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 three others.
We order that monks shall possess absolutely nothing of their own, and that they shall remain constantly together in order to be able to have an eye upon one another both day and night. For all are not sleeping at the same time, and there is no doubt that while some are given to slumber, others are awake, who scrutinize their actions. Where there are several buildings belonging to one of the monasteries subject to the order of Your Holiness in this great city, or in its environs, whether the said buildings have been erected by Us, or whether they are separately inhabited by other monks, Your Holiness will demolish them, and indicate to the monks the one in which they shall reside; for what have they to fear in being united, and consecrating themselves to God by renouncing a worldly life?
We desire that this rule shall be observed now and hereafter, for all time; that no monks shall live separately, but that all shall be assembled together and watch one another's conduct. It is certain that if these regulations are complied with, they will be free from all blame. Where, however, any one of them becomes impudent and ventures to disobey what We have decreed, the head of the monastery must subject him to punishment. For We desire that monastic discipline be more strict in the future than it is at present; and in the first place, We forbid that there shall be several entrances to the monastery, and We wish that there shall be only one, or two at the most; and that men of advanced age, who are chaste and of good reputation, shall be stationed at the door to prevent the most reverend monks from going out without the consent of the abbot (for they must use every effort to arouse their zeal towards God, and prevent them from lacerating themselves), and they shall also forbid strangers
from entering the monastery, either by day or by night, when the latter do not encourage the reverend monks to continue in the exercise of their sacred duties. Every monastery shall be surrounded by strong walls, so that no one can leave it except by the gates.
CHAPTER II.
When there is no chapel in the monastery, as it is not proper for the monks to avail themselves of this excuse to go out, for the purpose of taking walks and conversing with other persons, We order them to repair to the church at the very moment of the religious service, in the company of their abbots, their deans, and their seniors, and when the service is at an end, they must all return to their convent, and remain there honoring the Omnipotent God and devoting themselves to the study of the Bible. Hence a large number of these books must be kept in the monastery, so that each one can purify his soul, and water it with the Holy Scriptures; for by their frequent perusal they will have no longer any temptation to deceive, and will be relieved of all human cares. Four or five of the oldest monks, who have practiced continence and have deserved to be ordained priests, deacons, and other ecclesiastics, shall be attached to the chapel of the monastery. These monks shall be charged with giving lectures upon the Holy Scriptures, and imparting instruction in them; they shall have the care of the sacred house; and shall restrain petulant youth always desirous to pass the bounds of decorum.
CHAPTER III. •
Women shall not enter a monastery of men, nor shall men enter one of women, under the pretext of the death or funeral of anyone, or for any other reason; even if it is alleged that he or she has in the monastery a brother, a sister, or other member of his or her family, for no earthly relationship exists for monks, who have embraced the celestial life; and, besides, what could be the object of those who desire to enter in such holy places, if it was not to commit some forbidden act? Above all, as men are permitted to perform all the duties relative to their monasteries, and the same privilege is accorded to women in their convents, no person of a different sex from that of the inmates of the monastic institutions can be introduced there, even if the person alleges that he or she is the brother, sister, or other relative of a monk or a nun; and if We remove the occasion for sin in the beginning, and afterwards prevent souls from giving themselves up to the indulgence natural to them, monks can lead a more regular life, and restrain their passions with greater facility.
Therefore, all persons shall obey this law, men shall not have sepulchres in the convents of women, and women shall not bury their dead in monasteries inhabited by men; for just as the occupations of of women are not suitable for men, so also the labors of males are not proper for females. We do not wish that, on account of the funerals of deceased persons, such a disgraceful mingling of the sexes which
arises from a wicked motive should take place; and We forbid this, for fear that by this means a road may be opened for dishonorable conduct, and that no one may shamelessly enter the residence of monks and bring trouble upon it by alleging piety as a pretext, and claiming a relationship which those who have embraced a solitary life should no longer acknowledge. Therefore it is perfectly clear that persons employed in burials, principally pallbearers and sextons, cannot enter monastic institutions; for while the rule is easy to observe in the case of monasteries of men, this is not the case so far as convents inhabited by women are concerned.
(1) Hence We order that when a woman is buried in a monastery of women (for We do not allow a man to be buried there), the most reverend women shall remain in their apartments, and the one having charge of the door, and the abbess, if she so desires, shall be present at the funeral; that those who are charged with this duty shall perform it quickly; and that they shall dig the grave, cover the body, and retire promptly, without seeing any of the most reverend women, or being seen by them.
Men shall not invent any excuse to enter the monasteries of women, nor women to enter those of men; nor shall they allege as a pretext the prayers (called memorial exercises) offered up on the third or ninth day after death, or when forty days have elapsed, or even after a year; for as women while in a convent are permitted to transact business, and the same privilege is accorded to men who occupy monasteries, We do not, for any such reasons, permit dishonorable acts to be committed in these sacred institutions.
CHAPTER IV.
• But as no rule is strictly observed unless someone is authorized to enforce it, We order that every abbot shall have constant supervision of the conduct and discipline of his monastery, that he shall promptly correct the slightest fault which may be committed, and not permit the evil to become greater, and souls fleeing from salvation to be lost. When there is (as in this Most Fortunate City) a prior of monasteries, he must carefully maintain discipline; he must send his apocrisiarii there; he must obtain information with reference to neighboring convents, and ascertain whether any offences are committed therein, and, if this should be the case, he must punish them in the exercise of a just and proper discretion.
The bishop of every town, and the patriarch or metropolitan, shall also maintain monastic discipline; the bishops must send the most reverend defenders to the monasteries to suppress abuses; see that the rules are observed; forbid anything contrary to decorum to be committed, and when this takes place, quickly correct it. The Most Holy Patriarch of this Most Fortunate City shall examine all the monasteries situated therein, and shall appoint for their supervision such of the defenders of the Most Holy Principal Church as he considers most perfect and honest, and this supervision being exercised by several
persons, the rules will be better observed, and breaches of discipline more severely punished.
CHAPTER V.
Every monastery placed under the government of an abbot shall have (as We have already stated) a/pocrisiarii, who, being old men, will preserve monastic discipline, and not suffer monks to undergo corporeal injury; and they must also be charged with the affairs and interests of the monasteries. Convents of women shall also be provided with apocrisiarii to the number of two or three, who, whenever it is possible, shall be eunuchs, or advanced in years, and enjoy a great reputation for chastity. These apocrisiarii shall be authorized to conduct the litigation of the monastery, and minister the ineffable communion to the nuns at the proper time. If, however, they should desire to obtain advice concerning the business of the monastery, or confer with any most reverend hermit, they must only speak to the abbess through the agency of the most reverend doorkeepers, for the women appointed to have charge of the doors must guard the entrance and exit of the monastery; they must prevent anyone from departing, and render the entrance inaccessible to all men except the apocrisiarii. The latter must apply to the doorkeepers, and announce their arrival; the abbess, having been notified, shall come down and discuss their administration and the object of their visit with them, and, in this way, the business of the monastery will be conducted, and chastity will remain inviolate.
If any monk should commit an offence (for all men are human, and no one has such control over himself as to be absolutely free from sin, as this is the attribute of God alone), they shall warn him, suspend him, and give him time for repentance, in order that he may improve his behavior, come to his senses, and not lose the fruit of his labors. But when a monk is guilty of a serious offence, the apocrisiarii shall inflict a penalty in proportion to its nature, they must severely reprimand him, and impose upon him a rigorous penance. If they can in this way restore to virtue one who has fallen, and has begun to be corrupted (and what We say is applicable to both monks and nuns), they will render thanks to Omnipotent God, while the angels in Heaven rejoice as they do when anyone is delivered from his sins.
Where, however, a cenobite commits a crime which is beyond all remedy, he must then be expelled from the monastery, as having abandoned virtue for vice, and he alone will enjoy his perversity, so that he cannot infect the other monks as with a pestilence emanating from diseased animals. The government does not intend that the punishment of monks should be neglected, and as it is necessary for it to see that it is inflicted, the indignation of the authorities even against the abbot, the bishop of the diocese, or the defenders of the church will not be restrained if they do not comply with these provisions. Where, however, these holy persons pray to God for the prosperity of the government with pure hands, and souls free from every blemish, there is no doubt that Our armies will be victorious,
and Our cities well governed; for where God is appeased and favorably disposed towards Us, why should not We enjoy universal peace and the devotion of Our subjects? The earth offers Us its fruits, the sea gives Us up its wealth, and the prayers of Our people will invoke the blessing of God upon the entire Empire.
On the other hand, the monks will be entitled to more reverence; their lives will be still more exemplary; and they will shine in the brilliancy of their virtues. They will all have but one wish; all of them will strive to accomplish the same object; all wickedness will be banished as much as possible, more holy and better desires will be entertained; and recognizing these facts, We enact the present law, which We consider to be useful.
CHAPTER VI.
We also desire that when any most reverend monk has been proved to have frequented a tavern, he shall immediately be delivered up to the defenders of the district, or to the Most Glorious Praetorian Prefect of this City, and after having been convicted, he must be punished; and notice shall be given to the abbot in order that the latter may expel him from the monastery, as being one who has exchanged an angelic life for one that is discreditable. Monks must occupy themselves not only in studying the Holy Scriptures, but also in strengthening their bodies (that is to say by manual labor), and thus both meditate and work, for an idle mind produces nothing good.
We enact the present law for the benefit of members of the monastic order; it shall be observed in this Royal City, and in all the provinces; We shall address it to the patriarchs to insure its execution; the latter will communicate it to the metropolitans under their jurisdiction; the metropolitans will bring it to the knowledge of all the bishops, and the bishops will notify the most reverend monks and their abbot of its promulgation. We entrust its execution not only to the abbots of the various monasteries, to the bishop beloved of God, to the reverend metropolitans, and most holy patriarchs, but also, in this city, to Your Excellency; and when any violation of it merits a more severe punishment, it shall be inflicted by these Divine personages.
We order Governors to cause Our law to be observed in their respective provinces, and these magistrates shall be informed by the bishop beloved of God of any violation of it that may take place. Thus both these holy persons and magistrates will preserve unimpaired these provisions which have reference to God and the Empire, for there is nothing more sacred than for the government to enjoy the clemency of Omnipotent God, and Our Saviour Jesus Christ, through the purity of most reverend personages. All clerks, monks, and bishops of both superior and inferior rank must keep themselves pure, and observe the sacred canons, and the Imperial statutes and Constitutions enacted with reference to religious matters, whose entire force and effect We confirm by the present law.
EPILOGUE.
Therefore Your Holiness will hasten to carry into effect what We have been pleased to enact by the present law, as soon as it is brought to your knowledge.
Given at Constantinople, on the seventh of the Kalends of April, during the Consulate of the Most Illustrious Ario.
TITLE XVII.
No JUDGE SHALL BE PERMITTED TO HAVE A DEPUTY IN
His STEAD, UNLESS FOR CERTAIN REASONS AN IMPERIAL
ORDER Is ISSUED FOR THAT PURPOSE.
ONE HUNDRED AND THIRTY-FOURTH NEW CONSTITUTION. CONCERNING DEPUTIES.
In the Name of Our Lord Jesus Christ Our God, the Emperor Caesar, Flavius, Justinian, Alemanicus, Gothicus, Francicus, German-icus, Fortunate, Pious, Glorious, Victor and Triumpher, Ever Augustus, to Musonius, Urban Prefect.
PREFACE.
We, having constantly in mind the welfare of Our subjects, and having ascertained that they are subjected to annoyances at the hands of deputies sent into the provinces by civil and military magistrates, have recently enacted a law for the purpose of correcting such abuses.
CHAPTER I.
No MAGISTRATE SHALL BE PERMITTED TO APPOINT A
DEPUTY.
As We are desirous of benefiting Our subjects to the greatest extent possible, We hereby prohibit the Praetorian Prefects, both of the East and of Illyria, the Count of the Imperial Largesses, and the Count of Private Affairs, from sending deputies into the provinces; and We also forbid Governors as well as judges stationed in the provinces, or in any city whatsoever to do this. Only where necessity requires it do We permit deputies to be sent from the prefecture into the provinces of Osdroena and Mesopotamia, as well as other places, during expeditions, to secure supplies for the army, and they shall not be appointed except by virtue of an Imperial order, expressly issued for this purpose.
We also forbid military commanders and generals-in-chief, in the provinces where they exert their authority, to employ any deputies, substitutes, or officers charged with the pursuit of thieves. If, however, it should become necessary for the military commanders or generals-in-chief to be despatched to other places by an Imperial
order, then We shall appoint deputies to take their places while they are absent. But no military or civil magistrate shall be allowed to run over a province when there is no necessity for it; and where any reason exists for their doing so, We order them to travel with their courts, and at their own expense. We forbid them to oppress Our subjects by requisitions for posts, for those services called epi-demitices, or for any other expenses whatsoever. And We also forbid them to exact the services of any of the magistrates above mentioned, where they have unjustly established a custom for their own benefit, for practices wrongfully instituted, and dishonorable customs cannot be confirmed either by lapse of time or long-continued usage.
Civil and military magistrates are hereby notified that if any of them should violate this law by the appointment of a deputy, he shall pay a fine of twenty pounds of gold, and the person who accepts such an employment shall lose his property, and be sent into exile.
CHAPTER II.
In order the better to insure obedience to Our law, We order that the bishops of the diocese, the Governors of provinces, and the inhabitants of towns shall not, in contravention of its provisions, receive either a deputy, or officers charged with the pursuit of thieves; for We absolutely prohibit every civil or military magistrate from employing officials of this kind. We order especially the Governors of provinces to conduct themselves and their administrations with so much wisdom that their acts will not require investigation, and someone else be sent to replace them in the provinces. Where, however, it becomes necessary to send any officers there to collect taxes, or to suppress disturbances, they shall have neither the rank nor the title of.deputies. Anyone who is assigned to a province for such a purpose shall not subject Our subjects to any expense, he shall discharge the duties entrusted to him, and the Governor, together with his subordinates, shall give him all requisite assistance. Where an official is despatched to a magistrate against whom a serious accusation has been made, We order the provincial court to obey him. But, while We forbid the appointment of deputies, We desire Governors of provinces and their courts to be responsible for their administrations, to supervise public collections, to maintain tranquillity in their jurisdictions, and to provide against all injustice and annoyance.
If any judges or collectors of taxes in the provinces should happen to need aid, We order the Governors and their courts to give it to them, in order that the levy of taxes may be made without hindrance. Competent provincial judges shall hear and determine any civil or criminal cases which may be brought before them, and they must decide them on their own responsibility, and dispose of them according to law.
We also order that as soon as the Governors of provinces receive their appointments, whether they are present or absent, they must give bond to the Praetorian Prefect, as well as to the Count of the
Imperial Largesses, and the Count of Private Affairs, to insure the payment of the sums to which each of said magistrates is entitled, and they should remain responsible in accordance with the tenor of the bond, if they should divert the money to improper purposes. In those cities and provinces where there are no secretaries or magistrates charged with the collection of taxes at their own risk, the Governors shall collect them on their own responsibility.
CHAPTER III.
It has been brought to Our attention that certain provincial magistrates act so unjustly for the purpose of obtaining dishonorable gains that they do not permit wills to be made, or those which have been made to be recorded; or marriages to be contracted; or nuptial agreements to be executed, or the dead to be buried, or inventories to be drawn up; or any similar acts to be performed, either by means of written instruments, or in the presence of witnesses; hence We forbid all magistrates, both civil and military, as well as their courts and every other official, to presume to do anything of this kind. If, however, any of them should venture to commit such a detestable act, or to protect anyone who has had the audacity to do so, We decree that, after having been deprived of their offices, they shall be sent into exile, and shall pay double the expense which they have caused the injured person to incur; for neither they themselves, nor anyone else, can diminish the benefit of the laws. We grant full authority to the most holy bishops and the principal citizens of the towns to prevent insolent acts of this description, and see that the transactions which We have just mentioned are completed in accordance with Our laws without hindrance or expense, and to inform Us if any of these illegal acts are committed.
We desire judges, whether of superior or inferior rank, to receive appeals legally taken; they shall hear them specially in conformity with Our orders (for it is permissible to appeal even from ecclesiastical judges), and to give, without delay, a written acceptance of their appeal to the litigants so that the decision of the case may legally be pronounced. But We decree that when an appeal has once been taken in accordance with law, the execution of the judgment shall be suspended, and the possession of the property in controversy shall not be transferred until final judgment has been rendered.
CHAPTER IV.
But as adultery, rape, homicide, and other offences are perpetrated in the provinces, We order the magistrates to punish them in conformity to law, and place those who are guilty under restraint, but We forbid them to arrest some on account of others, for instance, in the place of true offenders persons who were born in the same place; or to make their towns bear the losses which they have caused. We also forbid them to take pledges from criminals, or to punish a crime with a view to the profits which may be derived from doing so,
or to appropriate the property of delinquents to their own use. For We desire that the latter shall suffer the punishment prescribed by the laws, but We strictly forbid that the imposition of a penalty shall prejudice the rights of Our subjects, to enable judges and their families, or officers, to be pecuniarily benefited, lest the desire to obtain such advantages may induce them to inflict unjust penalties or to sell pardons to those who are guilty. If any provincial judge should, himself, violate this rule, he shall make good the entire loss which he has caused, shall be subjected to punishment, and sent into exile, and his councillor shall undergo a similar penalty, if he gives his consent in writing to any illegal act committed by the magistrate. The members of his court, and all other persons who assist him in obtaining gains of this kind, shall not only be compelled to make restitution, but the most guilty among them shall suffer the penalties prescribed by the laws, and be sentenced to exile.
CHAPTER V.
PERSONS GUILTY OF CRIME SHALL BE SUMMONED BY MEANS OP LAWFUL EDICTS.
When any one of the criminals whom We have just mentioned conceals himself, or leaves the province in which he has committed the offence, We order the judge to call him into court by the publication of lawful edicts, and if he does not obey, the judge shall proceed in the manner prescribed by the laws. If it should be ascertained that the guilty party is living in some other province, We order the judge of the district in which the offence was committed to notify the judge of the province in which the delinquent resides, by means of a letter, to arrest him on his own responsibility and that of his court, and to send the accused to him. When the judge who has received a public letter of this kind fails to do what We have stated, and his court does not surrender the criminal, or if it does not execute the orders given it, We decree that the said magistrate shall pay a fine of three pounds of gold, and his court an equal amount. If, induced by a desire for gain, a judge, or any officer of his court, does not arrest a person of this description, or if, after having arrested him, he does not deliver him up, he shall, after conviction, be deprived of his office, and sent into exile.
CHAPTER VI.
A JUDGE SHALL CARRY INTO EFFECT WHAT HAS BEEN ORDERED BY His PREDECESSOR.
When We give a written order to any magistrate, and, in the meantime, the said magistrate relinquishes his office, his successor shall receive the order, shall record it if it relates to a private matter, and shall execute it, just as if it had been addressed to himself. If the said written order has reference to the interests of the public,
he shall examine it, and if the Treasury is not in any way prejudiced thereby, shall cause it to be executed. When, however, it affects the rights of the Treasury injuriously, it shall remain inoperative, and the magistrate shall notify Us of the fact, in order that We may issue a second order for the same purpose.
When instructions are given by any magistrate whatsoever, and the latter, or the person to whom the instructions are addressed, is deprived of his office before they have been recorded, his successor shall receive them, and cause them to be executed, if they are legal; but if they are contrary to law or to the public welfare, We order that they shall be considered as not having been written.
CHAPTER VII.
No CREDITOR SHALL PRESUME TO RETAIN THE CHILD OF His DEBTOR AS SECURITY FOR THE DEBT.
For the reason that We have ascertained that in many places in Our Empire a great injustice is frequently committed, namely, that creditors presume to detain the children of their debtors by way of pledge, and employ them in servile occupations, or hold them under a lease, We forbid this practice, and order that when a creditor commits such an act, he shall not only lose his claim, but shall also pay an amount equal to it to him whom he detains, or to the parents of the latter; and he shall afterwards be subjected to corporeal punishment by the magistrates of the district, for the reason that he had the audacity to retain possession of a free person as security for a debt, or to lease him, or to take him in pledge.
CHAPTER Vill. CONCERNING WOMEN WHO ACT AS SURETIES.
We make the following provision for the welfare of Our subjects. Where a woman consents to bind herself as surety for a loan, and stipulates in favor of her husband, thereby encumbering either her person or her property, We order that such an obligation shall be void, and of no effect, even though she may have done this repeatedly; and it will make no difference whether the obligation was private or public, for it shall, in every instance, be regarded as not having been incurred, unless it is clearly established that the sums lent have been used for the benefit of the woman.
CHAPTER IX. WOMEN SHALL NOT BE CONFINED IN PRISON.
We think that it is necessary to forbid a woman to be deprived of her liberty or imprisoned for any reason whatsoever; but We order that where a woman is sued for fiscal or private debts, she shall answer, and attend to the matter either herself or through the agency
of someone whom she may select. When the woman in question is a widow, or she was not married in the first place, she shall also, in her proper person, be permitted to protect her rights in conformity to law, or to do so by means of an attorney.
