed of by an Imperial decision do not need the investigation of other magistrates, nor any revocation whatsoever; and if We (to whom God has given authority to issue orders) have rendered judgment in any case, We do not permit a judge, either by virtue of a pragmatic sanction, or in pursuance of instructions given by Our illustrious referendaries, or by any other magistrate, to hear and determine it again, since what We have once decided cannot be corrected by anyone, Our decisions being unalterable when they are embodied in a written decree. But where a judge entertains any doubt with reference to the law, he must notify Us of the fact, and wait until We send him a written opinion or interpretation, and then decide the question in accordance with it.
(1) But if, when the case was heard, an Imperial Pragmatic Sanction or a notice emanating from Our illustrious referendaries or from any other magistrate whomsoever, or based upon any of the aforesaid ordinances, directing that a specified form of inquiry shall be conducted, or a certain decision rendered, is served upon a judge, We order him to pay no attention whatever to it. Such communications are void, and have absolutely no force whatever, but the judge shall examine the case in accordance with Our general laws, and terminate it in a proper manner. If, however, he should not do this, he shall be subjected to a fine of ten pounds of gold, and, in addition, will experience the effects of Our extreme indignation. Any magistrate who presumed to dictate any pragmatic sanction of this kind, together with his subordinates, and Our illustrious referendaries who may issue such documents, shall be liable to the same penalty.
What We have provided shall be applicable whether the judge has been appointed by Our order, or under a judicial precept, or whether
he hears the case as arbiter by virtue of a submission to arbitration, whether the proceedings are committed to writing or not. But when a judge, without having proper regard for his own safety, presumes to render a decision in accordance with orders which have been given him, We declare the said decision to be void, without there being any need to appeal from it, and without the penalty prescribed by the agreement for arbitration being incurred, for We wish all judges to hear cases, and render their decisions in conformity with Our general statutes. Nor can any doubt exist that no judicial order whatsoever will be effective against what is prescribed by Our present law.
CHAPTER II.
It is necessary, however, for magistrates to know that they must determine, in accordance with the general laws, questions which may now arise where one of the parties litigant has obtained an order prescribing the manner in which the case should be heard and decided, as We are not willing for anyone who has already obtained such an order to enjoy the benefit of it, where a final judgment has not yet been rendered. But when this has been done, We decree that it shall be absolutely exempt from the effect of the provisions of Our present law, even though an appeal may have been taken from it, or some kind of reconsideration of it may have occurred. We do not, however, prohibit such an order, whether written or unwritten, from becoming operative where, instead of prescribing how the judge shall decide or render judgment, it directs that the case shall be disposed of; or the appearance of the defendants take place; or the judge render a final decision; or some other magistrate be appointed in conformity with law.
CHAPTER III.
In order that all Our subjects, and especially those who have been ruined by lawsuits, may be informed of Our solicitude for their welfare, and that no one may violate Our present Imperial Law, or pretend ignorance of the same, We decree that whenever an action is begun in court this law shall be copied and made a part of the proceedings before a bond has been furnished. For in this way, being conspicuous, any attempt made against its observance will be prevented, or the solvency of the sureties furnished by litigants being questioned, it will restrain the efforts of those who are desirous of violating it by the severe penalties which it denounces against them, and it will not permit the enforcement of these penalties to be deferred.
We enact the present constitution for the purpose of excluding all 'inquiry and injustice from matters of this kind, and by means of it We maintain the other laws of the Empire in all their force, and free from the exercise of every kind of fraud, for it is by virtue of these laws that We have received from God the right of empire, and it is by means of them that We have always desired to fortify and preserve Our government.
EPILOGUE.
Your Highness will be careful to observe the provisions which it has pleased Us to insert in this constitution; and you will communicate them by means of notices published in this Most Fortunate City, and addressed to the Governors of provinces, in order that all persons may be informed of Our desire for their prosperity and happiness.
Given at Constantinople, on the tenth of the Kalends of December, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XV.
IMPERIAL ORDERS SHALL BEAR THE SIGNATURE OF THE MOST GLORIOUS QUAESTOR.
ONE HUNDRED AND FOURTEENTH NEW CONSTITUTION. The Emperor Justinian to Theodotus, Imperial Praetorian Prefect.
PREFACE.
The solicitude of Our Serenity provides remedies for Our subjects, and We do not cease to inquire what needs correction in Our administration. Therefore We voluntarily exert Ourselves to obtain repose for others, as We think that it is a matter of universal advantage for Imperial orders to be given with proper security, so that no one may be able to produce them at will.
CHAPTER I.
Hence We decree by the present law that no Imperial order directed to a judge through the instrumentality of the Magnificent Quaestor, or any other incumbent of any charge, employment, or office, shall be accepted by the magistrate having jurisdiction of the case, when the said order does not bear the annotation of the Magnificent Quaestor setting forth for what person, to what judge, and by what official it is issued; and all uncertainty having been removed, no one will be able to allege any excuse. All judges and other magistrates are notified that if they should accept an Imperial order (which does not bear the annotation of the Most Magnificent Quaestor) having reference to any matter whatsoever, they will be subjected to a fine of twenty pounds of gold, and the members of their court will be liable to the same amount. If any order of this kind should come into their hands We command them immediately to refer it to the Magnificent Quaestor, or send it to him by the person who delivered it, so that, Our illustrious and beloved relative Theodotus, the punishment prescribed by the laws against forgers may be inflicted upon them.
EPILOGUE.
Your Highness will cause notice of the present law, which shall perpetually be valid, to be given to all persons.
A Short Epitome of the Same Novel.
Every Imperial order shall bear the signature of the Quaestor and shall show for what purpose it was published, and what judge was appointed. This, however, will not prevent every Imperial Rescript from being signed by the Emperor, for this constitution does not repeal or abrogate what is stated in the Code, but merely adds what is here prescribed, namely, what relates to orders which need not be signed by the Emperor.
TITLE XVI.
WHEN A JUDGE HEARS AN APPEAL, HE SHOULD DECIDE IN CONFORMITY WITH THOSE LAWS WHICH WERE IN FORCE AT THE TIME WHEN THE DECISION WAS RENDERED, AND NOT IN ACCORDANCE WITH THOSE WHICH WERE SUBSEQUENTLY PROMULGATED; AND CONCERNING OTHER MATTERS.
ONE HUNDRED AND FIFTEENTH NEW CONSTITUTION.
(1) When appeals, reviews of cases, and reports of magistrates are heard, they shall be decided in conformity with the laws which were in force at the time when judgment was rendered, and not in accordance with those subsequently promulgated.
(2) If one of the parties litigant should state that he will abide by his allegations, but the other hesitates, as if he was not satisfied, the judge shall grant both of them a delay of three months, and when this term has elapsed, he must wait no longer before rendering his decision.
(3) What cases of ingratitude can reasonably be stated by parents against their children.
(4) And, on the other hand, what cases of ingratitude children can reasonably allege against their parents.
(5) The next of kin to a deceased person, as well as those who mourn his loss, shall not be arrested or brought into court during the nine months immediately following his death.
(6) Concerning the obligation contracted, and promises made with reference to pre-existing debts. Where anyone has previously borrowed money, or made any promises with reference to it such as, "I will pay the debt," or "So-and-So will pay it for me," or, "Either I or So-and-So will pay it."
The Emperor Justinian to Theodotus, Praetorian Prefect of the
East.
PREFACE.
We have learned that a suit was brought between Eustatius, Most Reverend Bishop of the City of Thelona, and Pistus, deacon of the church of Thelmisense, and that a final decision was rendered by the Governor of the province, from which decision an appeal was taken. The judges before whom the appeal was brought, being in doubt, asked Us whether they should determine the case in conformity with the
laws which were in force when the decision from which the appeal was taken was rendered, or in conformity with the tenor of those which We have enacted since that time. We have thought it just for a case on appeal to be heard and determined in accordance with the laws which were in force at the time when judgment was rendered. And with all due foresight, We direct that every time a doubt of this kind arises after the enactment of the present law, the case shall be decided in the same way.
CHAPTER I.
CASES TAKEN UP ON APPEAL SHALL BE DECIDED IN ACCORDANCE WITH THE LAWS IN FORCE AT THE TIME WHEN THE DECISION APPEALED FROM WAS RENDERED.
Therefore, We decree that where a final decision has been rendered in any case, and an appeal has been taken from it, the judges having cognizance of the appeal must decide the case in conformity with the laws in force at the time when the final decision was rendered, which rule also shall apply to cases reviewed by Prastorian Prefects, as well as to those heard by referees appointed by judges, when both parties have agreed to abide by their present allegations, and the judges shall inquire of their referees what decision should be rendered. For in all these instances, We decree that judges who have jurisdiction of cases taken up on appeal shall observe the laws which were in force at the time of the decision or report, even though a law making a different provision may have been promulgated and applied to former cases.
CHAPTER II.
CONCERNING THOSE WHO STATE THAT THEY HAVE OTHER
ALLEGATIONS TO MAKE, AFTER THEIR ADVERSARIES HAVE
FORMALLY DECLARED THAT THEY HAD NOTHING MORE
TO ADVANCE.
We add the following provisions to this law, for the reason that it sometimes happens among litigants that one of the parties sets forth his allegations, and the other, being aware that he has a bad case, after the arguments and the delays granted by the laws to produce evidence (through fear that the weakness of his case may be manifested too soon) states that he is unwilling to rely upon the allegations which he has made; We hereby decree that when one party has produced all his testimony and the other says that he has more, the judge having jurisdiction shall compel the latter, without delay, to . produce the' remainder of his evidence within twenty days after his adversary has produced his; and if, after this time has elapsed, he does not do so, the judge shall grant him another month, in order that his malice may be exposed; and if, in spite of this, he still delays, he should give him a third month; and if, during the three months which We grant him, he does not produce all his evidence, the judge, without
waiting any longer, shall render a decision in conformity with the laws; or, when it is necessary, he must refer the case to Us in order that litigants who conduct their suits without justification may not be allowed to protract the proceedings beyond reasonable limits.
CHAPTER III.
WHAT ARE JUST CAUSES FOR THE DISINHERITANCE OF
CHILDREN.
We have decided that it is proper to add this chapter to the present law. Therefore We order that no father or mother, grandfather or grandmother, great-grandfather or great-grandmother shall, under any circumstances, forget to mention their son, daughter, or other descendants in their wills, or disinherit them unless they have left them, by donation, legacy, or trust, or in some other way, the shares to which they are entitled by law; or it has been proved that their children are ungrateful, and have expressly stated the instances of their ingratitude in their wills.
But as We are well aware that the reasons for which children should be considered ungrateful are scattered through different statutes, and have not been clearly determined; and as, besides, some of these reasons have not appeared to Us to deserve the reproach of ingratitude, and others, which do deserve it, have been omitted, We have considered it necessary to mention them explicitly in this law, in order that no one, relying upon some other enactment, may be permitted to state instances of ingratitude which are not included in this Constitution. Hence We decree that the following shall be just reason for alleging ingratitude.
(1) Where a child has laid violent hands upon his parents.
(2) Where he has heaped gross and opprobrious insults upon
them.
(3) Where he has brought criminal accusations against them, for offences which do not involve either the Emperor or the government.
(4) Where he is a malefactor, and habitually associates with criminals.
(5) Where he has attempted the life of his parents, either by
poison or in some other way.
(6) Where a son has had criminal intercourse with his stepmother, or his father's concubine.
(7) Where a son has acted as informer against his parents, and, by so doing, has subjected them to great expense.
(8) Where one of the parents being ill, his or her children, or one of them who is entitled to. the succession, refused to furnish security for the person or debts of his parents (after having been asked to do so), when it is proved that he was solvent to the extent of the sum demanded. What We state with reference to security applies, however, only to male children.
(9) Where a son prevented his parents from making a will, and they were able to make it afterwards, they shall be permitted to dis-
inherit their son for this reason. But where a parent dies intestate because he or she was prevented from making a will, and this is proved either by those who are called to the succession of the deceased 0,6 intestato, along with the aforesaid son, who prevented the will from being executed after his death, or by those whom the deceased desired to be his heirs or legatees, or by persons who have suffered some loss because of interference with the right of testation, this ground of ingratitude shall be decided in conformity with the other laws enacted on this subject.
(10) Where, in opposition to the will of his parents, the son associates with actors or buffoons, and continues to do so, unless his parents belong to the same profession.
(11) Where one of the aforesaid parents, desiring to give his or her daughter or granddaughter a husband, and bestow upon her a dowry in proportion to his or her means, and the daughter refused to be married, and preferred to lead a life of debauchery. When, however, the daughter has arrived at the age of twenty-five years, and her parents have prevented her from marrying, and, in consequence, she had led a licentious life, or she had married a freeman without the consent of her parents, We are unwilling to characterize this as ingratitude, because not she, but her parents are to blame.
(12) If, however, either of the said parents should be insane, and his or her children, or any of them, or where there are no children, the blood-relatives of the unfortunate person who are called to the succession ab intestato should not treat him with proper respect and care, and the latter should subsequently be cured of his or her affliction, he or she will have the power to accuse the negligent son or sons, or cognates, of being ungrateful, in his or her will. When a stranger, seeing that the insane person is neglected by his or her children, cognates, or other appointed heirs, provides for him or her through motives of charity, We permit him to make a formal demand in writing upon the heirs at law, or those appointed by will to the estate of the insane person, to take charge of the latter. If, after a notice of this kind has been served, the heir should still be guilty of neglect, and the said stranger can prove that he has taken the insane person into his house, and cared for him at his own expense, until the end of his life, We decree that he who exhibited such solicitude and compassion for the insane person, even though he may have been in no way related to him, shall be entitled to his estate, and the appointment of his heirs shall be void, they being unworthy on account of their having failed to take care of the insane person (as We have previously stated), but the other provisions of the will shall remain in full force and effect.
(13) Where one of the aforesaid parents is retained in captivity, and one or all of the children do not hasten to ransom him, he shall have the power, if he can escape from captivity, to insert this as a cause of ingratitude into his will. But where, through the negligence or contempt of his children, he is not liberated, and dies a prisoner, We do not permit them to obtain his estate, for the reason that they
did not make any effort to release him, and We order that all the property left by the captive to his negligent children shall pass to the church of the town in which he was born, that a public inventory of tsaid property shall be drawn up, in order that nothing of which it consists may be lost, and that whatever is acquired by the church in this way shall be employed for the ransom of captives. We prescribe these regulations only against persons whom it is not permitted to disinherit, and where the acts of ingratitude have been thoroughly established. It is obvious that it is ingratitude which has induced Us to give this law universal effect. And We order, in general, that where a captive has no children, and dies in captivity, and those persons who are called to his succession have not exerted themselves to liberate him, none of them shall succeed to his estate, even though the deceased may, before he was taken prisoner, have drawn up a will by which he appointed them his heirs.
This appointment of heirs having been declared void, the other clauses of the will shall, however, be observed in all their force; the property of persons who have died in captivity will pass to the churches in the towns in which they were born, and must not be used in any other way than for the ransom of captives, in order that the estates of those who are not ransomed by their relatives may be employed for the deliverance of other captives, and their souls be comforted by this exceedingly pious act.
What We have just decreed shall also be observed, if before having been taken prisoner, the captive appointed a stranger his heir, and the latter, being aware of this fact, neglected to ransom him. This penalty shall only be inflicted upon those who have reached the eighteenth year of their age. If, under such circumstances, a minor should not have the money necessary to redeem the captive, he shall be permitted, if he has reached the aforesaid age, to borrow it; and to hypothecate for this purpose any movable or immovable property belonging either to himself or to the person who is detained in captivity; for We direct that contracts made under such conditions, with reference to property which is proved to have been given or expended for the redemption of captives, shall be just as valid as if they had been entered into by individuals who were independent and of lawful age; and no prejudice shall result to those who, for reasons of this kind, may have contracted in the manner aforesaid with persons who are not their own masters; and he who returns from captivity will be compelled to ratify contracts of this description, and will be obliged to comply with them just as in the case of his own private obligations.
(14) Where either of the aforesaid parents, being orthodox, is convinced that his son, or his children, do not acknowledge the Catholic faith, and do not commune in the Church where all the patriarchs together teach the true religion, and spread the doctrine of the four holy Councils of Nicea, Constantinople, the first Council of Ephesus, and that of Chalcedon; he or she will be especially permitted to denounce them as ungrateful on this ground and to disinherit them by will, for We place heresy among acts of ingratitude. But with a view
to the general welfare of Catholic children, We direct that, while preserving the force of laws already enacted with reference to other heretics, for instance, the Nestorians, and the Acephali, when their parents are known to have embraced the insane Hebrew tenets of Nestorius, or the mad doctrines of the Acephali, and have, for this reason, withdrawn from the communion of the Catholic Church, they shall not be allowed to appoint any other heirs than their orthodox children, who are members of the Catholic communion, or where there are no children, their agnates and cognates who also are Catholics.
If there should be some orthodox children who are members of the Catholic Church, and there are others who, at the same time, are separated from it, We decree that the entire estates of the parents shall pass to those of their children who are Catholics, even though the said parents may, contrary to the tenor of this Constitution, have made testamentary dispositions in favor of heretical persons. But where the children separated from the Church subsequently enter its bosom, that portion of their father's estate to which they were entitled shall be transferred to them in the condition in which it was found to exist at the time of its delivery, in order that the Catholics who formerly had possession of it may experience no anxiety nor deprivation with reference to any profits which they may have acquired, or concerning their administration of said property during the intermediate time, for as We prohibit the alienation of anything which the Catholic heirs held as representatives of their brothers who were not Catholics, so We do not permit the restitution of any income from the said property, under any circumstances, to be exacted from those who have had possession of it, or that their management of the same shall be investigated.
If the heretical children persist in the same error to the end of their lives, without becoming members of the Church, We order that the Catholic brothers, or the heirs of the latter, shall acquire complete ownership of this property. But where all the children are perverse, and are separated from the communion of the Catholic Church, and it is proved that there are agnates or cognates who are members of the said Church, they shall be preferred to the heretical children, and shall be entitled to the estate of the deceased; and where the children and the 'nearest agnates and cognates are strangers to the orthodox religion, and the deceased parents have, during their lifetime, belonged to the order of the priesthood, We desire that their estates should be transferred to the town in which they had their domicile; and if the ecclesiastics should neglect to claim them for a year, the ownership of the same shall pass to the Treasury. Where, on the other hand, the parents are members of the laity, We order that their property, without any distinction, shall also be united to Our private domain.
These rules shall be observed even where the parents have died intestate, and all the regulations included in other constitutions against heretics, Nestorians, Acephali, and other persons who are not communicants of the Catholic Church (in which the patriarchs proclaim
the doctrine of the four Councils hereinbefore mentioned), and which relate to their successions, shall also be observed; for as We are considering corporeal matters, how much more reason is there for Us to pay attention to the salvation of souls ?
Therefore, whether parents have mentioned in their wills all the acts of ingratitude above stated, or whether they have only mentioned some of them, or even one alone, no matter which it may be, and the appointed heirs prove that the said act or acts are true, We direct that the will shall remain in full force. But where the acts of ingratitude are not established, the rights of the disinherited children cannot be prejudiced, the will shall be declared void, so far as it relates to the appointment of heirs, and the children shall obtain the estate in equal shares on the ground of intestacy. We establish this rule in order that children may not be condemned through false accusations, or may not, through fraud, be deprived of the estates of their parents. If, however, any legacies or trusts, grants of freedom, or appointments of guardians should be left in wills declared void under such circumstances, or where any other testamentary dispositions authorized by the laws are inserted in a will, We order that all shall take effect, that the legacies shall be acquired by those to whom they have been bequeathed, and that the will shall be just as valid, so far as these matters are concerned, as if it had never been annulled.
Such are the rules which We prescribe with reference to the wills of parents.
CHAPTER IV.
WHAT ARE GOOD REASONS FOR THE DISINHERITANCE OF
PARENTS.
We have considered it proper to lay down the same rules as to the wills of children with some distinctions. Hence We order that children shall not be permitted to pass over their parents, or exclude them in any way from the acquisition of their property (to the extent that they are permitted to dispose of it), except in the cases which We shall enumerate, and which must be specifically set forth in their wills. These We declare to be the following:
(1) Where parents have delivered up their children to death; except in cases where treason is known to have been committed by them.
(2) Where it is proved that parents have attempted to deprive their children of life by poison or other criminal acts.
(3) Where a father has had sexual intercourse with his daughter-in-law, or his son's concubine.
(4) Where parents have prevented their children from disposing, by will, of property which they had a right to bequeath, and whatever We have ordered with reference to the interference with testation by children shall be applicable to parents. But if a husband should administer poison to his wife with the intention of either killing her or depriving her of reason, or a wife should administer it to her husband, or one of them should attempt the life of the other in any way
whatsoever, We decree that an offence of this kind (provided it demands criminal prosecution) shall be tried and punished in conformity with the laws. Children shall not be permitted to leave any portion of their estates to one who has been convicted of a crime of this kind.
(5) Where all of the children, or only one of them, become insane, and the parents neglect to care for them, We order that, under these circumstances, everything shall be observed which We have previously decreed with reference to insane parents.
(6) We also add to these cases the misfortune of captivity; and where children suffer it, and are not ransomed because of the contempt or negligence of their parents, and they die while in the hands of the enemy, their parents shall, by no means, be entitled to the property of their children which the latter are entitled to dispose of; but all the rules shall be observed which We have above prescribed with reference to parents, cognates, and agnates, who are called to the succession of persons of this kind, or to strangers, where any of them have been appointed heirs.
(7) If any one of the aforesaid children, who belongs to the orthodox faith, should ascertain that his parent or parents do not acknowledge its doctrines, what We have ordered above with reference to parents shall be applicable to him under such circumstances. Therefore, where children have mentioned in their wills all or any of the acts of ingratitude which We have enumerated, or even only one of them, and the heirs whom they appointed should prove all, some, or only one of the said acts, We direct that the will shall remain in full force. But in case the acts of ingratitude should not be established, the rights of the children shall not be prejudiced; the will shall be void, so far as the appointment of heirs is concerned, and the natural heirs of the deceased will be entitled to his estate, on the ground of intestacy; but all legacies, trusts, grants of freedom, appointments of guardians, and other testamentary dispositions shall become operative, as previously stated.
' We absolutely repeal everything that preceding laws have provided in opposition to this Constitution, so far as it relates to legacies, trusts, grants of freedom, appointments of guardians, or any other similar subjects whatsoever. These are the penalties for disinheritance or the grounds prescribed for acts of ingratitude committed against the persons aforesaid. Where, however, any of these acts are included in the number of criminal offences, those who are guilty of them shall be subjected to the other penalties enumerated in the laws.
CHAPTER V.
A CREDITOR SHALL NOT BE PERMITTED TO ANNOY THE HEIRS OF A DECEASED PERSON ON ACCOUNT OF THE DEBT BEFORE TEN DAYS HAVE ELAPSED AFTER His DEATH.
We have laid down the preceding rules in order to prevent parents and children from sustaining any injury from testamentary disposi-
tions. Where, however, those appointed heirs under these circumstances have been directed to remain content with certain property, We order that in an instance of this kind the will shall by no means ' be declared void, even though the testator may have left said heirs less than the lawful share to which they were entitled, but the deficiency must be made up by the other heirs in conformity with Our laws, for the sole intention of Our Serenity is to keep parents and children from being injured by being passed over, or suffering disinheritance. Parents should consider that there was a time when they were children, and that then they expected to receive the estates of those to whom they owed their existence; just as children should, on the other hand, use every effort to retain the good will of their parents, because they themselves desire to become fathers, and be honored by their offspring. The consequence of this is, that the present law which We have thought should be promulgated with reference to this subject, has been enacted for the benefit and security of both parents and children.
While recently deciding a case, We have ascertained that Pulcheria, a daughter who had treated her parents with respect, was disinherited by her mother in her will, and deprived of both the maternal and paternal estates; but, as We have ascertained that this will resulted from the deceit and fraud of certain individuals, We have not permitted it to take effect, and have ordered, by a written decree, that the daughter should become the heir of both her father and her mother.
(1) We also remember that a law was promulgated by Us in which We ordered that no one should detain the body of a deceased person, or oppose his burial on account of a debt. We have recently been informed that a father was arrested for a debt while returning from the funeral of his son, and We have concluded that it is as religious as humane to suppress such acts of cruelty by means of this most pious law. Therefore We decree that no one shall, under any circumstances, be permitted to sue, or annoy in any way the heirs, parents, children, wife, cognates, agnates, or other relatives, or the sureties of a deceased person, within the nine days following his death, during which they are presumed to have been mourning; and We forbid any notice to be served upon them, or that they be brought into court either for a debt due from the deceased, or for any other matter in which they may be specially interested.
If, during the said nine days, a creditor should be so bold as to exact a bond, a promise, a security, or anything else of this kind from the persons aforesaid, We decree that this claim shall be void. But where, after the expiration of nine days, anyone thinks that he has a right of action against these persons, he can exercise it in accordance with the laws, and his right will not be prejudiced in any way by prescription, or by any lawful allegation which he may make during the intermediate time.
CHAPTER VI.
CONCERNING THE ACKNOWLEDGMENT OF A DEBT ALREADY
DUE.