If a magistrate of superior rank should presume to violate what We have prescribed, he shall be compelled to pay a fine of twenty pounds of gold; if a superior judge should do this, he shall be liable to a fine of ten pounds of gold, and the officers subject to his authority shall be deprived of their places, subjected to punishment, and sent into exile. But where a woman, after having been legally notified, is unwilling to appoint anyone to represent her, or where she is brought into court to answer, We forbid her to be placed under restraint, or confined in prison; and We desire that she shall be permitted to assert her legal rights.
When a woman is accused of a crime which renders it necessary for her to be kept under guard, and she can furnish a surety who will be responsible for her appearance, We order that this shall be done; but when a woman swears that she cannot furnish a surety, she shall furnish juratory security for the satisfaction of the judgment. Where, however, the crime of which the woman is accused is of an exceedingly serious nature, she shall be placed in a convent or a hermitage, the reverend inmates thereof shall guard her publicly and carefully until her case has been heard, and then the sentence pronounced shall be executed in accordance with law. We do not permit a woman to be placed in prison, or guarded by men on account of a fiscal obligation, in any private proceeding, or for any criminal offence, lest her chastity may suffer violation. Nor do We permit a nun or a female ascetic to be taken from her convent or hermitage on account of any litigation in which she may be involved.
CHAPTER X. WHAT PENALTY Is INCURRED BY AN ADULTERESS.
When the crime of adultery has been established, We order that the penalties prescribed by Constantine, of Divine memory, shall be inflicted upon those who are guilty; and all who have acted as agents or intermediaries in the commission of this impious crime shall be subjected to the same punishment. But so far as the property of the adulterer is concerned, if he has a wife, We order that the dowry and ante-nuptial donation shall be given to her, and that he shall receive the portion granted by Our law; and if no dotal contract was drawn up, and there are any ascendants or descendants as far as the third degree, they shall in their regular order obtain the residue of his estate; and when there are no heirs of this kind, We direct that it shall go to the Treasury. The adulteress shall suffer corporeal punishment, and be confined in a monastery, and if her husband desires to take her back within two years, We permit him to do so; he can cohabit with her without subjecting himself to any risk on this account; and the marriage shall not be prejudiced on account
of what occurred in the meantime. If, however, the aforesaid term should elapse, or the husband, before he takes his wife back, should die, We order that she shall receive the tonsure, assume the monastic habit, and reside in the monastery for her entire life; and if she has any descendants, they shall receive two-thirds of her estate, to be legally divided, and the remaining third shall be given to the monastery in which she is placed. But when there are no descendants, and she has ascendants who did not consent to such wickedness, they will be entitled to one-third of her property, to be distributed according to law, and two-thirds of it shall be given to the monastery in which the said woman is confined. But where she has neither descendants or ascendants, or her ascendants have not disapproved of her wicked conduct, the monastery will be entitled to her entire estate, and, in every instance, the benefits conferred by the dotal agreements shall be enjoyed by her husband.
CHAPTER XI. PENALTIES FOR UNJUST REPUDIATION.
As some persons deliberately violate Our law, in which We plainly enumerated the only causes for which a husband or a wife can serve notice of repudiation, We order that no repudiation shall take place unless for the causes aforesaid, and We prohibit them from dissolving their marriage by common consent, and mutually committing such offences. But where both parties presume to dissolve the marriage without alleging the reasons which We have set forth, We order that, if they have any descendants who are the issue of this marriage or of a former one, their estates shall be given to the latter as legally prescribed; that both the husband and the wife shall be confined in a monastery for the remainder of their lives; and that one-third of their property shall be set aside to be delivered to the monasteries in which they are placed; but the husband shall not be entitled to the usufruct of the share transferred to his children, because, even though he may have them under his control, he cannot enjoy the income of their property.
When, however, the parties have no descendants but have ascendants, they shall be entitled to a third of their estates, in case they did not consent to the impious dissolution of the marriage; and the other two-thirds of the same shall be given to the monasteries in which the husband and wife are confined. Where they have neither descendants nor ascendants, or the latter have acquiesced in the dissolution of the marriage, We decree that all their property shall be transferred to the monasteries in which they are placed, in order that Our law may not be violated, and the judgment of God treated with contempt by reason of such conduct. We order that any officials who have assisted in such a dissolution of marriage, or who have drawn up any abominable instruments for this purpose, shall be subjected to corporeal punishment, and sent into exile. If those who have been so bold as to dissolve their marriage should desire to be reunited
before being placed in a monastery, We grant them permission to do so; and the penalty shall then be imposed upon them, and they shall be entitled to their property, and shall live together just as if no offence had been committed. But where only one of the parties is willing to do this, and the other does not consent, the penalty shall be inflicted upon the one who refuses to return.
We order that all these provisions shall be observed in this Royal City, as well as in the provinces, and that they shall be enforced, not only by the Count of Private Affairs but also by the Association of Palatines, as well as by provincial judges and their subordinates ; all of whom are hereby warned that if they neglect to punish any crime of this kind, or do not observe all these rules, they shall be condemned to exile and the confiscation of their property. We order the most holy bishops of the several dioceses to enforce this law; and decree that the said persons shall be placed in the monasteries under their supervision; and that the portion of their property which has been mentioned by Us shall be claimed by the monastery.
CHAPTER XII.
Where, however, anyone is accused of adultery, and through the baseness of the magistrates, or for any other reason, escapes the penalty provided by law, and is afterwards found to be living shamefully with the same woman, and he marries her during the lifetime of her husband, or after his death, We decree that the marriage shall be void, and if he who was audacious enough to commit this offence should have taken to flight, We grant permission to every judge to arrest him, and, after having tortured him, put him to death without allowing him to give any excuse, or offer any evidence. We also order that the woman shall be punished and placed in a monastery to remain there as long as she lives; that the property of both parties shall be divided in accordance with the rules already stated; and that this shall be done (as We have prescribed) under the direction of the Count of Private Affairs and the judge of the district.
CHAPTER XIII. CONCERNING THE MITIGATION OF ALL PENALTIES.
As it is necessary for Us to make allowance for human weakness, We abolish the amputation of both hands, as well as that of both feet, and the imposition of the punishment by which the joints are separated, which is a much more serious penalty than the amputation of the hands. Hence We order that, if anyone commits a crime for which the laws inflict the death penalty, those who are guilty shall undergo it, and if the crime is one for which the culprit does not deserve to be put to death, he shall be scourged, or sent into exile. Where the offence is such as demands the amputation of a limb, one hand only shall be cut off. We forbid the amputation of a limb because of an ordinary theft, or the culprit to be put to death for this
reason, but we desire him to be punished in some other way. We call those persons thieves who, without being armed, secretly remove property; but when anyone openly makes an attack by force, either with or without weapons, in houses, on the highways, or on the sea, We decree that he shall be subjected to the punishment established by law.
In order that not only corporeal penalties, but also slight pecuniary ones may be imposed, We order that those who are accused of crimes for which the laws prescribe either death or proscription, where the delinquents are convicted or condemned, their property shall not be acquired by the judges and their officers, nor shall it be transferred to the Treasury, in accordance with ancient legislation; but their descendants and ascendants, up to the third degree, when there are any, shall be entitled to it. Where, however, those who are condemned have wives, We order that the latter shall, by all means, receive the dowry and ante-nuptial donation. But in case the women were married to such persons, without any dowry, they shall be entitled to the share of the estates of those who have been condemned which is authorized by law, whether they have any children or not. If the criminal should leave none of the heirs above mentioned, then his estate shall go to the Treasury.
We order that the ancient laws which have reference to persons convicted of the crime of treason shall be observed.
EPILOGUE.
Therefore Your Glory will see that Our present law is published in this city and sent to the provinces, and notice thereof given to their Governors, in order that all Our subjects may learn how great is Our solicitude for their welfare.
Given at Constantinople on the Kalends of May, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XVIII.
No ONE SHALL BE COMPELLED TO MAKE AN ASSIGNMENT OF His PROPERTY.
ONE HUNDRED AND THIRTY-FIFTH NEW CONSTITUTION.
PREFACE.
We do everything in Our power in order that the provisions by means of which We endeavor to propitiate Divine Omnipotence may be constantly improved, and shine with a brighter light. One Zozarius, a native of Mysia, has informed Us, amidst tears and earnest protestations, that he was insolently ordered by the Illustrious Governor of that Province to be sued for the discharge of certain pecuniary obligations, both public and private; that he did not think that his
own property could be rendered liable for the payment of said indebtedness; that he had been treated with great injustice, and that the act bore the appearance of having been devised for the purpose of causing annoyance. For as he said, in what country can anyone who has lost his property through accident, and not on account of culpable negligence, be forced to lead an ignominious life, and be compelled (as may readily be imagined) to solicit his daily food and go without clothing?
CHAPTER I.
We, having been informed of this ill-treatment, sincerely desire to provide a remedy, for the reason that the best way for Us to conciliate God is to allow nothing disastrous to happen during Our reign; hence We forbid the most glorious or most magnificent magistrates to compel those who are brought into court to surrender their possessions for the payment of public or private pecuniary obligations, or to insult them, and allege the pretext that it is customary to remit corporeal penalties, when persons prefer to lose their property and suffer the privations of indigence to being branded with opprobrium and ignominy until death. The debtor must, however, make oath that he has no means of obtaining either property or money with which to pay his debts.
Where, however, the law, either by hereditary right, or through some donation by his parents, transfers to him any chattels of which he has not yet acquired possession, but which may be considered as belonging to him, and his creditors can obtain a portion, or even all of them (with the exception of what belongs to his wife, as this is actually her own), they will be permitted to claim them, to bring suit against him who at some future time will be the owner of said property, whether he is present or absent, and (to speak more plainly) they are authorized to bring all actions and formulate all demands for property which a debtor would be entitled to do.
EPILOGUE.
Therefore Your Magnificence, as you love and cherish virtue, will cause to be carried into effect the regulations which We have so piously been pleased to prescribe. You will inflict the penalty of ten pounds of gold upon anyone who presumes to violate them, and even those who have only had the intention of disobeying what is justly enjoined by this Imperial Law will run the risk of losing their lives.
Given at Constantinople, on the Kalends of June, after the Consulate of Belisarius.
TITLE XIX.
CONCERNING THE CONTRACTS op BANKERS. ONE HUNDRED AND THIRTY-SIXTH NEW CONSTITUTION.
PREFACE.
The members of the Body and Association of Bankers of this charming city have presented petitions to Us, and have made requests under many heads, asking relief, for the reason that they contribute to the public welfare in many ways, by means of the securities which they furnish, and the obligations which they contract for money loaned at great risk. For as We have promulgated an Imperial Constitution which prescribes the manner of making collections, and direct that the principal debtors and their property shall first be liable, and that, only after they have been exhausted, shall recourse be had to the sureties or mandators, or even to such debtors as have guaranteed the payment of sums already loaned, the said bankers have asked to be relieved of the legislation authorizing their creditors to disregard the general law that, so far as they are concerned, permits them to be exhausted before having recourse to the principal debtors, which is a source of considerable loss to them. They add that whenever they receive from others obligations guaranteeing the payment of sums already loaned, it is not those who obtained the money who reimburse the creditors, but the mandators or sureties who do so, and that it is only proper for them to enjoy the privileges common to persons in general, and that they should not be excepted by the terms of Our Constitution.
CHAPTER I.
Therefore We order that whenever bankers lend a sum of money to anyone, or take guarantees of debtors for sums already loaned, or sureties or mandators, they must comply with the terms of the law which We have just mentioned, and the order of liability which it prescribes, unless it is specially agreed that the creditor shall be allowed to sue the principal debtor, as well as the mandator, surety, or guarantor of money previously loaned without observing the order prescribed by Our Constitution.
We permit the execution of agreements of this kind on account of the great share which bankers take in public contracts; and such agreements are not to be considered contrary to law, because every person has a right to renounce any privileges which the law grants him. Therefore, no matter in what capacity they may act, bankers can sue the principal debtor as well as the mandator, surety, and other guarantors; but where there was no written agreement, the former constitution shall be entirely applicable to bankers, just as if an agreement had been drawn up; they shall give the form and the rule to the contract, as well as the order of liability of principal debtors, and collections shall be made in accordance therewith.
CHAPTER II.
This chapter treats of another exception, which We have long since granted to creditors; for where anyone pursues the calling of a banker, or permits this to be done by his children, the latter shall conduct their business, not as if they had acquired their capital from their father, or from some other source, but as if they had acquired it from their creditors. Bankers have requested Us to concede this same privilege to them against their own debtors, and that where anyone, either in person or by his children, conducts a business which he has purchased with their money, and he cannot pay his debts in any other way, he shall be compelled to release himself from liability to them by the sale of the same. Hence, as We have enacted the preceding law in order that it may be scrupulously observed, and not that it may be disregarded, We order that it shall remain operative', and that bankers shall not be deprived of its benefit (since the large number of their debtors who make contracts are not considered to have used their own money), and We desire bankers to enjoy the privilege that where any one of their debtors, or their children, are engaged in any business, it may be subjected to hypothecation in their favor, if it is included among those which are usually sold.
This rule relating to the hypothecation of a commercial establishment belonging to the children of their debtors is applicable, unless the latter clearly prove that they have obtained it by means of their mother's property, or through the generosity of the Emperor.
When debtors cannot release themselves from liability in any other way, then the business owned by the children shall serve to pay the bankers, as We enact this law for their benefit, and are opposed to the privilege granted their creditors to their disadvantage by this constitution. Therefore We grant to bankers alone the contrary privilege, and the reason for Our liberality to them is that they are generally useful in the execution of contracts, and expose themselves to many risks in order to provide for the necessities of others.
CHAPTER III.
Therefore it is not without reason that bankers, when they lend money to anyone, or when they have already lent it for the purchase of movable or immovable property of considerable value, and the said property has been purchased with the identical money, ask that they should have a prior lien, and should not be excluded from it by any artifice; but, at the same time, We desire that they shall prove that the said property was bought with their money, and that their debtors are unable to repay it, and the property acquired in this way shall be adjudged to them, just as if they themselves had bought it, and only the name of the purchaser had been added. For it would be unjust for those who are given to such profuse expenditure, only to be able to secure with difficulty the first lien upon property bought with their money, or that they should not acquire it under the conditions set forth in the agreement.
When bankers observe what We decree, they shall obtain every request that they make of Us, since We grant them the preference with respect to articles which they can show have been acquired by means of the money which they loaned.
Where, however, a verbal contract was made at the time or afterwards, under the terms of which bankers pay out money, or (as is customary among them) provide jewels for the adornment of women, or silver plate, and do not receive the price of the articles they give or sell, in this way, they shall be permitted to dispose of them as their own; even though they may not have any right to them through hypothecation. For those who acquire such articles cannot own what belongs to others, and they will vainly attempt to retain possession of them, if they have not paid the price; when they have transferred them to their heirs, the latter must restore them; and when they have not been so transferred, the banker will be permitted to claim them, without any other creditors being able to hold them as being hypothecated to themselves.
CHAPTER IV.
As We have enacted a law forbidding bankers to loan money at more than eight per cent, they have informed Us that as it was the custom to make loans without committing the obligation to writing, they were afterwards paid a low rate of interest, under the pretext that none had been agreed upon, and that it is not proper for any interest to be paid without a stipulation. They, however, state that there are many instances in which the obligation to pay interest arises from a simple agreement, without any formal stipulation, and that it is sometimes paid, not by virtue of any contract, but at the instance of the creditors themselves. Therefore, We decree that interest at the rate established by law, that is to say eight per cent, shall be paid to bankers not only when a stipulation was entered into, but also when none exists; as it is not just for those who are always ready to come to the relief of almost all poor persons to be subjected to injustice on account of the omission of such details.
CHAPTER V.
In addition to this, they have also informed Us that those who contract, or have any accounts with them, make their agreements by means of public documents in the Forum, as well as by instruments written with their own hands and others drawn up by third parties, which they sign; and they now ask Us that those who enter into such agreements with them shall remain obligated, and be required to pay, without being permitted to allege that, even though the instruments were written with their own hands, and the statements or accounts which they signed, and which were drawn up by others, the sums mentioned in the said instruments were not received by them. The said bankers have also requested that such instruments shall be considered as evidences of hypothecation, and that they may be al-
lowed to collect interest at eight per cent, even though this may not have actually been agreed upon.
Therefore, as these demands concern the public welfare, and deserve great consideration, We shall attend to them in a proper way. And, indeed, where anyone executes a public or a private document written entirely with his own hand, or signs any written accounts drawn up by someone else, We order that he, as well as his heirs, shall be personally liable. For We do not rashly grant bankers an hypothecation which has not been agreed upon, and only when a lien has been given to them in writing upon the property of their debtors; or the latter have pledged it to them; or have merely stated that they encumber the said property; or finally, when they have used any expression which suggests hypothecation, do We concede this privilege to bankers, in order not to deprive them of reasonable relief, or change the general character of Our laws. Where interest has been stipulated for, the agreement evidencing it shall be observed.
If it was merely stated in writing that the claim shall bear interest, the contracting parties shall not be permitted to say that there was no agreement to that effect, in order to allege that the loan should bear none at all, but it can be collected just as if interest at eight per cent had been expressly agreed upon; and this provision shall be applicable for the future.
When no interest is mentioned in accounts which have already been settled, as it is clear that the contract in the beginning was drawn up with a view to the payment of interest, for the reason that a banker who himself borrows money at interest cannot spend it without an account of the same being given, he shall be permitted to demand eight per cent; but bankers will, hereafter, be required to observe what has been set forth in the present law.
CHAPTER VI.
We come with no less resolution to the relief of bankers under the following circumstances. Where accounts which expressly state the reason for which the loan was made are settled, and the debtor himself signs them, without stating in his own hand the reason why he borrowed the money, and no mention of the nature of the loan is made in the receipt which was given him by way of discharge from the debt, or other liability, he cannot require the banker, who is his creditor, to prove the different reasons for the loan, unless in the exercise of greater precaution he should tender him the oath, or ask his heirs to be sworn; for We grant him this same privilege, provided he avails himself of it within the prescribed time, for the purpose of opposing an exception on the ground that the money was not received. But if the debtor should allow this time to elapse, We release the banker from his oath (a provision which We have already, inserted in Our general laws, although it may not have been observed), for how can one justly conceive that a person who has, in his own handwriting, acknowledged himself to be a debtor, or has
rendered accounts, should be released, when he has not received what he stated in writing was paid to him?
EPILOGUE.
Therefore, Your Glory and all the magistrates of Our Empire will always be careful, hereafter, to see that the rules which it has pleased Us to decree by this Imperial Law are observed. Those who disobey them, and any magistrate who permits this to be done, shall be liable to a fine of ten pounds of gold.
Given at Constantinople, on the Kalends of April, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XX.
CONCERNING THE ORDINATION OF BISHOPS AND OTHER MEMBERS OF THE CLERGY.
ONE HUNDRED AND THIRTY-SEVENTH NEW CONSTITUTION.
Antonius Contius, Translator.
The Emperor Justinian to Peter, Master of the Offices.
PREFACE.
If, for the general welfare, We have taken measures to render the civil laws more effective, with whose execution, God, through His good will towards men, has entrusted Us, how much more reason is there not for Us to compel the observance of the sacred canons, and Divine Laws, which have been promulgated for the safety of Our souls? For those who observe the sacred canons become worthy of the assistance of Our Lord God, while those who disobey them render themselves liable to be punished by Him. Therefore, the most holy bishops who are charged with the enforcement of these laws are liable to severe penalties when they allow any breaches of them to remain unpunished. And, indeed, as the sacred canons have not been, up to this time, strictly observed, various complaints have been made to Us of clerks, monks, and certain bishops, on the ground that they do not live in accordance with the divine canons; and indeed there are even some among them who are either ignorant of, or do not perform the holy service of the mass, or of the ceremony of baptism.
CHAPTER I.
Therefore We, understanding and being deeply impressed with the spirit of God, do hereby order that proceedings shall be instituted at ,the same time to inquire into and correct the matters which have been submitted to Us. For if the general laws do not suffer crimes committed by laymen to go unpunished, even when investigated, how can We permit the rules canonically established by the Holy Apostles
and the Holy Fathers with reference to the salvation of all men to be treated with contempt?
We are perfectly aware that the principal reason why so many persons are guilty of sin is because the episcopal synods are not held in accordance with the regulations established by the Holy Apostles and Fathers of the Church. If this was done, as every ecclesiastic would then apprehend being subjected to a serious accusation, all would exert themselves to master the sacred liturgies, and live temperately through fear of being rendered liable to condemnation under the divine canons.
One reason why certain persons sin is that bishops, priests, deacons, and other members of the clergy, are ordained without examination, and without having produced any evidence of sincere faith and a virtuous life. For if those who are destined to pray for the people are found to be unworthy of exercising the divine ministry, how can they propitiate God, and obtain his indulgence for the faults and offences of the people? Gregory, the Theologian, following the Holy Apostles and the divine canons, declares that the ordination of priests must be made with exceeding care and thoroughness. For he says in his great Apology: "Who can err in conducting himself in conformity with the sacred canons and precepts laid down by St. Paul, in which he exhorts bishops and priests to be temperate, sober, modest; not to be given to wine, or to contentions with one another; to be assiduous in the acquirement of knowledge, blameless in every respect, and to have no intercourse with wicked people?" and he adds: "It is necessary, above all things, to be pure, in order to purify others; wise, in order to teach wisdom; to obtain light in order to give it; to approach God, before leading others to Him; to be sanctified before rendering others so; to have hands to lead, and judgment to impart advice."