We deem it proper to include in this law another chapter having reference to sums of money acknowledged or promised. Therefore We decree that where anyone admits a claim, or promises a sum of money, either in his own name or in that of someone else, for instance, making use of the clause: "I. will pay you," he will absolutely be required to fulfill his promise, or discharge his obligation for the amount mentioned, and will be compelled to pay the debt. When he says, "You will be paid by me, or by So-and-So," those whom he mentioned and who did not give their consent to the obligation will suffer no prejudice from these words; and he who employed them will not be liable for anything, or will only pay in proportion to the share of the debt which he is known to owe in accordance with law. If he should say, "You will be paid either by me or by So-and-So," a pledge of this kind does not injure those who do not agree to it; but he who made it will be bound to discharge the entire indebtedness, and if, finally, anyone should say, "You will be paid," as this verb is used impersonally, he is considered to have promised nothing and to be free from all liability. But when a creditor believes that he has a right of action against the persons mentioned, he can exercise it against them in conformity with the laws, and avail himself of their aid.
EPILOGUE.
We order, most dear and devoted relative, that these provisions shall be observed in all cases which have not yet been disposed of by judicial decree or amicable compromise.
Your Highness will communicate to all Our subjects this general law which We have enacted, and will publish it by means of edicts in this Royal City, as is customary, and in the provinces by special notices addressed to the Governors thereof.
Given at Constantinople, on the Kalends of February, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XVII.
No SOLDIER OR ALLY SHALL BE KEPT IN THE PRIVATE HOUSE OR POSSESSION OF ANYONE.
ONE HUNDRED AND SIXTEENTH NEW CONSTITUTION.
The Emperor Justinian to Theodotus, Praetorian Prefect of the East.
PREFACE.
As the benevolence of God has been evinced for the care of Our subjects, military discipline has begun to be established, and this
result has been so thoroughly accomplished by Divine Providence that the impetuosity of the barbarians has been restrained, and the affairs of the government improved. But as certain persons have not paid sufficient regard to their own safety, and have presumed to remove and employ for their own private benefit soldiers and allies, who should be fighting against the enemy for the defence of the Empire, We, by the present law, forbid all Our subjects in the future to remove soldiers, no matter to what corps of the army they may belong, or allies (in whose behalf We have greatly exerted Ourself), with the intention of employing them in their private houses or on their lands, for they have been trained in the use of arms in order that they might promote the common welfare of all.
CHAPTER I.
Hence all persons who have soldiers or allies either in their houses, or on their estates, and employ them in any way whatsoever in private occupations, are warned that if, within thirty days from the date of the promulgation of this law in their province, they do not dismiss them, their own property will be confiscated for the Treasury, they themselves will be deprived of their offices and honors, and any soldiers or allies who remain with them after the expiration of this term shall not only be stripped of their military rank, but also be put to death.
The magistrates of each province also are notified that if they do not immediately arrest soldiers or allies who have been found living in places subject to the jurisdiction of collectors, or their friends, or any other persons, or owners of property, or those who are employed on the lands or in the private service of anyone whomsoever, and seize and subject them to punishment and send the soldiers to the corps to which they belong, and the allies to their own posts, they will be liable to a penalty of ten pounds of gold, and will, in addition, be sentenced to exile, as having presumed to disobey orders.
Therefore no one can, for the purpose of evading this law, avail himself of any Imperial Pragmatic Sanction, or order of any of Our judges, or any other pretext of this kind, but the soldiers must return to their commands with all haste, and the allies repair to their posts, and both of them exert themselves for the public welfare, as We absolutely forbid Our soldiers or allies, in the future, to be occupied for the benefit of private persons.
EPILOGUE.
As soon as Your Eminence becomes acquainted with the provisions which We have been pleased to include in the present law, you will hasten to have them published in this Most Fortunate City by means of edicts, and in the provinces by proclamations issued for that purpose.
Given at Constantinople, during the fifteenth year of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XVIII.
A MOTHER, GRANDMOTHER, AND OTHER RELATIVES SHALL BE PERMITTED TO DISPOSE OF THE REMAINDER OP THEIR ESTATES IN ANY WAY THEY MAY DESIRE, AFTER HAVING LEFT TO THEIR CHILDREN THE SHARE PRESCRIBED BY LAW; AND CONCERNING SEVERAL OTHER MATTERS.
ONE HUNDRED AND SEVENTEENTH NEW CONSTITUTION.
The Emperor Justinian to Theodotus, Praetorian Prefect of the East.
PREFACE.
Various questions having been submitted to Us, We have deemed it necessary to dispose of them by means of this general law.
CHAPTER I.
WHERE ANYONE APPOINTS A SON UNDER PATERNAL CONTROL His HEIR, SUBJECT TO THE CONDITION THAT THE FATHER OF THE LATTER SHALL NOT HAVE THE USUFRUCT OF THE ESTATE.
Hence We order that after a mother and a grandmother, or any other relatives, have left their children the share prescribed by law, they shall be permitted to dispose of the remainder of their estates, either wholly or in part, and give it either to a son, a daughter, a grandson, a granddaughter, and the descendants of the latter, or bequeath it by a last will under the following restriction and condition, namely: that the father, or anyone who has them under his control, shall not enjoy the usufruct of the property, nor share in the same to any extent whatever; for the persons whom We have just mentioned can leave this property to strangers without the parents of the children obtaining any benefit from the same. We make this provision in order that the privilege may be granted not only to relatives but also to everyone else.
(1) When property is left or donated in this way to persons who are under someone's control, they can, if they are of age, dispose of it in any way that they may desire; but if they are minors, it must be administered by whomever the testator or donor indicated for that purpose, until the children to whom the said property was donated or left attain their majority; and the testator or donor will be at liberty to entrust the management of the said property to the mother or grandmother of those to whom it is given even though she may have married again, provided she is willing to assume it.
But where he who left or gave a share of his estate did not designate anyone to administer it for the children, or where he who was appointed is unwilling or unable to do so, or should die before the
children attain their majority, We order that under these circumstances a competent judge shall appoint some trustworthy person curator of the inheritance, who must furnish the requisite bond, and the said curator shall manage and take care of the estate left to the minors until they become of age, as has been stated. We desire that the law which permits parents to enjoy the usufruct of their children's property shall be observed in all cases, except where the express condition that they shall not do so has been prescribed.
CHAPTER II.
CONCERNING ONE WHO WAS REFERRED TO AS A CHILD IN SOME INSTRUMENT.
We have considered it proper to order that when anyone has a son or a daughter by a free woman, with whom legal marriage can be contracted, and states either in a public or private instrument, bearing the signatures of three reliable witnesses, or in a will, or in the public records, that So-and-So is his son or his daughter, without adding the word "natural," such children shall be legitimate; no other proof of legitimacy shall be required of them; and they shall enjoy all the rights which Our laws bestow upon lawful issue; since the father (as has already been stated) has called them his own children, and has shown by this that he and their mother are legally married, and proof of this shall not be required of her. But where a father, having several children by the same woman, gives one of them some mark of legitimacy, in conformity with what has previously been stated, this acknowledgment will enable the others by a common mother to acquire the right of legitimate birth.
CHAPTER III.
CONCERNING A WOMAN WHO MARRIES WITHOUT ANY DOTAL CONTRACT.
We have thought it advisable to add to the present constitution that where anyone has married a woman through mere affection, without any written contract, and has had children by her, and the marriage is subsequently dissolved, and the husband marries another wife with whom he makes a dotal contract, and also has children by her, the offspring of the wife with whom he did not enter into a dotal contract shall not be prejudiced, so far as the paternal estate is concerned; but they shall be called to the succession of their father along with those born of the second wife, whose union was accompanied by a dotal agreement, since marriage can exist when induced solely by affection.
We desire that this rule shall also be applicable where a man has married a woman under a dotal agreement, and afterwards marries another through affection alone.
CHAPTER IV.
CONCERNING THE MARRIAGES OF ILLUSTRIOUS PERSONS,
AND WHEN THEY ARE CONTRACTED BY MEANS OF DOTAL
INSTRUMENTS.
But as We have previously enacted a law which directs that dotal agreements should be drawn up, or other proofs of marriage be established, before the defenders of the Church, by whom it is proper that marriages should be confirmed, or before whom the parties should be sworn, We consider it proper by means of the present law to provide a more exact regulation with reference to what has for a long time been determined relative to this subject. Hence We decree that those who are invested with the highest dignities, up to that of "illustrious," shall only be permitted to contract marriage when dotal instruments are executed.
We except from this rule anyone who, before having obtained his rank, has married a woman solely through affection, for We order that marriages contracted in this way before promotion to official honors shall remain lawful, and that the issue of the same shall be legitimate. Persons, however, who have already attained to great distinction, cannot marry without entering into dotal agreements with their wives.
We, however, release the barbarian subjects of Our Empire from this obligation, even though they may be persons of high rank, and We allow them to contract marriage through mere affection. We do not prohibit all Our other subjects, no matter what official rank they may have obtained, or what public duties they may discharge, with the exception of those who (as has already been stated) have attained to high rank, to marry women by entering into dotal agreements with them, when they desire, or have the power to do so. Where, however, this has not been done in writing, We decree that marriages which have been contracted through mere affection shall not be less valid, and that the issue of such matrimonial unions shall be legitimate.
CHAPTER V.
WHEN A MARRIAGE is CONTRACTED WITHOUT A DOWRY
AND THE SURVIVING HUSBAND is POOR, HE SHALL BE
ENTITLED TO THE FOURTH PART OF THE ESTATE OF His
DECEASED WIFE.
We some time since enacted a law providing that where a man married a woman solely through nuptial affection, without any dowry, and he afterwards divorces her without any cause recognized by the law, she shall be entitled to the fourth part of the property of her husband ; and after this law We promulgated another, by which it is provided that if anyone should marry a wife without a dowry, having been induced to do so by mere affection, and lives all his life with her, and dies before she does, she, also, shall be entitled to the fourth part of his estate, provided that the said fourth does not exceed the value
of a hundred pounds of gold. We, however, at present displaying more sagacity, do hereby decree that children born of marriages due to mere affection shall, under these circumstances, be deemed legitimate, and be called to the succession of their father's estates; and that in each of these instances the wife shall receive the fourth of her husband's property where he only had three children by her, or by a preceding marriage; but if he had more than that, the wife shall then be entitled to as much as each of the children. But she shall only have a right to the usufruct of the share of the property she receives, and the ownership of the same shall be reserved for the children whom she has had by this same marriage; but where such a woman has not had any children by her husband, We decree that she shall acquire the ownership of the said property.
We desire that a woman who was put away without good cause shall receive the portion established by this law at the very moment of repudiation; but, under similar circumstances, We absolutely forbid the husband to obtain the fourth part of the estate of "his wife in accordance with Our former law.
CHAPTER VI.
CONCERNING THE CONSTITUTIONS ENACTED BY THE EMPEROR LEO AND THE EMPEROR CONSTANTINE.
The Constitution of the Emperor Leo, of pious memory, shall preserve all the force in every case not provided for by the present law. We, however, entirely repeal the one enacted by the Emperor Constantine, of pious memory, and addressed to Gregory, as well as the interpretation placed upon it by the Emperor Martian, of pious memory, which forbids persons of high rank to marry women whom the said law styles "abject." We grant permission to persons even though they are dignitaries of high rank, if they wish to do so, to marry women of this kind, provided they enter into dotal contracts with them, but so far as other persons who are not distinguished in this manner are concerned, they shall be at liberty to marry them in any way they may desire, either by a written contract, or through nuptial affection, provided that the said women are free, and marriage can legally be contracted with them.
CHAPTER VII.
How AND BY WHOM CHILDREN ARE SUPPORTED AFTER A MARRIAGE HAS BEEN DISSOLVED BY REPUDIATION.
We have thought that when marriage is dissolved between husband and wife, some provision should be made to prevent the children born of the marriage from suffering any injury through its dissolution, and to enable them to be called to the succession of their parents, and be maintained at their father's expense. Where the latter furnished the cause for divorce, and the mother does not marry again, the children shall remain with her, and the father shall pay for their
support; but where it is proved that the woman was to blame for the dissolution of the marriage, under these circumstances, the children shall remain with, and be supported by their father. If the father is poor and the mother is rich, We direct that the poor children shall live with their mother, and be brought up by her; for as wealthy children are obliged to support their mother when she is poor, it is only just that poor children should be maintained by their wealthy mother, and this We order to be done.
What We have stated with reference to poor children, and the duty of their mother to support them, We direct shall also apply to all ascendants and descendants of both sexes.
CHAPTER Vill.
CONCERNING THE JUST CAUSES FOR WHICH A HUSBAND is PERMITTED TO OBTAIN A DIVORCE.
•
As We have found many cases in the ancient laws as well as in Our own where the dissolution of marriage was easily effected, We have thought it advisable to rescind some of the provisions which have appeared to Us to be improper causes of divorce, and to specifically insert into the present law only those for which either the husband or wife can reasonably give notice of repudiation. We shall now enumerate the causes for which a husband can safely give notice of repudiation to his wife and obtain her dowry, the ownership of which shall vest in the children by this marriage, and where there are none of these living, it shall vest in the husband. The following are good causes for repudiation.
(1) Where a woman is aware that certain persons are plotting against the government, and does not inform her husband. But if the husband, having learned of this from his wife, should remain silent, the latter will be permitted to notify the government by means of any persons whomsoever, in order that her husband may not take advantage of this as a pretext for repudiation.
(2) Where the husband thinks that he can convict his wife of adultery; but he must previously file a complaint against her, as well as against the adulterer, and if the accusation is shown to be true, the husband, after having served notice of repudiation, will be entitled to the ante-nuptial donation, as well as the dowry; and when there are no children, he will also be entitled to an amount equal to the third of the dowry, out of the other property of his wife, the ownership of which, as well as that of the dowry, will absolutely vest in him. But where the husband has children by the same marriage, We, in conformity with the spirit of the laws on this subject, do hereby decree that the ownership of the property, as well as that of the other possessions of the wife, shall be preserved for their benefit.
A husband, legally convicted of being the accomplice of the adulterer, shall be punished along with his wife; and if the adulterer is married, his wife will obtain her own dowry as well as the ante-
nuptial donation; and if they have children, she will only be entitled to the usufruct of the donation, being obliged to preserve the ownership of the same for her children, as prescribed by law. As a mark of Our liberality We grant the children all the other property of the husband. But where there are no children, We decree that the ownership of the ante-nuptial donation shall vest in the wife of the man who was guilty of adultery, and that the remainder of his property shall be confiscated to the Treasury, in conformity to the ancient laws.
(3) Where a wife has plotted against the life of her husband in any way whatsoever, or where she has consented for others to do so, without informing her husband.
(4) Where she attends banquets, or bathes with strangers, against the wishes of her husband.
(5) Where she remains away from her husband's house without his consent, unless she is visiting her own parents.
(6) Where, without the knowledge, or against the prohibition of her husband, she attends circuses, theatres, or other public exhibitions.
(7) If, however, a husband, without one of the aforesaid reasons, should drive his wife away from his own house, and she, not having any relatives with whom she can live, is obliged to pass a night outside, We order that the husband shall not, under these circumstances, have permission to send a notice of repudiation to his wife, since he himself is responsible for what she has done.
CHAPTER IX. f
CONCERNING THE JUST CAUSES FOR DIVORCE WHICH ARE GRANTED TO THE WIFE.
We decree that the following are the only causes for which a wife can reasonably serve notice of repudiation upon her husband, obtain her dowry, and exact the ante-nuptial donation, in case there are no children, or retain it for their benefit if there are any.
(1) Where the husband was implicated in some plot against the Empire; or where, being informed that others were, he did not denounce them to the government either in person, or by someone else.
(2) Where the husband has, in any way whatsoever, attempted to kill his wife, or if, being informed that others desired to do so, did not warn her, or take measures to avenge her in conformity with the laws.
(3) Where the husband has attempted to violate the chastity of his wife, by seeking to deliver her to other men for the purpose of committing adultery.
(4) Where the husband filed an accusation of adultery against his wife, and was not able to prove it, his wife will be permitted to serve notice of repudiation on him for this reason, and to recover her own dowry, and acquire the ante-nuptial donation, and, in addition, to punish the husband for a false accusation of this kind. Where there is no issue of the marriage, she shall receive the ownership of an amount of the other property of her husband equal in value to the
third of the ante-nuptial donation; but where there are children, We order that the entire estate of her husband shall be set aside for their benefit.
All other provisions relating to ante-nuptial donations, which are included in other laws, are hereby confirmed, and the husband, on account of the accusation of adultery which he was unable to establish, shall be punished in the same way that the wife would have been if the offence had been proved.
(5) Where a man, having contempt for his wife, is known to have entertained another woman in the house where he lives with her; or if, while dwelling in the same city, he is convicted of having frequently been in the company of another woman, residing in another house, and having been reprimanded once or twice, either by his parents or by those of his wife, or by any other persons worthy of confidence, he does not abstain from such debauchery, his wife will for this reason be permitted to dissolve the marriage, to obtain her dowry in addition to the ante-nuptial donation; and in order to punish her husband for such an injury, she can also exact from his other property up to one-third of the appraised value of the ante-nuptial donation; and if she has any children, she will only be entitled to the usufruct of the said donation, and that of the penalty of the third of the amount which she is entitled to out of the other property of her husband, she being compelled to reserve the ownership of the same for their common children. When, however, she has no children, We direct that she shall receive the ownership of the said property.
CHAPTER X.
IT SHALL NOT BE LAWFUL TO DISSOLVE A MARRIAGE BY
COMMON CONSENT, UNLESS FOR SOME
PLAUSIBLE REASON.
For the reason that certain persons up to the present time have been accustomed to dissolve their marriages by common consent, We absolutely forbid this for the future, unless where the parties interested are impelled by the desire of living in chastity. When they have any children, We decree that the dowry and ante-nuptial donation shall be preserved for their benefit. But if, after the marriage has been dissolved by common consent through motives of chastity, either of the parties should contract another, or is found to be living in debauchery, We order that if (as has already been stated) any children by this marriage should be living, the ownership of the dowry, of the antenuptial donation, and of the other property of the person who is guilty of the offence shall vest in the children, and when they are minors, the said property shall be administered by either the husband or the wife, who has not, in any respect, violated the present law.
But where both husband and wife are given to the same vice, We order that their property shall belong to the children, and that someone shall be appointed to manage the shares of those who are minors, either by a competent judge or by other magistrates charged with this
duty by Our laws. When there are no children, the property of both husband and wife shall be confiscated for the benefit of the Treasury, and they shall be subjected to legal punishment. Otherwise, however, We do not permit dissolution of marriage to take place by common consent under any circumstances.
CHAPTER XI.
FOR How LONG A TIME A WIFE SHOULD WAIT BEFORE
MARRYING AGAIN WHILE HER HUSBAND is ABSENT ON
AN EXPEDITION.
We have deemed it proper to amend what We have enacted up to this time with reference to soldiers, allies, members of favored corps, or any other persons forming part of the army, who are employed in military expeditions and operations. Hence We order that wives shall be compelled to await their husbands' return, no matter how many years they may be absent, even though they may not have received any information, or answers to letters which they may have written. Where, however, the wife of a soldier has heard that her husband is dead, We do not permit her to contract another marriage before having appeared, either by her parents or by someone else, before the first chartularies of the division in which her husband served, and inquired of them or of the tribune (if there is any) whether her husband is actually dead; and the said officers shall bear witness to this fact by swearing to it on the Holy Gospels, as well as by the execution and record of a public document. After the wife has received this formal proof of the death of her husband, We decree that she shall wait one more year, and after it has elapsed, she will be allowed to contract another marriage.
If, however, a woman should presume to violate this provision, and marry again, both she herself and the man who married her shall be punished as guilty of adultery. Where the persons who have given testimony by public documents and under oath are convicted of having perjured themselves, they shall be deprived of their military rank, and be compelled to pay ten pounds of gold to him whom they falsely stated that the man was dead; and the latter shall be permitted to take his wife back, if he should desire to do so. But where the death of a member of one of the favored divisions of the army is in doubt, the evidence of the chief of the same and the officer in charge of the registers shall be obtained; and where the question is with reference to the death of an ally, his wife shall take the testimony of the commander of the post to which he is attached. We order that these rules shall be applicable to all other persons in the military service.
CHAPTER XII.
FOR WHAT REASONS A MARRIAGE is DISSOLVED WITHOUT A PENALTY.
We have concluded that some special additions should be made to the above-mentioned causes by means of which marriages can be
dissolved without a penalty; that is to say, in cases where husbands have not, from the beginning, been able to copulate with their wives, and to do what Nature has conceded to men; and, above all, when husbands and wives have, during marriage, chosen to adopt a holy life and reside in monasteries; and, finally, when they have been detained in captivity for a considerable time; for, in these three instances, We direct that the provisions contained in Our former laws which relate to this subject shall remain in force. Hence We decree that only the causes enumerated in the present law can bring about the dissolution of legitimate marriage. We order that all others, without exception, shall be abolished, and none of them (this, however, does not refer to such as are specifically mentioned in this Constitution), even though it may be included in the Constitutions formerly enacted, as well in the ancient laws, shall be able to dissolve the marriage.
CHAPTER XIII.
WHERE A WIFE HAS GIVEN NOTICE OF REPUDIATION TO HER HUSBAND WITHOUT JUST CAUSE.
But for the reason that certain women who desire to live debauched lives hasten to dissolve their marriages, We order that when a wife wishes to dissolve her marriage for some other cause than those above stated by Us, she shall not be permitted to do so; and if she should still entertain this wicked design, and serve notice of repudiation upon her husband, We order that her dowry shall be given to him to be kept for their common children, in accordance with law, and that, if she should have no children, it shall belong to the husband.
The woman shall, upon the responsibility of the judge who hears the case, be delivered to the bishop of the city in which both of them reside, in order that she may at once be confined in a monastery, to remain there as long as she lives; and when such a woman has children, two-thirds of her property shall be given to them, and the other third to the monastery to which she is sent, and in which the absolute ownership of the same shall vest. When, however, she is childless, but has parents, two-thirds of her property shall be transferred to the monastery to which she is sent, and the other third to her parents, unless they, while having her under their control, had given their consent to the illegal notice of repudiation; in which case We do not permit them to have any of her estate whatever, but We wish all of it to be transferred to the venerable monastery. Where, however, she has neither living children nor parents, the monastery will be entitled to all her property.
If the judge who hears the case should not do this, that is to say, should not, after she has been arrested, deliver her to the bishop of the city, to the end that she may be placed in the monastery, and the said judge has jurisdiction in this Most Fortunate City, he shall pay a penalty of twenty pounds of gold, and his officials shall pay ten. Where a judge of this kind is stationed in a province, and does not obey what has been ordered by Us under such circumstances, he will
be liable to a fine of ten pounds of gold, and his subordinates to one of five. When the judge has not been regularly appointed, he must pay a fine of ten pounds of gold, and his subordinates one of five, which fines shall be collected from the persons aforesaid by the Count of Private Affairs, and the Body of the Palatines, and be paid into Our Treasury.
But where the husband has attempted to dissolve the marriage with his wife, and has illegally given her notice of repudiation, We order that he shall return what he received as dowry, and surrender the ante-nuptial donation, and that there shall be taken from the remainder of his property and given to his wife a sum equal to the third part of the amount bestowed in consideration of marriage. When there are children, the wife shall only be entitled to the usufruct of the ante-nuptial donation, in addition to that of the third of the estate of the husband granted by Us, and the ownership of the same shall be reserved for the children. When there are no children, the woman shall have both the usufruct and ownership of the property, and We order that these provisions shall be applicable not only to marriages dissolved for lawful reasons, but also to such as are dissolved for others that are illegal; and We decree that all questions having reference to the cases above mentioned shall be heard and determined in conformity with this Our Constitution.
CHAPTER XIV. WHERE ANYONE PUNISHES His WIFE BY BEATING HER.
If a man should beat his wife with a whip or a rod, without having been induced to do so for one of the reasons which We have stated to be sufficient, where the woman is at fault, to cause dissolution of the marriage, We do not wish it to be dissolved on this account; but the husband who has been convicted of having, without such a reason, struck his wife with a whip or a rod, shall give her by way of compensation for an injury of this kind (even during the existence of the marriage) a sum equal in value to the amount of the antenuptial donation to be taken out of his other property.
CHAPTER XV.
WHERE A HUSBAND SUSPECTS ANYONE OF WISHING TO ATTACK THE MODESTY OF His WIFE.
We also add to what has been already enacted that where anyone suspects some man of desiring to violate the chastity of his wife, and after having notified him three times in writing to desist and obtained the evidence of three men worthy of confidence, and after this he finds him associating with his wife, either in his own home, in that of his wife, or in that of the adulterer, or in a public house, or in the suburbs, he shall be permitted to kill him with his own hands without
being apprehensive of any responsibility. If, however, he should find him talking with his wife in some other place, and he can prove this by three reliable witnesses called together for that purpose, he can bring him before a judge having criminal jurisdiction. If the judge should ascertain that it is true that the man was found with a woman after three written notices not to do so had been served upon him, the husband shall be allowed to punish him as being guilty of adultery from this fact alone, and can prosecute him for the crime.
(1) But as there are certain impious individuals who have even the audacity to commit adultery in religious houses, and are guilty of sin where men who fear God are accustomed to ask pardon for their offences, We order that if any such person against whom suspicions have arisen, after he has been warned three times (as has been stated) should be found in a religious house with the wife of another, the husband will be permitted to bring the two guilty parties before the defender of the Church, or other members of the clergy, in order for them to be kept separate at their risk, in accordance with the laws which forbid the most holy churches from protecting persons guilty of adultery, until the judge, having been notified of the crime, sends them to the bishop of the city to be punished. The judge shall not look for any other proof of the offence than (as We have already stated) that of the three notices aforesaid; for they, having been served, the guilty parties must, by all means, be prosecuted for adultery, and shall derive no protection from the sacred place for which they have shown contempt by their own illegal acts. For if Our laws do not permit persons who perpetrate rapes of virgins or adultery elsewhere to betake themselves to houses of prayer in order to be protected by the said houses, how can We allow ecclesiastical property to render assistance to those who have committed crime in the very church itself? Persons who presume to outrage the sanctity of sacred places shall be brought before the courts and suffer the penalty which they deserve; for who can be guilty of crime where salvation is solicited? And, generally speaking, We decree that if anyone should find his wife, his daughter, his granddaughter, or his betrothed, in conversation with a man in any religious house, and suspect that they are holding an interview for the purpose of indulging their base desires, by taking advantage of the sacred character of the place, he can bring them before the defender, or other ecclesiastics attached to the most holy church, in order that they may keep them separate at their own risk, until they can be brought before the judge and their case be decided in accordance with law.
EPILOGUE.
Therefore, We desire that the provisions prescribed by Our Tranquillity in the present law, which shall be perpetually valid, must be observed in all the cases to which it refers, with the exception of those which have already been disposed of by judicial decision, or amicable compromise; for We desire these to remain unaltered.
Your Most Glorious and Eminent Authority will communicate this law to all persons by means of public edicts in this Illustrious City, and through instructions addressed to the Governors of provinces, in order that no one may be ignorant of what We have effected for the public welfare. Your Highness will also promulgate this law by means of private notices, without their publication resulting in any undue expense to Our subjects.
Given on the fifteenth of the Kalends of January, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
NINTH COLLECTION.
TITLE I.
CONCERNING HEIRS WHO SUCCEED AB INTESTATO, AND THE ABOLITION OF THE RIGHT OP AGNATES.
ONE HUNDRED AND EIGHTEENTH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious Imperial Praetorian Prefect of the East.
PREFACE.
We, having ascertained that many laws which were promulgated in ancient times have not, so far as intestate succession is concerned, made a just distinction between male and female relatives, deem it necessary to settle all questions relating to the intestate succession of cognates, by making a clear and exact decision in the present law: therefore all previous enactments relating to this subject are hereby repealed, and what We now establish shall be solely observed for the future. Hence, as it is understood that intestate successions of all kinds include three degrees, that is to say, that of ascendants, that of descendants, and that of collaterals (which are divided into agnates and cognates),"We"order that the first degree of succession shall be that of descendants.
CHAPTER I. CONCERNING THE SUCCESSION OF DESCENDANTS.
Where anyone who dies intestate leaves descendants of either sex, or of any degree whatsoever, derived from males or females, who are either independent or under the control of others, the said descendants
shall take precedence over all ascendants and collateral relatives. For although the deceased may have been under the control of others, We order that his children, no matter what their sex or degree, shall be preferred even to the parents to whose authority they were subject; that is to say, solely with respect to such property as was not acquired for the benefit of the parents in conformity with others of Our laws; for We confirm Our laws which relate to the usufruct which should be acquired or preserved for the parents. If, however, one of the descendants whom We have just mentioned should die, and himself leave children of either sex, or other descendants, the latter will succeed to the place of their father, whether they were under the power of him whose succession is in question, or whether they were their own masters; and no matter what their number may be, they shall receive from the estate of the deceased as large a share as their father would have been entitled to if he had lived. Ancient legislation designated this order of succession as per stirpes. We do not desire that the degree should be sought for in considering such an order; but We direct that the grandchildren by a predeceased son or daughter shall be called to the succession concurrently with the sons and daughters, and that no distinction shall be made between the children of either sex, whether they are descended from males or females, or whether they are independent, or under the control of others.
These are the provisions which We make with reference to the succession of descendants, and in consequence of this We deem it advisable next to treat of ascendants, and the way in which they are called to the succession of descendants.
CHAPTER II. CONCERNING THE SUCCESSION OF ASCENDANTS.
Therefore, if the deceased did not leave any descendants, but was survived by his father or mother, or other ascendants, We desire that they shall be preferred to all collateral relatives, with the exception of full brothers, as will be hereinafter stated. But where there are several surviving ascendants, We order that those shall be preferred who are in the nearest degree, whether they are males or females, or are on the father's or mother's side. Where they are of the same degree, the estate shall be divided equally among them, so that all the ascendants on the father's side, no matter how many there are, shall receive half of the estate, and the ascendants on the mother's side, without reference to their number, shall receive the other half. But where any brothers or sisters of the deceased survive, along with the ascendants, they shall be called to the succession concurrently with the relatives next in degree; and if the father or mother is living, the estate shall be divided among them per capita, and each of the descendants and brothers shall be entitled to an equal share of the same; and the father shall not, under these circumstances, be entitled to the usufruct of the share which passes to his sons or daughters, for We grant them by the present law the rights of ownership as well as usufruct,
so far as this share is concerned, and no distinction shall be made between persons of either sex who are called to the succession, whether they are related through males or females, and whether the person to whom they succeed was independent, or under someone's control.
We must now consider the third order of succession, which is called collateral, and is divided into agnates and cognates, so that this order having been determined, Our law may be perfect in every respect.
CHAPTER III. CONCERNING THE SUCCESSION OP COLLATERALS.
Where the deceased left neither descendants or ascendants, We call first to the inheritance the full brothers and sisters, whom We have already called concurrently with the parents. Where there are no full brothers living, We call, in the second order, brothers related to the deceased by a single parent, either the father or the mother; but where the deceased left brothers, and also children of another brother or sister, already dead, the latter shall be called to the succession per stirpes, along with the males and females descended from the father or mother of the deceased, and no matter what their number may be, they will be entitled to the same share of the estate that their father would have received had he been living. The result of this is that if the predeceased brother, whose children are living, was related to the deceased on both sides, and at the same time there are other brothers related to him through the father or mother alone, the children of the full brother, although they are in the third degree, will be preferred to his own stock (whether it be derived from males or females through the father or mother of the deceased), just as their father would have been preferred to them if he had lived. On the other hand, if a full brother of the deceased should survive, We exclude the children of the predeceased brother, who would have only been related to the deceased by a single parent, just as this dead brother would also have been excluded if he were living.
We only grant the right of representation in this degree of relationship to the sons and daughters of brothers or sisters, in order that they may succeed their parents. We refuse it to everyone else in the collateral line; but permit the children of brothers to enjoy it when they are called with the male or female descendants per stirpes either on the father's or mother's side. When, however (as We have already stated), ascendants are called to the succession along with brothers of the deceased, We do not permit brothers' or sisters' children to be called concurrently with them to the intestate succession of a brother or a sister, even though their father or mother was fully related to the deceased.
Hence, as We have granted the privilege of representation to the children of brothers or sisters, in order that, succeeding to the place of their own parents, and being alone in the third degree, they may be called to the inheritance with others of the second degree, it is clear that they are preferred to those related per stirpes, whether
they are male or female, and connected with the deceased only on the father's or mother's side, even though the latter are also in the third degree of relationship.
(1) Where the deceased left neither brothers, nor brothers' children (as We have previously stated), We then call to the succession all collateral relatives according to the privilege of each degree, so that the next of kin shall be preferred to the others; but where there are several in the same degree, the estate shall be divided among them according to their number, which Our laws call per capita.
CHAPTER IV.
CONCERNING THE ABOLITION OF THE RIGHT OF AGNATES TO INHERITANCE.
We do not wish any difference to exist between persons who are called to a succession or inheritance, whether they be male or female, if they were related to the deceased; but We direct that all distinctions shall be abolished in the successions of agnates and cognates, whether the relationship is derived through a woman, through emancipation, or in any other way whatsoever as prescribed by former laws; and We order that all persons, without any distinction in this respect, shall be entitled to the intestate succession of their cognates, in accordance with their degree of relationship.
CHAPTER V.
CONCERNING THE LEGAL GUARDIANSHIP OF CHILDREN, AND CONCERNING THE MOTHER AND GRANDMOTHER.
Having disposed of the question of inheritance, We shall now discuss guardianship. We order that everyone, according to his degree of relationship, and in the order in which he is called to the succession, either alone or along with others, shall be liable to guardianship, and that no distinction shall be made in this respect between agnates and cognates; but all persons who are related to the minor, whether they are descended from males or females, shall be equally called to perform its duties, provided they are males, and have attained their majority; that no law forbids them from accepting the guardianship; and they do not avail themselves of a proper excuse for being released. We prohibit all women, except the mother and grandmother, from acting as guardians. We only permit the latter to be the guardians of their children in the order of succession, and where they, by means of written instruments, renounce the right to contract other marriages, and the benefit of the Velleian Decree of the Senate. When they make this renunciation, they shall be preferred to all collaterals except testamentary guardians alone, for We desire the wish and the choice of the deceased by all means to be observed. But where several persons in the same degree of relationship are called to be guardians, We de-
cree that after they have been summoned before a competent judge, one or more of them, or as many as will be required to administer the property of the minor, shall be chosen and notified of their selection, and enter upon the discharge of their duties, and the guardians appointed shall be personally responsible, and their property shall be tacitly liable to the minor for the acts of their administration when he becomes of age.
CHAPTER VI.
CONCERNING THE FORCE AND AUTHORITY OF THIS CONSTITUTION WITH REFERENCE TO PERSONS AND THINGS.
We desire that everything which We have enacted with reference to intestate successions shall be applicable to those who acknowledge the Catholic faith, for We order that the laws already promulgated by Us with reference to heretics shall continue to be valid, and We make no innovation or change in them by the introduction of the present enactment. Therefore, We wish this constitution always to be observed in those cases which have arisen since the beginning of the month of July of the present sixth indiction, or in any which may arise hereafter. For We order that all cases which have arisen previous to that time shall be decided in conformity with the ancient laws.
EPILOGUE.
Therefore Your Glory will see that the provisions which We have included in the present constitution are brought to the knowledge of all Our subjects, and you will have them published in this Royal City by means of edicts, as is customary, and in the provinces through orders addressed to the illustrious Governors, in order that none of the subjects of Our Empire may be ignorant of Our solicitude for them. The promulgation of this law shall take place in all the provinces without any expense being incurred by either the citizens or provincials.
Given in the New Palace, on the seventh of the Kalends of August, during the eighteenth year of the reign of Our Lord the Emperor Justinian, and the third after the Consulate of Basil.
TITLE II.
AN ANTE-NUPTIAL DONATION SHALL BE CONSIDERED A SPECIAL CONTRACT, AND CONCERNING DIVERS OTHER
MATTERS.
ONE HUNDRED AND NINETEENTH NEW CONSTITUTION.
The Emperor Justinian to Peter, Most Glorious Prefect of the
East.
CHAPTER I.
AN ANTE-NUPTIAL DONATION DOES NOT REQUIRE TO BE
RECORDED.
We order by the present law that a donation bestowed in consideration of marriage shall be considered as a special contract, and not classed with other donations, for the reason that an equal amount of dowry is given in exchange therefor. Hence an ante-nuptial donation shall be entirely operative, so far as the woman as well as the man is concerned, whether it has been inscribed upon the public records or not; whether it has been committed to writing in favor of the wife, by the husband or by anyone else; or whether a gift has been made in favor of the husband, provided the latter causes it to be included in the number of nuptial donations.
We order that this rule shall be observed, no matter what the amount of the donation is, even though (as has already been stated) it may not have been recorded.
CHAPTER II. A MINOR CAN MANUMIT SLAVES BY WILL.
We also decree by this law that minors shall, from the time when they can dispose of their property by will, be permitted to liberate their slaves in this manner, without their being prevented from doing so on account of their age; and We hereby repeal the law which formerly forbade them to do this.
CHAPTER III.
No CREDIT SHALL BE GIVEN TO A WRITTEN INSTRUMENT IN WHICH ANOTHER INSTRUMENT Is MENTIONED, UNLESS THE LATTER Is PRODUCED.
In addition to this, We order that if anyone should, in one document, make mention of another, this shall have no effect, unless 'the other document referred to is produced; or unless some other legal evidence is offered by which the amount of property stated is shown to be actually due, for this was also provided by the ancient laws.
CHAPTER IV. CONCERNING APPEALS.
We also decree that when an appeal has been taken upon the last day when this can be done, each party, or only the one who has taken the appeal, must personally appear before the judge, and request him or his councillors or referendaries to examine the case; and if the judge should fail to receive the appeal during the time prescribed for that purpose, the parties to the action, or the one who took the
appeal, shall not be prejudiced in any respect on account of this delay; but such appeals shall afterwards be heard and disposed of by a lawful decision.
CHAPTER V.
CONCERNING THE REVIEW OF DECISIONS RENDERED BY PR.ETORIAN PREFECTS.
We have thought that something under this head requires correction, for as Our laws set forth that when the Most Glorious Prstorian Prefects have rendered a decision, no appeal can be taken from it, hence we order that whenever a judgment of the Most Glorious Prefect, no matter to what district he may belong, is pronounced, and one of the parties litigant considers himself to be injured thereby, he shall be permitted, within ten days afterwards, to present a petition to the Most Glorious Prefects who rendered it, or to their councillors or referees; and when this has been done, the judgment cannot be executed by the party who obtained it, if he does not previously furnish good security for as large an amount as that for which the decision was rendered; in order that if, after the Praetorian Prefect has reviewed it, the formalities prescribed by law have been observed, and the decision set aside, the property in controversy, together with all lawful augmentations, may be restored to the person who loses the case. But where, during the ten days after rendition of the judgment, he who thinks that he has been injured by it does not file a petition, We order that execution shall take place without a surety being required; the right of review, however, being still reserved for the party who thinks that he has been injured.
CHAPTER VI.
WHERE A MINOR OF TWENTY-FIVE YEARS OF AGE WISHES TO DEMAND RESTITUTION AGAINST THE ACCEPTANCE OF
AN ESTATE.
We also decree that where minors desire to reject an estate which has descended to them, and which they have accepted, and all the creditors of said estate are present in the place where complete restitution is demanded; these creditors shall be called before the judge, and the minor must reject the estate in their presence. But where all or some of the creditors are absent, those minors who wish to reject it shall apply to the judge of the district where they reside, and he shall summon the creditors by means of ordinary citations; and if they do not appear within the term of three months, the said minors will be permitted to reject the estate without incurring any responsibility, and the judge before whom the application for complete restitution was made shall designate the place where the movable or immovable property constituting the estate shall be kept, and the amount of the same shall be stated in a public inventory entered upon the records.
CHAPTER VII.
CONCERNING PRESCRIPTIONS, OR, IN OTHER WORDS, CONCERNING THE BAD FAITH OF A POSSESSOR WHO ALIENATES PROPERTY.
Moreover, We decree that where anyone has possession of property in bad faith, and alienates it either by sale, donation, or in any other manner, and the person who thinks that the property belongs to him, having been informed of the alienation, does not, in conformity to law, within ten years if he is present, or within twenty if he is absent, bring suit against the purchaser, the donee, or the person to which said property has been transferred in any other way whatsoever, the possessor of said property shall hold it legally, that is to say, after the lapse of ten years when the parties are present, and after twenty when they are absent.
But where the true owner of any of the property is not aware that it belongs to him, and that it has been alienated, he will only be excluded from asserting his right by the prescription of thirty years; and he who is in possession under such circumstances cannot allege that he holds the property in good faith, when he himself has received it from a fraudulent possessor.
CHAPTER Vill.
CONCERNING PERSONS WHO ARE ABSENT AND PRESENT WHERE A DECENNIAL PRESCRIPTION Is INVOLVED.
We have deemed it proper to decree, with reference to a prescription of ten years, that when anyone against whom such prescription can be pleaded with reference to the acquisition of property is present for some years and absent for others, there shall be added to the years when he was present the number necessary for the completion of those during which he was absent. We order that all the rules which We have prescribed with reference to temporary prescription shall not be applicable to past cases, but to future ones; and shall only be valid so far as those which may arise after the enactment of the present law are concerned.
CHAPTER IX.
A TESTATOR SHALL NOT BE COMPELLED TO WRITE THE NAMES OF His HEIRS WITH His OWN HAND.
We have stated previous to the enactment of this law that a testator shall be required to write the names of his heirs in his will with his own hand, or by those of witnesses. But We have ascertained that through the severity of this provision many wills have been rendered void, testators either not being able to conform to it, or perhaps being reluctant for the witnesses to know their wishes. We hereby order that testators who desire to do so can observe this
rule when making their wills, but if they do not observe it, but follow the former custom, their wills shall be valid wherever anyone writes the name of his heir with his own hand, or through the agency of another; provided he complies in every respect with the other legal formalities required in testamentary execution.
CHAPTER X.
CONCERNING IMMOVABLE PROPERTY WHICH BELONGS TO RELIGIOUS PLACES.
We order the law, by which We directed that property which has come from a holy church to Our House shall not be transferred to private persons, to be repealed, and We declare this to be applicable to such property as has already been lawfully added to Our House, as well as to what may hereafter be transferred to it.
CHAPTER XI.
CONCERNING THE FALCIDIAN LAW, WHICH DOES NOT APPLY TO PROPERTY WHOSE ALIENATION Is PROHIBITED.
Where anyone makes a will, and leaves immovable property to his family or to anyone else, as a legacy, specifically stating that said property shall never be alienated, but that it shall always remain in the hands of the heirs or successors of him to whom it was left, We decree that the Falcidian Law shall have no effect where a bequest of this kind is involved, for the reason that the testator himself prohibited its alienation.
Moreover, We direct that these rules shall be observed in cases which have not yet been disposed of by judicial decree, amicable agreement, or in any other lawful manner.
EPILOGUE.
Therefore Your Eminence will see that what We have decreed by the present law shall remain forever valid, and be brought to the attention of all Our subjects by means of edicts promulgated in this Royal City, and by notices despatched to all the Governors of provinces.
Given at Constantinople, on the thirteenth of the Kalends of February, during the Consulate of Our Lord the Emperor Justinian, and the year of the Consulate of Basil.
TITLE III.
CONCERNING ALIENATION, EMPHYTEUSIS, LEASE, HYPOTHECATION, AND DIVERS OTHER CONTRACTS HAVING REFERENCE TO SACRED PROPERTY EVERYWHERE.
ONE HUNDRED AND TWENTIETH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious Praetorian Prefect of the East.
PREFACE.
We, having already promulgated many different enactments with regard to alienations, emphyteutical contracts, leases, and other agreements relating to the administration of ecclesiastical property, now deem it proper to combine all these matters in the present law.
CHAPTER I.
CONCERNING THE ALIENATION AND EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY.
Hence We order that those who have charge of the property of the Most Holy Church of this Royal City, or that of any orphan asylum, hospital, place of entertainment for strangers, infirmary for poor and sick people, or any other religious establishments situated in this Royal City, or in the territory subject to its jurisdiction (with, however, the exception of monasteries), shall be permitted to sell, give, exchange, deliver by reciprocal donation, or alienate in any manner whatsoever, any immovable property, right to a supply of grain, or rustic slave, unless the exchange is made with the Imperial House, but We do not permit serfs to be legally alienated.
We decree that the Most Holy Principal Church of this Royal City, and other religious houses, shall only grant an emphyteutical lease to one who receives it in person and to two of his heirs in succession, and We only release him who is entitled to the property by emphyteutical right from the sixth part of his actual rent. So far as suburban property belonging to the Most Holy Principal Church itself, or to the other religious foundations above enumerated, and which are situated in this Royal City, or in its territory, are concerned, We order that when said property yields a fixed rent as income, it shall be leased in emphyteusis by its managers or stewards to the emphy-teuta, and two of his immediate successors, in the manner above prescribed; and that, instead of the rent being diminished, it shall, on the contrary, be increased.
But where such suburban property returns absolutely no income, We permit the administrators of religious houses to transfer them by emphyteusis (as previously stated) for any amount of rent which they may decide upon.
(1) Where any property whatsoever, which has been leased in emphyteusis by a religious house, is transferred to the Imperial Domain, to Our Treasury, to a city or a curia, or to any other religious establishment, We permit the administrators of the religious house by which the emphyteusis was granted in the beginning to state within two years after the date when the emphyteusis was made to one of the aforesaid establishments, whether its intention is for the property thus leased to be left in the hands of those who have possession of it, with the understanding that they shall pay the annual rent mentioned in the agreement, or whether they wish to cancel the lease and take back the said property for the reason that they are of the opinion that this will be the more advantageous course to pursue.
(2) Where, however, there are any places belonging to the Most Holy Principal Church, or to any other religious establishment on which are situated ancient buildings which have been abandoned, and which do not yield any income, and the religious establishment owning said buildings cannot repair them, We grant permission to their superintendents to lease them in perpetual emphyteusis, provided, however, that the emphyteutical rent shall amount to a third of the sums formerly collected, when the said buildings were in good repair; or, if the emphyteuta should prefer to do so, he shall receive the ruined houses under an agreement that he will begin to build, and will pay to the venerable religious house, from which he received the emphyteusis, half the rent which the building would yield after an appraisement of the same has been made. We permit this to be done, and also authorize an emphyteuta of this kind to make use of any materials forming part of the abandoned habitation.
CHAPTER II.
WHERE ANYONE DESIRES TO ACQUIRE THE USUFRUCT OF PROPERTY BELONGING TO A CHURCH.
When anyone desires to obtain the usufruct of immovable property belonging to the principal church of this Royal City, or to one of the religious establishments which We have mentioned in the preceding chapter, he shall not receive it, unless he immediately transfers the ownership of other property, not burdened with heavy fiscal charges which yields an income equal to that which is to be given to him. After his death, or after the time agreed upon for the enjoyment of the usufruct, which must not exceed the life of him who receives it, has elapsed, the title to both pieces of property shall absolutely vest in the same religious house, so far as the usufruct and ownership of the same are concerned.
CHAPTER III.
IT SHALL BE PERMISSIBLE TO LEASE ECCLESIASTICAL PROPERTY FOR NOT MORE THAN THIRTY YEARS.
We grant permission to religious establishments to make contracts for leases for any term the contracting parties may choose, provided, however, it does not exceed thirty years.
CHAPTER IV.
IT SHALL BE PERMITTED TO ENCUMBER IMMOVABLE ECCLESIASTICAL PROPERTY BY GIVING IT IN PLEDGE.
If, however, any one of the aforesaid religious establishments should require money for the payment of taxes to the Treasury, or for any other necessary purpose, its managers shall have the right to hypothecate a piece of immovable property, or give it in special pledge,
the creditor shall hold possession of the same and harvest the crops, and he must credit their value upon the sums due to him, as well as by way of interest, which, however, cannot exceed three per cent. But where those having charge of the affairs of the said religious establishment discharge the debt, or it is paid out of the income of the property given in pledge, the said property shall be returned to the religious establishment which encumbered it.
CHAPTER V.
CONCERNING THE EMPHYTEUSIS AND HYPOTHECATION OF ECCLESIASTICAL PROPERTY.
We desire that emphyteuses and hypothecations made for a term exceeding five years, and which are contracted by the Holy Principal Church of this City, shall be executed with the approval and consent of the Most Blessed Archbishop and Patriarch of this Most Fortunate Capital and in the presence of the venerable stewards and chartularies of the Holy Principal Church, who shall make oath that the contract was not entered into for the purpose of defrauding the church of its rights. Where there are chartularies in any of the other religious establishments, they, also, shall be sworn in the same way before the head of the said religious house. When there are none, the contract shall, in the presence of the Holy Gospels, be committed to writing by those in authority, who shall add to it the oath setting forth that no injury or fraud is committed against the said religious house.
(1) We forbid stewards, superintendents of orphan asylums, and others having charge of religious establishments, as well as all chartularies, their parents, children, and others related to them by the ties of blood or marriage, to accept in person, or through the intervention of another, an emphyteusis, lease, or hypothecation of property belonging to any of the said religious houses; and they are hereby notified that if anything of this kind should be done it will be void; and We order that all the property, not only of those who accept such a contract, but also that of the stewards, chartularies, or superintendents with whom they were implicated, shall, after their death, pass to the religious house from which they accepted the emphyteusis, the lease, or the hypothecation.
CHAPTER VI.
CONCERNING THE PROPERTY OF OTHER CHURCHES SITUATED OUTSIDE THE CITY OF CONSTANTINOPLE.
We have laid down the preceding rules concerning matters in which the principal church, and the other religious houses of this Royal City or its environs, are interested. We now deem it advisable to prescribe the following regulations for the other holy churches, monasteries, places of entertainment for strangers, hospitals, and other religious establishments situated in all the provinces of Our
Empire, as well as for the monasteries in this Royal City and its adjacent territory.