Gregory also says in the same discourse on the same subject: "Who is he that, like a potter occupied in molding his clay, can at once create one competent to preside over the altar and priesthood of God, a head of the true worship, and worthy to stand with the angels, and to sing the praises of God with the archangels, and offer up sacrifices with Christ?" He shows Us by these words who are deserving of sacerdotal promotion; and, in the same place, referring to unworthy persons who have been ordained, he remarks: "Those who, being destitute of morality, are conducted to the holy altar of God and elevated to the priesthood, although not attempting to practice virtue, will still be considered at the same time as the disciples and teachers of religion and will purify others, before having themselves been subjected to purification. Yesterday sacrilegious persons, they are to-day priests; but recently, strangers to the sacred canons, now they have become the celebrants of mysteries; old in crime and new in piety, instead of being inspired with the Holy Spirit they have need of the indulgence of mankind."
Finally, St. Basil, referring to the prohibition made by the divine canons with reference to the ordination as clerks of those who have
married a second time, expresses himself as follows: "The canon excludes from the ministry of the Church not only those who have had two wives, but also their children." Such is the language of St. Basil.
The Holy Fathers were so solicitous for the observance of this rule that those assembled at Nicea promulgated a canon which included the same provision; they absolutely prohibited bishops, priests, deacons, and other members of the clergy, from living with women, unless these women were their mothers, their aunts, or other females not liable to suspicion.
CHAPTEK II.
Therefore We, conceding the authority of the sacred canons, do promulgate the present law, by which We decree that every time it may be necessary to consecrate a bishop in any city, the clergy and principal citizens of the said city shall assemble, and issue proclamations by which they nominate three persons, and then make oath on the Holy Gospels, in conformity with the Scriptures. This oath, inserted in the proclamations, shall be worded as follows: "That they did not select the three persons whom they have nominated in consideration of any gifts or promises made to them; nor through friendship, nor induced by any affection whatsoever, but for the reason that they knew that the candidates whom they have chosen are steadfast in the Catholic Faith, and of honorable life; that they have passed the age of thirty years, and have neither wives nor children; and that they have had neither concubines nor natural children, nor have any at present; and if any of them formerly had a wife, he had but one, and she was neither a widow, nor separated from her husband, and that his marriage with her was not prohibited, either by the sacred canons, or by secular laws; that neither of the three candidates is charged with the duties of any public office, that none of them is a decurion, a taxeota, or a cohortal, or, if he is, he has, in the capacity of a monk, passed fifteen years in a monastery."
The rules, whose observance We have already ordered, shall be applicable to candidates, in order that, from among the three who are nominated, the one who is the best qualified may be selected by the prelate conferring the ordination. Before this is done, however, the person to be ordained must sign a document containing the declaration of faith as set forth in the sacred formula employed in the celebration of the eucharist, the invocation repeated in baptism, and the other prayers.
We also desire that he who receives ordination shall swear upon the Holy Scriptures: "That he has not given, nor promised to give anything whatsoever, either personally, or through the agency of anyone else; and that, after his ordination, he will not give anything to the prelate whose duty it is to bestow it upon him, or to those who have asked that he be ordained, or to anyone whomsoever on account of the ceremony." If a bishop should be consecrated in violation of what is above laid down, We decree that he, along with the
prelate who dared to consecrate him in contravention of Our orders, shall be deprived of the episcopate.
CHAPTER III.
Where anyone brings an accusation, no matter on what ground, against a candidate for the ordination of bishop, priest, deacon, or abbot, the ceremony shall be postponed, and the charge shall be examined in the presence of the accuser, who must prosecute it to the end. If, however, the latter should desist, and delay to conduct the case to judgment, the prelate, whose duty it is to confer the ordination, shall not, for that reason, fail to investigate the accusation and the reasons therefor with the greatest care within the term of three months, and if he finds the accused has violated the divine canons or Our laws, his ordination shall be forbidden; but if the accuser, being present, does not prove the charge; or if he absents himself, and is a member of the clergy, he shall be deprived of his rank; and if he is a layman, he shall undergo suitable punishment. When a prelate ordains anyone who is accused, before the charge has been investigated, both of them shall be expelled from the priesthood.
CHAPTER IV.
As what is laid down in the canons relating to the episcopal synods, which should be held in every province, is not observed, this is the first thing that should be remedied. For the Holy Apostles and the Fathers have decreed that meetings of three holy prelates should be held every year in each province, and that ecclesiastical controversies should be brought before them, and decided in a proper manner. They fix the meeting of the first synod during the fourth week after Pentecost, and that of the second in the month of October; but as the neglect to comply with these provisions of the Holy Fathers has afforded an opportunity to many persons to commit sin, We order that one synod shall assemble in each province in the month of June or September. All those who, without having the right of consecrating other bishops, receive ordination from the most holy patriarchs, shall meet in the houses of the latter; just as the three holy metropolitans of each province shall summon to their houses the bishops upon whom they confer consecration. We desire that ecclesiastical questions having reference to the Faith, to canonical points, and such as relate to the administration of church property; to demands made upon bishops, priests, deacons, other members of the clergy, abbots and monks, and to accusations relating to their conduct; and, finally, to all matters which have need of correction, shall be debated and examined in each synod, and We desire that abuses shall be disposed of in accordance with Our laws and the sacred canons.
CHAPTER V.
We not only order that cases of this kind shall be heard in the annual synods, but We direct that priests, clerks, abbots, and monks,
against whom charges are brought with reference to the Faith, scandalous conduct on their part, or any violation of the sacred canons of which they may be guilty, shall be tried there. Whenever a bishop is accused, the case shall be decided by the metropolitan; and where a metropolitan is accused, the charge shall be heard by the most blessed archbishop to whose jurisdiction he is subject. But when the accused is a priest, a deacon, a clerk, an abbot or a monk, the most holy bishop who has authority over him must examine the accusation, and when it is proved, the guilty party shall suffer the canonical penalties, in accordance with the nature of the offence.
We decree that all the regulations above mentioned shall become operative, not only with reference to bishops, clerks, and abbots who may hereafter be ordained, but shall also be applicable to such as have already been ordained, and are accused of having committed acts prohibited by the canons and Our laws. If these provisions are observed, they will impart the laity a better knowledge of the true faith, and will conduce to their improvement in the practice of virtue.
CHAPTER VI.
In addition to this, We order all bishops and priests to repeat the divine service and the prayer, when baptism is performed, not in an undertone, but in a loud voice which can be heard by the faithful people, in such a way that the minds of the listeners may be induced to manifest greater devotion, and a higher appreciation of the praises and blessings of God. For as the Divine Apostle states in his First Epistle to the Corinthians: "But if you solely bless in spirit, how, after your act of grace, can the layman, who does not hear what you say, pronounce the holy word Amen; for if, while you are offering thanks to God, he does not understand, he will not be edified." Again, in his Epistle to the Romans, he says: "Even though one may sincerely trust in the justice of God, confessions should be made with the mouth in order that salvation may be obtained."
Therefore, it is proper that the prayers made during divine service, and the other supplications addressed to Our Lord Jesus Christ, God Our Father, and the Holy Spirit, should be uttered in a loud tone, by the most holy priests and bishops; and We notify all ecclesiastics that if they should violate any of these provisions, they must render an account of their conduct on the terrible Judgment Day of Our Lord and Saviour Jesus Christ; and that We, when informed of these matters, shall not disregard them, and leave them unpunished.
(1) We also order that if the Governors of provinces should ascertain that any of the rules which We have promulgated are not observed, they shall first compel the metropolitans and other bishops to call the synods together, and do what We have just prescribed; and when the bishops do not immediately obey, the Governors must notify Us of the fact, in order to enable Us to promptly punish those who refuse to convoke the synods; and We hereby warn the Governors, as well as their courts, that if they do not see that what We have decreed is executed, they shall be put to death.
We, however, by this constitution, confirm the various provisions included in Our laws, which have reference to bishops, priests, and other ecclesiastics, as well as to the superintendents of houses for the entertainment of strangers, of orphan asylums, and of all other religious establishments whatsoever.
EPILOGUE.
Therefore Your Highness will, by means of notices posted in the usual places of this city, hasten to communicate to all Our subjects the matters which it has pleased Us to insert in the present law, as well as inform the Governors of provinces of them.
Given at Constantinople, on the tenth of the Kalends of March, during the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.
TITLE XXI.
INTEREST SHALL NOT BE CALCULATED FOR AN AMOUNT MORE THAN DOUBLE THE PRINCIPAL.
ONE HUNDRED AND THIRTY-EIGHTH NEW CONSTITUTION.
The Emperor Justinian to Hermogenes, Master of the Offices.
We have promulgated a law which annuls the right of action to collect a claim when the interest paid by the debtor amounts to more than twice the principal. Hence, where any of your creditors have received from you interest equal to twice the amount of your indebtedness, and others have received less, those who have paid double the sums which were loaned at different times cannot molest you any further, and their claims having been satisfied they can, for this reason, be compelled to remain silent. We decree if the others should bring suit for what is due to them, they can recover the amount of interest stated in their bonds; and when their claims are just, We decree that they shall enjoy the benefit of the present law.
TITLE XXII.
CONCERNING THE INDULGENCE GRANTED WHEN MARRIAGES ARE ILLEGALLY CONTRACTED.
ONE HUNDRED AND THIRTY-NINTH NEW CONSTITUTION.
In the Name of Our Lord Jesus Christ, the Emperor Caesar, Flavius, Justinian, Augustus, to Florus.
PREFACE.
Your Glory has informed Us that the inhabitants of the town of Syndics, and the Jews of the Island of Tyre, are violating Our Constitution by contracting unlawful marriages, without giving up the
fourth of their property, in accordance with the laws enacted on this subject; and that many of them, who have already passed the greater part of their lifetime, and have children, are begging, in tears, not to be compelled to separate from their wives, and that the latter, as well as their children already born, and those who may hereafter come into the world, shall be their lawful successors, without their having any reason to apprehend punishment for their breach of the laws.
CHAPTER I.
Therefore, We order by way of indulgence and remission of the penalties which they have incurred that each of them shall pay ten pounds of gold (but this favor is granted to them alone), and they shall have as their legal successors their wives, their children both born and unborn, without, however, what We now decree being considered a precedent for others, as everyone else who may ask similar indulgence from Us is hereby notified that he will not obtain it; he will lose his property; and, though no corporeal punishment will be inflicted upon him, he shall be exiled for life. But none of those persons to whom We grant this privilege, their wives, or their children who are now living or who may hereafter be born, shall have their property interfered with either by virtue of a judicial decree, or for any other reason whatsoever.
EPILOGUE.
Therefore Your Glory will see that the provisions which We have been pleased to insert in this present law, which contains an act of Our special indulgence, is carried into effect.
TITLE XXIII.
MARRIAGE CAN BE DISSOLVED BY COMMON CONSENT. ONE HUNDRED AND FORTIETH NEW CONSTITUTION.
PREFACE.
None of the affairs of mortals should be venerated as much as marriage, as, by means of it children are born, and from it entire generations are derived, which furnishes populations to countries and cities, and promotes the foundation and continuance of good government. Hence We are so desirous that married persons should be fortunate that We never allow matrimony to be committed by violence, or husbands and wives to be separated without a just cause for divorce. But as it is extremely difficult for all marriages to be happy (for being so numerous, there must necessarily be found some where atrocious and irreconcilable enmity prevents the parties from living together), We have thought it proper to provide a remedy for this, and especially Where matters come to such a pass that the hatred of the husband and
wife towards each other cannot be appeased. In accordance with the ancient law, they were allowed to separate by common consent, but there were many enactments which treated of this subject, and several of them permitted a dissolution of marriage, where the separation took place with the agreement of all the parties interested. Some of these laws were written in the Latin language. But a short time afterwards, the Most Holy Emperor, Our Father (who surpassed all other sovereigns in piety and wisdom), taking into consideration the blessings of matrimony, and also directing his attention to the wretchedness of others, enacted a law which forbade marriages to be dissolved merely by common consent, and it was Our original intention that this law should be strictly observed and remain in full force and effect.
Many married persons, however, who entertained for each other intense hatred and aversion, and (what is greatly to be deplored, and is the fruitful source of trouble and sorrow) by their mutual reproaches and recriminations maintained incessant strife in their homes, requested Us to be permitted to dissolve their marriages, although they were not able to advance any of the reasons for which such a dissolution was authorized by law.
We have postponed for some time the gratification of the wishes of such people for a separation, either in order to give them advice, or to threaten them, with a view to appeasing the unreasonable hate with which they regard each other, as well as to conciliate them, and quiet their minds, but We have not succeeded in doing so. For it is very difficult to reconcile those who are influenced by violent hostility, as it often happens that married persons will plot against each other, and make use of poison or other means of producing death, to such an extent that even the children who have been born to them cannot again unite them.
CHAPTER I.
Therefore, as We think these matters to be unworthy of Our reign, We have framed the present Imperial Law, by which We decree that, in conformity to the ancient rule, it shall be lawful to dissolve marriages by common consent, and that the penalties denounced, with the sanction of Our Father, against those who terminate their marriages in this way, shall be abolished. For if matrimony is brought about by mutual affection, it is certainly reasonable that a contrary desire should annul it, where both parties agree to do so, provided that this is sufficiently shown by the service of notice of repudiation.
But it is perfectly clear that, so far as the other matters contained in Our laws, and especially those set forth in the Imperial Constitutions of Our Father which have reference to marriages, and the causes which authorize their dissolution, or relate to separations where no cause exists, and to the penalties to which the persons who effect them are liable are concerned, they shall remain in full force. This rule, however, does not apply to husbands and wives who are separated by common consent as prescribed by the present law.
EPILOGUE.
Hence Your Glory is hereby ordered to communicate the matters included in the present law to all the residents of this Royal City, as is customary.
Given at Constantinople, on the seventeenth of the Kalends of October, during the first year of the reign of Our Lord the Emperor Justinian.
TITLE XXIV.
EDICT CONCERNING THOSE WHO COMMIT THE CRIME AGAINST NATURE.
ONE HUNDRED AND FORTY-FIRST NEW CONSTITUTION. The Emperor Justinian to the People of Constantinople.
PREFACE.
As we are always in need of the benevolence and kindness of God, and above all, at this time, when we have provoked Him to anger in many ways, on account of the multitude of our sins, and although He threatens us with the penalties we deserve, He, nevertheless, manifests his clemency to us, and has deferred the exercise of his wrath to some future time, expecting that we will manifest repentance, for He is more desirous for Our conversion and salvation than for Our death.
Wherefore it would not be just for us to treat with contempt His abounding kindness, His tolerance, and His infinite patience, lest, avoiding repentance, our hearts may become hardened, and We may accumulate His anger upon our heads, on the day of His vengeance. But while we attempt to avoid committing wicked actions, and cherishing improper desires, there are persons who are guilty of abominable offences, which are deservedly detested by God. We have reference to the corruption of males, a crime which some persons have the sacrilegious audacity to perpetrate.
CHAPTER I.
We know, from the study of the Holy Scriptures, that God, in order to punish such persons, visited His wrath upon those who formerly inhabited the City of Sodom, and caused its territory to be consumed, even to this day, by an inextinguishable fire; and in this manner He informs Us that We should abhor conduct of this description, which is contrary to the laws of nature. We also know what the Divine Apostle said concerning it, and also what provisions Our laws have promulgated with reference thereto. Wherefore it is proper that all those who are influenced by the fear of God should abstain from such impious and criminal acts which even are not committed by beasts, and that those who have not yet perpetrated them may hereafter be deterred from doing so. Hence those who are given to this
species of vice must hereafter not only refrain from sinning, but also show that they are penitent; prostrate themselves before God; confess their faults in the presence of the Most Blessed Patriarch, and (as has already been stated) they will reap the fruits of their repentance; so that the Almighty in his indulgence, and on account of the wealth of His compassion, may render Us worthy of His kindness; that We may all give thanks for the salvation of those who are penitent; and that the magistrates, by prosecuting the guilty, may conciliate God who is deservedly incensed against Us. And, indeed, We consciously and wisely beseech to bring to repentance those who defile themselves with filthy practices of this kind, so that there will no longer be occasion for Us to prosecute such offences. We notify all persons who may hereafter be guilty of this crime that if they do not cease to sin, and do not confess their guilt to the Most Holy Patriarch or provide for their own salvation, and propitiate God on the holy festival days, they will render themselves liable to terrible chastisement, and will not, in the future, be deserving of pardon. We shall not neglect to adopt severe measures against such as do not manifest their repentance on the most holy festival days, and who persist in their wickedness, for if We should show any negligence in this respect, We will bring down the wrath of God upon Us, and by closing Our eyes will become accomplices in a crime sufficiently atrocious to arouse the anger of Heaven against all persons.
This Edict shall be communicated to the citizens of Constantinople.
Given at Constantinople, on the Ides of March, during the thirty-second year of the reign of Our Lord the Emperor Justinian, and the eighteenth year after the Consulate of Basil.
TITLE XXV. CONCERNING THOSE WHO MAKE EUNUCHS.
ONE HUNDRED AND FORTY-SECOND NEW CONSTITUTION. The Emperor Justinian to Marthana.
PREFACE.
The punishment prescribed by Our predecessors against those who dare to make eunuchs are sufficiently clear to everyone. Nevertheless, certain persons, not having their own salvation in view, have recently ventured to commit this infamous offence, on account of which certain of them have undergone the penalties which they deserve, and others, after having been punished, have been sent into exile. Still, however, because these impious acts have not ceased, but, on the other hand, have multiplied, and out of the great number of those upon whom this operation is performed only a very few survive, so that certain of them have stated in Our presence that of ninety who have been castrated, hardly three have escaped with their lives; what person in authority could have so little regard for his salvation as to treat
a matter of this kind with contempt and permit it to go unpunished? For if Our laws punish those who strike others with a sword, how can We close Our eyes, and let murders of this kind, which are both offences against God and the law, be committed with impunity ? Hence We have considered it very necessary, by means of this law, to relentlessly prosecute persons who are guilty of such a crime.
CHAPTER I.
Therefore We decree that any persons who, in any part of Our Empire whatsoever, have presumed, or may hereafter presume to castrate anyone, or themselves submit to the operation which they have performed upon others, and they survive, shall have their property confiscated to the Treasury on the responsibility of him who, at the time, discharges the duties of the magistracy of Your Glory, and that they themselves shall be banished to the Island of Gypsum, there to pass the remainder of their lives.
Where, however, women are guilty of this offence, We order that they shall be punished, and their property be confiscated to the Treasury, on the responsibility of the magistrate whom We have just mentioned, and be sent into exile, and those who expected or do now expect to profit by the commission of such an atrocious act shall both be subjected to punishment, and lose their property.
We decree that persons of either sex who confine themselves to giving orders to make eunuchs, or who furnish individuals to be operated upon in this way, or who even provide houses, or any other place whatsoever for this purpose shall, as participants in the same crime, suffer the same punishment.
CHAPTER II.
As persons became free in ancient times when they were castrated, We order that those who have undergone such an operation (no matter by whom it may have been performed) in Our Empire, from the date of the tenth indiction of the present month, shall be free, and cannot be reduced to slavery under any circumstances, nor by virtue of any agreement; and any public or private instrument which already has been, or may hereafter be executed with reference to a matter of this kind, whether it was fraudulent or not, shall be void. No investigation shall be made of the status of castrated persons, and We order that all those who hereafter take any part in the execution of contracts relating to castration shall undergo the penalty which We have mentioned.
If a slave should happen to be castrated on account of some illness, We order that he shall obtain his freedom, for the law presumes that those are free in the beginning, when attacked by the disease for which this remedy is employed. Therefore We direct that castrated persons who have been made such in Our Empire (no matter in whose house this may have been done) shall be considered as emancipated
from the date We have just fixed, shall become free, and shall never again be reduced to servitude.
If, after the publication of the present law, anyone should dare to retain castrated persons in his house, We permit the latter who, under this Constitution, are already entitled to their liberty, if they are in this city, to apply to the Emperor, to the Most Holy Archbishop, and to the other high officials of Our Most Glorious Empire; and if they are in the provinces, to the most glorious bishops of their dioceses, and to the Governor; and they will, through the efforts of all Our magistrates, and at the risk of the officers subject to their authority be entitled to retain their freedom (both at Constantinople and in any other portion of Our dominions) for We do not intend to allow so many murders to be perpetrated under Our Government by means of castration. And if the barbarians have heard and obeyed Our orders on this subject, how, after so many enactments by Our predecessors, can We allow the crime which We prohibit again to be committed and go unpunished in Our Empire?1
1 The manufacture of eunuchs was, during the Middle Ages, a most lucrative occupation, and was almost exclusively confined to the clergy. It was, indeed, so congenial and profitable that the denunciation of the severest penalties against it by both secular and ecclesiastical authorities was productive of but little effect. The victims were usually boys of tender age, which fact rendered the mortality much less than where adults were selected for this purpose. Monks were the principal offenders, and the operation, being performed in the seclusion of the monastery, rendered detection almost impossible, and the disposal of the bodies of the children who succumbed, a matter of little difficulty. Some of those subjected to the outrage were sold by their parents, but most of them were kidnapped, and disappeared forever from the eyes of their relatives.
The chief markets for eunuchs were in Moorish Spain and Africa; but wealthy Christians, and not a few eminent and godly prelates who, with more or less publicity, maintained harems, were zealous patrons of this nefarious industry. Complete ablation of the parts was ordinarily effected, and the resulting hemorrhage, together with ignorance of all antiseptic precautions, invariably resulted in appalling fatality.
According to the Salic Law, the castration of a freeman was punished by a fine of two hundred solidi. "Si quis hominem ingenuum castrauerit, Vill M din. qui fac. sol. CC. culp. iud." (Lex Salica, IX, 9.)
The majority of the ancient legislators adopted the lex talionis by way of penalty for the offence, which was the case in England in early times, the rule having been introduced by William the Conqueror. This, however, was not afterwards considered strictly applicable to mayhem, "which signifieth a corporall hurt, whereby hee loseth a member, by reason whereof hee is lesse able to fight," since fine and imprisonment were usually imposed for its perpetration, although it was designated by the old jurists homicidium inchoatum.
Bracton classes castration, whether performed for gain or indulgence in vice, with or without consent, as a felony, to be punished by death, or exile and confiscation of property. "Si quis alterius virilia absciderit, & ilium libidinis causa vel commertij castrauerit, tenetur: sine hoc volens fecerit siue inuitus, & sequitur poena, aliquado capitalis aliquando ppetuu exilium cum omnium-bonorum ademptione." (De Legibus et Consuetudinibus Anglia} III, 144.) Coke places it under the head of mayhem, which is still the law in England and America. "Castratio vero, quam vis latens sit, adjudicatur mahemium."
"By the ancient law of England, he that maimed any man, whereby he lost any part of his body, the delinquent should lose the like part, as he that took away another man's life, should lose his own." (Institutes III, Page 118.) All serious mutilations are now included in the definition of mayhem, and are punishable by
EPILOGUE.
Therefore Your Glory will cause the matters which it has pleased Us to incorporate in this general Imperial Law to be published and observed, not only here but also in the provinces.
Given on the twenty-fifth of the Kalends of December, during the reign of Our Lord Justinian, ever Augustus, and the Consulate of Basil.
TITLE XXVI.
CONCERNING A WOMAN WHO SUFFERS HERSELF TO BE CARRIED AWAY.
ONE HUNDRED AND FORTY-THIRD NEW CONSTITUTION.
The Emperor Justinian, Augustus, to Areobindus, Most Glorious Praetorian Prefect, Ex-Prefect of Constantinople and Ex-General of the Army.
PREFACE.
No one doubts that the interpretation of the law belongs solely to the sovereign, since he has the right to promulgate it. We remember to have formerly enacted a constitution having reference to the rape of betrothed and married women, unmarried females, and widows; and of having subjected to capital punishment not only their ravishers, but also the accomplices of the latter, and all other persons who were known to have assisted them at the time when the act was committed. We have also, by the same law, permitted the ascendants of the
statute. (Vide Blackstone, Commentaries on the Laws of England IV, XV, 205; Stephen, Commentaries on the Laws of England VI, IV, 66; Wharton, A Treatise on Criminal Law II, Page 978.)
Spanish law prescribes imprisonment for from twelve years and one day to life, where anyone designedly castrates another. "El que de proposito castrare a otro, sera castigado con la pena de reclusion temporal d perpetua." (Codigo Penal de Espana, Art. 429.)
Penal servitude for life is imposed in France, and if death ensues within forty days after the commission of the crime, the culprit is put to death. "Toute personne coupable du crime de castration subira la peine des travaux forces a perpetuite."
"Si la mart en est resultee avant I'expiration des quarante jours qui auront suivi le crime, le coupable subira la peine de mort." (Code Penal de France, Art. 316.)
In Belgium, the penalty is imprisonment for from five to ten years. (Code des Lois Penales Beiges, Art. 400.) Imprisonment for a term of from six to ten years is the punishment prescribed by the Swedish Code. (Sveriges Rikes Lag., 14 Kap., Sec. 10.)
In Italy, the culprit is imprisoned for from five to ten years (Codice Penale del Regno d'ltalia, Arts. 372-2) ; in Portugal, for from two to eight years (Codigo Penal, Art. 366); in Germany, for from two to ten years (Strafgesetzbuch fur das Deutsche Reich, Arts. 224, 225); in Austria, for from five to ten years (Allgemeines Strafgesetz, Art. 156) ; in Japan, for from two to ten years (Criminal Code of Japan, Arts. 241-5). In all the legal enactments above referred to proof of the intent to perpetrate the crime is an indispensable requisite to insure conviction. —ED.
women in question, as well as their other blood-relatives and their guardians and curators, to prosecute a rape; and We have especially punished the violation of women already married or betrothed, because, under these circumstances, both rape and adultery have been perpetrated. One of the penalties which We prescribed was the right to claim the property of the ravisher, as well as that of his accomplices, for the benefit of the woman concerned; and the payment to the husband, out of the estate of the ravisher, of an amount equal to the dowry brought him by his wife. We have especially added that no woman nor virgin should be permitted to marry her ravisher, but if her parents should desire to marry her to anyone (her ravisher excepted), We have already forbidden him to marry her at any time; and in conclusion We have decreed that if her parents should consent to a marriage of this kind, they shall be deported.
We are, however, surprised that certain authorities have attempted to hold that if the woman who was violated, either with her consent or without it, should marry her ravisher against the tenor of Our Constitution, she would be entitled to his estate, either under the terms of the law, or by will, if one had been made. Those who presume to entertain such opinions have not been able to understand the meaning of the aforesaid law; for if We have prohibited matrimony of this kind, even when the woman consented to it, and, on this account, have subjected her parents to the penalty of deportation where they had consented to the union, why should We honor women who have suffered violation, and choose to marry their ravishers, by giving them rewards? Therefore, rejecting this unfounded doubt, We have deemed it proper to interpret the former law by the present one, and, with this end in view, We decree that if the ravished woman, no matter what her status or age may be, should desire to contract a marriage with her ravisher, and especially without the consent of her parents, she shall not be entitled to the estate of her ravisher, under any circumstances, either through the indulgence of the law, or by testamentary provision; but his property, as well as that of his accomplices, which Our law places at the disposal of the ravished woman, shall, from the date of the perpetration of the crime, be transferred to his father and mother, whether both, or only one of them be living, provided they are not proved to have given their express consent to the marriage; and the woman who did not hesitate to defile herself by marrying her ravisher shall have no claim to his estate, which shall, as aforesaid, go to her father and mother; but where the parents of the woman are already dead, or gave their consent to an act of this kind, the property of the ravisher, as well as that of his accomplices, shall be confiscated.
We order that the present interpretation shall apply, not only to all future cases, but also to those which have passed; just as if this Our law had, in the beginning, with its construction, been communicated to you, Most Glorious, Illustrious, and Beloved Prefect.
(1) Therefore Your Highness will order what We have decreed by this Our law to be observed and carried into effect.
TITLE XXVII. CONCERNING THE SAMARITANS.
ONE HUNDRED AND FORTY-FOURTH NEW CONSTITUTION. The Emperor Justinian to Diomedes, Praetorian Prefect.
PREFACE.
We are constantly occupied, as the Most Pious Emperor, Our Father was, in attempts to turn the Samaritans from their heresy and their unreasonable errors to lead them in a better path, and to cure their souls of the diseases with which they are afflicted; but, in most instances, We have not succeeded in accomplishing what We have long attempted. For several of them are so devoted to their insane beliefs that, after having become worthy of being baptized, they have again accepted the evil doctrines which they once renounced; and have induced others to embrace the same heresy with equal ardor. Therefore, it appears to Us to be advisable to amend the ancient law enacted against the Samaritans by Our Father.
CHAPTER I.
Hence, We prohibit them from becoming heirs, either by will or in case of intestacy, from receiving legacies, or from acquiring anything by way of donation. Neither the Samaritans, nor heretics in general, nor those who pretend to profess the true faith of Christians, without actually believing in it, and observing its rules, shall be entitled to any succession to which they may be called ab intestato; nor can they execute a will, make a donation, or bequeath a legacy; unless those who are entitled to receive them have embraced the true religion, and have manifested their faith by their works; for where none of them are persons of this kind, We order that, after their death, their property shall belong to the Imperial Treasury. Wherefore the rule which Our Father established through indulgence for the Samaritans, and which, having the force of law, gave them the privilege of accepting and transmitting estates, as well as the right to receive and bequeath legacies, shall hereafter be void and have no force whatsoever.
If those who adopt the insane belief of the Samaritans should show themselves to be unworthy of the benefit of this constitution, they can blame no one but themselves, since they have rejected the benevolence of God and Our Lord and Saviour Jesus Christ; and they shall forfeit the privileges formerly granted to them by Imperial Majesty, for the purpose of inducing them to entertain a better frame of mind, and to prevent their perpetual adherence to this perverse doctrine.
CHAPTER II.
We except from the operation of the present law those who acquiesce in the dogmas of the Samaritans, not through any favor to them, but from the fact that they cultivate certain tracts of land
whose revenues and tributes are paid into the Public Treasury, and for the reason that, on account of their rusticity, they have been led astray in this respect. For We permit them, even though they have embraced the Samaritan heresy, to appoint as heirs or legatees both their ascendants, descendants, and collateral relatives; if they should continue to cultivate said lands in such a way that the owners thereof can obtain a better income, and may the more readily be able to pay the taxes due to the Treasury. And for the same reason, We enable them to succeed to the inheritance of one another, in case of intestacy; and We also desire that when a tenant expires without leaving any heirs, the owner of the land on which he died shall be entitled to his property, and take the place of the Treasury in this respect, provided he pays the public taxes instead of the deceased.
Moreover, We do not permit a Samaritan to hold office, or discharge the duties of civil administration, to bring suit in court, to be admitted to the Association of the Rhetoricians, or to impart instruction to young persons. And if any Samaritan, after having proved himself worthy to receive baptism, should return to his former error and be detected in observing the Sabbath, or in doing anything else which proves that he was only baptized through simulated conversion, We order that he shall be proscribed, and sentenced to exile for life. We subject to the same penalty those persons who, in opposition to the Christian faith, have impiously given him protection. It seems to Us, however, very proper that those who solicit the sacred rite of baptism should not hastily be permitted to receive it, and We desire them to be examined and the advice usually given at the time of initiation to be communicated to them.
We also order that those who can, in any way, be influenced by good doctrine shall, in the first place, be instructed in the faith for two years, and become familiar with the Holy Scriptures; and that they then be presented with the sacred baptism, the symbol of redemption, and obtain the fruit of this sacrament, after a sufficiently long repentance.
This provision, however, shall not be applicable to the children of Samaritans who, on account of their age, are unable to understand the doctrine of the Church, for We allow them to be honored with baptism without this requirement. No Samaritan shall hold a Christian as a slave, and if he should buy one, he must be restored to freedom. When the slave of a Samaritan adopts the false doctrine of his master, he shall be permitted to obtain Roman liberty immediately, if he embraces the Christian faith.
EPILOGUE.
Therefore Your Glory will cause what We have been pleased to enact by the present law to be published in the usual manner, and carried into effect.
TITLE XXVIII.
NEITHER THE DUKE NOR THE BIOCOLYTE OF LYDIA AND LYCAONIA SHALL HEREAFTER BE PERMITTED TO INTERFERE IN THE AFFAIRS OF EITHER THE PROVINCES OF BOTH PHRYGIAS AND PISIDIA.
ONE HUNDRED AND FORTY-FIFTH NEW CONSTITUTION.
The Same Emperor to Ariobindus, Most Glorious Praetorian Prefect.
PREFACE.
We, having provided a suitable remedy for such abuses as are of frequent occurrence, now direct Our attention to others which We intend to correct by the present law. We have been informed that in Phrygia and Pisidia, many popular tumults, as well as attacks of robbers, take place; and that the reason for these disorders is that the civil administration has been abolished there, and that We have placed over these two provinces, as well as those of Lycaonia and Lydia, a military commander styled a duke, or biocolyte. The inhabitants of the two Phrygias and Pisidia now ask Us that the crimes which have, for a long time, been committed in their country, shall be suppressed; stating that robberies are perpetrated there with impunity; that their provinces are no longer sufficient to support the officials; that those appointed by Us are not competent, and their subordinates are constantly running over the provinces arresting persons, and committing damage; that the country is so afflicted with military disturbances that it is becoming uninhabitable; that the higher civil judges, who are appointed by the commander-in-chief to dispense justice to the people, instead of maintaining peace among them, make use of the guards attached to their office to arrest innocent persons and oppress them.
CHAPTER I.
We, being moved with sympathy for these unfortunate people, do hereby enact the following law, by which We decree that the jurisdiction of the said provinces (We refer to Salutary Phrygia and Pacatian Phrygia, and Pisidia) shall be withdrawn from the magistracy to which they were formerly subject, together with the Lyca-onians and Lydians; and, from this day, We forbid the judges having jurisdiction of Lycaonia and Pisidia to interfere with the government of the two Phrygias and Pisidia, or to send there any of their officers or any other persons under their orders, for the purpose of making arrests. And We also forbid the inhabitants of said provinces, under the penalty of a fine of thirty pounds of gold, to have recourse to the Biocolyte of Lycaonia and Pisidia, or bring either civil or criminal actions in which they themselves are interested before him, and We also forbid this magistrate to enter the two Phrygias and Pisidia, to issue any orders to those who reside there, or to claim jurisdiction
over the affairs of the said provinces; for We order him to be content with Lycaonia and Pisidia, and to govern them alone, just as if, from the beginning, We had restricted his jurisdiction to these two provinces, and as if We had never given him any authority over the two Phrygias or Pisidia.
In this manner We shall deliver the said provinces from all the evils with which they have been oppressed up to this time; civil magistrates will dispose of both civil and criminal matters, and they are hereby notified that if any theft, robbery, or unlawful removal of property of any kind should occur there, and they do not punish it, or do not recover what was stolen, they themselves shall be required to make good the loss, not only while they remained in office but after they have been removed.
If anyone invested with the military command of Lycaonia and Lydia should himself, hereafter, attempt to go into the provinces of Pisidia and Phrygia, or to send any of his subordinates there, We hereby authorize the bishops of the towns to forbid their entrance, and to drive away the officers which the biocolyte despatched, as the present law prohibits this magistrate and the officers subject to his authority, from entering the said provinces under the penalty of thirty pounds of gold, and it also renders them liable to lose their places and their estates.
EPILOGUE.
Therefore Your Glory, having been informed of the matters contained in this Imperial Law, will, in consequence, issue decrees, and address edicts and orders to the Governors of provinces and the bishops of cities, in order that they may publish them therein, and communicate them to all Our subjects.
Given at Constantinople, on the sixth of the Ides of February, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the twelfth after the Consulate of Basil.
TITLE XXIX.
HEBREWS SHALL BE PERMITTED TO READ THE SACRED SCRIPTURES ACCORDING TO THEIR LAW IN LATIN, GREEK, OR ANY OTHER LANGUAGE. PERSONS WHO DO NOT BELIEVE IN THE LAST JUDGMENT OR THE RESURRECTION, AND WHO SAY THAT THE ANGELS ARE CREATURES OF GOD, SHALL BE EXPELLED FROM THEIR COUNTRY.
ONE HUNDRED AND FORTY-SIXTH NEW CONSTITUTION. The Same Emperor to Ariobindus, Praetorian Prefect.
PREFACE.
It is necessary for the Hebrews who understand the Sacred Books not to adhere strictly to their literal meaning, but to take into con-
sideration the prophesies contained therein, which announce the coming of Jesus Christ, the Saviour of the human race. As, however, they, by adopting incorrect interpretations of the Scriptures, have, up to this time, wandered from the true faith, and adduce arguments in their favor, We shall not permit this controversy to continue any longer without being settled. For the reason that they have frequently stated that, being only acquainted with the Hebrew language, they wish to make use of it in the Sacred Books but have not deemed it advisable to translate them into Greek, and, on this account, they have, for a long time, been greatly embarrassed, We have decided that it will be better to permit them to read them, not only in Greek, but in any other language which will make them better understood by the hearers, because of its being more familiar to them.
CHAPTER I.
Therefore We order that the Hebrews (no matter in what Hebrew district they may be) shall be permitted to read the Sacred Books in Greek, or in the language of the country, before the persons assembled in their synagogues (that is to say, Latin), or in any other language —provided that it is not a different one from that spoken in the place—in order that the reading of the said Books may be understood by all who are present, and that the latter may continue to live in accordance with their precepts.
We do not, however, allow the Hebrew translators to corrupt the text, and conceal their fraud because of the ignorance of many persons. Those who read the Sacred Writings in Greek shall make use of the Septuagint, which is considered the most correct, and the best; as the authors, although separated from one another and residing in different localities, nevertheless, all agreed in the version which they made. And, indeed, who would not be surprised to learn that these men, having lived a long time before the beneficent appearance of Our Lord Jesus Christ, predicted the events mentioned in the Sacred Books, just as if they had been witnesses of them, and had been enlightened by the grace of prophesy?
Without intending to exclude the other versions, We also permit the Hebrews to make use of that of Aquilea, even though it is foreign, and does not in some points agree with the Septuagint. We, however, absolutely forbid the use of the one which the Hebrews call the second edition, for it does not form a part of the Sacred Books, it was not handed down to Us by the prophets, and is an invention devised by men who only speak of earthly things, and who had in them nothing that was divine.
The Hebrews, then, shall read the sacred words; they must reject the versions that have not been approved, and not discard those which are genuine to make use of foreign translations, transmitted orally, and devised for the perdition of weak persons. But, in order that those who translate Greek or other languages may not, in any way, be inconvenienced on account of the power which We grant them, and which no one whosoever shall prevent them from exercising, We for-
bid those whom the Hebrews call great archipheretitas, or priests or masters, to prevent perinoei or anathematismi from translating the Sacred Writings, unless the former should desire to undergo corporeal penalties, and, in addition, lose their property, for We order and desire what is best and most pleasing to God.
CHAPTER II.
If, indeed, any persons should presume to have atheistic writings in their possession, or should deny the Resurrection, the Last Judgment, or the birth of God, or should say that angels are creatures, We order that they shall be expelled from every part of the Empire, that they shall be deprived of the power of blasphemy, and that the punishment of death shall remove such false doctrines from the Jewish Nation which does not acknowledge the true God.
CHAPTER III.
We, however, beseech all who hear the Sacred Books in either Greek or Hebrew to make allowance for the evil disposition of the translators, and not only consider the literal sense of the terms, but also adopt the Divine meaning; so that those who sometimes accept errors, and sin in matters which are most important (We mean with reference to hope in God) may be instructed in the true Faith, and live in peace. For this reason, We permit the Hebrews to make use of all languages for the reading of the Sacred Books, so that in the future they may become familiar with the precepts contained therein, and make more rapid progress in better things.
EPILOGUE.
Therefore Your Glory, as well as the persons attached to Your court, will see that the matters which it has pleased Us to decree by the present law are observed. The magistrate appointed by you will cause the said law to be executed, and will not permit the Hebrews to violate any of its provisions; he will inflict corporeal penalties upon those who attempt to violate it, and will send them into exile, and deprive them of their property, in order to prevent them from audaciously rising up against God and the Empire; and he must also despatch orders to the Governors of provinces, directing them to execute Our law, and the said Governors, after having had it communicated to them, shall themselves publish it in every city; and they are hereby notified that it must be observed by those who do not desire to suffer the effects of Our indignation.
Given at Constantinople, on the sixth of the Ides of February, during the twenty-fifth year of the reign of Our Lord the Emperor Justinian, and the twelfth after the Consulate of Basil.
TITLE XXX.
CONCERNING THE REMISSION OF BALANCES DUE ON PUBLIC TAXES, AND THE ABOLITION OF CERTAIN ACTIONS.
ONE HUNDRED AND FORTY-SEVENTH NEW CONSTITUTION. The Same Emperor to Ariobindus, Praetorian Prefect.
PREFACE.
Although We are at present obliged to incur expenses which are in excess of the resources of the Empire, still, through the goodness of God, We are enabled to obtain what is necessary by means of tributes imposed upon barbarians, as We provide for everything, and do not fail to display indulgence to Our subjects on all occasions. How often do We release from unpaid tribute those persons who, being in arrears, have presented petitions to Us, and have made Us acquainted with their wretchedness? Not one of Our subjects shall withdraw from Our presence without having obtained his wish, and We can even refrain from saying this, as the Rescripts granted to those who have received such benefits are sufficient proof of the fact. But it would be contemptible and unworthy of Our government to grant favors only to those persons who solicit them, and not to extend Our indulgence to the country as well as to the towns, or to the provinces alone, without including all Our subjects.