(1) Therefore We permit the religious establishments aforesaid to transfer property belonging to them, not only by temporary emphyteusis, but also, if they so desire, by perpetual lease. When these are holy churches or other religious houses which the most holy bishop of the diocese governs in person, or causes to be administered by a holy choir of the clergy, the emphyteutical contract shall be made with their knowledge and consent; and the stewards, managers, and chartularies of the religious house shall swear in the presence of the bishop, or of the said holy choir of the clergy, that the emphyteusis will not be productive of any loss to the said religious house.
Where asylums for poor and infirm persons, or any places of entertainment for strangers, hospitals, or other religious establishments subject to private administration, or any sacred oratories, lease property by emphyteusis, the contract shall be made with the consent of the majority of the ecclesiastics who have charge of the same, as well as with the approbation of the steward. And where this is a place of entertainment for strangers, as asylum for poor and infirm people, a hospital or some other establishment of this kind, the contract shall be drawn up in the presence of the official in charge; and the managers of the said house shall make oath in the presence of the holy bishop by whom they were appointed or ordained that the said religious house can suffer neither injury nor fraud through the execution of such a contract.
(2) But so far as the holy monasteries are concerned, their heads, together with the majority of the monks attached to them, must draw up the contract. We decree that, in all preceding cases, the instrument shall include the oath that no injury or fraud against the rights of the monastery is contemplated. The formalities hereinbefore mentioned having been complied with, the emphyteuta shall net be released from the payment of more than the sixth part of the income yielded by the property given in emphyteusis.
We order that all that We have above prescribed with reference to buildings belonging to religious houses situated in this Royal City, which have fallen into decay, shall be applicable to such buildings when they belong to religious establishments situated in the provinces. We also think it proper to state with reference to the latter that where any of them are oppressed with debts, either on account of public obligations, or for some other urgent reason, and it is not possible for them to release themselves from liability by the disposal of movable property, land shall at first specially be pledged to the creditor, in order that he may take the crops of the same, and credit the proceeds upon the sums which he has loaned, as well as the interest which cannot exceed three per cent.
But where the creditor is not willing to be paid in this way, We decree that those who are subject to the authority of the most holy patriarchs, that is to say, the most holy metropolitans and other bishops, archimandrites, superintendents of orphan asylums, hos-
pitals, and places for the entertainment of strangers, and the heads of other religious establishments, shall draw up their emphyteutical leases in the presence of the most holy patriarch by whom they have been ordained or appointed; that the said instruments shall be confirmed by their oaths, and with the consent of the majority of the clergy; that the officials in charge must state the amount of the indebtedness, and testify that it is impossible to discharge it by the sale of movable property; and those of the clergy who are ordained by the most holy patriarchs, that is to say, the metropolitans and other bishops, the archimandrites, the superintendents of orphan asylums and of institutions for the poor and infirm, and the heads of other religious establishments, shall execute instruments of this kind before the said metropolitan bishops, and they shall be drawn up in the same way by bishops who have been ordained by the patriarchs or metropolitans, and are under their personal jurisdiction, and the heads of monasteries, asylums for the poor and infirm, places of entertainment for strangers, hospitals, or other establishments of this kind; provided, however, that when these instruments are executed in the presence of the patriarchs, the metropolitans, or other bishops, the said religious establishment shall not be subjected to expense of any kind. For We decree that, for the future, emphyteutical contracts shall be executed gratuitously by the persons or houses that We have just mentioned, in the presence of the provincial judges, or the defenders of districts. After what has been above stated has taken place before the most holy patriarchs, metropolitans, or other bishops, notices shall be posted for twenty days in a public place of the town by those having supervision of the religious house which has contracted the debt, and then anyone desiring to buy the immovable property must appear, and he who will give the most for it shall be preferred to the others. These formalities having been complied with, the sale shall be concluded, and the purchase-money entirely employed for the payment of the debt, for unless this is done, the purchaser will not legally be released from liability; and, finally, it must be expressly stated in the instrument that there is no intention to defraud the religious house.
If, after the above-mentioned requirements have been observed, and no purchaser can be found for the property, We direct that the creditors of the aforesaid religious houses shall receive, by way of payment, the property offered for sale in accordance with a just and exact appraisement of the same. The tenth part of said appraisement shall be added to the price; the property transferred by way of payment to the creditor shall be of the same value as his claim; the absolute ownership of the same shall vest in him; and the managers of the religious establishment and the majority of the ecclesiastics attached to it must give their consent to sales of this description. The immovable property given in satisfaction of the debt shall not be selected by the creditor, but the choice shall be equitably made; part of it shall be composed of land yielding an income, and part of the land which is barren, and belongs to the same religious house; and
the appraisement of both pieces shall be made in accordance with the income they return, the amount of the indebtedness to the Treasury, and other considerations.
(3) If, however, anyone has loaned, or shall hereafter loan money to the bishop, steward, or head of any religious house whatsoever, situated in this Royal City, or in the provinces, We decree that he shall not be held to have loaned it to the said religious house, if he does not, in the first place, show that the authorities have borrowed it for its benefit; that they are not heirs of the creditor of the said religious house; that they have no right of action against it; and that the sums lent have been employed for its benefit; otherwise, the creditor must bring suit against the person who received the loan, or his heirs.
CHAPTER VII.
CONCERNING THE EXCHANGE OF ECCLESIASTICAL PROPERTY.
We order that, with the exception of the Most Holy Principal Church of this Royal City, and the orphan asylums, the houses for the entertainment of strangers, as well as the hospitals for the relief of poor and infirm persons which, situated in this Royal City, are under the jurisdiction of the Principal Church, all most holy churches, religious establishments, and monasteries situated both in this Capital and in the different provinces shall be permitted to exchange property with one another; provided that reciprocal indemnity in favor of each house exists, and that the consent, not only of the heads of these houses, but also of the majority of the clergy attached to them, shall be either set forth in writing, or publicly stated.
We do not permit any articles which have been transferred from the Imperial Domain to any religious establishment whatsoever, or which may hereafter be transferred, to be sold, pledged, exchanged, or alienated, even when such contracts are made with other religious establishments.
(1) But as We have ascertained that alienations of monasteries have even been made by certain persons, for the purpose of conveying them to private individuals without regard to their sacred destination, We absolutely forbid this to be done. Where, however, an act of this kind is proved, We grant permission to the most holy bishop of the diocese to recover said monastery, and restore it to its former
condition.
If, however, any of the aforesaid religious houses situated in this Royal City, or in any of the other provinces (with the exception of the Most Holy Principal Church of this Royal City), should have a tract of land owing a large amount of taxes to the Treasury, from which land it receives no income, We authorize those having the administration of the said religious house to alienate this land in any way that they may desire; but public instruments must be drawn up for the security of the religious house by those who have appointed
or ordained its managers, and the latter shall swear on the Holy Scriptures, in the presence of the superior of the religious house, and the majority of the clergy attached thereto, that the alienation is not made through treason, favor, or fraud, but for the benefit of the said religious house.
We forbid the stewards and administrators of the clergy, the chartularies of religious establishments, no matter where they may be located, their parents, children, and those to whom they are related by the ties of consanguinity or marriage, to execute in their own proper person, or by someone acting for them, any contract of lease, emphyteusis, purchase, or hypothecation, relating to immovable property belonging to the said religious houses, just as We forbid this with reference to similar establishments situated in this Royal City.
CHAPTER Vill.
WHERE THE EMPHYTEUTA OF THE CHURCH DOES NOT PAY His RENT FOR Two YEARS.
If the lessee, or emphyteuta of land belonging to the Most Holy Principal Church, or to any other religious establishment situated within Our Empire, permits the property which he has received, or may hereafter receive, according to the terms of this constitution, to become deteriorated, or if he fails to pay the emphyteutical rent, or what he promised, for two years, We grant permission to the religious house, which made the emphyteusis or lease, to collect the rent which is due, as well as to restore the property leased or given in emphyteusis to its former condition, and to eject the emphyteuta or lessee, without his being able to demand anything from the religious house on the ground of improvements.
When the persons having charge of the matter do not wish to eject him, We decree that they shall collect whatever is known to be due under the lease or emphyteusis, and that the said lessees or emphyteuta shall then keep the land which he has rented until the term fixed for the duration of the lease has expired, and that he shall pay everything which has been agreed upon. If, however, the emphyteuta or lessee should take to flight, We grant permission to the heads of the religious house to obtain from his private property sufficient to indemnify the establishment of which they have charge, without the emphyteuta being allowed to claim anything for improvements.
CHAPTER IX.
CHURCHES SHALL BE PERMITTED TO ALIENATE IMMOVABLE PROPERTY FOR THE PURPOSE OF REDEEMING CAPTIVES.
We authorize the most holy churches of the cities and their stewards to alienate their immovable property for the ransom of captives, provided that the said immovable property has not been given to the said churches under the condition that it should not be alienated. We
grant the Most Holy Church of Jerusalem permission to sell any houses belonging to it, which are not situated in that city, for a sum not less than the total amount of rent received from them for fifty years; in order that it may use this money to obtain a better revenue. Where, however, any persons have given, sold, or transferred in any other way, or left unproductive lands to any religious house whatsoever, situated either in this Royal City, or in the provinces, We decree that the religious house which has acquired such lands shall suffer no damage, and shall not be oppressed with taxes levied by the Treasury, or in any other way whatsoever; but that all the obligations attaching to said sterile lands shall revert to those who have given them, or to their heirs, who shall also be obliged to take back the said lands and pay to the said religious house out of their private estates an amount equal to the loss which the latter has sustained. Where, however, this loss is due to the fact that certain sums were paid to the said house in consideration of its acceptance of the said sterile lands, We order that it shall acquire the ownership of these sums, and that the lands in question shall, by all means, be returned to whoever donated them or to his heirs.
(1) With reference to this subject, We order that no necessity shall compel the most holy churches, or other religious establishments situated both in this Royal City and in all the provinces of Our Empire, to purchase barren or fertile lands situated anywhere, in order that they may not run the risk of .losing those they have, or of becoming oppressed with debts. Where, however, someone desires to obtain the usufruct of any immovable property belonging to one of the religious houses aforesaid (in accordance with what We have already decreed concerning such establishments situated in this Royal City), he must immediately convey the ownership of other land to the said religious establishment, the revenues of which land shall be equal in amount to those of that transferred to him by the church, and not be subject to heavy fiscal charges. After his death, or after the expiration of the time prescribed for the existence of the usufruct (which, however, cannot exceed the life of the person entitled to it), both pieces of property, including their ownership and usufruct, shall be acquired by the said religious establishment.
This is what We order with reference to immovable property.
CHAPTER X.
CONCERNING THE SACRED UTENSILS OF ANY CHURCH OR
ORATORY.
We have decreed in general terms, with reference to the sacred utensils belonging to the Most Holy Principal Church of this City or the other holy houses of prayer, no matter where they are situated in Our Empire, that the said utensils cannot be sold or pledged except for the ransom of captives. But where there are several of these in any one of the religious establishments, which are not absolutely
necessary for ordinary use, and the said religious house is in debt, and has no other personal property with which it can meet its obligations, We allow it either to dispose of the superfluous articles to other religious establishments which have none, by means of instruments publicly executed, or to melt them, and then sell the metal, using the price for the discharge of the debt, in order to prevent immovable property from being alienated.
CHAPTER XI.
To WHAT PENALTY PERSONS WILL BE LIABLE WHO VIOLATE THE PRESENT CONSTITUTION.
If, however, in contravention of the present law, a contract should be made with reference to movable or immovable property belonging to one of the religious establishments aforesaid, the property which is the subject of the contract shall be returned to the said holy church or religious house, together with the income of the same which has been collected in the meantime; and it shall retain the price paid, or the reciprocal gift or whatever was, by way of consideration, donated in exchange. Where an emphyteusis is executed in violation of what We have just ordered, We direct the property transferred by the same to be returned to the most holy church or religious house whose interests are involved, that the rent shall be paid in accordance with the agreement, and that the lease shall terminate, just as if the time specified by the emphyteutical contract had expired.
When a donation of ecclesiastical property belonging to a church or any other religious house is made, it shall be returned to the Most Holy Principal Church, or other religious house, together with the income received during the existence of the donation; and the donee shall, in addition, pay a sum equal to the value of the property given.
When a contract of hypothecation is entered into in violation of this law, the creditor shall lose everything due to him, the property hypothecated shall be returned to the religious establishment, and the notaries who, in opposition to this law, have been so bold as to use their authority for such a purpose, shall be condemned to perpetual exile.
Where a contract of this kind has been made in compliance with the ancient constitutions, in existence before the enactment of this law, it shall remain in full force. We, however, decree that all instruments which have been drawn up in contravention of the ancient laws shall be annulled, that the articles transferred in violation of their provisions shall be restored to the religious establishments, that everything done hereafter shall be in accordance with the present law, and that all former constitutions enacted on similar subjects are hereby repealed.
EPILOGUE.
Therefore, Your Eminence will hasten to cause the matters included by Us in the present law to be observed for all time, and will,
with this end in view, publish an edict for ten consecutive days in public places; but no one shall be despatched into the provinces for this purpose, for We desire the said law to be promulgated without Our subjects sustaining any injury.
Given at Constantinople, on the seventh of the Ides of May, during the reign of the Emperor Justinian, and the Consulate of Basil.
TITLE IV. PARTIAL PAYMENTS OP INTEREST SHALL BE DOUBLED.
ONE HUNDRED AND TWENTY-FIRST NEW CONSTITUTION. The Emperor Justinian to Basil, Governor of Tarsus.
PREFACE.
As decurions are constantly presenting petitions to Us, and We desire to be indulgent to them, We do not permit, under any circumstances, artifices opposed to law, and statements inspired by fraud, to have any validity.
CHAPTER I.
Eusebius and Aphthonius, sons of Palladius, and grandsons of Demetrius, informed Us that Demetrius owed Artemidorus five hundred aurei on account of a loan on which also interest was agreed to be paid, and that they wished to profit by an Imperial Pragmatic Sanction recently promulgated, which prescribed that where double the amount of the debt had been paid, nothing more could be collected from the debtor under Our laws. They also alleged that Epimachus and Artemon, successors of the creditor Artemidorus, declared that Eusebius and Aphthonius had made false statements in their petition, and that they were unworthy of any indulgence from Us, on account of double payment of the debt, and that only nine hundred and forty-nine aurei had been received.
The petitioners answered that Palladius, their father, as well as Demetrius, their grandfather, and Paulus, had paid eight hundred and sixty-seven aurei. Artemon and Priscianus, the sons of Artemidorus, who was the grandfather of Epimachus, and the other Artemon, said in reply that partial payments should not be added to the principal; that they could only be considered as interest; that the Governor of the province had decided that this was the case; and that, for this reason, they had required of Palladius, for the first note bearing interest and calling for five hundred aurei, another note of six hundred.
The reply of the petitioners to this was that the indebtedness had been paid at different times; that Palladius had paid seventy-two aurei, and Aphonius ten, which, together with the eight hundred and sixty-seven aurei already paid, made a total of nine hundred and forty-nine: As the judge who heard the case was not convinced that these partial payments should be credited on the entire amount of the
debt, he had not admitted their claim, and had ordered them to pay six hundred aurei as principal. The petitioners asked Us to be released from this requirement, and to be discharged from liability for the entire indebtedness by paying fifty-one aurei more, and that the note of six hundred aurei bearing interest should be returned to them.
CHAPTER II.
Therefore, as Our laws do not require more than double the principal to be paid, the only difference existing between those previously enacted and this one is, that while they direct that the payment of interest, when it amounts to double the principal, shall extinguish the debt, where the said payments are not partial;1 We permit payments, even if they are partial, to extinguish the indebtedness, when they are equal to double the amount of the principal; and We order that the calculation of interest shall be made in this way, and that if the petitioners should pay enough to make up the thousand aurei, they will be entitled to recover the note of six hundred aurei bearing interest, in order that the debt may not be collected more than once.
EPILOGUE.
Your Magnificence will see that what it has pleased Us to enact in this Imperial Pragmatic Sanction is carried into effect, and that the interpretation given by the decisions which the petitioners have referred to Us, as well as every fraudulent act which has been, or may subsequently be committed by only one of the parties, is considered void. Most beloved brother, may God preserve you for many years.
Given at Constantinople, on the Kalends of May, during the Consulate of Belisarius.
TITLE V.
EDICT OP OUR MOST Pious LORD JUSTINIAN, WITH REFERENCE TO THE REGULATION OF ARTISANS.
ONE HUNDRED AND TWENTY-SECOND NEW CONSTITUTION.
PREFACE.
We have ascertained that, in spite of the punishment inflicted by Our Lord God, persons engaged in trade and literary pursuits, as well as artisans and agriculturists of different kinds, and sailors, when they should lead better lives, have devoted themselves to the acquisition of gain, and demand double and triple wages and salaries, in violation of ancient customs.
V
1 This was also the rule in ancient India. "Interest on money, received at once, not month by month, or day by day, as it ought, must never be more than enough to double the debt, that is, more than the amount of the principal paid at the same time." (Sir Wm. Jones, The Laws of Menu, Page 296.)—ED.
CHAPTER I.
Hence it has seemed advisable to Us, by means of this Imperial Edict, to forbid all persons to yield to the detestable passion of avarice; in order that no one who is the master of any art or trade, or any merchant of any description, or anyone engaged in agricultural pursuits, may, hereafter, demand as salary or wages more than ancient custom prescribes. We also decree that the measurers of buildings, tillable land, and other property, shall not charge more for their services than is just and that they shall observe the established practice in this respect.
We order that these rules shall be observed by those who have control of the work, as well as by those who purchase the materials. We do not permit them to pay more than is authorized by common usage. They are hereby notified that anyone who demands more than this, and who is convicted of having accepted or given more than was agreed upon in the beginning, will be compelled to pay three times the amount to the Treasury.
EPILOGUE.
We order that all violations of this law shall be ascertained and punished, and that the pecuniary penalty imposed by it shall be collected by Your Excellency and the Most Glorious Prefect of this Most Fortunate City, for We desire to exact from violators of this Our Edict the fine for which they are liable, and have them subjected to punishment. All officials belonging to Your Court shall incur a penalty of five pounds of gold if they fail to enforce any one of these regulations.
Given at Constantinople, on the second of the Kalends of April, during the reign of Our Lord the Emperor Justinian, and the Consulate of Belisarius.
TITLE VI.
CONCERNING THE MOST HOLY BISHOPS AND THE MOST REVEREND CLERGY AND MONKS.
ONE HUNDRED AND TWENTY-THIRD NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious Master of Our Imperial Offices.
PREFACE.
We, having already made some certain provisions with reference to the government and privileges of the holy churches, and other religious houses, as well as to other subjects connected therewith, have deemed it advisable to include in this law, after suitable correction, the provisions long since enacted in different constitutions concerning the holy bishops, the clergy, and the monks.
CHAPTER I. CONCERNING THE CONSECRATION OF BISHOPS.
Therefore We decree that every time it becomes necessary to consecrate a bishop, the clergy and the primates of the city shall, in the presence of the Holy Gospels, issue a decree in favor of three persons, in which they must state, at the peril of their souls, that they have not been induced to make the choice of the said three persons, either by gifts, promises, friendship, or any other motive; that they know that those whom they appoint profess the Catholic faith; that they are of honorable life; that they are acquainted with letters; that they neither have, nor have had, a wife or concubine; and have had no legitimate or natural children; or that, if in the beginning, anyone of the said three candidates did have a wife, he had only one, and that she was neither a widow, nor had been married to another man, and that the laws or Imperial Constitutions did not prohibit his marriage to her; and that, finally, none of the three candidates is a decurion or other official, or if one of them is liable to obligations of this kind, he has assumed the monastic habit and been the inmate of a monastery for not less than fifteen years.
(1) The following must also be inserted in ecclesiastical decrees; namely, that the person chosen is not less than thirty-five years of age, and is well known to the clergy; and among the three persons in whose behalf such a decree is issued, the best qualified shall be consecrated on the responsibility of the prelate who performs the ceremony.
A decurion or other official who, as has just been stated, is called to the episcopate after having resided for fifteen years in a monastery, shall be released from his civil obligation; still, although this is done, he shall only be entitled to the fourth of his property, and the remainder, in accordance with Our law, shall belong to the curia and the Treasury.
(2) We, however, give permission to those who issue the decree, that if any one of the laity, except a decurion or other official, is considered to be worthy of the above-mentioned choice, he shall be elected along with two other members of the priesthood, or monastic order, and where a layman is raised to the episcopate in this way, he shall not immediately be consecrated a bishop; but, in the first place, he shall be enrolled among the clergy for not less than three months, and instructed in its sacred canons, and the daily service of the Church, and then he may be consecrated bishop, for he whose duty it is to instruct others should not be taught by them after his consecration. When (as happens in certain places) three eligible persons are not to be found, those who issue the decrees shall be permitted to designate two or even one alone, but they must possess all the qualifications already prescribed by Us.
If, however, those whose duty it is to elect a bishop do not issue their decrees within six months, then the prelate whose duty it is to
perform the consecration can do so at the peril of his soul, and all the other formalities which We have enumerated must be observed. Where anyone is consecrated bishop in violation of these provisions, We order that he shall be expelled from the episcopate; that he who is presumed to consecrate him shall be deprived of office for the space of a year; and that all the property which he has accumulated at any time, or under any circumstances, shall, as a penalty for the fault which he has committed, be transferred to the ownership of the church of which he is the bishop.
CHAPTER II. CONCERNING THE ACCUSERS OF BISHOPS.
Where a candidate for the episcopate is accused of anything by which, in accordance with the laws or canons, his consecration may be prevented, it shall be postponed, and whether the accuser is present and makes the charge in person, or whether he delays proving it for three months, it must be carefully examined by him whose duty it is to consecrate him, and if he should be found guilty, his consecration shall be refused; but if, on the other hand, he is shown to be innocent, he shall be consecrated, and the accuser, whether he has not succeeded in establishing the accusation, or whether he has abandoned it, shall be driven from the province in which he resides. If, however, the accused person should be consecrated before the accusation has been heard, he shall be expelled from the priesthood, the prelate who hastened to consecrate such a person shall undergo the penalty which We have above prescribed; that is to say, he shall be deprived of the performance of his sacred duties for a year and all his property shall be confiscated for the benefit of the Church.
(1) We, by all means, forbid a bishop to be consecrated in consideration of payment for his election in gold or other property. If anyone should violate this rule, those who pay the money, and those who receive it, as well as any intermediaries, shall suffer condemnation in accordance with the Holy Scriptures and the sacred canons. Hence, both of them shall be deprived of the honor of the priesthood, or of the clergy, and whatever has been given shall be recovered for the benefit of the church whose ministry they attempted to purchase. But when a layman receives the money, or acts as an intermediary for the purpose of obtaining the episcopate for anyone, We decree that there shall be collected from him, for the benefit of the church, double the value of the property given, and We not only wish that whatever has been paid shall be recovered in this way, but also the amount for which any bond may have been executed to secure the acquisition of the episcopate. And We finally order that all pledges and securities given, offers of every kind made, and bonds executed for this purpose shall be void. He who has received a bond shall not only be liable for its amount, but double that sum shall be collected from him for the benefit of the church.
CHAPTER III.
WHEKE A BISHOP OFFERS His PROPERTY TO THE CHURCH
EITHER BEFORE OR AFTER His CONSECRATION, AND WHAT
SHALL BE PAID FOR THE RIGHT OF THE SEE.
Where a bishop, either before or after his consecration, desires to offer to the church whose ministry he has received either all or a part of his property, We do not forbid him to do so; and We direct that he shall be released from every sentence and penalty prescribed by the present law, and We also deem him worthy of all praise as his act is not a purchase, but an offering. We permit bishops who have been consecrated, when they assume office, to pay only the sums which are customary, and which are hereinafter set forth. Therefore We order the most blessed archbishops and patriarchs, that is to say, those of ancient Rome, of Constantinople, Alexandria, Antioch and Jerusalem, who have been accustomed to pay twenty pounds of gold at the time of their consecration by bishops and clerks, to continue to pay the said sum, but We forbid them to pay anything more. We decree that the metropolitans, who are consecrated by their own synod, or by the most blessed patriarchs, as well as all other prelates who are consecrated by patriarchs and metropolitans, shall pay a hundred solidi for the right of the see, and that they shall formally pay three hundred to the notaries of the prelate who confers the consecration, and his other officials.
When the annual revenues of the church are less than thirty pounds of gold, but are not less than ten, one hundred solidi shall be paid for the right of the see, and two hundred to all the officials who are accustomed to receive them. When the revenues of the church are under ten pounds of gold, but not under five; fifty solidi shall be paid for the right of the see, and two hundred to the officials. When the church has an income of less than five pounds of gold, but not less than two, eighteen solidi shall be paid for the right of the see, and twenty-four to the officials above mentioned. In conclusion, if the amount of the revenues of the church is known to be less than three pounds of gold, but not less than two, twelve solidi shall be paid for the right of the see, and six for every other purpose. For We forbid the bishop of a church which has an income of less than two pounds of gold to pay anything either for the see, or in conformity with any custom whatsoever. The first priest of the bishop who performs the consecration, and the archdeacon, shall receive the sums which We have just enumerated, and shall divide among those who are accustomed to receive them.
We order that these rules shall, by all means, be observed, in order that the churches may not be oppressed with debts, and priests become venal. If, however, anyone should, under any circumstances, presume to receive anything in excess of what We have prescribed'under the pretext of a right of the see, or of custom, We order that three times the amount which he has been paid shall be taken out of his property for the benefit of the church of him who gave it.
These are the regulations which We have promulgated with reference to the consecration of bishops.
CHAPTER IV.
THE EPISCOPATE RELEASES A MAN FROM THE CONDITION OF SLAVE OR SERF.
We order that bishops shall be liberated from their condition of slaves or serfs, after their consecration, unless some decurion or other official has been consecrated without having complied with the prescribed formalities, and We direct that a bishop of this kind shall be expelled from the episcopate, and returned to his curia, or other office, in order that the priesthood may not be injured by his civil condition. We order, however, that those who are subject to curial obligations, and are known to have been consecrated bishops before the enactment of this law, shall be freed from their status; but they can transfer a lawful share of their own property to the curia, and the Treasury, without any interference with ecclesiastical rights so far as the property which, having been acquired during the episcopate, will belong to the Church by virtue of Our provision, is concerned. Where anyone who has been raised to the episcopate is under the control of a parent, he will become independent by the mere fact of his consecration.
CHAPTER V.
CONCERNING PRIESTS, DEACONS, AND SUBDEACONS,
CALLED BY THE RIGHT OF COGNATION TO DISCHARGE
THE DUTIES OF GUARDIANS OR CURATORS.
Holy bishops and monks cannot, legally, be appointed guardians or curators of any persons whomsoever; but We permit priests, deacons, and subdeacons to accept the guardianship and the curatorship of an estate under the law, and by the right of cognation; and We authorize those who are called to do so by the degree of relationship, to undertake the administration of these trusts. When, within four months from the time when a priest, deacon, or subdeacon is called to assume the duties of guardianship or curatorship, he states that he voluntarily accepts it, he will not be prejudiced by this statement, so far as any other guardianship or curatorship is concerned.
CHAPTER VI.
MEMBERS OF THE CLERGY SHALL NOT PERFORM THE DUTIES OF PUBLIC OFFICE, OR TRANSACT ANY SECULAR BUSINESS.
We do not permit a deacon, a steward, or any other member of the clergy, no matter what his rank may be, or any monk attached to a
church or monastery, to be appointed a receiver or collector of taxes, a recorder of public or private property, a superintendent of a household, or an attorney to conduct litigation; nor do We allow him to act as surety for any of the above-mentioned purposes; and formulate this rule in order that religious establishments may sustain no injury, or the holy services of the Church be interfered with. When, however, those in charge of churches or monasteries desire to obtain control of adjacent real property either under lease or emphyteusis, We permit them to do so; provided all the members of the priesthood and the monks give their consent in the instrument evidencing the contract, which must be publicly recorded; and they declare that the said religious houses will be benefited thereby.
We also authorize churches and other religious houses to contract with one another by lease or emphyteusis, just as We grant members of the clergy the right to lease and control the lands of their own churches, with the consent of the bishop and the steward, with the exception of persons whom We have forbidden to do this by the terms of a former law. If a bishop should violate these rules, We order that all the property which has come into his hands in any way or by means of any person whomsoever, before and after his consecration, shall be demanded and seized by his church.
Where stewards, or other members of the clergy do this, a fine fixed by the bishop shall be collected from them, for the benefit of the church; and those to whom they have entrusted the harvest of the crops or any land whatsoever, or the supervision of a house, or who have accepted them as sureties under such circumstances, shall have no right of action against the church or monastery; nor any claim upon the property of either, or upon that of those in charge of the same; nor against the persons to whom they have confided their administrations, or the property or sureties of the latter. If, however, the public should suffer any loss on this account, those who have charged the persons above mentioned with the exaction of public revenues or tributes; or who have farmed out to them collections of any kind; or have accepted them as sureties; shall be compelled to make good the loss out of their own estates.1
CHAPTER VII.
A BISHOP SHALL NOT BE BROUGHT INTO COURT FOR THE PURPOSE OF TESTIFYING.
No person shall be permitted to compel a reverend bishop to appear in court for the purpose of giving testimony, but the judge shall send one of his subordinate officers to him, in order that he may state what he knows upon the Holy Gospels in a manner becoming to the priesthood.
1 This is in accordance with the maxim: "Clerici non ponentur in officiis." —ED.
CHAPTER Vill.
A BISHOP SHALL NOT BE BROUGHT BEFORE A SECULAR JUDGE FOR ANY REASON WHATSOEVER.
We do not permit a bishop to be forced to appear against his will before a civil or military judge in any pecuniary or criminal proceeding whatsoever, without an Imperial order; and any magistrate who presumes to issue an order of this kind, either in writing or orally, after having been deprived of his office, shall pay a fine of twenty pounds of gold for the benefit of the church whose bishop was summoned and ordered to appear; and the bailiff who executed the order, after having also been deprived of his office, shall be scourged and sent into exile.
CHAPTER IX. BISHOPS SHALL NOT LEAVE THEIR OWN CHURCHES.
We forbid the bishops beloved of God to leave their own churches and go elsewhere; and when they are obliged to do so, they must not depart without having obtained letters for that purpose from the Most Blessed Patriarch or Metropolitan, or an Imperial order; hence bishops who are under the jurisdiction of the Most Blessed Archbishop and Patriarch of Constantinople shall not be permitted to visit this Royal City without his permission, or Our order. When a bishop, no matter where he is stationed, leaves his diocese after having complied with this formality, he cannot remain absent from his church longer than a year. Bishops who, as has just been stated, come from any diocese whatsoever to this Royal City, shall, before doing anything else, apply to the Most Blessed Archbishop and Patriarch of Constantinople to be presented by him to Our Tranquillity.
Where those who leave their dioceses do not observe these rules, or if they remain absent from their churches longer than a year, in the first place, their expenses shall not be paid by the stewards of their churches, and their superiors must notify them by letters to return, and those who delay doing so shall be recalled in accordance with the sacred canons; and if they do not return within the time prescribed they shall be removed from the episcopate, and better bishops shall be consecrated in their stead, by virtue of the present law.
This rule shall be observed with reference to the members of the clergy, no matter to what order they may belong, or what duties they perform.
CHAPTER X.
ARCHBISHOPS AND PATRIARCHS SHALL FREQUENTLY
HOLD COUNCILS AND SYNODS DURING THE COURSE
OF A YEAR.
In order that ecclesiastical discipline may be strictly maintained, and the sacred canons be complied with, We order that every blessed archbishop, patriarch, and metropolitan shall call together the very
reverend bishops subject to his authority in the same province once or twice every year, in order, with their assistance, carefully to investigate all controversies which have arisen between bishops, clerks, or monks, decide these controversies, and remedy everything which has been done contrary to the canons by anyone whomsoever.
We forbid the most reverend bishops, priests, deacons, subdeacons, readers, and all other ecclesiastics, no matter of what holy association or order they may be members, to gamble with dice; to take part as spectators in games of chance, where other persons are playing; or to be present at a public exhibition of any kind. If any one of them should violate this provision, We order that he shall be prohibited from performing his sacred duties for three years, and shall be confined in a monastery. Nevertheless, if during the said term of three years, he should evince repentance in proportion to his sin, his superior is hereby authorized to shorten the time, and restore him to the ministry.
The most reverend bishops are notified that they must punish every violation of this law; and if, after having learned of an offence com-•mitted against its provisions, they fail to exact the penalty, they themselves will be accountable to God for not doing so. No bishop, however, shall be compelled against his will to remove from his clergy any priest who is under his jurisdiction.
CHAPTER XI.
No ONE SHALL BE EXCOMMUNICATED BEFORE His CASE HAS BEEN DISPOSED OF.
We forbid all bishops and priests to deprive anyone of the holy communion before the offence for which the sacred canons prescribe excommunication has been proved. If anyone, in violation of this provision, should deprive another of the sacrament, he who has been unjustly excommunicated shall be released from the sentence by a prelate of higher authority, and will be entitled to receive the holy communion. But the ecclesiastic who has presumed to exclude him from this sacred rite shall himself be excommunicated by the prelate to whose authority he is subject, for as long a time as the latter may deem advisable, in order that he may undergo a just penalty for what he unjustly did.
No bishop shall be permitted to strike anyone with his own hands; for an act of this kind is unbecoming to a member of the priesthood. If any bishop who has been expelled from the priesthood, in conformity with the ecclesiastical canons, should have the audacity to leave the place in which he was ordered to pass his life, and return to the city from which he has been driven, We order that he shall be placed in a monastery situated in some other region, in order that he may, by the practice of a monastic life, atone for the crimes which he committed while in the priesthood.
CHAPTER XII.
WHO THOSE ARE THAT SHOULD BE ORDAINED PRIESTS.
We do not permit members of the clergy to be ordained unless they are acquainted with letters; or where they do not profess the true faith;
or where their life is not without blemish, and they shall not be ordained if they have had (or have at the time) a concubine or any natural children. They must live chastely, and must have only one lawful wife, who was neither a widow nor separated from her husband, and with whom marriage was not forbidden either by the laws or the sacred canons.
CHAPTER XIII.
CONCERNING THE AGE OF PRIESTS AND OTHER MEMBERS OF THE CLERGY.
We do not permit anyone to be ordained a priest who is under thirty-five years of age, or to become a deacon or subdeacon under twenty-five, or a reader under eighteen years. A woman who is less than forty years of age, or who has married a second time, shall not be made a deaconess in the Holy Church.
CHAPTER XIV. CONCERNING THE WIVES OF MEMBERS OF THE CLERGY.
If at the time of the ordination of a member of the priesthood, no matter to what body or order he may belong, an accuser appears, who states that the candidate is unworthy of receiving ordination, the ceremony must be postponed, and the hearing of the accusation, as well as what We have prescribed with reference to the consecration of bishops, shall be proceeded with. Where anyone who is to be made a deacon has not (as has previously been stated) been married, he shall not be ordained until after an examination conducted by the ecclesiastic who is to confer ordination upon him has taken place, and he has promised to live chastely without lawful marriage; and the prelate who ordains the deacon or subdeacon shall not, when he performs the ceremony, authorize him subsequently to take a wife. Any bishop who permits this to be done shall be deprived of his episcopate.
If, however, after his ordination, any priest, deacon or subdeacon should marry, he shall be expelled from the clergy, and shall be delivered, along with his own property, to the curia of the city in which he is an ecclesiastic. But where a reader marries a second time, or his first wife was a widow, or separated from her husband, or her marriage was prohibited by the laws or sacred canons, he shall, by no means, be promoted to any other ecclesiastical dignity; and if this should take place under any circumstances whatsoever, he shall be deprived of his office and restored to his former position.
CHAPTER XV.
UNDER WHAT CIRCUMSTANCES DECURIONS CAN BE ORDAINED MEMBERS OF THE CLERGY.
We do not permit a decurion, or the incumbent of any office, to be ordained a member of the clergy, in order that no injury may be done to this holy order. If, however, persons of this kind should become
members of the clergy, the result will be the same as if they had not entered the priesthood, and they shall be restored to their former civil condition, unless, perhaps, one of them has embraced a monastic life for not less than fifteen years, as We direct that persons of this kind may be ordained; but, under such circumstances, a portion of their property shall be given to the curia, and the Treasury.
If a decurion, or other official, after having obtained the honor of the priesthood, should marry a wife or entertain a concubine, he shall be returned to the curia, or other civil employment to the status of which he was subject, although he may have been admitted to a clerical organization whose members are not forbidden by the laws or the sacred canons to marry. We decree that this provision shall apply to all other monks who leave monasteries by reason of their promotion to some ecclesiastical dignity, even if they may not have been liable to the performance of civil obligations.
Generally speaking, We forbid everyone of any ecclesiastical rank whatsoever to withdraw from it, and become a layman; for he is hereby warned that if he commits an act of this kind, he will be deprived of the magistracy, office, or charge with which he is invested, and transferred to the curial condition of his city. Those who, while subject to curial obligations, have been ordained members of the priesthood before the enactment of this Our present law, shall comply with the pecuniary requirements of their condition, by means of substitutes, and shall personally be released from the performance of municipal duties.
CHAPTER XVI. ORDINATIONS SHALL BE MADE GRATUITOUSLY.
We do not permit a member of the clergy, no matter what his rank may be, to give anything to the prelate by whom he is ordained, or to anyone else; as We only desire him to pay to the officers of the ecclesiastic who ordains him the fees which they are accustomed to receive, and which cannot exceed their salaries for one year. He must discharge the duties of his ministry in the holy church to which he is appointed, and pay absolutely nothing to the clergy in consideration of his admission; nor shall he, on this account, be deprived of his own emoluments or other perquisites.
The superintendent of a place of entertainment for strangers, of a hospital, of an asylum for the poor and infirm, or of any other religious establishment, or who has charge of any other ecclesiastical administration, shall not give anything for the place entrusted to him either to the person by whom he was appointed, or to anyone else whomsoever. Anyone who, in violation of what We have decreed, acts as donor, recipient, or intermediary in such a transaction, shall be dismissed from the priesthood, be deprived of membership in the clergy, as well as of the administration which has been entrusted to him, and whatever he accepted shall be claimed by the religious establishment of which the individual referred to received the direction, management, or supervision. When he who accepts a gift, or acts as
an intermediary in a case of this kind is a layman, double the amount given him shall be demanded by, and delivered to the religious establishment whose direction, management, or supervision was conferred upon him. Where, however, a member of the clergy of any rank whatever, or the superintendent of a religious establishment, before or after he has been ordained, or any administration or charge has been entrusted to him, desires to offer some of his property to the church in which he is ordained, or to the establishment whose direction or management has been conferred upon him, We not only do not forbid him to do so, but We exhort him strongly to perform this act for the salvation of his soul; for while We prohibit donations from being made to certain private persons, this rule does not apply to churches or other religious establishments.
CHAPTER XVII.
IN WHAT WAY A SLAVE OR A SERF MAY BE ORDAINED A MEMBER OF THE CLERGY.
When a slave is ordained a member of the clergy, and his master is aware of the fact, and manifests no opposition, the slave will become free and freeborn by the mere fact of his ordination. Where, however, the ordination took place without the knowledge of his master, the latter will be granted a year in which to establish the condition of his slave, and recover him. Where a slave who (as We have just stated) has become free by the fact of his ordination, whether this was known or unknown to his master, abandons the ecclesiastical ministry, and adopts a secular life, he shall be restored to his master and to servitude. We, however, permit serfs attached to the glebe to become members of the clergy, even without the consent of their masters, provided that, after having become ecclesiastics, they continue to cultivate the soil as their duty requires.
CHAPTER XVIII. CONCERNING THE FOUNDERS OF CHURCHES.
Where anyone has built an oratory, and reserved to himself and his heirs the privilege of appointing members of the clergy to conduct its service, and he provides means for paying the expenses of the said clergy, and those whom he appoints are worthy to discharge sacerdotal functions, they shall be ordained. When the sacred canons prohibit the persons nominated by the founder from being accepted because they are unworthy, the most holy bishop must ordain others whom he thinks to be better qualified. We order the most reverend members of the clergy to comply with the rules of their churches, and discharge, in every respect, the ecclesiastical duties required of them. The most holy bishop of each city will be careful to ascertain any violations of this law, and the heads of all ecclesiastical organizations will subject those who do not observe it to the prescribed penalty.
CHAPTER XIX.
ALL MEMBERS OF THE CLERGY SHALL HAVE CONTROL OF THEIR OWN PROPERTY.
We decree that priests, deacons, subdeacons, choristers, and readers, to whom We give the name of "clerks," can hold property, whose ownership comes to them from any source whatever; that they shall be permitted, even though under the control of their parents, to give said property away in accordance with law, just as is the case with peculium castrense, and to dispose of it by will; provided, however, that they leave to their children, or if there are none, to their parents, the lawful share to which they are entitled.
CHAPTER XX.
To WHAT PENALTY ECCLESIASTICS ARE SUBJECTED WHO GIVE FALSE TESTIMONY.
Where most reverend priests or deacons are found to have given false testimony in pecuniary cases, it will be sufficient for them to be whipped, suspended from the discharge of their sacred duties for three years, and confined in monasteries. Where, however, they have given false testimony in criminal cases, We order that after having been expelled from the priesthood, they shall undergo the penalties prescribed by law. When clerks belonging to other ecclesiastical orders have been convicted of having given false testimony in any case whatever, either civil or criminaj, they shall not only be deprived of their ecclesiastical offices, but shall also be scourged.
CHAPTER XXI.
ECCLESIASTICS SHALL BE SUED BEFORE THEIR OWN BISHOPS.
When anyone has a right of action against a clerk, a monk, a deaconess, a nun, or a hermit, he must bring suit in the first place before the most holy bishop, to whose jurisdiction both parties are subject; the bishop will hear the case; and if both parties acquiesce in his decision, We order that it shall be executed by the magistrate of the district. Where, however, one of the litigants files an objection within ten days, then the judge of the district must examine the case, and if he finds the decision rendered by the bishop to be just, he shall ratify and execute it, and he who has been defeated a second time will not be permitted to appeal. But where the decision of the judge is opposed to that of the bishop, an appeal will be admissible, and it shall be taken and prosecuted as prescribed by law. If the bishop should decide a case between any persons whomsoever, by virtue of an Imperial command or a judicial order, the appeal shall be brought before the Imperial Council, or the magistrate who has been authorized by the latter to hear it.
(1) Where any one of the most reverend persons whom We have mentioned is accused of a crime before the bishop, and the latter ascertains that the accusation is true, he shall, in accordance with the ecclesiastical canons, deprive the guilty party of the honor and rank with which he is invested, a competent judge shall arrest him, and, after having examined the case in conformity with law, shall decide it. Where, however, the accuser first appears before a civil magistrate, and can prove the charge by a legal investigation, he must do so by means of public documents and evidence, before the bishop of the diocese ; and if the defendant should be found guilty of the crime of which he is accused, the bishop shall then, in accordance with the ecclesiastical canons, deprive him of the honors and rank with which he is invested, and the judge shall punish him as prescribed by law.
But if the bishop should not think that the evidence is sufficient, he shall be permitted to postpone the deprivation of the accused of his honors and rank, the latter shall be kept in confinement, and the case shall be referred to Us, or to the appointing magistrate, in order that, after having examined it, such a disposition of it may be made as We
deem proper.
(2) When anyone has a right of action in a pecuniary case against any of the persons previously mentioned, and the bishop postpones its examination, the plaintiff will have a right to apply to a civil magistrate, but the accused person shall, under no circumstances, be compelled to give a surety, and shall only furnish security by the hypothecation of his property, without being sworn. When a criminal charge is brought against any of the persons aforesaid, he who is accused must be placed under lawful restraint. Where, however, the suit relates to ecclesiastical matters, civil judges will have no jurisdiction whatever; but the most holy bishop shall hear and determine it in conformity with the sacred canons.
CHAPTER XXII.
BISHOPS SHALL BE SUED BEFORE THEIR OWN METROPOLITAN AND SHALL NOT BE REQUIRED TO FURNISH SECURITY WITH REFERENCE TO LITIGATION.
Where any most holy bishop has a controversy with another bishop of the same synod, whether with reference to an ecclesiastical right, or concerning other matters; the metropolitan, along with the other prelates of his synod, shall hear and determine the case; and if both parties do not acquiesce in the decision, then the Most Blessed Patriarch shall take cognizance of the case, and decide it in accordance with the ecclesiastical canons and the laws, without either party being allowed to call his decision in question.
But where suit is brought by a clerk, or anyone else, against a bishop, with reference to any matter whatsoever, the case shall be decided by the Most Holy Metropolitan, in conformity with the sacred canons and Our own laws, and if any of the parties should question the decision, an appeal may be taken to the Most Blessed Archbishop of
the diocese, and he shall dispose of it in conformity with the canons and the laws. Where, however, an action of this kind is brought against a metropolitan by a bishop, a clerk, or any other person whomsoever, the most blessed patriarch of the diocese shall hear and decide it in the same way. But in all other cases in which bishops are sued before their own metropolitan, patriarch, or any other magistrate whomsoever, no bond or security shall be required of them; provided, however, they take care to free themselves from responsibility in the actions brought against them.
CHAPTER XXIII.
STEWARDS AND OTHER ADMINISTRATORS SHALL BE SUED BEFORE THEIR OWN BISHOP.
We order that stewards, superintendents of places for the entertainment of strangers, of hospitals, of asylums for the poor and infirm, and of other ecclesiastical establishments, as well as all other clerks, shall, so far as the management of the affairs entrusted to them is concerned, be sued before the bishop to whose authority they are subject, to compel them to render an account of their administration, and to recover what they are ascertained to owe to the said ecclesiastical establishments. Where, however, any of these officials think that they have been injured, the metropolitan shall hear the case, after the amount to be collected for them has been determined; or the Most Blessed Patriarchs shall decide it, if the account was rendered before a metropolitan, or if he has ordered restitution to be made. For We do not allow the above-mentioned administrators, when their official conduct is in question, to leave the jurisdiction of their own bishops, and have recourse to other tribunals, before the examination has taken place, and the balance which they owe, has been paid. Where an ecclesiastic, or any official of this kind dies before having rendered his accounts, and turned over the remainder due, We order that his heirs shall be required to render them and make payment in the same way.
CHAPTER XXIV.
BISHOPS SHALL BE SUED IN THE PLACE WHERE THE CAUSE OF ACTION AROSE.
Where a bishop or clerk belonging to any province whatsoever is in Constantinople, and someone wishes to bring an action against him, this must be done where the transaction took place, and the case shall be heard there. But where proceedings have not yet been instituted, the defendant shall answer those who sue him, before the Most Glorious Praetorian Prefect of the East, or such judges as We may appoint.
CHAPTER XXV. CONCERNING APOCRISARII.
The most reverend apocrisarii of every church, who either reside here, or, having been ordained by their bishops, are sent to the Most
Blessed Patriarchs or Metropolitans of this city, shall accept no summons, and shall sue no one in the name of their bishops, in any matter in which the Church is interested, or for a public or private debt, unless they have obtained a mandate for this purpose from their bishops or stewards; for it is only under such circumstances that We permit those who are sued by apocrisarii to set up defences against their church or their bishop, when they have any to make. But when apocrisarii individually contract obligations having reference to certain cases or actions, they must answer in person when suit is brought against them.
CHAPTER XXVI.
BISHOPS SHALL NOT BE SUED DURING THE TIME THEY ARE ACTING AS DELEGATES.
When bishops or clerks come to this Royal City, or go elsewhere, in the capacity of delegates representing either their town or their church, or for the purpose of conducting the ordination of a bishop, We decree that they shall not be annoyed or molested by anyone whomsoever, and that those who allege that they are their creditors can only sue them after they have returned to their province; the said creditors, however, shall not, so far as any rights of action to which they think that they are entitled are concerned, be prejudiced by reason of temporary prescription during the time that they allowed to elapse under such circumstances.
CHAPTER XXVII.
MONKS SHALL DEFEND THEMSELVES BY AN ATTORNEY; AND CONCERNING THE AMOUNT OF FEES TO BE PAID.
Whenever a suit is brought, and a legal summons is served, or an execution is issued in any civil proceeding whatsoever, either public or private, against a clerk, a monk, a nun, or a monastery, and especially against a monastery of women, We order that notice of it shall be given without the commission of any injury, and with all due respect under the circumstances, and that the nun or the hermit who is sued shall not be taken from his or her monastery, but an attorney shall be appointed to answer in the case.
Monks shall, either in their own proper persons, or by an attorney, be permitted to conduct cases in which the monastery is interested, and the judge or judicial officer who violates this law is hereby warned that he will be deprived of his place; that a fine of five pounds of gold will be imposed by the Most Magnificent Count of Private Affairs; and that the official who executed orders of the tribunal will, in addition to this, be scourged and sent into exile.
The most holy bishops of the dioceses will see that these provisions are not violated in any respect, and that if they should be, that the punishment above mentioned is inflicted, and they must notify Us whenever it becomes necessary for the judge to impose a different penalty.
CHAPTER XXVIII.
CONCERNING THE AMOUNT OF COSTS TO BE PAID WHERE MEMBERS OF THE CLERGY ARE CONCERNED.
We do not permit persons who discharge any ecclesiastical duties whatsoever (such for instance as deaconesses, nuns, and male and female ascetics), when they receive a legal notice in this Royal City, or in the provinces in which they reside, to pay more than four siliquse by way of fees, in any kind of a criminal or civil case, no matter what may be the value of the property involved. If a judicial officer sent by Our command to a magistrate, or a most blessed patriarch, serves a summons on any one of the persons above mentioned in another province, he will not be entitled to receive more than one siliqua. Where a large number of such persons are made defendants in one and the same case, We order that one of them shall pay the fees for all.
A bishop shall not be subject to the payment of any fees on account of matters in which his church is interested; and if any are demanded under such circumstances, they must be paid by the stewards, whose duty it is to defend suits brought against the church, or by other persons who may be designated for this purpose.
Anyone who presumes to collect fees in violation of the provisions above mentioned shall be compelled to pay to the person from whom he exacted them double as much as he received; if he is the incumbent of an office he shall be deprived of it, and if he is a clerk, he shall be expelled from the priesthood.
CHAPTER XXIX.
NEITHER CLERKS NOR BISHOPS SHALL HAVE SUPERINDUCED WOMEN IN THEIR HOUSES.