CHAPTER I.
Therefore We now come to the bestowal of Our present favors, and decree that all Our subjects shall be released from taxes for the entire cycle of the past indiction, and for seven years of the cycle of the present one, so that the indulgence which We extend to them shall continue for twenty-two years, during which time no unpaid taxes can be collected. We adopt this rule whether the said taxes are payable in gold, silver, wheat, or any other articles in kind, and whether they should be contributed to the Imperial Treasury by Our subjects, or the Prefecture of Illyria, either by way of revenue, or for any other purpose. We extend Our liberality to all Our subjects, and forbid anyone charged with the levy of tribute, or sent by magistrates to collect taxes in arrears, as well as all public officials or bearers of orders or commands, to subject them to any payment for time which has elapsed.
We also wish that any of Our subjects who, during the time which We have just mentioned, may have failed to obtain the supplies of grain which are gratuitously furnished by the government, shall not be entitled to claim them. On the other hand, We exclude from Our liberality, as one stricken with a pestilence, any person who may venture to make such a demand, and We abolish for the future all right of recovery of the same, not only against Our subjects, but also against the government. As the property which forms part of Our private domain, or Imperial patrimony, is entitled to the benefit of the present
indulgence, it is clear that tribute due for time which has expired shall not be demanded of tenants, lessees, or emphyteutas, either by the collectors of public taxes or by the Palatines themselves.
What We decree, however, is only applicable to tributes which are already due, and have not been paid by Our subjects; for if they have been paid, and are already in the hands of decurions, receivers, substitutes, or the officials in the provinces charged with keeping accounts, they shall be held and preserved for the public; for it would be absurd for what has been given by Our subjects instead of being collected by the Treasury to enure to the benefit of others.
CHAPTER II.
We except from the provisions of this law all that which has been acknowledged as due, or for the payment of which security has been furnished the government by accountants, cashiers, or secretaries; for We do not include such sums among those whose collection is released by Our indulgence, because the Treasury considers them as part of its assets, and has, to a certain extent, already collected them. We also except the supplies which are owing to soldiers and allies, because they have no relation to Our subjects, and it is permitted to recover them from the receivers, to prevent their appropriation by them; and, for a much better reason, We also except civil sums, and such as are set .apart for public works and are now due, not only in this Most Fortunate City, but in all the other provinces; because it is inequitable that, when We disburse so much money for the maintenance of the government, officials alone should profit unjustly, prevent the provinces from enjoying Our liberality, and deprive them of what they are entitled to for fortifications, or that the cities should not obtain the sums destined for their adornment.
Although We detest persons who are guilty of injustice, We cannot avoid being humane, so far as they are concerned. Therefore We order that the exception which We made in certain chapters shall become operative for all time before the first indiction, that is to say, for sixteen years. We also release all Our subjects in general, and without distinction, from the payment of any taxes which remain due, and We grant them in this respect perfect security. In bestowing this indulgence upon them, We have considered that We are only showing reverence to Almighty God, who has inspired Us to< do so; and all Our subjects should, in the name of the Empire, manifest their gratitude by their conduct.
EPILOGUE.
Your Excellency will be careful to see that what it has pleased Us to promulgate by this Imperial Law is observed and carried into effect.
Given at Constantinople, on the day before the Kalends, during the twenty-eighth year of the reign of Our Lord the Emperor Justinian, and the third after the Consulate of Basil.
TITLE XXXI.
CONCERNING THE RELEASE FROM THE PAYMENT OF PUBLIC TAXES IN ARREARS.
ONE HUNDRED AND FORTY-EIGHTH NEW CONSTITUTION. Antonius Contius, Translator.
PREFACE.
The foresight which We have displayed in the affairs of the Empire from the beginning of Our reign, and the solicitude which We entertain for the government which God has entrusted to Us, is manifest to all Our subjects. For, having found the public oppressed with many debts, and reduced to the direst penury, We Ourselves have assumed much indebtedness; have released the State from all kinds of charges; and have quieted the army, which was on the verge of revolt because of lack of subsistence. We have repelled, as far as possible, the insults and incursions of the barbarians, which threatened the existence of the Empire, and, in short, what have We not done up to this time for the relief of Our subjects? Now We desire, by means of this law, to make them participate in still greater benefits, by releasing them from all the taxes which they owe.
CHAPTER I.
Therefore, extending this act of Our benevolence to all Our subjects, We release them from everything which they owe to the government for the time that has elapsed since the eighth indiction to that of the present cycle; and We desire that, up to this date, no taxes shall be demanded of them, whether the said taxes are payable to the general or private office of Your Glory, to the magistracies of the Imperial Praetors of Illyria, to that of the Most Glorious Justinianian Prefect of the soldiers stationed in Mysia and Scythia, to the Imperial Treasury, to Our private Treasury, or to Our Imperial Patrimony, or, finally, to the Most Magnificent Superintendent of the Households. We release all our subjects from the taxes which they owe either in gold, silver, or any other commodities, which have been incurred since the aforesaid indiction, and such taxes shall not be collected from tenants, lessees, emphyteutas, or even the possessors of property.
CHAPTER II.
We except from the exercise of Our liberality all sums of money due to soldiers and allies, for the reason that Our subjects will not profit by this, but the officials alone, who are charged with the distribution of the public money, will do so. Such property also will be exacted which, publicly subject to the order of soldiers or allies, and consisting of gold, silver, or other articles, has already been delivered by Our subjects to receivers, collectors, or their representatives, for these things shall be transferred to the magistracies entitled to them.
Nor do We accord the benefits of the present law to other persons
who, having obtained from Our subjects any sums in gold, or other property, since the eighth indiction, and have not paid them into the Public Treasury (when this should have been done) ; and We desire that the payment of the same shall be made, for if, induced by humanity, We deem it advisable to release Our subjects from liability for the taxes which they owe, We do not grant this favor to persons who, having received the public money, desire to defraud the Treasury, or those who are entitled to it out of the same.
But if, with a view to anticipating Our munificence displayed in the remission of taxes, any receivers have wrongfully exacted of Our subjects either bonds or sureties, or have changed their public obligations into private ones, or have planned or executed some other fraudulent act of this description, they shall not derive any advantage from it, and must return the bonds to those from whom they received them. All persons should give thanks to God and to Us, some of them because, owing taxes, they have deserved Our indulgence; and others for the reason that while they owe nothing more of this kind, they have been relieved of all care, and will no longer (as frequently happens) be harassed by receivers, on account of taxes previously due; and will no longer be compelled to pay on property which has been lost through their bad faith; but Our subjects shall enjoy perfect security up to the beginning of the eighth indiction, and Our present liberality shall be extended to them all.
EPILOGUE.
Your Glory will, by means of edicts published in this Royal City, communicate to all persons the provisions which it has pleased Us to include in this pragmatic law.
Given at Constantfnople, during the nineteenth year of the reign of Our Lord the Emperor Justinian, and the fourth after the Consulate of Basil.
TITLE XXXII.
BISHOPS, ALONG WITH THE NATIVES AND RESIDENTS OF PROVINCES, SHALL NOTIFY THE EMPEROR WHOM THEY DESIRE TO HAVE AS GOVERNORS. THE SAID GOVERNORS SHALL BE GRATUITOUSLY APPOINTED, BUT WILL BE REQUIRED TO FURNISH A BOND TO THE TREASURY; AND WHERE THE BISHOPS AND INHABITANTS OF PROVINCES NEGLECT TO ASK FOR A GOVERNOR, THEY CANNOT COMPLAIN OF HIM WHO is SENT TO THEM IN THIS CAPACITY, NO MATTER WHAT HE MAY DO WITH REFERENCE TO THE COLLECTION OF PUBLIC TAXES.
ONE HUNDRED AND FORTY-NINTH NEW CONSTITUTION.
PREFACE.
While We are conducting the affairs of the government entrusted to Us by God, We are exerting Ourself to the end that Our subjects
may, under all circumstances, enjoy the benefit of justice; and hence We have proposed to Ourself, from the beginning, that whatever may have previously been incomplete or diffuse, shall be amended and perfected by Us. Therefore, being extremely desirous to take measures by which both the Treasury and Our subjects may remain uninjured, and free from loss, We have decided that We could readily accomplish this if We caused the Governors of provinces, who have received their offices without compensation, to furnish proper security to the Treasury that they will perform their public duties properly and in accordance with law, and that they will abstain from all injustice, gain, and every base and illegal act.
CHAPTER I.
Therefore, to prevent foreigners from participating in the administration of provinces and thereby committing injustice, and to prevent Ourself from being constantly annoyed by complaints of them, We direct the most holy bishops and principal inhabitants of each province to unite in sending a petition to Us, mentioning persons who they think are qualified to govern their provinces. We shall confer upon the latter the insignia of their office gratuitously; they shall be charged with the preparation of the public and fiscal lists; and must promise to exact nothing contrary to law, or commit any violence against Our subjects, and furnish sureties for this purpose; and they must also agree to be content with their employments; to diligently supervise the levies of taxes; to treat with gentleness and kindness those taxpayers who are prompt in paying what they owe, but to display severity towards such as are wicked and refractory, and not use their offices for the purpose of pecuniary profit. For, having their eyes constantly fixed upon the laws, they must dispense equity and justice to all those who demand it, and, instead of impoverishing litigants by expenses and protracted delays, they must dispose of their cases quickly; they must prosecute those who commit crime, and inflict upon them the penalties prescribed by the laws, and, finally, they must, by all means, be upright.
CHAPTER II.
These provisions not only relate to Governors; they also apply to the assessors and officials of every magistrate, no matter who he may be. For if any of them should act negligently in the collection of public taxes, or should cause Our subjects loss, at the same time treating them with insolence, such an official shall be deprived of his property and capitally punished. For, God willing, Our only aim is that the provinces may be governed by good laws, and that persons may reside there in safety, and enjoy the blessings of justice as dispensed by the Governors, and that the public taxes may be collected without any controversy; for when this is not done, it will be impossible for the government to be preserved. It is because of the pay received by them that soldiers are enabled to resist the enemy, and defend citizens from the invasions and cruelty of the barbarians, and protect fields
and towns from the attacks of robbers and others living a disorderly life. It is also by means of taxation that the other cohorts receive what is allotted to them, that walls are repaired, cities fortified, public baths warmed, and, finally, the theatres intended for the diversion of Our subjects supported. Thus the taxes paid by Our subjects are used and expended, partly for themselves, and partly indirectly on their account, for We do not derive any benefit from them, and are only charged with their administration; still, We are fully rewarded for Our trouble by the infinite blessings which Our Lord and Saviour Jesus Christ has bestowed upon Us through the greatness of his clemency.
CHAPTER III.
Therefore, through communicating these provisions, as it were by means of a public crier, to all the people of the provinces, and thus affording them a proof of Our benevolence and generosity, using every precaution to prevent injury being sustained by Our subjects, We render God propitious and favorable to Our designs. For if Our subjects, taking advantage of the privilege which We grant them with reference to the selection of their Governors, should entertain erroneous opinions, and their expectations not be realized, they can blame no one but themselves. For when they postpone choosing their Governors and presenting their names to Us, they cannot make any complaint against those who are sent into the provinces, if they should not act justly in the collection of public taxes; and We forbid them to file any charges against them on this ground. Those who have obtained from Us the privilege of selecting their Governors—who, having obtained their offices gratuitously are charged with the collection of public taxes—shall not be treated by them with injustice, •and whenever they do not exercise proper discrimination in making their choice, they shall, under no circumstances, be given an opportunity for reconsideration, or inform Us of their annoyances, or prove them.
Moreover, none of Our subjects whosoever, whether he be illustrious or obscure, and no religious establishment, church, infirmary for the poor, or monastery, shall be permitted, under any pretext, to postpone the payment of taxes which are due. Nor do We release from responsibility those who administer the affairs of the government, or receivers of taxes, or the officials charged with the collection of public tribute; for We prefer the common welfare to the private advantage of those who basely desire to defraud the Treasury.
EPILOGUE.
In order that the excellent regulations which We have prescribed may become known to all persons, Your Excellency will publish them in this Fortunate City and in the provinces, as well as in the most frequented place in each town, in order that no one may remain in ignorance of the benefits which the law enacted by Us confers upon the Treasury and Our subjects.
Given at Constantinople, on the fifteenth of the Kalends of February, during the eighteenth year of the reign of Our Lord the Emperor Justinian, and the third year after his Consulate.
TITLE XXXIII. CONCERNING A WOMAN WHO MARRIES HER RAVISHER.
ONE HUNDRED AND FIFTIETH NEW CONSTITUTION.
The present constitution confirms the penalties prescribed by the former one, which sets forth that a woman who allowed herself to be carried away cannot marry her ravisher. If, however, she should marry him, she shall not succeed to his estate, no matter what may be her religion or her age. If, on the other hand, she should not marry him, she will be entitled to all his property. If the father of the girl who permitted herself to be carried off consents for her to marry her ravisher, he shall be sent into exile. If he should die without having given his consent, the property of the ravisher shall be confiscated, if the girl who was ravished should contract a prohibited marriage with him.
TITLE XXXIV.
No DECURION OR COHORTAL SHALL BE BROUGHT INTO
COURT OR COMPELLED TO OBEY A JUDICIAL DECISION
WITHOUT AN ORDER OF THE EMPEROR COMMUNICATED TO
THE PREFECTS.
ONE HUNDRED AND FIFTY-FIRST NEW CONSTITUTION. The Emperor Justinian to Ariobindus, Praetorian Prefect.
PREFACE.
Your Glory has stated to Us in a letter that it is customary to bring decurions or the attendants of officials before different tribunals of this city, or in the other provinces, when they are engaged in litigation, either with the public or with private individuals, and you have added that this is frequently sanctioned by Our Imperial orders, and have requested it to be prohibited by a pragmatic sanction that any decurion or attendant officer should be taken from one province to another, or brought into this Royal City, to defend himself in court; or, where this is authorized by an Imperial order, that it should first be presented to the tribunal of Your Excellency, and then carried into effect by means of suitable decrees.
CHAPTER I.
Therefore, as We detest every production in court and appearance for judgment, unless necessity requires recourse to be had to this
proceeding, We forbid all Our magistrates, with the exception of Your Highness, to notify a cohortal or a decurion to appear and de-lend himself in this city, unless an Imperial order expressly authorizing him to do so is presented; and then Your Highness shall do what is proper under the circumstances, and not permit a decurion or an executive officer to be brought into court, except by virtue of a decree issued by yourself; for in justice to the public this must be done, to prevent such officials, when they are removed from the place where they have charge of public money, from taking advantage of the opportunity to commit some injury against the government.
EPILOGUE.
Your Excellency will be careful to see that the provisions which it has pleased Us to promulgate by the present pragmatic law are executed.
TITLE XXXV.
IMPERIAL ORDERS RELATING TO PUBLIC MATTERS WILL BE OF NO FORCE OR EFFECT, UNLESS THEY HAVE PREVIOUSLY BEEN COMMUNICATED TO THE MOST GLORIOUS PRJE-TORIAN PREFECT, FOR THEN ONLY CAN THEY BE
EXECUTED.
ONE HUNDRED AND FIFTY-SECOND NEW CONSTITUTION. The Emperor Justinian to John, Most Glorious Praetorian Prefect.
PREFACE.
We, relying upon Divine assistance and devoting Our attention to the proper administration of the government confided to Us by Our Lord God, do hereby decree that no order, issued with reference to public matters, to a duke, the Augustal Prefect, or to the Governors of provinces, shall be valid, if it has not previously been communicated to the tribunal of Your Excellency; and all such orders as are not recorded shall have no force whatever. For it would be absurd for any Imperial decree to be despatched to the provinces and executed, without having previously been presented to Your Excellency.
CHAPTER I.
Therefore, if an order has been issued to the detriment of the Empire, We order that it shall be void, and any pragmatic sanctions having reference to public matters (as We have just stated) addressed to the Augustal Prefect, to the duke, or to the Governors of provinces, shall, by all means, be communicated to Your Tribunal and despatched into the provinces, along with the orders issued by yourself. Thus, Imperial decrees which are not detrimental to the public interest shall be received and, accompanied by instructions sent by Your Excellency
into the different provinces, be executed there. But where any orders prejudicial to the government have been obtained by artifice, and presented to Your Excellency, they shall not be executed without notice previously given to Us, in order that We may correct them. Hence, We desire that any pragmatic sanctions whatsoever, having reference to public affairs, and which have not been communicated to Your Excellency, shall, at no time, be considered valid.
TITLE XXXVI. CONCERNING CHILDREN WHO ARE EXPOSED.
ONE HUNDRED AND FIFTY-THIRD NEW CONSTITUTION.
The Emperor Justinian to Menna, Most Glorious Praetorian Prefect of Illyria.
PREFACE.
A crime so revolting to human nature as to be incredible, and which is not even committed by barbarians, has been brought to Our attention by Andrew, Apocrisiarius of the Church of Thessalonica. Certain persons throw away their children the instant they issue from their mothers' wombs, and leave them in the holy churches, and after the said children have been brought up by persons who perform works of benevolence, those who exposed them claim them under the pretext that they are their slaves, and, not being content with having, in the first place exposed them to death, they deprive them of their freedom after they are grown up. Therefore, as a crime of this kind itself includes many offences, including murder, calumny, and others easy to enumerate, it is only just that those who perpetrate it should not only be unable to avoid the punishments which Our laws provide, but that they should also undergo the penalty of death, in order that guilty parties may hereafter be made accountable.
CHAPTER I.
Hence, We direct that children who are proved to have been exposed in the public streets, or anywhere else, shall, by all means, be free, even though the persons who have exposed them may be able to show clearly that they constitute part of their property. For if it is set forth in Our laws that slaves who are ill, and have been abandoned by their masters, who have refused to take care of them because their diseases are supposed to be incurable, how much more reason is there that We should not permit those who, at the very beginning of their lives have been abandoned to the commiseration of others and supported by their charity, should be delivered up to unjust servitude?
The Most Reverend Bishop of Thessalonica, as well as the Holy Church of God, and Your Glory, must afford relief to exposed children, and see that the persons who are responsible do not escape the penalties prescribed by Our laws, especially those who, with every indica-
tion of cruelty and inhumanity, pollute themselves with homicide, which is all the more horrible because it is committed against unfortunate and helpless victims.
EPILOGUE.
Therefore, Your Glory, and all those subject to your authority, including the members of Your Court, will take measures to observe and execute the provisions which We have been pleased to enact by the present Imperial Law. Those who violate them, as well as the magistrates who permit this to be done, shall be liable to a fine of five pounds of gold.
TITLE XXXVII.
CONCERNING THOSE WHO CONTRACT UNLAWFUL MARRIAGES IN OSDROENA.
ONE HUNDRED AND FIFTY-FOURTH NEW CONSTITUTION. The Emperor Justinian to Florus, Count of Private Affairs.
PREFACE.
An uncertain rumdr has come to Our ears that the inhabitants of the provinces of Mesopotamia and Osdrcena have dared to contract illegal marriages, thereby violating the Roman laws and incurring both ancient and recent penalties, as well as affording a bad example to neighboring and adjacent peoples. We do not believe such rumors, for We do not think that there are any men in Our Empire who would be bold enough to do anything of this kind, by which they would dishonor their progeny and confound their names.
CHAPTER I.
Therefore, We desire to investigate this matter and, if such acts have been committed, to inflict the extreme penalty upon those who are guilty. But, for the reason that crimes of this description have been perpetrated for a long time, We think it best to consider them as never having taken place, and We grant the inhabitants of the provinces of Mesopotamia and Osdroena remission of the penalties which they have incurred by their conduct, and the reason why We favor them in this way is because they are constantly exposed to the invasion of enemies, and the said unlawful marriages are generally contracted by peasants. In allowing these marriages to continue to exist, We do not allude to those which have been wickedly contracted up to the time of the promulgation of Our New Constitution, and We forbid the inhabitants of the said provinces to be molested either in person or property on this account. But when, after the publication of the law recently enacted by Us, anyone has presumed, or hereafter may presume to commit an offence of this kind, We desire that he shall be
liable to the extreme penalty, and he is notified that We shall not limit Ourselves to the imposition of fines, but that We shall prosecute his wife and his children, also, and compel him to undergo capital punishment and the confiscation of his property, as the effect of Our righteous indignation.
Nor shall We spare anyone, whether of exalted or inferior rank, and no matter what his status may be, even if (which is much more severe) he belongs to the priesthood, for all shall be punished, and We must maintain the Roman laws in their integrity. Those who are guilty shall not only be deprived of their property as well as their lives, if We should ascertain that they have contracted unlawful marriages, for no one who is guilty shall escape with life, and the penalty shall immediately follow conviction. Men ought to vie with one another in doing what is just and proper, and We forbid them to act contrary to law and to attempt to excuse themselves on the ground that others are given to the same vices.
These rules shall be observed in the provinces of Mesopotamia and Osdroana; the military magistrates will see that they are executed, and that punishment is inflicted upon those who violate them. We desire this constitution to be published in the provinces hereinbefore mentioned, by virtue of an order issued by you, and through proclamations made by their respective magistrates, and the latter will be liable to capital punishment, as well as to the loss of their offices and their property, if they fail to cause what We have decreed to be carried into effect.