We forbid priests, deacons, subdeacons, and all members of the clergy who do not have wives in accordance with the sacred canons, to keep any superinduced woman in their houses, unless she is their mother, their sister, their daughter, or some other female who will not give rise to suspicion. If any clerk, in violation of this rule, should keep a woman in his house who can render him suspected, and, after having been notified once or twice by his bishop or his clergy to cease to live with her, is not willing to send her away, or an accuser appears who proves that he is living unchastely with a woman, the bishop shall expel him from the priesthood, in accordance with the ecclesiastical canons, and he shall be delivered up to the curia of the city of which he was a clerk. We also forbid prelates to keep women, or to live with them. If a bishop should be convicted of not having conformed to this rule, he shall be expelled from the episcopate, for he has shown himself to be unworthy of the priesthood.1
1 "Superinduced women, of course, were identical with those known as 'subintroduced' in mediaeval times, that is to say members of sacerdotal harems.
CHAPTER XXX. CONCERNING DEACONESSES.
We, by no means, permit a deaconess to live with a man where there may be good reason to suspect that she is leading an immoral life. If a deaconess should disregard this warning, the prelate to whose authority she is subject shall notify her to send the man away from her house, and if she manifests any hesitation in complying with this notice, she shall be deprived of the exercise of her ecclesiastical functions, and her own emoluments, and shall be placed in a monastery to remain there all her life. When she has any children, her property shall be divided among them per capita, in such a way that the monastery shall receive the share to which the woman herself is
In the early ages of the Church, the entertainment of females of the kind for the relief of the physiological necessities of the gentlemen of the clergy, even after it had ceased to be authorized by the Canon Law (as was the case at first), being almost universal, not only failed to excite comment, but was regarded by the laity as a well-established right of the priesthood, and a necessary incident of ecclesiastical life. The sale of licenses for this purpose, which priests and other orders of the clergy were obliged to pay for whether they availed themselves of the privilege or not, long constituted one of the most lucrative perquisites of the English episcopacy. The focaria, or regular inmate of the priestly household, was declared by authorities well versed in the Civil and Canon Law to be exempt from the jurisdiction of secular magistrates, on the ground that she was a member of a clerk's family, which not only secured her immunity from molestation by the ordinary tribunals, but conferred upon her a degree of social importance which would not otherwise have been attainable without the performance of the marriage ceremony."
After the Church considered it advisable, at least nominally, to attempt to suppress this abuse, the penalty imposed—forfeiture of the living and expulsion from the priesthood—was found to be grossly inadequate, even if the necessary evidence could be obtained, which, owing to the obstacles thrown in the way of the investigators, whose connivance was often more than suspected, was always a matter of extreme difficulty. It was only when the offence was unusually flagrant that a culprit could be made the subject of ecclesiastical justice. The fulminations of popes and councils had, moreover, comparatively little effect, on account of the widespread profligacy of the age, and the unconcealed remissness of the governing prelates themselves. Bribery was frequently resorted to for the purpose of avoiding prosecution and extortion by way of penalty, hence pious concubinage was recognized as a ready and profitable means of replenishing the royal exchequer. In England, during the thirteenth century, all subintroduced women who could be found were arrested by the order of King John, and their sacerdotal paramours forced to redeem them by the payment of enormous sums of money. "Presbyterorum clericorum focarix, per totam Angliam, a ministris regis capias sunt, et graviter ad se redimendum compulsx." (Matthew Paris, Chronica, 156.)
The offspring of these illicit unions enjoyed a quasi legitimacy, and often acquired by will the benefices of their fathers, as well as no inconsiderable amount of the property of the Church. Their prolific character is evidenced by the fact that the offspring derived from them equalled in number the issue of legitimate marriages among the laity, and the phenomenal sexual appetite and virility of one reverend prelate was attested by his paternity of sixty-five children.
The successful resistance of the clergy of what they considered an encroachment on one of their most cherished privileges, combined with the general laxity of morals, prevented for centuries the actual reform of public clerical incontinence; the records of criminal tribunals and divorce statistics reveal the deplorable fact that its secret practice has never been eradicated.—ED.
entitled, in order to provide for her nourishment and support. Where, however, she has no children, her entire estate shall be divided between the monastery to which she is sent, and the church to which she was originally attached.
CHAPTER XXXI.
CONCERNING THOSE WHO ARE GUILTY OF ABUSE OF A BISHOP OR OTHER MEMBERS OF THE CLERGY IN A CHURCH.
When, during the celebration of the sacred rites in a church, anyone, having entered it reviles the bishop, clerks, or other ministers of the same, We order him to be scourged, and sent into exile. If, however, he should interrupt the service, or forbid it to be conducted, he shall be punished capitally.
This rule shall also be observed with reference to the processions in which bishops or clerks take part, for where anyone is only guilty of abuse, he shall be exiled and scourged, but where he interferes with a procession, he shall be put to death. We order both civil and military magistrates to punish offences of this kind.
CHAPTER XXXII.
THE LAITY SHALL NOT TAKE PART IN RELIGIOUS PROCESSIONS WITHOUT THE PRESENCE OF THE BISHOP, THE CLERGY, AND THE CROSSES.
We forbid all laymen to form religious processions without the presence of the holy bishops and reverend clerks to whose jurisdiction they are subject. For what kind of a religious procession is that in which ecclesiastics do not participate and offer up solemn prayers? We forbid the honored crosses (which priests carry at the head of processions) to be kept anywhere else than in religious houses; and it is only when processions are necessary that those who ordinarily carry the holy crosses receive them. Hence processions shall be composed of bishops and the clergy; and the most holy prelates of the different dioceses, together with the clerks, and the magistrates of the district will see that this rule is enforced.
If any one of the persons mentioned in this Chapter should transgress this Our law, or fail to punish its violation, he will be liable to the aforesaid penalties at the hands of the most reverend monks and monasteries.
CHAPTER XXXIII.
It remains for us to establish regulations for the sacred monasteries and most reverend monks, therefore, first of all, We decree as follows:
Here the entire first chapter of Novel V is translated into Greek.
CHAPTER XXXIV.
AN ABBOT SHALL BE CHOSEN NOT so MUCH ON ACCOUNT OF His TERM OF MONASTIC SERVICE AS BECAUSE OF His
GOOD REPUTATION.
Hence We order that an abbot or an archimandrite, who is ordained in any monastery whatsoever, shall not be selected on account of his monastic rank, but that all the monks who enjoy the best reputation shall choose their head in the presence of the Holy Gospels, stating at the time that their choice is not influenced by friendship, or by any other motive, but that they make the appointment for the reason that they know that the candidate professes the true faith, that his life is chaste, that he is worthy of governing, and that he can maintain discipline among the monks, and observe all the rules of the monastery, and then the most holy bishop within whose jurisdiction the monastery is situated shall ordain as abbot the person who has been elected in this way.
What We have stated with reference to the ordination of abbots shall also apply to monasteries of women, and to hermitages.
CHAPTER XXXV. CONCERNING THE NOVITIATE OF MONKS.
When anyone wishes to enter the monastic life, and is known to be exempt from civil obligations, We authorize the abbot of the monastery to admit him, if he thinks it advisable. But where the candidate is not known, or is subject to certain civil disabilities, he shall not be admitted before the expiration of three years, in order that, during this time, the head of the monastery may ascertain his status. Where anyone appears within three years, and says that the novice is a slave, a tenant, or a serf, and that he entered the monastery to avoid cultivating the soil, or because he has committed a theft or some other offence, he shall be returned to his master, together with the articles which he is proved to have brought with him into the monastery, and the master shall, before taking him back, swear that he will not inflict any punishment upon him.
But where no one of this kind appears within three years, and the novice is not molested, and no demand is made for him, the abbot of the monastery must admit him to the order after the lapse of the said term of three years, if he deems him worthy, and no one shall afterwards be permitted to annoy him with reference to his condition as long as he professes a monastic life. Nevertheless, any property which he is ascertained to have brought into the monastery shall be entirely returned to its owner. But where anyone, who has once assumed the monastic habit, afterwards leaves the monastery, adopts a secular life, and wanders about through towns and country, he shall be restored to his original status.
CHAPTER XXXVI. MONKS SHALL OCCUPY THE SAME ROOM.
In all monasteries which are called caenobia We order that, in accordance with the monachal canons, all the inmates shall sleep separately in one room in order that they may be able to testify as to the chaste conduct of one another; unless, however, where some of them, on account of their monastic experience, or their old age and bodily infirmities, desire to live quietly in retired cells within the monastery, they can do so with the knowledge and consent of the abbot. This rule shall be applicable to nunneries, as well as hermitages, but We do not permit them to apply to any other monasteries of Our Empire.
Where a monastery is inhabited by persons of both sexes, We order that the men shall be absolutely separated from the women, that the women shall continue to live in the monastery in which they are at the time, and that the men should build another. Where there are several monasteries, and it is not necessary to build new ones, the most holy bishop of the diocese shall place the monks with other monks, and the nuns with other nuns, being careful to establish them in different monasteries; and any property they hold in common shall be divided among them, in accordance with the rights of all. The women shall, themselves, select either a priest or a deacon to represent them, or to administer the holy communion to them, and the reverend bishop must appoint someone for this purpose whom he knows to profess the true faith, and to lead a blameless life. If, however, the person whom they select is neither a priest nor a deacon, and, notwithstanding this, the bishop thinks him worthy to have charge of the monastery (as has already been stated), he shall ordain him apocrisiarius, in accordance with the wishes of the nuns, but he will not be permitted to live in the monastery.
CHAPTER XXXVII.
WHERE ANYONE ENTERS A MONASTERY, THE FACT THAT HE is MARRIED AND HAS CHILDREN WILL MAKE NO DIFFERENCE.
Where anyone gives anything to his children or to a stranger as a dowry or an ante-nuptial donation, or where he bequeaths them an inheritance or a legacy under the condition that they marry, or where he leaves them an estate absolutely, or where he provides for restitution, and the conditions are not complied with, We order that these acts shall be invalid and considered as not having been performed, if those upon whom the said conditions were imposed enter monasteries, or become clerks, deaconesses, or hermits; but that the clerks and deaconesses of churches may, by way of consolation, if they remain until the end of their lives in their ecclesiastical status, employ the property given or left under such circumstances in pious works; for We desire that bequests left in this way to persons of both sexes who
enter a monastery or a hermitage, and lead chaste lives, shall, as well as their other possessions, belong to the monastery or hermitage which they entered in the beginning.
But when it is prescribed that if the aforesaid conditions should not be fulfilled, the substitution or restitution shall take place for the ransom of captives, or the support of the poor, We do not permit a provision of this kind to be disregarded.
CHAPTER XXXVIII.
PERSONS WHO ENTER A MONASTERY DEDICATE THEMSELVES AND THEIR PROPERTY TO THE SAME.
Where either a woman or a man embraces the monastic life and enters a monastery, and they have no children, We order that the monastery shall be entitled to their estates. But if any such person should have children, and did not dispose of his property before entering the monastery, and should set apart their lawful share for his children, he shall be permitted, even after entering the monastery, to divide his estate among them; provided, however, he does not diminish the portion that anyone of them is entitled to, but what he does not give to his children shall belong to the monastery. Where, however, he wishes to divide his entire estate among his children, he must, by all means, in doing so, reserve one share for the monastery. But if he who resides in the monastery should die before having distributed his properly among his children, the latter will be entitled to their lawful share of the same, and the remainder will belong to the monastery.
CHAPTER XXXIX.
WHENEVER A BETROTHAL BECOMES OF NO EFFECT ON ACCOUNT OF THE ENTRANCE OF ONE OF THE PARTIES INTO A MONASTERY, THE BETROTHAL GIFT SHALL BE RETURNED.
Where a betrothal takes place between persons in accordance with law, and the man enters a monastery, he will be entitled to the gift which he made; just as where the woman embraces a monastic life she shall only be required to return the betrothal gift which she received, the penalty being remitted, so far as both parties are concerned.
CHAPTER XL.
WHENEVER A HUSBAND OR A WIFE ENTERS A MONASTERY.
But when, during the existence of the marriage, the man or the woman alone enters the monastery, the marriage shall be dissolved without repudiation, after the one who entered the monastery has assumed the monastic habit. If the man should embrace a monastic life he must restore the dowry to his wife, along with anything else that he may have received from her; and he must give her, in addi-
tion, the same share of the ante-nuptial donation to which she would have been entitled in case of his death, in accordance with the terms of the contract as set forth in the dotal instrument. Where the wife enters the monastery, the husband, on the other hand, can retain the ante-nuptial donation, and that part of the dowry stipulated in the case of the death of the woman; and We order that the remainder of the dowry, as well as any other property of the wife which is in the hands of the husband, shall be returned to her.
Where both parties adopt a monastic life, We direct that any dotal agreements made by them shall be void; that the husband shall retain the ante-nuptial donation, and the wife recover her dowry, as well as anything else that is proved to have been given to the husband, in order that each of them may enjoy his or her property without sustaining any loss; unless the man did not wish to bestow anything on his betrothed, or the latter on the former, or the husband on his wife, or the wife on her husband, as otherwise We do not permit the husband or the wife to profit in any respect by the nuptial agreements.
CHAPTER XLI.
PARENTS SHALL NOT BE PERMITTED TO DISINHERIT THEIR
CHILDREN ON THE GROUND OF INGRATITUDE WHEN THE
LATTER ENTER MONASTERIES.
We do not allow parents to disinherit their children, or children to disinherit their parents, and exclude them from their estates as being ungrateful, when either of them abandons a secular life for a monastic one. We also forbid parents to remove their children from the holy monasteries, when they have adopted a monastic life.
CHAPTER XLII. CONCERNING A MONK WHO ABANDONS His MONASTERY.
If a monk should leave his monastery and enter another, We order that any property of which he was possessed at the time when he departed shall belong to the one of which he first became an inmate. We order the most holy bishops of the diocese to see that neither monks nor nuns wander about through the cities, and where they have any necessary answers to make in court, that they do so by means of their apocrisiarii, without leaving their monasteries. Where a monk who is invested with any dignity or office abandons his monastery to embrace a secular life, he shall first be deprived of his employment, and shall then be returned to the monastery, to which any property of which he is proved to have been possessed when he departed shall belong. If he should leave the monastery a second time, the judge of the province in which he is found shall retain him, and place him among the court officials subject to his authority.
CHAPTER XLIII. CONCERNING THE RAVISHERS op NUNS.
If anyone should ravish, seduce, or corrupt a nun, a deaconess, or any other holy woman wearing a religious habit, We order that his property shall be seized by the most holy bishop of the diocese, as well as by the Governor of any province whatsoever and their subordinates, for the benefit of the religious establishment to which the woman who permitted herself to be seduced was an inmate; that the ravisher, together with his accomplices in the crime, shall be capitally punished; and that the woman shall, with her property, be placed in a monastery where she can be securely guarded, and not have an opportunity to commit the same offence again. But where the deaconess above mentioned has any legitimate children, the share of her estate to which they are entitled shall be given to them. If, within a year after the time when a crime of this kind has become public, the property of those implicated should not be claimed for the benefit of religious establishments, We order the Count of Private Affairs to transfer it entirely to Our Treasury; and We decree that the judge of the district, who neglected to claim said property, shall be deprived of his office, and that the Count of Private Affairs shall collect from him a fine of five pounds of gold.
CHAPTER XLIV.
LAYMEN AND ACTORS SHALL NOT BE PERMITTED TO MAKE USE OF A MONASTIC HABIT.
Generally speaking, We forbid all members of the laity, and especially actors and actresses, as well as prostitutes, to make use of the habit of a monk, a nun, or an ascetic of either sex, or to imitate the costume of any such persons; for those who have the audacity either to wear such garments or imitate them or ridicule the practice of ecclesiastical discipline are warned that they will be liable to corporeal punishment, as well as to be sent into exile. Not only bishops of dioceses, and the clergy subject to their jurisdiction, but also civil and military magistrates and their subordinates, together with public defenders, will see that this rule is observed.
We order that the penalties inserted in the present constitution, which also were prescribed by preceding laws, shall be fully applicable to, and be inflicted for future crimes, as well as for those which have already been perpetrated. But so far as the penalties exclusively prescribed by the present law are concerned, We direct that they shall solely be applicable to offences committed hereafter.
EPILOGUE.
Therefore Your Glory will take measures to see that what We have inserted in the present law is hereafter observed in every respect.
Given at Constantinople, on the Kalends of May, during the reign of the Emperor Justinian, and the Consulate of Basil, Addressed to Peter, Praetorian Prefect.
TITLE VII.
LITIGANTS SHALL SWEAR AT THE BEGINNING OF AN ACTION THAT THEY HAVE NOT PROMISED TO GIVE ANYTHING TO THE JUDGES AND THAT THEY WILL GIVE NOTHING HEREAFTER. CONCERNING FEES. REFERENDARIES WILL DO WHAT THEY ARE ORDERED WITHOUT INTERFERING WITH THE JUDGMENTS RENDERED, WHICH THEY THEMSELVES MUST SEE ARE EXECUTED.
ONE HUNDRED AND TWENTY-FOURTH NEW CONSTITUTION. The Emperor Justinian to Peter, Most Glorious Praetorian Prefect.
PREFACE.
We promulgate the present law in order that the integrity of judges may be made apparent, and that nothing contributed by litigants may effect evasion of the laws.
CHAPTER I.
Therefore We order that whenever actions or appeals are brought before any judges or other magistrates, the principal parties, or those to whom the prosecution of the suit has passed in the meantime, shall swear in the presence of the Holy Gospels and the judges that they have neither given nor promised anything to the latter or to anyone else, and that they will not do so, either in person or by the agency of anyone whomsoever, in order to obtain the favor of said judges; with the exception of the ordinary fees advanced by litigants to advocates to represent them, and to such other persons as Our laws authorize payment to be made.
We decree that these rules shall be observed in Our Imperial Consistory, whenever consultations are applied for there, and that the above-mentioned oath shall be administered in the presence of the Senate. When (as sometimes happens) some of the litigants cannot appear in court, We order that those who do appear shall be sworn, and that some of the court officers shall then be dispatched to the absent litigants along with the adverse parties, in order that they may take the oath in their presence. But where one of them is a woman, and she, on account of her natural timidity, is not accustomed to appear before strange men, the officers sent by the magistrate shall take her oath without the adverse party being present. Where both parties, or either of them, happen to be in different places, We order that the one who is absent shall be publicly sworn, in the manner in which We have just mentioned, either before the judge of the province where he resides, or in the presence of the public defender.
We desire that this present constitution shall be so strictly observed that, if one of the litigants, when either absent or present, should refuse to take the prescribed oath, and the judge is notified of the refusal, he shall be deprived of his right of action, if he is the plaintiff; and that judgment shall be rendered against him if he is the defendant.
CHAPTER II.
WHERE A LITIGANT, REPENTING OF His ACT, MENTIONS THE NAME OF PERSONS TO WHOM HE GAVE SOMETHING.
Where one of the litigants states that he has given or promised something to any person, and mentions his name, and proves what he alleges, he will deserve to be pardoned after the case has been decided; and when it is a pecuniary one, he who received the gift or accepted the promise shall be compelled by the Count of Private Affairs to pay three times the amount of what was given or agreed upon; and, in every instance, the official shall lose the dignity or public employment with which he is invested.
Where the accusation is a criminal one, he who, by accepting a bribe, hastened to take upon himself the crime of another, shall be subjected to the confiscation of his own property, and be sent into exile. When, however, the litigant is unable to prove that anything was either given or promised, he who is said to have received the gift or accepted the promise must swear that he did not do so, either in person or by someone else, and this oath having been taken, he shall be discharged; and the litigant who was unable to establish his allegations shall, where the case involves the payment of money, be required by the Count of Private Affairs to pay the value of the property in litigation, after it has been appraised, and he must then abide the result of the trial. In criminal cases, he who is not able to prove his statements shall have his property confiscated, and the case shall be • decided by competent judges in accordance with law.
When a litigant swears that he neither gave nor promised anything, and within ten months after the decision has been rendered it is ascertained that he did give something, the aforesaid penalty shall be imposed both upon the giver, and the receiver of the gift. In cases prosecuted by guardians or curators, they must be sworn; and where there is ground for the infliction of any of the penalties above mentioned, growing out of the oath aforesaid, the guardians or curators shall alone be liable to them, without the rights of those subject to their guardianship or curatorship being prejudiced in the slightest degree.
CHAPTER III.
CONCERNING THE PROHIBITION OF ILLEGAL FEES.
We also order that throughout the entire extent of Our Empire, both military and civil magistrates shall take measures to prevent the executive officers of judges, prefects, and other magistrates from
collecting, under the pretext of fees, anything whatsoever in excess of what is provided by Our laws; even though the said officers may rely upon an Imperial mandate issued by Us; and wherever they detect any officer in exacting more than he is entitled to, they are authorized to arrest and imprison him, and exact from him fourfold the amount of the excess which he received; so that when the simple loss is returned to the person who suffered it, three times that shall be paid into Our Treasury. Where a civil or military magistrate after having, in any instance, been applied to neglects (as We have already stated) to redress the wrong of the injured party, quadruple damages shall be collected from him in the manner aforesaid; and We order that this penalty shall be exacted by the Count of Our Private Affairs. And when competent judges fail to punish their executive officers, who extort anything by way of fees, in contravention of Our laws, after they have become aware of the fact, We permit those on whom the demand is made to give no more than what is prescribed by Our Constitution, and if the officers should attempt to collect anything in excess of this, the former are hereby authorized to resist them.
CHAPTER IV.
A JUDGE SHALL NOT COMPEL PERSONS TO EFFECT A COMPROMISE.
As a law enacted by Our Father, of pious memory, as well as by Ourself, forbade ordinary judges to insert in their decisions anything whatsoever based on an Imperial order not committed to writing, and as this law also provided that the eminent referendaries must publish Our mandates in the proper manner, We hereby confirm it, and prohibit the said referendaries and their associates, whenever they take cognizance of cases within their jurisdiction, or when they submit any questions to Our Majesty, from detaining a litigant, either in his own person, or when he is represented by someone else, in order to make him agree to a contract to collect nothing under a bond, and compel him to compromise, or come to terms with his adversary; and, in conclusion, We forbid them to interfere in lawsuits of any description; for We, in every proceeding whatsoever, only authorize these officials to notify regular judges, or those who have been specially appointed by Our commands issued either in writing or verbally.
If one of them should presume to violate the present law, the litigant who has sustained any loss, or who has been treated unjustly with reference to his property, shall suffer no infringement of his rights. The guilty official, however, shall be compelled by a competent judge to make good, out of his own estate, the loss sustained by the injured person, and he shall also be deprived of his office and his rank.
We order that these rules shall be applicable not only to future cases, but also to such as have already been begun but have not yet been terminated.
EPILOGUE.
Therefore Your Eminence will see that this law, which shall always be observed, is brought to the knowledge of Our subjects by means of formal edicts published in the Royal City, in order that all persons may be informed of what We have decreed for their common benefit.
Given under the Consulate of Basil.
TITLE Vill.
JUDGES SHALL NOT WAIT FOR IMPERIAL ORDERS, BUT SHALL DECIDE IN WHATEVER MANNER THEY THINK
BEST.
ONE HUNDRED AND TWENTY-FIFTH NEW CONSTITUTION. The Emperor Justinian to Gabriel, Most Glorious Pratorian Prefect of the East.
PREFACE.
As many magistrates, after long arguments have been made and great expense incurred by persons in cases tried before them, refer them to Us, We have deemed it necessary to suppress this abuse by means of a general law, in order that litigation may not be protracted, and that new trials may not result.
CHAPTER I.
Therefore We order all judges not to refer to Us, in any way or at any time, suits which have been brought before them, but to examine them carefully, and make such disposition of them as may appear to be just and lawful; and where all the parties interested acquiesce in their decisions, they shall be executed in conformity with law. But where one of the litigants thinks that he has been injured by a decree, he can avail himself of the right of appeal, and the case shall then be heard and determined in the order prescribed by law. Where, however, two or more judges hear a case, and are of different opinions, We order each of them to render his decision in accordance with what seems to him to be proper.
Your Highness, together with all superior and inferior magistrates, will exert yourself to see that the provisions which We have inserted in the present law are observed in perpetuity; so that no one may be ignorant of what We enact for the benefit of Our subjects, and that notices are issued in such a way as to occasion them no unnecessary expense.
Given at Constantinople, on the Ides of October, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE IX.
A COPY OF THE IMPERIAL FORM HAVING REFERENCE TO
APPEALS.
ONE HUNDRED AND TWENTY-SIXTH NEW CONSTITUTION.
The Emperor Justinian to Peter, Most Glorious Praetorian Prefect of the East.
PREFACE.
The most Holy Princes Theodosius and Valentinian expressly set forth in a law that the Quaestor of the Imperial Palace, along with the Prefect of the Praetors of the East, who temporarily occupies the throne of Your Excellency, shall examine cases which have been appealed according to the form of the Imperial Consultations. We have, however, ascertained that in examinations of this kind, things take place which are unworthy of Our Empire and of Our Government. For litigants, agents, and their advocates, as well as all those who perform legal duties in cases taken up on appeal, when they appear before Our magistrates, use the garments, the coverings of the feet, as well as the language which should only be employed by those who appear in the presence of Our Imperial Majesty. In addition to this, the said magistrates render their decisions, not in their own names, but as if We Ourself were present, and were deciding and issuing decrees in Our own person.
CHAPTER I.
We forbid this to be done in the future, in any judicial proceeding whatsoever, and order that the Quaestor of Our Palace at the time in office, along with Your Excellency, to hear suits of this kind with the Imperial Praetorian Prefect, and not render interlocutory decrees in Our name, but in theirs, and to pronounce judgment in accordance with law. The secretaries alone shall discharge their duties in these proceedings and the magistrates are also notified that if anything should be committed in violation of these provisions, while they are determining such cases, they will be considered guilty of treason.
CHAPTER II.
Again, We order with reference to all appeals, that whenever an appeal is taken, and all the parties are present on the last day of the prescribed term, the judges shall without delay hear all the facts of the case, as well as the decision from which the appeal was taken, and render judgment in conformity with law and justice. But when the appellant appears alone on the last day, We direct that if the defendant who has been notified to be present, does not appear on the same day, the judges, after having examined the documents, shall legally decide the case; but if, on the other hand, the defendant should appear, and the plaintiff, after having been notified, does not do so, the judges shall wait not only until the end of the term allowed for appearance, but
also the entire time granted for satisfaction, that is to say, three months. If the appellant should not then present himself, the decision shall not be confirmed by lapse of time; but, as only one of the parties is present in court, the judges shall examine the decision appealed from, and if they find that it has been regularly rendered, they shall affirm it. Where anything has been admitted through negligence, they must correct it, and render judgment in conformity to law. But where the hearing of the appeal had been begun within the prescribed time by both parties, or by one alone, the decision shall not be confirmed by the lapse of two years, but justice and the truth must diligently be taken into consideration; the judges shall render a final decision in the presence of one or both the parties; and We order that the examination of cases of this kind shall not be continued for a longer period, as has been done up to this time in former appeals, but that it shall take place upon the appointed day.
CHAPTER III.
Hence We decree that all judges shall, without fail, receive appeals not forbidden by the law which are brought before them during the prescribed time. But they must give their written acknowledgment of the appeal to the parties litigant within thirty days after it has been taken, and this document shall bear their signature, in order that the parties may, for their own security, give notice of the same to a competent magistrate.
If any judge should neglect to do this, the decision shall be confirmed by lapse of time, and the judge who did not observe what We order shall be compelled to make good out of his own property any loss which the litigant may have sustained because the document granting the appeal was not issued, and he shall, in addition, pay a fine of ten pounds of gold for the benefit of the Treasury of Our Private Affairs.
EPILOGUE.
Therefore Your Glorious Authority, born for the administration of important matters, will take pains to publish the present law in this Royal City, and to promulgate it elsewhere, in order that all Our subjects may learn what they are obliged to do.
TITLE X.
BROTHERS' CHILDREN SUCCEED JUST AS BROTHERS DO, EVEN WHEN THERE ARE ASCENDANTS LIVING. THE RIGHTS OP WOMEN ARE NOT PREJUDICED FROM THE FACT THAT THE ANTE-NUPTIAL DONATION WAS NOT RECORDED, BUT WHERE THE HUSBAND DOES NOT OBSERVE THIS FORMALITY HE WILL GAIN NO PROFIT FROM THE MARRIAGE IP HE DEMANDS IT. WOMEN WHO DO NOT MARRY A SECOND TIME ARE ENTITLED TO THE OWNERSHIP OF A SHARE OF THE ANTE-NUPTIAL DONATION EQUAL TO THAT OF ONE OF THEIR CHILDREN. THE PENALTIES TO WHICH BOTH HUSBAND AND WIFE ARE LIABLE SHALL BE THE SAME WHEN NOTICE OP REPUDIATION is SERVED WITHOUT REASONABLE CAUSE.
ONE HUNDRED AND TWENTY-SEVENTH NEW CONSTITUTION.
The Same Emperor to Bassus, Praetorian Prefect.
PREFACE.
We do not hesitate to amend Our laws whenever We find this to be advantageous to Our subjects. We remember to have enacted one by which We ordered that where a person, when dying, left brothers, and children of another predeceased brother, the children of the latter, as representing their father and entitled to his share, were called to the inheritance on the same terms with the brothers. Where, however, the deceased left an ascendant, as well as full brothers, and the children of a brother who was dead, the brothers were called to the succession along with the ascendants, and the children of the deceased brother were excluded.
CHAPTER I.
THE CHILDREN OF BROTHERS SHALL BE CALLED TO THE SUCCESSION EVEN WHERE THERE ARE SURVIVING ASCENDANTS OF THE FIRST DEGREE.
Therefore We justly amend this provision, and order that where anyone at the time of his death leaves an ascendant, as well as brothers who can be called to the succession along with -their parents, and children of another predeceased brother, the latter shall be called along with the ascendants and the brothers, and shall be entitled to the same share of the estate as their father would have obtained if he had been living. We make this provision with reference to the children of a brother whose father was related to the deceased by both father and mother. We decree this absolutely, and direct that the same order shall be observed when the children of brothers are called
to the succession with brothers alone, or when ascendants are called along with these same brothers.
This provision shall be observed from the Kalends of January of the eleventh indiction.
CHAPTER II.
* WHEN A DONATION IN CONSIDERATION OF MARRIAGE SHOULD BE RECORDED.
Being of the opinion that the subject of this chapter also should be amended, We constitute it a part of the present law. Experience has taught Us that it is advantageous for women that ante-nuptial donations should be recorded in the Bureau of Public Documents, in order that if the original instruments should be destroyed (which may very easily occur) the evidence will always remain upon the marriage register; and We order that the husbands themselves, or those who have drawn up the ante-nuptial donations shall, when these donations amount to more than five hundred solidi, have them recorded, that is to say, in this Royal City, in the Bureau of Public Documents in the office of the Superintendent of the Census, and in the provinces, in the office of the Defender of each town, or in that of those through whose hands documents of this kind should pass.
Where, however, the husband did not cause the ante-nuptial donation to be recorded, We order that it shall become operative so far as the woman is concerned, and that when the time for payment of the donation arrives, that is to say, of a portion of the same, she cannot be opposed on the ground of the failure to record it. When, however, the dotal agreement and the execution of a portion of it gives the husband a right of action for the recovery of the dowry, or even of a part thereof, We order that he shall be deprived of the same when he has not caused it to be recorded in the Bureau of Public Documents, as has just been stated; for when men can have their donations recorded, it seems to Us absurd that the risk resulting from the failure to do so should be incurred by their wives.
CHAPTER III.
A WOMAN WHO DOES NOT CONTRACT A SECOND MARRIAGE SHALL BE ENTITLED TO AS MUCH OF THE ANTENUPTIAL DONATION AS ONE OF HER CHILDREN. As We think that women who do not contract second marriages are worthy of a larger share than those who do, We order that where a woman who has lost her husband refrains from marrying again, she shall, as formerly, have the usufruct of the ante-nuptial donation, as well as the ownership of a share of the same, equal to that of one of her children; so that, under these circumstances, she shall be held to occupy the place of a child.
We decree that this rule shall apply not only to mothers, but also to fathers and other ascendants who do not contract second marriages.
CHAPTER IV. MARKIAGE SHALL NOT BE DISSOLVED WITHOUT CAUSE.
As We long since introduced a law forbidding men and women to serve notice of repudiation upon each other, and to dissolve their marriages (unless for some cause that the law referred to permits), and as We punished persons who violate this provision, We are now about to make a change with reference to the penalties incurred, and We hereby decree, by way of amendment, that no distinction shall exist between those to which the man and the woman are liable, who presume to give notice of repudiation without good cause; but We desire that men who do this shall be subject to the same penalty which women incur when they dissolve their marriages without the causes authorized by Our law; and that the penalty shall be equal for both parties, for We think that it is only just for them to undergo the same punishment when they commit the same offence.
EPILOGUE.
Therefore Your Glory will publish this general law to the inhabitants of this city and the provinces, by means of formal edicts, in order that no one may be ignorant of what We order for the common welfare.
Given at Constantinople, on the Kalends of September, during the twenty-second year of the reign of Our Lord the Emperor Justinian, and the seventh after the Consulate of Basil.
TITLE XI. CONCERNING TAXPAYERS AND OTHER MATTERS.
ONE HUNDRED AND TWENTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to Peter, Most Glorious Praetorian Prefect of the East.
CHAPTER I.
We, being desirous of accomplishing everything which may be of advantage to Our tributaries, do enact the present law, by which We decree that in the month of July or August, of each indiction, there shall be inscribed on the public records in the court of each diocese of Our Most Glorious Prefect, the special lists of assessments for the future indiction. These lists shall state the amount of taxes imposed upon each province or town, for every acre, farm, century, or other property, either in kind or money; and there shall also be stated the amount of taxes payable in kind, in accordance with the rule adopted in each locality, and how much must be paid into the Treasury, and what must be given or expended for various purposes.
Therefore We order that when the lists have been drawn up they shall be sent to the magistrates of the provinces at the beginning of each indiction, that they may be published by the said magistrates
during the months of September or October, in the towns over which they exercise jurisdiction.
We desire that copies of the same shall be despatched without delay, by the Court of the Most Glorious Prefect, in order that people may be informed of the way in which they must pay their taxes. If they should pay any, in addition to those included in the special list of the current year, before the lists for the following year have been recorded, or where they pay them in a province, We order that said payment shall be placed to their credit, among the contributions of the indiction, so that they may not suffer any loss.
If the said lists should not be dispatched to the provinces as aforesaid during the time which We prescribe, the officials in charge of Our Prsetorium shall pay a fine of thirty pounds of gold, and one of twenty-five shall be exacted from them in every province. And if any judge to whom the special lists are sent does not publish them in the provinces, he shall be condemned to pay a fine of ten pounds of gold, and be deprived of his office, and a fine of the same amount shall be collected from his court.
CHAPTER II.
We order that all taxes payable in kind shall be delivered at the commencement of each indiction; but that those which are payable in money shall only be due at certain specified times.
CHAPTER III.
We have decreed with reference to fiscal payments, that partial or full receipts shall be given to all taxpayers by the receivers of taxes, in which it shall be stated in what way the payment has been made, as well as the number of acres, the names of the farms, centuries, and other possessions on which the taxes are levied. If the said officials do not give receipts in the manner above stated, We order that a fine of ten pounds of gold shall be exacted of them, and that they shall be subjected to corporeal punishment; and We also order that a fine of ten pounds of gold shall be imposed upon the judge of the province, if, having been notified, he does not take action, and compel the receivers to give receipts in accordance with the rule which We have established.
CHAPTER IV.
We order that where a taxpayer has any doubts with reference to the property on which fiscal tributes are assessed, or as to the amount of the different kinds of contribution which he owes, those who have charge of the fiscal records shall be compelled by the judge of the province (and in case he should neglect to do so, by the most holy bishop of the diocese) to inform him of the amount of the several tributes due and payable to the Treasury; and We desire that those enumerated in the public lists shall be collected from the possessor of the property.
CHAPTER V.
With a view to the assistance of Our taxpayers and in order that owners of property may not be compelled to give hypothecations for the payment in money of the tenth part of their tax, and may not suffer any injury, We decree that those who are held responsible for fiscal collections in every province, whether they be defenders, collectors, decurions, or other officials, shall collect the sums due at their own risk, and disburse them for the purposes for which they are intended.
CHAPTER VI.
We order that a canonicarius shall continue to be sent into the provinces who can, at the risk of those who appointed him, himself collect the fiscal tributes; and under no pretext whatever shall an inspector be sent after him, nor any. loss be inflicted upon Our subjects by reason of any inspection, for We abolish for the future the name of this official; but where the ca,nonica,rius does not discharge his duties properly, he shall be removed, and another appointed instead of sending an inspector. We order that canonicarii shall be content with the ordinary salaries to which they are entitled, and that they commit no wrong against Our subjects.
CHAPTER VII.
If a superindiction of any possession, whether reserved or tributary should, at any time, take place, We order that its collection shall be made from him who receives the fiscal tribute for the payment of which the said superindictional possession was transferred to him. A superindiction, however, shall only be made by virtue of a rescript, and after having been examined by the judge of the province, who must render a decree in which he shall designate the person entitled to receive the superindiction. When, however, anyone thinks that he is wronged, he shall be permitted to appeal; the appeal shall be heard in the Court of the Most Glorious Prefect, and be decided in accordance with the laws.
CHAPTER Vill.
If the owner of land does not appear, or is unable to pay the tax, so that it may be necessary to impose an additional one, We order that said land shall, together with all the serfs attached to it, and their peculia, implements, crops, animals, and everything else used for cultivation, immediately be given to those who are in possession of the lands dependent upon, or tributary to the same; but where no one can be found who is, according to the law, entitled to receive the superindiction, or where the latter is postponed for any reason whatsoever, We order that documents fully describing the nature and condition of the said land and its appurtenances, shall be drawn up before the judge of the province, in order that the decurions, collectors, or other officials may receive it; and if, afterwards, anyone should be found who is legally entitled to receive the superindiction, it shall be trans-
ferred to him, subject to any deterioration caused by the acts of collectors, decurions, judges, or their subordinates.
CHAPTER IX.
We also order that articles designated transmissoria cannot be exacted from taxpayers, instead of the payment of sums of money and taxes in kind which are expended in the provinces; and with regard to taxes which are transferred, no larger amount of them shall be paid than was levied in each province in the beginning.
CHAPTER X.
Officials who are despatched into the provinces for the purpose of making any public collection whatsoever shall not proceed to accomplish the object of their errand before having notified the judge of the province of the orders with which they have been entrusted. We issue this decree to prevent persons who pay fiscal tributes from being subjected to risk or loss on this account, and this provision shall be observed with reference to private affairs.
CHAPTER XI.
We order those who are charged with the duties of collecting fiscal tributes not to attempt to excuse themselves by alleging that they are occupied with private business, and if such a duty should be imposed upon them, they must, under no circumstances, presume to act, for We do not desire Our subjects to be injured on account of public
claims.
CHAPTER XII.
But where anyone who actually owes public taxes informs the collector that another person is his debtor, the collector shall not be allowed to annoy the latter, unless he who actually owes the tax has previously shown that he is unable to pay it himself. It must, however, be ascertained before the judge of the province whether he who has been declared by the taxpayer to be indebted to him is so in fact; and if this should be proved, the latter is the one from whom the tax must be collected. But in either event, if a collector should presume to demand or exact an amount more than We have prescribed, he shall be deprived of his office; his property shall be confiscated; he shall be sent into exile; and the judge who gave him the order or instructions shall be subjected to a fine of ten pounds of gold, and his court shall pay one of five.
CHAPTER XIII.
We absolutely forbid any person charged with the collection of public tribute, as well as the officers of the census, those who keep the accounts, and any other public officials, no matter who they may be, to avail themselves of the excuse that they reside in a sacred place, in order to evade the claims of those who allege that they have been injured by them in the collection of taxes.
CHAPTER XIV.
No one, whosoever, shall be molested because of taxes on land which he does not possess; but where farmers or serfs belonging to someone have any real property in their own possession they themselves must pay the taxes on the same, unless the owner thereof voluntarily agrees to do so.
CHAPTER XV.
We order that those who collect public taxes shall use proper weights and measures, in order not to injure Our taxpayers in this respect. Where, however, taxpayers believe that they have sustained loss through the weights and measures employed by collectors, they shall be permitted to receive from the Most Glorious Prefects others intended to weigh or measure articles in kind delivered as taxes, and from the Most Glorious Count of the Imperial Largesses, those used to weigh gold, silver, and other metals; and the said weights and measures shall be kept in the church of each town, and shall be exclusively employed in the determination of the quantities of articles to be delivered by taxpayers, as well as in the apportionment of tributes, the payment of soldiers, and other matters of this description.
CHAPTER XVI.
We, turning Our attention to what may be advantageous to the cities of Our Empire and their inhabitants, do hereby forbid tax collectors otherwise to employ the sums destined for public works for the supply of the granaries of cities, or for any other objects or salaries whatsoever, or to retain any of said sums, or to profit by them in any way; but We order them to be paid over without delay or diminution, so that they may immediately be used for the purposes for which they were intended. The owners of land and the inhabitants of towns will not, under any pretext whatsoever, be permitted to diminish these sums in the slightest degree, neither on the ground of tributes, fees, or any other expenses. If anyone should presume to give or receive any portion of the said sums, We order him to pay to the town double the amount out of his own property. Neither the judges of provinces, their attendants, nor anyone else shall take part in the expenditure of these sums of money, or interfere with their payment; but the most holy bishop of the diocese, the principal citizens, and the owners of property shall appoint the curator of the city, the officials charged with the replenishment of the public granaries, and other administrators of this kind. At the end of the year, the most holy bishop of the city, with five of the principal citizens, shall require an account of the administrators whom they have appointed; and if it should appear that they are indebted to them, the balance due shall be collected at the risk of those who appointed them, and be employed for the purpose for which it was 'destined. Where an official is found to be incompetent to discharge his duties, We order that he shall be promptly removed by the most holy bishop of the city, and the other owners
of property (as has already been stated), and We warn the latter that, if the city should sustain any loss by reason of their appointments, they must make it good out of their own estates.
CHAPTER XVII.
None of those who are employed in the office of the Most Glorious Prefects, or in any other, or who are members of the Association of the Constituti, shall be permitted to audit the accounts just mentioned; for the said officials are only charged with receiving said accounts, whether they do this by virtue of the order of any administrator, or in compliance with the written order of a magistrate, or under the authority of a pragmatic or other sanction, or of an Imperial mandate. If, however, anything of this kind should be done, the most holy bishop, and the principal citizens of every city, shall be allowed to disregard their claims, and the matter shall be referred to Us; so that, having been informed of it, We may order that the loss incurred by their cities may be made good by the said officials, and that We may impose a suitable penalty upon them.
CHAPTER XVIII.
We also order the secretaries of public works, who are subject to the Prefect of the Imperial Praetors, to take no part in the auditing of accounts; and We hereby annul all the orders by which, either generally or specially, this right has been accorded, as well as those whereby others may hereafter be obtained, and We do not desire examination of the accounts having reference to these subjects to be committed to any of them, unless We may consider it advantageous for the cities to select for this purpose some person of good repute, who is of eminent rank; and then he whom We appoint shall receive from Us a written order bearing Our signature, and stating the name of the appointee, as well as his dignity, the causes, and the time for which the examination of the accounts is entrusted to him. We decree that those who require the rendition of accounts by such officials shall enjoy perfect security, and shall not, themselves, afterwards be subjected to investigation.
CHAPTER XIX.
In addition to this, We decree that, in no part of Our Empire, shall a bishop a£t at the same time as judge and represent the Most Glorious Prefects, or magistrates invested with military office, or have any collection of fiscal tribute entrusted to him; and in order to make this more simple, We forbid any deputy-prefect to be sent into the provinces, unless by virtue of Our order, in cases where haste or convenience require one to be despatched from the prefecture to provide for military expenditures.
When a violation of these rules takes place, a fine of thirty pounds of gold shall be exacted of him who was appointed deputy, and he shall also be obliged to make good all losses occasioned by the person
who appointed him; and he who had the audacity to accept such an appointment shall be deprived of his magistracy, his rank, and his employment, and shall be fined ten pounds of gold.
CHAPTER XX.
In addition to this, We forbid civil and military judges in the provinces to appoint deputies in the cities, camps, or provinces within their jurisdiction to act in their stead and govern in their name; and when this is done a fine of five pounds of gold will be incurred not only by the official who nominated the deputy, but by him who was bold enough to accept the place. We, however, permit Governors, before arriving in the provinces, to send agents there to act for them, with authority to do everything that they themselves could do, while they are absent; but the said agents cannot inflict capital punishment, or sentence anyone to the amputation of a limb. Where, by virtue of Our order, a Governor is despatched to some other region, he will also be allowed to have himself represented by an agent in a similar manner.
CHAPTER XXI.
We order all magistrates, military as well as civil, to personally seek out those who commit theft, violence, and robbery, who ravish women, or are guilty of other illegal acts in the provinces, and inflict legal punishment upon them; and We forbid them, under the pretext of custom, to accept anything for their decisions, in cases of this kind, so that all Our subjects may remain uninjured; for We do not permit any military, superior, or inferior judge to despatch officers into the provinces to pursue thieves; to suppress violence; to appoint tribunes to discharge similar duties, or officers commissioned to examine certain individuals; and We establish this rule lest the appointment of officials of this kind may serve as a pretext for the exercise of even greater acts of violence against provincials.
If any judge should not observe what We have decreed, he is hereby warned that he will not only be deprived of his office, but that he will also be compelled to pay a fine of ten pounds of gold as a penalty for his audacity, and that, after having been subjected to corporeal punishment, and the confiscation of his property, he will be relegated and sent into exile.
CHAPTER XXII.
Moreover, We order that provincial judges and their subordinates, whenever they go from one city to another, shall not exact anything for post-horses, or other expenses; but We desire them to pay for these things out of the salaries allowed them by the Treasury.
CHAPTER XXIII.
In addition to this, We order that the provincial judges shall, by all means, remain there for fifty days after they have relinquished their office, and answer in any suits which may be brought against
them. If any Governor should happen to leave his province before the term of fifty days has expired, We decree that all those who have suffered any wrong at his hands shall appear together before the most holy metropolitan bishop of the same province; that each one of them shall, with his hands on the Holy Gospels, state publicly the loss which he has sustained; and that this loss shall be made up to him out of the property of the magistrate against whom such allegations are made through the diligence and on the responsibility of the Prefects of the said province, who are hereby notified that if they neglect to execute what We have enacted, they, themselves, will be compelled to make complete restitution to the persons who have been injured.
CHAPTER XXIV.
If any provincial magistrate should be called to some other government, or assigned to duty in another province, We order that he shall cause himself to be represented by means of a lawfully appointed agent, in any actions brought by those who allege that they have been injured by him; and if he does not take the trouble to appoint such a representative, We order (as has been previously stated) that documents shall be drawn up before the most holy bishop, and that all the losses mentioned therein shall be made good in accordance with the character of the acts, in favor of those who have sworn to have sustained the damage; for the prefects in office at the time, as well as the Governors, are equally responsible for the administration of the provinces.
CHAPTER XXV.
We order that all pecuniary penalties prescribed by the present law shall be collected from those who violate its provisions, and shall redound to the profit of Our Treasury, through the efforts of the Count of Private Affairs, and if this official does not exact them, he, together with his court, shall be compelled to pay them.
EPILOGUE.
Therefore, Your Inviolable and Immutable Glory will hasten to bring to the knowledge of all persons, and enforce the regulations which We have established for their benefit by this salutary present law, which shall be observed for all time; and this you will do by means of edicts published in this Royal City, and by notices sent to the illustrious Governors of provinces, so that Our subjects may be informed of them through the agency of these officials.
Given on the Ides of June, during the reign of the Emperor Justinian, and the Consulate of Basil.
TITLE XII.
CONCERNING THE SAMARITES.
ONE HUNDRED AND TWENTY-NINTH NEW CONSTITUTION. The Same Emperor to Ariobindus, Praetorian Prefect.
PREFACE.
Among the offences committed by Our subjects there is not one, no matter how serious it may be, which We do not succeed in suppressing. For although the hatred entertained by Us for malefactors naturally inclines Us to retribution, still We only apply a remedy by admonishing, in the most suitable manner, those who are guilty. We transform Our just anger into clemency, and We yield to kindness, as is the case in the present law.
We have previously imposed a great number of penalties upon the Samarites, who were formerly of ferocious character, and enemies of the Christians, and whose pride was excessive; and We, above all, deprived them of the power of making wills, and when they died intestate We did not permit their property to pass to their relatives called to the succession ab intestato, unless their heirs at law or testamentary heirs professed the true Christian faith. We also forbid them to bequeath legacies, and make donations or any other disposition of their property, when the legatee or donee was not an adherent of the orthodox religion. And, although We prescribed these penalties in a general enactment, We did not exercise the same severity in their application, for We never permitted the Treasury, or any other public person, to derive any advantage from these penalties, although this was expressly provided by the law.
CHAPTER I.
Therefore We, observing that the Samarites are now inclined to act with moderation, think that it is unworthy of Us to subject to the same punishment men who are no longer liable to the same errors, and We, above all, relying upon the just statements which Sergius, the Most Holy Bishop of the Metropolis of Csesarea, has made to Us in their behalf, and the evidence which he has given Us of their improved behavior, and their promise to be peaceful for the future, do enact the present law, by which We authorize the Samarites, from this day, to make wills and dispose of their property, in accordance with the provisions of other laws; and We decree by this one that whenever they die intestate, they, like other men, shall have for their heirs those who are called to the succession of their estates on the ground of intestacy, subject to the exception set forth in the present law. We also grant them authority to make donations, to give and receive legacies, and to enter into other contracts of this kind with absolute freedom. For after We have permitted them to make wills, and dispose of their entire property, how could We refuse them the right to bequeath a portion of it ?
CHAPTER II.
We do not, however, include Christian heirs and Samarites in the same class, but We again grant (and with good reason) a privilege to those who acknowledge the better religion. Wherefore, if a Samarite should die intestate, and leave children believing in God, those alone shall be called to his inheritance who profess the Christian faith, and all others shall be excluded, who are adherents of the heresy which the deceased acknowledged while living.