EPILOGUE.
Therefore, Your Glory will take pains to have this Imperial Pragmatic Sanction executed.
TITLE XXXVIII.
MOTHERS SHALL BE REQUIRED TO RENDER ACCOUNTS OF THEIR GUARDIANSHIP.
ONE HUNDRED AND FIFTY-FIFTH NEW CONSTITUTION.
The Emperor Justinian to Belisarius.
Martha, a woman of illustrious birth, has presented a petition to Us which sets forth that Sergius, her father of magnificent memory, died while she was of extremely tender age. Auxentia, her mother, who was also of high rank, after having, in the Bureau of Public Records, taken the oath not to marry again, was accorded the guardianship of her daughter, and administered her property. But afterwards, just as if she had not taken the oath, Auxentia abandoned the administration of her child's patrimony, and left it in a deplorable condition, included very little in the inventory which she made, and married a second time, appointing Peter guardian of her daughter. Having had issue by her second marriage, she manifested very little affection for Martha, and the guardian that she had given her having
relinquished his administration when she had hardly reached her thirteenth year, she demanded a curator. Her mother also induced her to surrender her receipts, and to renounce all rights of action based on the rendition of accounts, which could be exercised against her in accordance with law, and she exacted this renunciation although her daughter was entirely ignorant of what had occurred during her infancy. Being dependent upon her mother, who was bringing her up, it was impossible for her to oppose anything which was done to her prejudice, or to act in such a way as to prevent any injury to herself which might cause the loss of her property. But when she had arrived at an age when she could understand the advice which had been given her contrary to her interests, she implored her mother not to make use of any documents which she had fraudulently obtained, and to return to her the property to which she was entitled. Her mother, however, being disposed to favor the children of the second marriage, instead of rendering her accounts, had recourse to Our Imperial Law which provides that one cannot claim restitution in opposition to his own act, although this law did not apply to mothers who contracted second marriages after having obtained the guardianship of their children.
This is the substance of the petition which Martha presented to Us, and she wishes to have the spirit of Our Imperial Constitution explained, and that We remove the doubts to which it gives rise, in order that Auxentia, her mother, may not wrongfully have authority to appropriate to her own use the property left to her by her father.
CHAPTER I.
Therefore, in consideration of the petition of Martha, We issue the present Pragmatic Sanction, by which We direct that as Our preceding law does not mention women who, after having obtained the guardianship of their children, contract second marriages, Auxentia shall not be allowed to take advantage of it. But, for the aforesaid reasons, and because of the documents under which she obtained the guardianship of her daughter, Martha, she, in conformity to law, swore that she would not contract a second marriage, and as she treated her oath with contempt and married another husband, and, after having had children by him, exacted receipts from her daughter, in order to escape liability, We permit Martha to bring suit for complete restitution against her mother, above all, as she alleges that she has not yet passed the twenty-fifth year of her age, and We forbid the constitution by which We have prohibited children from demanding restitution against their parents, or freedmen from demanding it against their patrons, to be invoked in this instance, because the said constitution is not applicable to women who have obtained the guardianship of their children.
And as, on the. other hand, We afterwards promulgated another law, which prohibits parents from accepting the guardianship of their children, unless, at the time of their appointment, they stated in the Bureau of Public Records that they would not leave their wards with-
out proper defence, which law also requires the mother, who is a guardian, to state that she will render her tutelary accounts—a proceeding which renders her responsible for her administration when she desires to appoint another guardian in her stead—it is proper, under all circumstances, that if Martha can prove that the time during which she is allowed to bring a restitutory action has not yet elapsed, she shall enjoy not only the benefit of entire restitution, but also be entitled to any other relief granted by Our laws to minors.
For if We desire that children should manifest for their parents the respect, honor, and obedience to which the latter are entitled, We also desire that parents should do nothing to the detriment of their children. Moreover, We do not think that it is consonant with religious duty to entertain contempt for the children of a first marriage, nor that it is proper for mothers, their second husbands, or the issue of a second marriage, to profit by the acquisition of an estate left to children of the first marriage by their father.
EPILOGUE.
Therefore, Your Glory, along with the Most Blessed Archbishop of the Church of Antioch, will see that the provisions which it has pleased Us to enact by this Imperial Pragmatic Law are executed.
Given at Constantinople, on the Kalends of February, during the reign of Our Lord the Emperor Justinian, and the Consulate of ....
TITLE XXXIX.
CONCERNING THE DIVISION OF CHILDREN AMONG PARENTS WHO ARE SERFS.
ONE HUNDRED AND FIFTY-SIXTH NEW CONSTITUTION.
PREFACE.
Those who have charge of the affairs of the Holy Church of Apamea have informed Us that certain serfs belonging to others have formed a connection with female serfs of the neighborhood, and have had children by them, and they ask that the said children be adjudged to them as following the condition of their mother, but those who make such a demand do not seem to comprehend the meaning of the constitution which has recently been enacted.
CHAPTER I.
For when freemen marry women who are serfs, their children will follow the condition of the mother, in accordance with the reasons stated in this constitution; hence, the said children will not obtain their freedom. When, however, the men are serfs, this constitution does not apply and, as We have already decreed, the children shall be distributed among the owners; thus, when their number is equal,
they are equally divided, and when it is not equal, or where there is only one child, the one in excess follows the condition of its mother, as having had the greater share in its creation. Therefore, We order that when only a single child is born of such an union, it shall belong to the master of the woman, and when there are three, two of them will belong to him, and one will be acquired by the master of its father, so that (as We have previously stated) the odd child will always follow its mother.
The ecclesiastics of the Church of Apamea are hereby notified that the offspring of serfs shall be divided in this way, and that this question, which has been in controversy for a long time, is now disposed of by this Our law.
TITLE XL.
CONCERNING SERFS WHO CONTRACT MARRIAGES ON THE PREMISES OF OTHERS.
ONE HUNDRED AND FIFTY-SEVENTH NEW CONSTITUTION. The Emperor Justinian to Lazerus, Count of the East.
PREFACE.
We have ascertained from different sources that in Mesopotamia and Osdroena, offences are committed which are clearly unworthy of Our time, for serfs attached to different land are in the habit of contracting marriage with one another. For this reason, the owners of the said lands compel them to dissolve the marriages which they have contracted, and deprive them of their children, and in consequence, the condition of the entire country is rendered wretched, when, on the one hand, serfs are separated from their wives, and, on the other, their children are taken from them. Wherefore, Our efforts must be directed to the correction of this abuse.
CHAPTER I.
Hence, We order that, for the future, the owners of estates shall keep their serfs in any way they may wish, but that no one shall separate them from the women whom they have married in accordance with ancient customs, compel them to live on his own land, and deprive them of their children, under the pretext that they are of servile condition. Where, however, any acts of this kind have already been committed, Your Highness will take measures to remedy them, whether the children have been taken from their parents, or female serfs have been separated from their husbands, and anyone who hereafter presumes to do anything of this kind will run the risk of being deprived of his land. Therefore serfs need no longer apprehend the dissolution of their marriages, and they shall retain their children through the benefit of the present law, and, on the other hand, the owners of lands shall no longer seek technical reasons for breaking the
union which their serfs have contracted, and depriving them of their offspring, for whoever ventures to act in this manner will run the risk of losing his property, which will be transferred to him who endeavored to claim the serfs.
EPILOGUE.
Therefore, Your Magnificence will take measures to see that the provisions which it has pleased Us to decree by this Imperial Pragmatic Sanction are carried into effect, and he who, at any time, attempts to violate them, shall be liable to a fine of three pounds of gold.
Given at Constantinople, on the Kalends of May, during the reign of Our Lord the Emperor Justinian, and the Consulate of Belisarius.
TITLE XLI.
*
THE RIGHT OP DELIBERATION SHALL BE TRANSMITTED TO CHILDREN UNDER THE AGE OP PUBERTY.
ONE HUNDRED AND FIFTY-EIGHTH NEW CONSTITUTION.
PREFACE.
A certain Thecla, surnamed Mannus, has presented a petition to Us stating that another Thecla died leaving a girl under the age of puberty, named Sergia, who only survived her mother sixteen days, and who succumbed to the contagious disease which has recently destroyed so many people. The petitioner informed Us that she was a sister of the father of Sergia, and that Cosma, the brother of Thecla's mother, claimed the estate, and has assumed the title of heir in court.
She also alleged that, after having been engaged in many controversies, she had applied to John, an advocate of the provincial bar, well versed in the laws relating to this subject, who had given her a written opinion that the estate of Sergia should be transferred to her; and that, in consequence of this, she had selected the said John as arbiter in the case, and that Cosma had, on his side, chosen ^scula-pius, secretary of the Military Commander of the East. John, however, rendered a decision which was contrary to his written opinion, basing it on the law of the Emperor Theodosius, which provides that a child who is not yet seven years of age cannot claim the estate of its mother, if it did not have a guardian, and that the said estate ought to go to the relatives to whom it would have belonged if the girl who died under the age of puberty had not been called to the succession by law. John not only cited the said law, but he also ordered the petitioner to comply with his decision, and directed her to notify JSscula-pius, the arbiter of Cosma.
The petitioner asked Us to take into consideration the injustice of which she was the victim, and, especially, as there was a law in the Code bearing Our name, which declares that a child who can speak is qualified to claim the inheritance of its mother, and as We Ourself have enacted another law which states that where anyone entitled to
an estate dies before having claimed it, or of having manifested any intention to reject it, the right to deliberation as to its acceptance is transmitted to the heirs of the deceased. The petitioner also stated that the law We have recently enacted, conferring upon agnates and cognates the same right to succession, is not applicable to this case, for the reason that it precedes its promulgation.
CHAPTER I.
Therefore, We order that if Your Glory should ascertain that these allegations are true, you must afford relief to the petitioner, and give her the benefit of Our law conferring the right to deliberation, above all, as Sergia died before the expiration of a year following the death of her mother, and you will give her the opportunity of claiming her mother's estate. For no one can say that the law of the Most Pious Theodosius, and the one which We have enacted, are conflicting, for both of them are included in the same volume, and We have expressly stated that they do not contradict each other. Our law, however, shall prevail in the present controversy, and in all others similar to it, and the one promulgated by the Most Holy Emperor Theodosius shall apply to cases where the year appointed for deliberation has been suffered to elapse.
It is also clear that the measures taken by Cosma after the decision was rendered, have not availed to acquire for him any advantage or right of action.
Given at Constantinople, on the day before the Ides of July, during the reign of the Emperor Justinian, ever Augustus.
TITLE XLH.
FIDUCIARY RESTITUTIONS SHALL BE LIMITED TO AN ESTABLISHED DEGREE.
ONE HUNDRED AND FIFTY-NINTH NEW CONSTITUTION.
The Emperor Justinian to Peter, Most Glorious Praetorian Prefect, twice Consul and Patrician.
PREFACE.
Our good will is so great that We do not disdain, by means of Our laws, to dispose of certain cases which appear to Us to be beyond the comprehension of magistrates. The reason which induces Us to act in this way is, the fear that delay in deciding cases may ruin litigants.
Alexander, a man of distinguished rank, some time since submitted to Us the following case. Hierius, his father, of glorious memory, made a will as follows, namely: "I appoint as my heirs the illustrious Constantine, who shall have the residence allotted to him, with all its appurtenances, as has already been stated, together with the suburban estate called Coparia, and all the rights attaching thereto, as well as the house situated at Antioch which was purchased from Ammianus.
I also appoint the most excellent Anthemius my heir to the suburban estate called Blacherna, which was purchased from Eugenius and Julianus, of glorious memory, and the suburban estate situated on the promontory of Sosthenia, which formerly belonged to Ardiburius, of glorious memory. I also appoint that most illustrious personage, Calli-pius, heir to the suburban estate called Bytharium, or Philothea; and I appoint the most illustrious Alexander heir to my suburban estate situated in Venetia.
"I forbid my heirs to transfer to strangers by sale, donation, exchange, or in any other way whatsoever, or to alienate from my name or that of my family the residence and the five estates which I have just mentioned, and if any offspring should be born to them (which God grant) and at the time of their death they leave any legitimate or even natural children, I desire each one to bequeath to them the suburban estate and the buildings belonging thereto, which are situated in this Royal City and in Antioch. I am satisfied that my heirs will not fail to carry out my present wishes with reference to their natural children or grandchildren. If, however, all, or some of them, or even only one, should die without issue (which is something that I detest), I wish, and I direct that he who dies childless shall transfer to his surviving brother or brothers the houses situated in this city, or in Antioch, as well as the five suburban estates hereinbefore mentioned, together with all the rights attaching thereto, all their appurtenances, and all the persons belonging to them, without any exception whatsoever. I forbid my heirs to furnish any security to insure the delivery of any trusts or legacies. No one shall make a demand to have this done, and any of my heirs who, in violation of my intention and paternal love, dares to require it of their brothers, for the preservation of property whose alienation I prohibit, shall forfeit the entire benefit of the trust."
After having inserted these provisions in his will, Hierius executed a codicil, in which he made use of almost the same language. "I declare most positively that I have recently drawn up a will which embodies my complete wishes, and I desire, and I order that its provisions shall remain in full force, subject, however, to the changes which I shall make by this codicil, and to the diminution of the legacies which I have bequeathed to each one of my heirs. Therefore, I wish, and I order that my suburban estate called Coparia, which was left by my preceding will to my most magnificent son Constantine, be given in full possession and ownership to my most illustrious and most glorious grandson Hierius, born to my most magnificent son Constantine; and I desire that the said estate shall belong to him absolutely, together with all the squares and stairways forming part of the same, and everything appertaining thereto which is leased, both within and without the city, that is the houses, the shops, the baths, the gardens situated within and without the walls, the hippodrome with the garden belonging to it, the cistern, and, in short, all the rights of every description to which I am entitled with reference to said estate.
,
"I desire the present legacy to be transferred to my said most illustrious grandson after my death, as soon as he is released from paternal control, and becomes his own master by emancipation; and my most generous grandson, and whoever either by my own will or by his may succeed to the same rights, shall not be permitted to disobey my wishes, or to divide, exchange, give, or alienate in any manner whatsoever the said suburban estate, or any part thereof; it being my wish that said estate, as well as the houses situated near the gate of the wall of Ficulneum on the road leading to the sacred place of martyrdom of St. Thecla, should remain absolutely and permanently in my family, and never be separated from my name. Moreover, I wish, and I order that if my most glorious grandson Hierius should die before or after he arrives at puberty, without leaving any lawful issue, the possession and ownership of the said suburban estate and houses bequeathed shall belong to his most magnificent father, Constantine, under the same condition, namely, that the said immovable property shall never be alienated from my family and from my name."
The testator died after having executed this codicil, but Hierius, of glorious memory, afterwards sold to strangers the house at Antioch which had come to him from the estate of his father, and he transferred to his son Constans, of glorious memory, the residence situated in this city, as well as the suburban estate which he received by virtue of the codicil, and which he was also forbidden to alienate. Gonstans afterwards died, leaving his wife pregnant, and provided by his will that if the child was not born, or if it should be born, and died before reaching the age of puberty, its most glorious mother, Mary, and his illustrious wife, who was also named Mary, should be called to the succession.
Mary subsequently gave birth to a daughter, who died at a tender age, and then the estate of Constans, that is to say, the residence situated in this city, and the suburban estate which, under the codicil, had been expressly left to Hierius, of glorious memory, passed to the illustrious mother and wife of Constans.
It is certain that the latter had the right, by virtue of the will as well as the codicil, to claim the house and the estate given to him, since he was the only one of the children of Hierius, of glorious memory, who was living, and that he held the first rank in the family. Those who represented the most glorious mother and wife of Constans maintained that as Constans did not die childless, it was not necessary to rely upon the provisions of the will of Hierius, in order to afford a ground for the restitution of the houses; that the most glorious Alexander could not, in accordance with law, raise any question with reference to the suburban estate, since he himself had already disposed of the one which had been left him, and of which their common father had forbidden the alienation, as was the case with all the other landed property, and as the other brothers had also sold the property devised to them. The result of these different allegations is, that all the heirs had failed to comply with the wishes of the deceased, and had violated Our laws on this subject; that they were reciprocally released
from the obligation of making restitution; and that they had mutually freed themselves from all demands to do so in order not to expose themselves to a number of judgments in the same case; and, in consequence of this, they brought to Our attention the laws enacted with reference to this matter.
The most glorious Alexander, however, alleged that, for his part, he had properly brought suit to recover the houses, because in his codicil Hierius had clearly shown that he desired that they should not be alienated from his family; and he asserted that his right was much better founded, so far as the suburban estate was concerned. In conclusion, he maintained that no legal objection should be advanced to the alienation which he himself had made, since he was authorized to make it by an Imperial order. The parties on both sides made use of a great number of arguments in an attempt to interpret the will of the testator, and cited such of Our laws as they thought to be favorable to their claims.
CHAPTER I.
Therefore, as We have in view both the interpretation of the laws and the construction of the will, We are going to dispose of these matters not by a mere decision, but by a law; in order, at the same time, to put an end to the present controversy, and provide for others which may hereafter arise. Confining Ourself strictly to the words of the will, We perceive that alienation is forbidden to the children who might acquire the estate when they died without issue, but that this right is not refused to their successors; that the testator only forbade the children to alienate the property, and paid 'the greatest attention to the persons to whom it might pass if the former should die without offspring and to the manner in which this should be done; without, however, extending the prohibition to alienate said property beyond the lives of the children. For the codicil subsequently executed with reference to the suburban estate forbade alienation to even those who, by virtue of the will of Hierius (We refer to the younger one of that name), of glorious memory, might obtain the property by succession; hence it results that the grandfather Hierius intended that the property should always remain in his family. These are the points involved in the controversy.
CHAPTER II.
But when We consider the case with the attention which it deserves, We perceive that no question should be raised with reference to the other property of which Constantine, the son of the elder Hierius, of glorious memory, has certainly become the owner, in accordance with the provisions of his father's will; and that not only the most glorious Alexander should lose his suit to recover the said property, but also all his family should do so, since the will only prohibits the children from alienation, and the children of Hierius, of glorious memory, through whom the grandchildren forming part of the family claim the rights of Hierius, have, themselves, alienated many things
which were bequeathed to them, just as if all had mutually agreed to release themselves from the obligation to transfer the property.
But so far as the suburban estate of which it appears, according to the terms of the codicil, that Hierius, of glorious memory, is the owner, is concerned, it seems to Us to be very hard, after four generations, to raise the question whether it can be alienated; especially when the most glorious mother and wife of Constans, whom Our laws consider as forming part of the family, and judge to be worthy of bearing its name, are living. Hence, the most illustrious Alexander has, neither regularly nor legally, brought the action to which We refer; and We cannot permit a case as old as this is to be tried, above all after four generations have passed, and when the daughter of Constans died while still a minor. For if Constans had not made a will, the suburban estate would also have gone to his mother, not through his minor daughter but by the provisions of the law itself, even though none of the successors of Hierius, of glorious memory, had failed to comply with his wishes. For even though Constans, when he drew up his will, made certain substitutions, and his daughter died before reaching puberty, this will be productive of nothing advantageous; for the reason that the law itself grants the estate of the minor daughter to her mother, just as if the said minor had died without her father having executed any will.
CHAPTER III.
Therefore We order that neither the most glorious Alexander, nor his children, nor the other children of the elder Hierius, of glorious memory, nor the remaining members of his family, shall bring suit against the most glorious mother and wife of Constans, to recover the property in their hands, of which Hierius had forbidden the alienation. We prohibit them from suing the other persons in whose possession the said property is at present, or who may hereafter acquire it; and We also forbid them in the future to avail themselves of the prohibition to alienate said property, as stated by Hierius, and, in this way, to acquire any right to the same; for since some of the children of Hierius, of glorious memory, have alienated what belonged to them, they have, by doing so, to a certain extent, consented to the alienations made by the others; and for this reason, as well as for those which We have already given, and which are sufficient for Us to determine the case and amend the legislation, We think that they, as well as their successors, should be forbidden to bring such suits as may lie in their favor.
This decision shall not only apply to the case under discussion, but also to all others in which a similar prohibition may be found, where as many generations have passed; and the last of the heirs, even though called to the succession by the intervention of a child under the age of puberty, shall be entitled to the estate. For then, by the operation of the present law, property may be transmitted even to persons who do not belong to the family of him who forbade it to be alienated.
This law shall therefore apply to the present case and to all others where similar prohibitions made hereafter by testators are involved. By its means We dispose of the present controversy, and it is probable that We shall make provision for all others in the future.
EPILOGUE.
Therefore Your Glory will be careful to publish in this capital city, and cause to be observed and carried into effect the regulations which We have been pleased to promulgate by means of this Imperial law.
TITLE XLIII.
COPY OF THE IMPERIAL PRAGMATIC SANCTION CONCERNING INTEREST.
ONE HUNDRED AND SIXTIETH NEW CONSTITUTION. The Emperor Justinian to Papius.
PREFACE.