We render this rule applicable not only to children, but also to other relatives, no matter on which side they may be related to the deceased, so that those who acknowledge the true faith may be preferred to those who do not; but We only establish this distinction when the heirs who are called to .the succession are in the same degree of relationship, and in the same way. For the heirs most nearly related to the deceased are not excluded by others who are more distant, and, even though the latter may be better Christians, We grant the preference or the privilege to the next of kin.
CHAPTER III.
We do not, however, deprive the heirs, who are excluded, of the benefit of repentance. For if those who are deprived of the estate should afterwards adopt the faith of Christians, they shall be called to the succession, and be entitled to their share of the property, just as if they had always been adherents of the true religion; and shall only forfeit the income from their share which has been collected after the death of the deceased. When any Samarite makes a will, We order that it shall be just as valid as if it was written by an orthodox person. But where the father, or any one of the descendants (or even one of the ascendants) wrote it, and all those called in the same degree of inheritance profess the same heresy as their father, he cannot leave them more than one-sixth of his estate, and the remainder shall pass to those who acknowledge the true religion, unless the testator, being a Christian, left some legacies, in which instance they shall be reserved for any that may be willing to embrace the orthodox faith, they being placed on the same footing with the legatees who were Christians from the beginning, as We have provided with reference to intestate successions. Therefore, in cases of this kind, We grant ascendants, descendants, those who profess the true doctrine, and, above all, persons injured by the distribution of the property made by the testator, to bring a complaint of inofficiousness.
CHAPTER IV.
We also permit Samarites to make donations, receive and bequeath legacies, grant freedom to slaves, and enter into contracts with one another, and this law does not repeal any of Our former enactments. We strictly exclude Our Treasury, and every other public person from participating, under the present constitution, in the estates or other property of Samarites. For how can We, with reference to the past,
call so strictly to account those to whom We shall be lenient in the future ? Let all them who are deserving of Our clemency give thanks to God and Ourself, as well as to the Most Holy Sergius, who has been most instrumental in inducing Us to exercise it.
EPILOGUE.
Therefore Your Glory, being aware of Our humanity as disclosed by the present law in favor of the Samarites, will publish in the provinces, by means of formal edicts, the provisions which it has pleased Us to establish, in order that the Samarites may always enjoy their advantages.
Given at Constantinople, on the Kalends of July, during the twenty-fifth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XIII.
IN WHAT WAY SOLDIERS MUST ENTER AND PASS THROUGH CITIES.
ONE HUNDRED AND THIRTIETH NEW CONSTITUTION. The Same Emperor to Peter, Prastorian Prefect.
PREFACE.
We think that the good discipline of Our army, while on its march, is the first and most important requisite to be observed in Our Empire, and that Our taxpayers should not, in any way, suffer from it, and if they do, that they should be indemnified.
CHAPTER I.
Therefore, We order that every time arrangements are made for the passage of Our magistrates and Our armies, commissaries shall be charged with the duty of procuring provisions for them; and the Governors of the provinces which they traverse shall make suitable preparations, so that when Our armies arrive, they may conduct themselves with the greatest propriety. The commander of each corps shall receive supplies without raising any controversy, and these shall be delivered to both the officers and soldiers, in order that they may retain the fifteenth part of what is delivered, for the purpose of subsistence. But they must, as is customary, give receipts to the taxpayers for whatever they have obtained, and these receipts shall be made out on the responsibility of their magistrates, tribunes, counts, diasostse, commissaries, and officers in command of each corps; the soldiers shall take nothing from taxpayers under any pretext, not even on the ground that their provisions are not ready, nor because their "entrance," of which We absolutely abolish the name, being desirous that Our subjects may remain uninjured, and always be secure.
CHAPTER II.
Soldiers must accept the supplies which are found in each locality, and cannot demand others which are not in the same region, nor shall they, on this account, cause any loss or annoyance to Our taxpayers.
CHAPTER III.
We order that the supplies furnished by Our possessors, and whose delivery is evidenced by receipts, shall be credited by Your Highness, without any dispute, loss, or imposition upon the amounts which the taxpayers owe to the Treasury, for the indiction during which the said supplies have been furnished. If, however, these should be found to exceed the amounts which are payable in kind, We order that the taxpayers shall be indemnified for them out of the entire tribute of the same province. If the tribute of the province should not prove to be sufficient for this purpose, those who furnished the supplies shall be reimbursed by the general office of Your Glory; or, indeed, We will cause whatever may be necessary to be reserved out of the taxes paid during the following indiction, and the receivers of fiscal tributes shall credit the taxpayers with a sum equal to the entire expense incurred. All the regulations hereinbefore mentioned shall be observed on the responsibility of Your Glory, as well as by the Governors of provinces and those subject to their authority, the receivers, and all the officials charged with the administration of
tributes.
CHAPTER IV.
We also order that no judge or soldier shall receive anything whatever from any town or land, on account of his passage. If anyone should be detected in violating this rule, We order that he shall be compelled to pay double the amount which he had the audacity to accept.
CHAPTER V.
When anyone of Our judges, soldiers, or those in control of their affairs do not give receipts for the supplies which they receive, We direct that the taxpayers who furnished them shall draw up public instruments in the presence of the Governor, if there is one in the neighborhood, and before the most holy bishop of the city; or where there is no Governor, before the most holy bishop alone, or before the defenders of the district in which the land from which the supplies were taken is situated; and that they shall state in said instruments that Our magistrates, who passed through with the army, did not give them any receipts, and they must also set forth the amount of the supplies which they received. We desire that these instruments shall be sent to Your Glory, and that you then reimburse the taxpayers or credit them for what they have furnished, as We have previously stated, but you must deduct the amount of the supplies stated in said instruments from the emoluments granted by the Treasury to the commanders of the army, and the soldiers who incurred the expense.
CHAPTER VI.
We also order Our military commanders to despatch before them, when they are on the march, diasostse and commissaries, to the places which Our army is to traverse, in order to prepare subsistence for it, and that it may not be necessary to send to other cities, lands, or possessions, for that purpose, or to receive money from them on this account. If they should presume to accept anything as the price of the subsistence which they furnish, We order that instruments should be drawn up, and that it shall be stated in what place and to whom the gifts were made, and whatever is specified in these instruments shall either be credited or reimbursed by Your Glory, in the manner above stated, in favor of those who have sustained any loss; and the commanders of the army and the diasostse and commissaries shall return double the amount which they had the audacity to accept, and the others implicated shall be punished and sent into exile.
CHAPTER VII.
But where the Governors of provinces act in collusion with the diasostse of Our army, by not providing supplies, and under this pretext compel Our soldiers to traverse different cities when they march through the country, We order that, after having been deprived of their offices, they shall, with their subordinates, be condemned to the confiscation of their property, and to exile; for it is in this way by means of receipts, and instruments executed as above stated, that Our subjects are rendered secure from loss.
CHAPTER Vill.
We direct that these regulations shall be observed, not only with reference to the passage of Our magistrates and soldiers, but also with respect to other persons whom We may send into any country whatsoever for the maintenance of Our government.
CHAPTER IX.
In order that the liberty of Our subjects may not be infringed on account of the lodgings which they are compelled to furnish the military, We forbid all Our soldiers to accept quarters in the principal rooms which are used by the owners of houses, and We direct them to leave them free for the occupancy of the latter, and to lodge in vacant apartments.
EPILOGUE.
Therefore Your Glory will communicate the provisions of the present law to the most holy bishops of the neighborhood, the illustrious Governors, and all Our subjects residing in each town and province. Our subjects, having ascertained what We have enacted to protect them from wrong, are notified that if, having been injured, they remain silent as to any violation of Our Constitution, they themselves will be to blame for any losses which they may sustain.
Given at Constantinople, on the Kalends of March, during the nineteenth year of the reign of Our Lord the Emperor Justinian, and the fourth after the Consulate of Basil, eighth indiction.
Published in the City of Constantinople.
TITLE XIV.
CONCERNING ECCLESIASTICAL TITLES AND PRIVILEGES, AND VARIOUS OTHER MATTERS.
ONE HUNDRED AND THIRTY-FIRST NEW CONSTITUTION.
The Emperor Justinian to Peter, Most Glorious Imperial Praetorian Prefect.
PREFACE.
We enact the present law with reference to ecclesiastical rules and privileges and other subjects in which holy churches and religious establishments are intrusted.
CHAPTER I. CONCERNING FOUR HOLY COUNCILS.
Therefore We order that the sacred, ecclesiastical rules which were adopted and confirmed by the four Holy Councils, that is to say, that of the three hundred and eighteen bishops held at Nicea, that of the one hundred and fifty bishops held at Constantinople, the first one of Ephesus, where Nestorius was condemned, and the one assembled at Chalcedon, where Eutyches and Nestorius were anathematized, shall be considered as laws. We accept the dogmas of these four Councils as sacred writings, and observe their rules as legally effective.
CHAPTER II. CONCERNING THE PRECEDENCE OP PATRIARCHS.
Hence, in accordance with the provisions of these Councils, We order that the Most Holy Pope of ancient Rome shall hold the first rank of all the Pontiffs, but the Most Blessed Archbishop of Constantinople, or New Rome, shall occupy the second place after the Holy Apostolic See of ancient Rome, which shall take precedence over all other sees.
CHAPTER III.
CONCERNING THE ARCHBISHOP OF THE FIRST JUSTINIANIAN.
The Most Blessed Archbishop of the First Justinianian shall continue to retain under his jurisdiction and authority the bishops of the provinces of Mediterranean Dacia, of Dacia Ripense, of Privalis, of Dardania, of Upper Mysia, and of Pannonia. He shall himself be
consecrated by his Council, and shall replace the Apostolic See of Rome in the provinces subject to his authority, in accordance with the regulations of the most holy Pope Vigilius.
CHAPTER IV. CONCERNING THE JUSTINIANIAN BISHOP OF CARTHAGE.
In like manner, We preserve the pontifical right which We have granted to the Justinianian bishop of Carthage, a city of Africa, for the reason that God has restored it to Us. Bishops of other cities situated in different localities upon which the metropolitan privilege has been conferred shall enjoy the same in perpetuity. All the rights or benefits which have been conceded to churches, religious establishments or houses, by Imperial munificence, or in any other way, shall be absolutely maintained.
CHAPTER V.
CONCERNING THE PRIVILEGES OF ECCLESIASTICAL POSSESSIONS.
We forbid lands belonging to holy churches and religious establishments in general to be subjected to degrading charges and extraordinary tributes. Where, however, it becomes necessary to repair roads, bridges, or anything else, the churches shall, along with other real property, contribute to this whenever they have land dependent upon the city where work of this kind is necessary. Where any possessions of decurions have been, or may hereafter be acquired by a church or any other religious establishment, We desire that the latter shall be released from liability for such contributions as are designated "lucrative."
CHAPTER VI.
CONCERNING THE PRESCRIPTION OF FORTY YEARS CONCEDED TO RELIGIOUS ESTABLISHMENTS.
We order that instead of temporary prescriptions of ten, twenty, and thirty years, that of forty years can only be pleaded against the most holy churches, and all other religious houses, and this rule shall apply to the collection of legacies and estates bequeathed for pious uses.
CHAPTER VII.
CONCERNING THE CONSTRUCTION OF CHURCHES.
Where anyone wishes to build a private chapel or monastery, We order that nothing shall be done before the most holy bishop of the diocese has offered a prayer upon the site where it is to be constructed, and has planted there a holy cross. But where anyone has once begun the construction of a church, or the repair of an old one, he shall be compelled by the bishop of the diocese, by his stewards, and by the civil magistrates of the district, to complete it; and if he should delay doing so and die, his heirs must finish the work which he has commenced.
CHAPTER Vill.
THE SACRED RIGHTS OF THE CHURCH SHALL NOT BE
CELEBRATED IN THE SUBURBS OF TOWNS, OR IN HOUSES,
FIELDS, OR PRIVATE PLACES.
If anyone should presume to conduct religious services in his own house, or in a suburb, or should permit others to do so without the presence of any members of the clergy who are subject to the authority of the most holy bishop of the diocese, We order that the said house, suburban place, or land, on which an offence of this kind was committed, shall be claimed by the most holy bishop, or his steward, or the civil magistrate, for the benefit of the church of that locality.
Where, however, the owner of the building in which the religious services were conducted was ignorant of the fact, and his curators, lessees, or emphyteutas were responsible, he shall suffer neither loss nor prejudice; but those who conducted the services, or permitted this to be done, shall be expelled from the province where the offence was perpetrated, and their property shall be seized for the benefit of the most holy church of the neighborhood.
CHAPTER IX.
LEGACIES BEQUEATHED TO GOD SHALL PASS TO THE CHURCH OF THE DIOCESE IN WHICH THE TESTATOR HAD
His DOMICILE.
If anyone should bequeath an estate or a legacy in the name of Almighty God and Our Saviour Jesus Christ, We order that the church of the place in which the testator had his domicile shall be entitled to the bequest. But if anyone should appoint a saint his heir, or leave him a legacy, and does not specially designate the place where the religious house dedicated to him is situated, and there are several oratories dedicated to this saint in the same place or city, then the legacy bequeathed by the testator shall go to the poorest one. When there is no church dedicated to the saint, who was appointed heir, in the same city, but there is one in the territory embraced by its jurisdiction, the legacy shall be given to the latter. But where there is no church at all, even in the said territory, then the legacy shall go to the church of the town in which the testator had his domicile.
CHAPTER X. WHERE ANYONE ORDERS AN ORATORY TO BE BUILT.
Where anyone, in his will, provides for the construction of an oratory, a house for the entertainment of strangers, a place of refuge for the poor and infirm, an orphan asylum, a hospital, or any other religious establishment, We order that it shall be completed under the supervision of the bishop of the diocese and the civil magistrate, within five years if it is an oratory, and within a year if it is a house for the
entertainment of strangers, an asylum for the poor and infirm, or any other religious establishment whatsoever. If the heirs of the deceased should not, within a year, erect the said house for the entertainment of strangers, or other religious establishment whose construction was ordered by him, We decree that they shall buy or lease a building in which they can carry out the directions of the testator, until the religious establishment aforesaid is completed.
Where the testator named the persons to be appointed superintendents of houses for the entertainment of strangers, asylums for the poor and infirm, and other religious establishments, or where he left their selection to his heirs, We order the latter absolutely to comply with his wishes, but the holy bishops of the diocese shall see that the superintendents faithfully discharge their duties, and if they should ascertain that they do not make themselves useful, they shall be authorized to appoint others who are better qualified.
CHAPTER XI.
LEGACIES BEQUEATHED FOR THE RANSOM OF CAPTIVES SHALL BE EMPLOYED BY BISHOPS, ETC.
When anyone leaves an estate or a legacy consisting of either movable or immovable property, to be employed either for the redemption of captives, or for the support of the poor, whether it is all to be delivered at once, or in annual installments, his wishes must be faithfully complied with by those whom he charged with this duty. Where the testator specially stated that he left the property to the poor, We order that the most holy bishop of the city in which the testator had his domicile shall receive the articles bequeathed, and distribute them among indigent persons of the same city. But where he left something to be used for the ransom of captives, without expressly stating by whom the ransom should be paid, We also order that the bishop of the diocese, and his stewards, shall receive the property bequeathed, and perform this act of piety; for We desire that the most holy bishops shall see that all such testamentary dispositions are observed in accordance with the intention of the deceased, even though the testator or donor may have specifically forbidden them to do so.
When those whom a testator directed to carry out the provisions of his will defer doing so, after having once or twice been notified by the bishop of the diocese, by his stewards, or by other persons in authority, We decree that they shall be deprived of what was left to them by the testator, and that the bishops of the diocese (as previously stated) shall be entitled to claim not only everything intended for the relief of the poor, and any income of the property which may have been collected and its increase in value, but also whatever the testator left to his heirs to enable them to do what he directed; and the said prelates are hereby notified that if they, themselves, should neglect to comply with the wishes of the testator, they will be accountable to God.
If the most holy bishop of the diocese should fail to obey any of the rules which We have formulated, his most holy metropolitan shall be permitted to claim the legacies, and execute the testamentary dispositions of the deceased, and all other persons are authorized to give information of the failure to perform the pious duties prescribed, and to see that they are accomplished.
CHAPTER XII.
THE FALCIDIAN LAW DOES NOT APPLY TO LEGACIES LEFT FOR Pious USES.
If an heir, to whom property has been left for pious uses, should not use it for that purpose, under the pretext that the amount is insufficient, We order it to be entirely employed for the purpose for which it was left, the Falcidian Law not being applicable under such circumstances, and that this be done under the superintendence of the most holy bishop of the diocese. We desire legacies left for pious uses to be entirely delivered to those to whom they were bequeathed, within six months after the record of the will. If the persons charged with paying the legacies should delay to do so, the crops, the interest, and all lawful increase in the value of the property from the date of the death of the testator shall be collected from them.
Where an annual legacy is left to a religious house, and those who are ordered to pay it, or he who is directed to give possession is in the same province, or in an adjacent one, We absolutely forbid the legacy to be alienated. But when the possessors, or other persons whose duty it is to pay it, are at a distance, then the religious houses, that are the legatees, are hereby authorized to exchange the property bequeathed, with the consent of the trustee, and receive in return suitable revenues from land not burdened with excessive taxes, and which is greater in value by at least a fourth than that devised; or the said religious houses can, if they so desire, sell the legacy, and accept a price which must not be less than the entire amount of the income collected in twenty-five years; provided, however, that the purchase-money is employed for the benefit of the religious house to which the legacy was bequeathed.
CHAPTER XIII.
BISHOPS SHALL NOT, BY WILL, DISPOSE OF ANY PROPERTY WHICH THEY MAY HAVE ACQUIRED DURING THEIR EPISCOPATE.
Again, We forbid the most holy bishops to transfer to their own relatives, or otherwise alienate property either movable, immovable, or which is capable of moving itself, which came into their hands in any way, after they obtained the episcopate. They shall, however, be permitted to use it for the ransom of captives, the support of the poor, and other pious works, or for the benefit of their own church; and We order that the ownership of all property, no matter what it may be,
which they acquire by the death of their parents, shall belong to the church in which they perform their sacerdotal duties. We only grant them permission to alienate or bequeath to whomever they please what is proved to have belonged to them before they were raised to the episcopate, and that which, during the episcopate, came into their hands from their ascendants, or from other relatives to whom they could succeed ab intestato, as far as the fourth degree.
We order that all that We have prescribed relative to property acquired by the most holy bishop during his episcopate shall also apply to the most reverend superintendents of orphan asylums, institutions for the poor and infirm, hospitals, houses for the entertainment of strangers, and asylums for old men, as well as to the managers of other religious establishments, so far as any property which may come into their hands in the manner above mentioned, during the time of their administration, is concerned. But if a bishop, a clerk, an ecclesiastic of any rank whatsoever, or a deaconess, should die without making a will, and without leaving any legal successor, his or her estate shall belong to the church to which he or she was attached.
CHAPTER XIV.
HERETICS SHALL NOT ACQUIRE IMMOVABLE PROPERTY, UNDER ANY CIRCUMSTANCES, FROM CHURCHES OR PRIVATE INDIVIDUALS, NOR ERECT BUILDINGS FOR THE CELEBRATION OF THE RITES OF THEIR FAITH.
We order that no heretic shall acquire any immovable property from a church or any other religious establishment whatsoever, either by lease, emphyteusis, purchase, or in any other way; and when a heretic is paid anything in a contract of this kind, he shall lose it, and the immovable property that he received shall be recovered by the religious establishment which transferred it; and the superintendent of said establishment shall be deprived of his office, confined in a monastery, and excluded from the holy communion for an entire year, by way of punishing him for having betrayed Christians to heretics. Where an orthodox person is in possession of property on which a church is situated, and alienates, bequeaths, leases it under emphyteusis or in any other way, or entrusts the management of the same to a Jew, a Samaritan, an Arian, or any other heretic, the said property shall be claimed by the church of the neighborhood, and where a heretic (and among heretics We include Nestorians, Acephali, and Eutychians) builds a house for the celebration of his worship, or a new Jewish synagogue, the most holy church of the diocese shall seize the building.
If anyone should transfer land to a heretic under emphyteusis or any other form of lease, or entrust the management of the same to him in any other way, he being well aware that the person to whom he delivers it is a heretic, all the income collected therefrom under the contract shall be claimed for the benefit of the church of the city
within whose territory the land in question is situated; but when the owner of the same is ignorant that he to whom he gave possession is a heretic, he shall not be deprived of it on account of his ignorance; but in either event the heretic must be driven from the land, and his property confiscated for the Treasury.
CHAPTER XV.
SUPERINTENDENTS OF ORPHAN ASYLUMS RESEMBLE
GUARDIANS, AND MUST DRAW UP INVENTORIES JUST
AS THEY DO.
The superintendents of orphan asylums discharge the duties of guardians and curators to the extent that they can sue and be sued with reference to the property belonging to their establishments, or to the orphans as individuals, without being obliged to furnish security. They shall receive property belonging to said orphans, or the establishments to which they are attached, in the presence of the public registrars, or by means of documents drawn up in this Royal City before the Master of the Census, and in the provinces before their Governors, or the defenders of the districts; and if the superintendents should deem it necessary to alienate such property, they must keep the purchase-money for the orphans, or employ it for their benefit in the purchase of other things; and they shall not be obliged to render any accounts of guardianship or curatorship.
• We order that all the general privileges enjoyed by the Most Holy Principal Church of Constantinople shall be preserved for the orphan asylum of this Royal City, as well as for the house of public entertainment called Samson of Holy Mary, and for all the oratories, hospitals, or religious establishments which are under its jurisdiction.
EPILOGUE.
Therefore Your Highness will see that the provisions which we have enacted in the present law are brought to the knowledge of all Our subjects, by means of edicts formally promulgated in this Royal City; for We shall provide for this publication in the provinces without any expense to Our taxpayers.
Given at Constantinople, on the fifteenth of the Kalends of April, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XV.
CONCERNING THE PROHIBITION OF HERETICAL
ASSEMBLIES.
ONE HUNDRED AND THIRTY-SECOND NEW CONSTITUTION.
The Emperor Flavius Justinian, Fortunate, Glorious, Victor and Triumpher, Ever Augustus, to the Bishop of Constantinople.
PREFACE.
We believe that the true and immaculate Christian faith is the first and greatest benefit that men enjoy, that it should be strengthened in every respect, and that all the holy priests throughout the earth should unite to preach it, and should extirpate every kind of false doctrine, as is prescribed by Our laws and Our edicts. But as heretics are not influenced by the fear of God, and pay no attention to the penalties with which they are menaced by the severity of the law, as they accomplish the work of the devil, and by seduction debauch certain weak men, causing them to renounce the Holy Catholic Faith and the Apostolic Church; and as they hold wicked assemblies in secret, and clandestinely confer spurious baptisms, We have concluded that it is the part of piety to warn such persons by this, Our present edict, to abandon their insane delusions, to cease to destroy the souls of weak-minded men, to return to the Holy Church of God, where true dogmas are preached, and where all heresies with their heads are anathematized.
Heretics are hereby notified that if, in the future, any of them should be detected in attending prohibited assemblies, or of holding them in their houses, so far from tolerating this, We shall transfer to the Holy Church the buildings in which such offences are committed, and shall inflict upon the delinquents the penalties imposed by Our Constitutions.
Given at Constantinople, on the day before the Nones of April, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XVI. IN WHAT MANNER MONKS SHOULD LIVE.
ONE HUNDRED AND THIRTY-THIRD NEW CONSTITUTION. The Emperor Augustus to Menna, Most Blessed Archbishop.
PREFACE.
Solitary life and the meditation it encourages are sacred things, which elevate the mind to God, and are of the greatest benefit, not only to those who profess such a life, but also to all other persons, on account of its purity, and the supplications which they address to the Deity. Monastic life was therefore an object of especial solicitude to Our Imperial Predecessors, and We have enacted not a few laws for the preservation of its honor and adornment, for We follow the sacred rules, and the ancient fathers who formulated them, as there is nothing to which a government should not pay attention, since it has received from God the general supervision of all men.
We have also recently enacted a constitution forbidding monks assembled in large numbers and residing together as hermits to have separate rooms, to use private dwellings or separate property, or to
live alone; but requiring them to eat and sleep in common, and to lead becoming lives, in order that they may be mutual witnesses of their own chastity; that those who are younger may respect the age of the others who observe their actions, and constantly watch over them, lest they may be detected in the commission of sin, or of some shameful act during their sleep; for each monk must, above all things, preserve his virtue even while in repose.
CHAPTER I.
We, however, having been informed of certain matters which require legal intervention, and in order to provide for the perfection and completion of former constitutions, have been induced to issue the present law, by which We absolutely prohibit monks from living separately and having private cells, unless they are entirely alone in them; and We decree that each monastery shall have two ministers; that the monks shall dwell in continence and quiet, and that though there may be a great number of them together, they shall live in common, whether engaged in prayer or in the satisfaction of their natural requirements, in order that they may not commit any sin; that they shall eat and sleep together, as has just been stated, unless they are so numerous that one building cannot contain them all, and it is necessary to distribute them among two or thr