The most learned Aristocrates, municipal magistrate of the Republic of Aphrodisia, together with the owners of immovable property in that country, have presented a petition to Us stating that the aforesaid city, etc. Thus, in the first place, We have ascertained that a majority of the people understand Our laws in a way which is by no means correct, and thereby obtain a pretext for unjust actions. We have been informed by the municipal magistrate aforesaid that large sums of money have been bequeathed to the Republic of Aphrodisia by different persons, to prevent the destruction of the city; and that the magistrates have invested it in such a way that the debtors pay a certain amount to the city every year (which may either be called the consideration of a contract, income, or interest), as is perfectly just and proper. But, after We had promulgated Our last Constitution, those who borrowed the money asserted that their creditor could not collect the principal, because they had already paid as interest more than double the amount of the indebtedness; the result of which is that the city has lost the legacy bequeathed to it; the heating of the public baths, whose expense was defrayed from this source, has ceased; and the public works have been abandoned to decay on account of this construction of Our law; and the State has been greatly injured in consequence.
CHAPTER I.
Therefore, in order that such an abuse may no longer exist in Our government, We hereby decree that persons who receive a sum of money, on condition of paying annually a certain amount to the government, shall be compelled to pay whatever they have agreed to, without being able to avail themselves of Our Constitution enacted
with reference to this matter; for We have only drawn it up to be applicable to the creditors mentioned therein, and for such cases as it includes. It is not relevant in the present instance, as the payment to which it refers rather resembles an annual income than a loan at interest; and, besides, We should have supervision over the revenues of cities, as well as over those of the Imperial Treasury.
If, after the promulgation of the present pragmatic sanction, anyone should attempt to place a different construction upon the provisions contained in the preceding law, and defraud the city of the money which it lost, he shall pay for all time to said city an amount equal to that which he owes, and shall, in addition, pay double the amount of the principal, and, in this way, be justly rewarded for his malicious interpretation, and be punished; because, when it was easy for him to show that he was a good citizen, he was dishonorable enough to prefer to be guilty of injustice toward the place in which he was born.
TITLE XLIV.
CONCERNING THE GOVERNORS OF PROVINCES. ONE HUNDRED AND SIXTY-FIRST NEW CONSTITUTION.
PREFACE.
Laws should not only be equitably enacted for the greatest good of the public, but those which have already been promulgated should be carefully observed and carried into effect, and the proper penalties inflicted upon persons who violate them. For what advantage would be derived from the laws if they merely consisted of words, and no benefit was conferred upon Our subjects by their execution and effect?
We are well aware how diligently Imperial Majesty has manifested its solicitude for taxpayers, when it repeatedly declared that the Governors of provinces should obtain their offices gratuitously; for which reason, when they use their power honestly, dispense justice, and promote the welfare of Our subjects, through the security of the latter an abundance of everything will be found in the Empire. These blessings, however, have, to some extent, been forgotten, on account of the immoderate avarice of the magistrates who have bought, rather than received, their offices.
CHAPTER I.
Therefore We, renewing the aforesaid laws, do hereby decree that those only shall administer the government who are known to have a good reputation, and who devote themselves especially to the dispensation of justice. We wish them to receive their offices without the bestowal of any gift or donation; to prevent tributaries from suffering any loss; and punctually to pay into the Public Treasury all the taxes which they collect. We also decree that they shall not, either in person or by their assessors, their chancellors, their servants, or
any other persons in their service, accept anything from Our subjects, unless they desire (as stated in the laws) to pay fourfold the amount of what they have received, but they must remain content with what they are allowed by the law and the public. As soon as they have relinquished their office, they shall remain in the provinces for fifty days, and appear in public, in order to answer any one who may desire to bring suit against them.
Where, however, an action brought against a magistrate is not terminated within the said fifty days, and it is a civil suit, the magistrate may appoint an attorney to represent him; but where the proceeding is a criminal one, the magistrate must remain until final judgment has been rendered by the judges (whether these are regular magistrates, or persons appointed by the prefects for this purpose), and the said judges shall be fined ten pounds of gold, if, within twenty days, they do not dispose of the case pending before them, which, however, shall be determined in the way already provided.
But when magistrates, influenced by a guilty conscience, either secretly take to flight, or seek refuge in religious houses, they shall be deprived of their property, which shall, in accordance with law, be divided among those who have suffered injustice from them. Each party shall appear in court, as is prescribed by Our preceding law which, having been enacted for the benefit of payers of tribute, shall remain in full force, and the other regulations having reference to Governors, and have very properly been set forth by Imperial Majesty, shall also be observed. While We punish violators of the law, We also sentence to quadruple restitution those magistrates who, contrary to Our prohibition, accept anything from defendants under such circumstances.
CHAPTER II.
We wish to correct these matters by means of this law, for the peace and opulence of Our subjects are more precious to Us than the revenues yielded by the Empire. For when We abolished the gifts made by Governors, We also abolished the amounts which they expended, which were paid into the Imperial Treasury, and amounted to a very large sum of money; the result of which will be that the government will become more prosperous and wealthy, through being freed from the contributions devised by certain persons in former times. For Our sole desire is that the provinces shall be governed by good laws; that they can be inhabited in security; that they may obtain the benefit of the justice of Governors; and that they pay the public tributes without complaint. It would be impossible for the government to be maintained if these pious contributions were not paid into the Public Treasury, since it is by means of them that the military forces, whose duty it is to resist the enemy and guard the fields and cities, are supported, and other orders of the State compensated; walls and cities repaired; and, in short, everything provided which relates to the common welfare of Our subjects.
EPILOGUE.
Therefore Your Glory will publish throughout this city in the usual places, and despatch to the provinces, the provisions which it has pleased Us to enact by means of this Imperial Law, in order that all persons may be aware of the solicitude which We display for the benefit of Our Empire and the security of Our subjects.
TITLE XLV.
PRAGMATIC SANCTION CONCERNING DIVERS MATTERS ADDRESSED TO DOMINICK, MOST GLORIOUS PREFECT.
ONE HUNDRED AND SIXTY-SECOND NEW CONSTITUTION.
Antonius Contius, Translator.
Your Glory has submitted to Us certain mooted questions which have arisen among the most able advocates of the tribunal of Illyria, requesting Us to decide them, in order that they may not hereafter be the subject of controversy.
CHAPTER I. CONCERNING DONATIONS.
The first point to be considered is the following. A certain woman, after the death of her husband, demanded property that he had given to her during his lifetime, but which had not been delivered; and she claimed the ownership of it not only on account of the donation, but because her husband had not revoked it while he lived. Those in possession of the said property specially excepted, on the ground that although donated, it had not been delivered to the woman, and that she could be allowed to claim it only when she had possession of the same. This is the question in controversy.
In this connection We call to mind Our former Constitution, which provides that the donor is obliged to deliver the gift to the donee, even if he did not agree to do so, because it is not proper to commit a fraudulent act, and write words which have no force; as well as the ancient Lex Cintia (which the government very properly, some time ago, removed from its legislation), in which the point which is the subject of the present dispute was included and discussed.
(1) We order (where everything relating to the donation in question corresponds with what We have just stated) that the said donation shall be perfectly valid not only so far as the value of the article given is concerned, but also with reference to the record; and We desire (in accordance with Our Constitution) that it shall take effect from the very moment when it was made; so that, if the husband has hypothecated or pledged the property after the donation, he shall not be considered as having alienated it, when he did not revoke the gift during his lifetime. And whether or not delivery was made to the woman, she can always recover the property by means of the action
based on the stipulation, if one took place, or by virtue of the law, through making a demand in court for what was donated.
(2) We also considered it just to decree that where donations have been recorded in the beginning, they shall, by all means, be confirmed when the donor remained silent concerning their revocation; but where they have not been recorded, and their value is in excess of the amount required by law, they shall be valid up to that amount.
We desire that this provision shall be strictly observed, hence a donation will become operative for the share authorized by law, and will be annulled if its entire amount exceeds what can legally be given. Our preceding law prescribed this rule with reference to donations in general.
These provisions shall be applicable not only to husbands and wives, but also to all other persons who are prohibited from receiving donations during marriage.
CHAPTER II.
We have been interrogated by Your Excellency with regard to another point. After the enactment of Our Constitution, which, because of the status of their mother, renders the children born of a free woman and a serf also free; should it be held, in accordance with the ancient law, that if the said children are not serfs, they are, nevertheless, born such and therefore attached to the glebe, for the reason that another of Our laws does not permit the children of serfs to abandon the soil, but declares that they remain there in a servile condition, and is there not all the more reason for this when such children are born of parents who are serfs ? This is the second point of your interrogatory.
We, however, never intended to admit that a woman who is free
could bring forth a serf; but, on the other hand, have desired that, in
conformity with Our law, the sign and symbol of freedom should be
impressed upon the offspring of a free woman. If, then, a child should
be born to a free woman and a man who is a serf, it shall be entitled
to its freedom, and shall not, under any consideration, be deprived
of the right of free birth enjoyed by its mother. But as the law which
We have enacted provides that those who inhabit the country and
cultivate its fields shall continue to reside there, as if they were natives
of the same, and as the very name of colonus implies this obligation,
We do not allow children born of a serf and a free woman to abandon
their country with the intention of residing elsewhere. Hence, it is
clear that the children born of a woman who is a serf on an estate
shall themselves be serfs, and be free if born of a free woman, and,
having obtained their liberty, any property which they may acquire
will be their own, and will not become the peculium of their masters;
but having gained their freedom, they cannot abandon the estate to
which they are attached, and will be required to till the soil without
being able to go elsewhere, unless, when they become the owners of
lands, the latter are not sufficient to keep them occupied and support
them, and they are not permitted to cultivate those of their masters, or pass to the estates of others. For if this is not the case, although enjoying their freedom, they will remain attached to the estates of their masters; and this is hereby decreed.
CHAPTER III.
The point which you have submitted to Us seems to be worthy of adjudication. When a female serf marries a male serf belonging to another master, the question arose whether their children ought to belong to the owner of the man or the woman. Under such circumstances, and in order that serfs belonging to different masters may be able to marry one another—the status of their offspring not being disputed, as they were not begotten by a father who was free, and are born of parents who are both serfs—We do not give them all to their mother, or to the owner of the latter; but when there is only one, the mother will be preferred, and the child will belong to her master; where there are two children, they shall be distributed by lot; where the number is unequal, the mother will be entitled to the most of them; for instance, where there are three, she shall have two, and the father one; and where there are five, three of them shall belong to the master of the mother, and two to the master of the father; and where there are more than this, the apportionment shall be in the same ratio; so that when they can be divided equally this shall be done, and when this is not possible, the larger number shall be allotted to the mother by way of privilege; for she who has brought forth and nourished a child is undoubtedly entitled to greater consideration than he who begot it through an excess of pleasure.
EPILOGUE.
Therefore Your Glory will hasten to apply this Imperial Pragmatic Sanction to the cases to which it is adapted, for We have enacted it as a general law, believing that the matters to which it refers require amendment.
Given at Constantinople, on the fifth of the Ides of September, during the reign of Our Lord the Emperor Justinian, and the Consulate of Ario.
TITLE XLVI.
CONCERNING THE RELEASE FROM PUBLIC TRIBUTE. ONE HUNDRED AND SIXTY-THIRD NEW CONSTITUTION.
PREFACE.
Justice and benevolence are the most excellent attributes of mankind : the first grants to each one that to which he is entitled, and does not desire the property of others; the second encourages compassion, and delivers distressed debtors from the burden of their obligations.
These two things have a tendency to adorn and strengthen the Empire; to sustain the government; and to render human life more admirable. Wherefore, when We received the sceptre of empire from God, We were impressed with a desire always to be conspicuous for Our good actions, and were convinced that We should have Our reward in virtue and glory, in proportion to the extent that We were useful to Our subjects. We are aware that loans, and other obligations of this kind, have reduced men to great poverty, and their possessions have depreciated to such an extent that they can no longer yield an income to their owners, or afford them means to punctually pay their taxes; nevertheless, extensive military operations, with their attendant expenses, have rendered it necessary for Us to make frequent assessments.
We entertain such solicitude for the welfare of Our subjects that We desire to afford a remedy for their poverty, but as this duty is always before Us, We think that it is preferable to display indulgence, to provide for the necessities of taxpayers in a manner which may be agreeable to God, and to pay out of the Public Treasury such expenses as may generally be required.
CHAPTER I.
Therefore, while communicating Our desire to Our Lord Jesus Christ, and discharging Our duty towards Him by making suitable efforts on this day of the salutary Passion and Holy Resurrection, We offer to Him, for the benefit of the country, the favor which We now bestow, by granting all cultivators of the soil in general, as well as taxpayers (including the owners of estates), an entire exemption from public tributes, to be divided into four terms, that is to say, one-fourth of it in the new indiction, which will soon begin; one-fourth in the tenth following indiction; one in the eleventh, and one in the twelfth; thus diminishing, during each one of these indictions, one-fourth of the ordinary taxes, labors, and contributions which, under the head of tributes, are furnished in any way whatsoever.
CHAPTER II.
We also remit to Our subjects the payment of any taxes which may be in arrears from the end of the last fifth indiction; and We order that none of the contributions which We now remit shall be levied, whether they are payable at the Grand Imperial Prefecture of the East, or at that of Illyria, or at the capital of the Islands, or at the military Prefectures of Scythia and Nicea, at the Treasury of Our Imperial Largesses, or at the seat of government of any other magistracy; and We forbid all decurions, receivers, secretaries, cohortals, palatines, collectors, and contractors of public works, who are charged with the levy of taxes, or the construction of public buildings, to make use of any fraudulent artifice toward farmers, tributaries, or even the owners of estates, in order to extort from them any taxes the payment of which We hereby remit; or, having this in view, to renew any obligations for sums already due, to require sureties to be furnished
or to accept acknowledgments. For We hereby annul every fraudulent act already committed, or which may hereafter be committed, for the purpose of thwarting Our munificence; and if anyone, in violation of Our wishes, should collect anything which has become due since the fifth indiction, without paying it into the Public Treasury, he shall be held strictly responsible for the same. For if We are indulgent toward tributaries, and release them from a portion of their indebtedness, this is in order that they may benefit by Our liberality, and it is not intended that those who receive the public taxes shall derive any advantage from it, or profit thereby; the expenditure of the taxes (that is to say its annual disbursement by the collectors for the purpose of meeting military expenses) shall, however, under no circumstances, be diminished. For it is necessary that the entire amount of grain and other supplies should be provided for and imported, as is customary; but the value of the fourth of the taxes, from which We release tributaries for four years, shall be estimated and disbursed by the Public Treasury, together with other tributes in money.
What We hereby decree shall be equally applicable to the provinces of Osdrcena and Mesopotamia, so far as tribute payable in kind to meet secret and military expenses is concerned. The same rule shall be applicable to contributions in kind which are designated ploim.se, that is to say, transported by ships, and are levied in Lazica, the Bos-phorus, and the Cheromesus; for the said provinces shall receive the price of them from the Public Treasury, as fixed in the Bureaus of the Prefects of the district from which the said tributes are brought, in order that the inhabitants of the said three provinces may profit by Our indulgence. It will by no means be safe to neglect the delivery of such tribute, for there are inevitable expenses (as We have already mentioned) which must be incurred for the maintenance of government. We are satisfied that great benefit will result to the State from this manifestation of Our generosity, and that God will render Us fortunate on account of actions of this kind. Any persons who presume to disobey the rules which We have prescribed for the welfare of Our subjects will run great risk with regard to both person and property.
EPILOGUE.
Therefore Your Glory will, by means of proclamations published in this City, and sent into the provinces, communicate to all Our subjects the matters which We have been pleased to decree, in order that no one may remain uninformed of Our munificence.
TITLE XLVII.
CONCERNING HEIRS.
ONE HUNDRED AND SIXTY-FOURTH NEW CONSTITUTION.
PREFACE.
There is nothing superior to God and justice, for without their aid nothing can properly be accomplished, and especially is this the case
in Our Empire. Hence it is only by loving God and dispensing justice that We can hope to reign with equity, to secure the affection of Our subjects, and obtain from them the greatest devotion. However, although We are occupied with many things of importance, and as the Romans are constantly becoming greater through their virtues, and conquered barbarians daily submit to their authority; and as We have received from God and justice the sceptre of Empire, We do not consider it unworthy of Us to direct Our attention to the private interests of Our subjects. And, as We have placed matters which were previously confused in a much better condition, We have deemed it proper to decide, in a manner agreeable to God, some questions relating to successions which have long been neglected. For We have ascertained that certain vagabonds have been in the habit of interfering with the estates of deceased persons; that they have opposed the execution of their wills; and have even prevented the acquisition of intestate successions by placing seals upon personal property, and attaching notices to that which is immovable, hoping in this way to obtain it; conducting themselves, however, in a legal and orderly manner. Therefore as it was impossible for Us to become perfectly familiar with such a great number of cases, it seems to Us to be advisable to make a general provision for them by the promulgation of a positive law.
CHAPTER I.
Hence We decree that all Our subjects shall remain in the free enjoyment of their property, and their rights, and transmit them to their heirs. No one, without exception, shall interfere with the patrimony of others; injure the heirs of a deceased person; or, in violation of Our laws, place seals or notices upon any property which does not belong to him. For We confirm the order of intestate succession to which everyone is called according to his degree, and We do not render the last wills of dying persons void whenever they have been lawfully executed. We exert every effort for the government of Our tributaries by means of salutary enactments, and as We take the greatest interest in their welfare, why should We not provide for them in this manner also, and confer Our benefits upon them? For We are fully persuaded that this course is pleasing to God, and We know that it is consonant with virtue, and that by such actions Our Empire will be strengthened everywhere, and rendered tranquil in the future.
This law of Ours will be included among Our most praiseworthy deeds; Our subjects will be freed from their former annoyances; and, having been rendered worthy of Our indulgence, they will return thanks to God and to Us; they will propitiate the Divinity with prayers; so that, after the enemy has been conquered, We can obtain for them greater security.
EPILOGUE.
Therefore the Stewards of the Imperial Households will see that the provisions which We have been pleased to enact by the present law are observed; and officials invested with superior or inferior mag-
isterial jurisdiction, either in this city or in the provinces, will be liable to capital punishment, if they violate them.
Your Glory will cause this constitution to be posted in the most public places of this Capital, and will, by means of orders issued for that purpose, transmit it to the provinces.
TITLE XLVIII.
GENERAL LAW HAVING REFERENCE TO THE VIEW OF THE
SEA, ADDRESSED TO DOMINICK, MOST GLORIOUS PR^ETO-
RIAN PREFECT.
ONE HUNDRED AND SIXTY-FIFTH NEW CONSTITUTION. Our mother has taught Us, etc. The view of the sea, ordinarily limited to a hundred feet, shall not be intercepted by any new work, either in the direct line or transversely; and this the present law, while confirming the Constitution of the Emperor Zeno, adds, by way of interpretation, to a Novel previously promulgated.
First Ordinance of the Prefects. TITLE XLIX.
CONCERNING ADDITIONS, THAT is TO SAY, CONCERNING
THE TRANSFER OF TAXES FROM STERILE LANDS TO THOSE
THAT ARE FERTILE.
ONE HUNDRED AND SIXTY-SIXTH NEW CONSTITUTION.
Tenor of This Constitution.
Where a deceased person, during his lifetime, and for good cause, alienated a tract of land, an estate, or a farm, and, at his death, left the remainder of his property to his children, or to foreign heirs, and the latter sold a part of said property, and the purchaser who acquired it subsequently abandoned a portion of the same, so that there would be no ground for the transfer of the taxes to other lands, belonging to the same estate, and which have the same origin (see Books X and XII of the Code, On Abandoned Lands), the taxes on the deserted estate shall not be borne by all the lands of similar character at the same time, but must first be imposed upon any other real estate which the possessor of the same purchased from the children or foreign heirs of the deceased; and if the said purchaser should not be solvent, the taxes shall be paid by the heirs of the decedent, that is to say, by the lands (derived from the same estate) of which the said heirs are in possession; and where said lands are not sufficient to pay them, they shall be transferred to the other property of the deceased, which has passed into the hands of other persons than his heirs. Thus the taxes will be transferred to him who has bought a tract of land, or a farm of the deceased, as We stated in the beginning.
The same rule will also apply where these lands have been con-veyed to several successors. For when the last, or most recent possessors of property are solvent, the tax is not borne by the oldest of them in point of time, or, in other words, the first possessors will not then be liable for the taxes on lands abandoned by the last ones; and when there are several heirs of the same degree and order to whom the tax should be transferred, it shall not be distributed equally among them, but in proportion to the property in their possession which was derived from the same estate.
Twenty-fourth Ordinance of the Praetorian Prefect.
TITLE L.
GENERAL LAW OF Bissus RELATING TO POSSESSION, AND IN WHAT WAY IT MUST BE ACQUIRED.
ONE HUNDRED AND SIXTY-SEVENTH NEW CONSTITUTION.
Tenor of This Constitution.
Possession cannot lawfully be taken by virtue of the decision of a judge, where the premises are not unoccupied, or the fact that they are vacant has not been established in a city, by the evidence of executive officers; and in the provinces, by that of those defenders of the people who are the nearest to the locality.
Again, every time that anyone in the provinces desires to take possession of property under the terms of a contract, documents evidencing the delivery of possession shall be drawn up before the defenders of cities, as soon as he who makes the delivery, and the master of the serfs, or the person entitled to the said documents, have agreed. When there are no defenders, the said documents shall be executed in the presence of the Governor, or even before the bishop, if the Governor should be absent from the place where delivery is made.
Second Ordinance of the Praetorian Prefect. TITLE LI.
CONCERNING PERSONS WHO ARE IN POSSESSION OF DIFFERENT LANDS FORMERLY BELONGING TO THE SAME
OWNER.
ONE HUNDRED AND SIXTY-EIGHTH NEW CONSTITUTION. This constitution treats of lands, or of men who have belonged to the same owner by reason of having been attached to the glebe. Tracts which have been abandoned or deserted ordinarily accrue to the owners in possession of property derived from the same estate, as We have previously mentioned in Novels CXXVIII and CLXVI. For taxes on real property are solely imposed upon rustic estates, for only impositions of this kind and not those levied upon civil emoluments or
buildings are referred to in the census. For this reason lands subject to the obligations of the census are exclusively mentioned in the Digest under the Title, De Censibus. By the term slaves (Book IV, Section, In Servis), I only mean rustic slaves, who are attached to the glebe, as I stated in Novel VII. What is set forth in Book III, relative to the capitation tax, only applies to lands, and not to cities or villages (Book I, Code, De Cap. Civ., Book Vill, Code De Exact. Trib.). Therefore the taxes on lands are not imposed on urban estates, or on those yielding civil revenues, for the reason that such lands are not of the same nature, or derived from the same source.
END OF THE NOVELS OF OUR LORD THE MOST HOLY EMPEROR JUSTINIAN.
THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
PUBLISHED FOR PURPOSE OF AMENDING THE LAWS.
HENRY AGYLAEUS, TRANSLATOR.
INTRODUCTION.
The vicissitudes of human affairs, the inconstancy and diversity of the various conditions of life, have given rise to a great number of laws which, embracing matters of every description, determine with reference to each what is good, and what is otherwise, hence they act as guardians and physicians of Our lives; for, as on the one hand they prevent evil from arising and spreading through society, so, on the other, they correct what they were unable to foresee or prevent, and as they extirpate every kind of vice, they do not permit it to become confirmed. But as the course of human affairs resembles an ebb and a flow, while it alters and overturns all legislation, and frequently substitutes what is bad for that which has already been justly established, and plunges some laws into oblivion, so they become as thoroughly unknown as if they had never before been heard of, in this way it equally attacks all legislation by enveloping some of it in profound silence, and by giving rise to controversies respecting other enactments, either because those who promulgated them, having had neither steadfastness nor uniform opinions, contradicted themselves, or for the reason that their successors permitted customs to be introduced or laws to be passed in opposition to what has already been settled. Hence it happens that legislation becomes perplexed, and no small amount of injury is inflicted upon mankind, some laws being substituted for others, giving rise to the same confusion which results as when darts are cast at random.
Therefore, being of the opinion that it would be disgraceful to permit matters which are vital to the safety of the Empire, and which should be decided and confirmed in an invariable way, to remain in such disorder, We have deemed it advisable to renew and examine the laws with the greatest diligence and care. After having collected those which it has seemed to Us to be worthy of preservation, We have sanctioned them by a decree, and have ordered that actions at law shall be determined in conformity with their provisions. Those, on the other hand, which We have decided to be of no value, We have forbidden to be cited hereafter, and have stricken them from the list of laws. So far as those which We have failed to mention are concerned, We.have also repealed them by the mere fact that We have not alluded to them. Finally, as among all customs which common usage has established, there are some founded upon reason which a wise man should not reject, We have exalted them from the condition
of customs to that of laws, and have conferred upon them the same authority.
Everything having been arranged by Us in this manner, all persons are hereby notified that the laws which We have confirmed, and the customs to which We have given legal force by means of Our Imperial power, shall be observed, and be available for the disposal of all litigation; but, on the other hand, such as are opposed to them, whether they have been explicitly repealed, or whether We have kept silence concerning them, shall alike be rejected, and be excluded forever from the jurisprudence of the Empire.
CONSTITUTION I.
EVERYONE WHO EXERCISES THE PREROGATIVE OP JUDGING SHALL DECIDE IN ACCORDANCE WITH THE LAWS WHICH WE HAVE COMPILED, AND SHALL NEVER HAVE RECOURSE TO THOSE WHICH WE HAVE ANNULLED, IN ORDER THAT • NO AMBIGUITY MAY ARISE UNDER SUCH CIRCUMSTANCES.
In the name of Christ, Our True God, who has introduced laws for the benefit of the entire human race. The Emperor Csesar, Flavius, Leo, Pious, Fortunate, Renowned, Victor and Triumpher, worthy to be revered in every age, Augustus and Faithful King, to Stylianus, Most Illustrious Master of the Imperial Offices.
Justinian, whose name is so celebrated among sovereigns, must have been animated with a spirit exceedingly favorable to the welfare of his empire, and most zealous for its benefit, when, in spite of their 'number and the confusion in which they were involved, he collected all the laws which had been enacted from the foundation of Rome until his reign, and with an industry and labor worthy of all admiration attempted to compile them in a single work, a task which should have elicited the gratitude of all his subjects. He corrected whatever was contradictory and unsuitable, and placed in one collection all the laws which he believed had contributed to the prosperity and glory of the State, arranging them in such a way that an easy method was afforded of distinguishing what was just from what was inequitable.
But under all circumstances, in order to obtain the greatest advantage, it is necessary that there should not be a superfluity of anything. For, after having succeeded in the compilation of a single body of laws, and having made an excellent arrangement of the numerous and scattered materials of jurisprudence; after having disposed of the innumerable conflicting statutes which disturbed the harmony of legislation; after having enjoined upon all magistrates to render their decisions in conformity with the recently established rules of law, and having, by means of wise provisions, assured the reconciliation of their various opinions, confident that they would decide impartially and without any contention; still, not being content with these achievements, and believing that he could advance the happiness of the Empire to a great extent, he was imprudent enough to enact
new laws which diminished the value of its former work, and, in this way, rendered himself liable to censure, because of the controversies which he provoked, and the contradictions which existed between former and subsequent legislation, for in this way Justinian inflicted an injury upon himself.
And, indeed, from that time to this, so many changes have taken place in legislation, whether by the introduction of new laws, or by the adoption of customs whose authority was solely based on the consent of the multitude, there is almost as much uncertainty and disorder existing now as formerly, and all the ordinary business of life is again thrown into confusion.
Wherefore, although We are worthily employed with many other things, having paid particular attention to this subject which could not dispense with Our care and knowledge, and having thoroughly investigated the customs which have been introduced with reference to different matters, We have endeavored to reconcile the laws which were found to be conflicting, by repealing all such as were in any respect subversive of their purpose. When we have encountered any customs which were neither injurious nor unreasonable, We have ordered them to be committed to writing, and have conferred upon them the force of law. Finally, where any provisions have appeared to Us to be too severe, and utterly regardless of justice, We have, by modifying them, rendered them equitable, as was proper under the circumstances.
These matters having been arranged and determined, We hereby notify all magistrates and judges to consider as absolutely void, and to reject as such, all the enactments which We have repealed; and, on the other hand, they must base their decisions upon those which have-either been passed or compiled in the first place by Our Father, of immortal memory, and subsequently by Us, without anyone being permitted hereafter to have recourse to laws which We have annulled, or to any customs which We have not established as legal, notwithstanding the privilege which they enjoyed by reason of common usage.
CONSTITUTION II.
HE WHO IN OTHER RESPECTS is PROVED TO BE WORTHY OP THE EPISCOPAL DIGNITY IN ACCORDANCE WITH THE SACRED AND DIVINE CANONS OF THE CHURCH, EVEN THOUGH HE MAY HAVE CHILDREN BORN IN LAWFUL MARRIAGE, SHALL NOT, FOR THIS REASON, BE PREVENTED FROM OBTAINING THE OFFICE, OR WHERE ANYONE is WORTHY OF A HIGH SACERDOTAL DIGNITY, HE SHALL NOT BE EXCLUDED FROM IT, MERELY BECAUSE HE HAS LEGITIMATE CHILDREN.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
As the divine canons and the other rules, having reference to the priesthood and the creation of bishops, were drawn up in the best
manner possible (and, indeed, why should they not have been perfect, as their authors were influenced by Divine inspiration?), it may well be a cause for astonishment that anyone has ventured to consider them as being imperfect, and having been abolished, others have been promulgated in their stead. For although the sacred canons, in describing the creation of bishops, state that he who has children born in lawful wedlock is eligible to the first rank of the priesthood, provided his life offers no other obstacle to his promotion, legislators, having adopted the contrary opinion, hold that those who have children, even though they are the issue of legitimate marriages, are not eligible to the episcopal dignity on account of this impediment, on the ground that perhaps the affection of the candidate towards his children might be so great that he would be induced to use the property of the Church for their benefit, for what else could anyone say? This, however, does not seem to be a good reason. For the consequence would be that no one could be created a bishop, if he had any brothers or other relatives living, as the affection which he might entertain for those who are so nearly related to him by blood might cause the same apprehensions to arise." Moreover, the divine canons provided for this, and conferred upon bishops the authority to relieve the necessities of their indigent relatives by employing the property of the Church for that purpose. Therefore We, obedient to the Majesty of God from whom Our power is derived, and thinking that the provisions of the ancient canons are perfectly proper, do, in accordance with them, hereby decree—at the same time repealing all laws in opposition to the same—that any person, who is in other respects worthy of the first dignity of the Church, shall not be excluded therefrom for the reason that he has legitimate offspring, and that whoever may hereafter dare to violate this law shall be condemned to everlasting silence.
CONSTITUTION III.
PERSONS SHALL NOT BE ORDAINED PRIESTS ACCORDING TO THE RITES OF THE CHURCH, EXCEPT UPON THE CONDITION THAT THEY WILL LIVE IN CELIBACY THEREAFTER, AND IF THEY SHOULD DESIRE TO CONTRACT MARRIAGE THEY MUST DO so PREVIOUS TO THEIR ORDINATION, OR ONE CAN ONLY MARRY BEFORE ENTERING THE PRIESTHOOD.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Prefect.
As rules relating to candidates for the priesthood have been established in a proper manner from the beginning, those who observe the customs of the present time do not (in My judgment) act as they should when they despise ecclesiastical tradition; for while it directs that those who are to be ordained priests shall promise to always live in celibacy, if they think they can fulfill this promise, or, indeed, when they fear that they will violate it, they must marry first, and then receive ordination, the custom prevailing at present, on the contrary,
requires that they be ordained before marriage, and permits them to marry for two years afterwards.
But as all this seems to Us to be improper, We order that, hereafter, ordination shall be conferred in accordance with the ancient regulations of the Church, which have been handed down to Us by tradition; for it is dishonorable for those who are exalted by spiritual feeling, above the abject and base conditions of the body, to again yield to the vile temptations of the flesh; and, on the other hand, it is much better that they should be raised to this high rank in order to avoid the effects of the degrading carnal passions.1
CONSTITUTION IV.
NOT ONLY PRIESTS BELONGING TO THE CHURCH IN GENERAL BUT ALSO THOSE ATTACHED TO ANY PARTICULAR EDIFICE DEDICATED TO CHRISTIAN WORSHIP CAN LAWFULLY CELEBRATE THE SACRED MYSTERIES, AND PERFORM ALL THE RIGHTS OF DIVINE SERVICE IN A PRIVATE CHAPEL WHEN THEY ARE SUMMONED FOR THAT PURPOSE.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
The ancients decided that the sacrifices and communion of the Church could be celebrated in private houses solely by priests who belonged to the general Church; but that those who were attached to any other churches, or who, in any respect, led a private life, could not discharge the duties of any ecclesiastical office, or perform any religious rite whatsoever. They established this rule for the purpose of preserving religion, as they wished (as may well be conjectured) to prevent those who, having been priests, had adjured their status, and concealing this guilty defection (with criminal intent), from insensibly corrupting the true believers who called them to their assistance.
1 Marriage of the clergy was universally recognized in the early ages of the Church, and for the first three hundred years, no suggestion is to be found of their incompatibility with the performance of ecclesiastical duties. It was long authorized by the Canon Law, which directed candidates for episcopacy to have but one wife, after baptism; a requirement which necessarily implies that they were accustomed to have more, thus following the Mosaic practice. "Post baptismum debet esse monogamus qui in Episcopum est ordinandum." (Corpus Juris Canonici, Deer et, I, XXVI, 1.)
Matrimony was not considered an impediment to promotion, but members of the priesthood were enjoined to abstain from cohabitation with their wives at the time of ordination, and when administering the sacraments. "Quicunque ergo diligens inuentus fuerit in subdiaconali ordinatione, aut diaconali, aut sacerdotali, hie nulla modo prohibeatur ad talem ascendere gradum pro vxoris, suss legitimie cohabitatione. Nee etiam tempore ordinationis suse profiteri cogatur; quod abstinere debeat a legali proprise vxoris familiaritate." (Corpus Juris Canonici, Deer et I, XXXI, 13.)
The canon of the Council of Nicea, while prohibiting intimacy with "subin-troduced women," was silent as to wives. The progress to sacerdotal celibacy was slow and gradual, and the rule was finally adopted purely for material considerations ; partly with a view to prevent a division of affection and interest between the
The object of this precaution seems to be extremely praiseworthy, as those who employed them were actuated by a desire for the welfare of the Church. It was not, however, perceived that it was as necessary to confirm it as was supposed; and, on the other hand, it is clear it weakened its firmest support by interfering with the exercise of divine worship. It is, in fact, not impossible for a priest whose depravity is not generally known to succeed in corrupting the persons who summon him to their houses; but this would very rarely happen, as there are few true believers so careless, or so frivolous, as to invite priests with whose morals and religious principles they are unacquainted, to come to their homes to conduct religious services.
Moreover, an apostate priest who profanes the sacred rites of religion does not desire to associate with those who are horrified by impiety. Hence, the rule referred to does not accomplish what was expected. And then it has a tendency to deprive a large number of believers of the benefits of religion, for, as through Divine grace, not only almost all the wealthiest of Our subjects, but also even the poorest of them, have private chapels in their houses, and as the latter are not rich enough to furnish the sacred utensils and other articles necessary for priests, the result is that they cannot enjoy the benefits of private religious service, and that, at the same time, their chapels cannot be used for the purpose for which they were designed.
Again, it is very probable that when the memory of deceased persons requires'prayers to be immediately offered up, the day when it should be done is often allowed to pass without the performance of this duty, on account of the lack of priests; something which is fully as disadvantageous to the living as to the dead.
Therefore We have decided that not only priests of the Church in general, but also those who are in the service of any of the Houses of God, can, when called upon by true believers, go for the purpose of celebrating the sacred mysteries, and perform all the religious rites in their private chapels.
Church and the family, and partly to secure intact the immense sums bequeathed by wealthy and contrite sinners to religious establishments, in the hope of obtaining priestly intercession, and pardon for lives passed in wickedness. Prohibition of marriage had, however, for many years but little effect, for during the eleventh century, and even later, members of the ecclesiastical order, including archbishops, lived openly with their wives, and provided liberally for their children out of the revenues of the Church. This fact is succinctly set forth by a mediaeval churchman
as follows:
"Coeperunt ipsi presbyteri ac diacones (qui tradita sibi Sacramento, Dominica, mundo corde castoque corpore, tractare debebant) laicorum more uxores ducere, susceptosque filios hxredes testamento relinquere; nonnulli etiam episcoporum, verecundia omni contempta, cum uxoribus domo simul in una habita/re." (Desiderii Dialog, de Mirac, S. Benedict., Lib. III.)
In the end, when deprived of this resource, the clergy, obeying the imperious dictates of human nature, as might have been expected, found relief by indulgence in the even more reprehensible practice of clandestine concubinage.—ED.
CONSTITUTION V.
PERSONS WHO HAVE EMBRACED A MONASTIC LIFE AND POSSESS PROPERTY ARE NOT PROHIBITED FROM DISPOSING OF IT BY WILL ; AND IF THEY BROUGHT ANYTHING INTO THE MONASTERY AT THE TIME WHEN THEY ENTERED IT, THEY SHALL BE AUTHORIZED TO DISPOSE OF WHAT THEY HAVE SUBSEQUENTLY ACQUIRED, BY WILL, IN ANY WAY THAT THEY DESIRE. BUT WHERE THEY BROUGHT NOTHING THERE IN THE BEGINNING, THEY SHALL ONLY HAVE THE POWER TO DISPOSE OF TWO-THIRDS OF WHAT THEY MAY SUBSEQUENTLY OBTAIN, AND THE MONASTERY SHALL BE ENTITLED TO THE OTHER THIRD, OR A MONK CAN, BY WILL, DISPOSE OF THE PROPERTY WHICH HE HAS
ACQUIRED.
The Same Emperor to Caesar, Most Holy Archbishop of Constantinople, and Universal Patriarch.
You whom the origin of all light has placed in the great firmament of the Church as a divine star, whose duty it is to illuminate the world, have, together with the reverend bishops, often informed Us of your uncertainty with reference to the question whether monks ought to be permitted, or forbidden to dispose of the. ownership of property acquired by them after having embraced a monastic life. You have, as We already stated, frequently urged Us on account of your uncertainty to investigate with you this perplexing point, as the doubts to which it has given rise obscure as with a cloud the light of reason, without which no satisfactory conclusion can be reached. Therefore, always deeply impressed with veneration for Your sacerdotal dignity, We are about to take measures to comply with your request.
In the first place, We shall mention what has been laid down by the ancient authorities concerning those who desire to embrace a monastic life, that is, that before entering the one which they desire to live, they must first dispose of all their property by will, and when it has not been done they will be deprived of this privilege, and everything they have will pass to the church in which they have assumed the tonsure. This was decided with reference to such as had already adopted a monastic life (with the exception of those who had surviving children entitled to inheritance), and it was held that this was the best thing that anyone could do, and that nothing ought to be added to or taken from this provision. For he who, having been able to dispose of his property before his change of status, does not make use of his privilege, can then very properly be deprived of it, because he himself is responsible for his disability, and he is, to some extent, considered to have renounced it, and the strictest construction of the law is no longer opposed to its being taken from him.
Again, since he has wished to release himself from the anxieties of this world, would it not be absurd for him any longer to support
its burdens and submit to its annoyances? Therefore, when anyone has embraced a monastic life, as We have already stated, this decree shall not be supplanted by another, when the person in question has no children. But when there are any children (as it would not be right for them to suffer from the silence of their father), the monastic habit should not altogether deprive them of the right of testation, but it is clear that he can make a will in their favor disposing of the shares to which they are entitled by a just and legal distribution, but so far as the share of the father is concerned, he has no right to dispose of it by will, as all of it belongs to the monastery. But if death, as frequently happens in the course of human affairs, should suddenly prevent the distribution of his property, any provision which he may have made for his children shall, by all means, take effect; but this shall be done in the manner aforesaid, where what belongs to them by law must be set apart for their benefit, and the remainder will go to the monastery. This is the method of disposition of property which anyone may employ before adopting a monastic life.
But with reference to property acquired by the father subsequently, a"nd concerning which Your Holiness has applied to Us for a decision, We have thought that a distinction should be made. For anything which a monk was not entitled to leave by will before entering a monastery he cannot dispose of in this way afterwards; as he is then deprived of the right of testation, because, while he was in the world, and the property was in his possession, and he could dispose of it but did not do so, he himself is to blame for his own legal disability; but after he has embraced a religious life, there is no reason why anyone should be prevented from disposing of what is his, either in person or by someone else. If, however, it should be said that for the sole reason that he was a monk, the monastery should be entitled to his entire estate, I do not know whether a decision of this kind is in accordance with monastic regulations or not. For, in the first place, is it proper for those who have professed contempt for the affairs of the world and its riches, to desire to hold them under any excuse whatsoever? Then a monk may have poor relatives, who are in need of a helping hand, and why should he then display a spirit so foreign to humanity as not to relieve their distress by giving them his estate; but should not only repulse his friends and kinsmen as strangers, and retain everything himself for the benefit of the monks; just as We see voracious and greedy men, while eating, manifest reluctance to leave anything for their companions? Nor can a slave be freed from the bonds of servitude; nor anyone entitled to commiseration obtain it; nor a person destitute of the necessities of life hope for relief, when all the property of the monk is transferred to his monastery. Hence We have very properly decided that if anyone, at the time when he embraced the monastic life, consecrated anything to the Church, whatever he may have acquired thereafter he shall be at liberty to dispose of in any way that he wishes; but any property that he brought into the monastery in the beginning must be divided into three parts, two of which he can make such disposition as he pleases, and the third will belong to
the monastery. This is what We have decided with reference to the point which you have submitted to Us.
Your Holiness will communicate these matters which have been decreed to all the metropolitans, and direct them to notify the bishops under their jurisdiction, in order that the latter may inform the churches in their dioceses; so that in this way, both now and hereafter, these provisions may become familiar to all persons and be carried into effect.
CONSTITUTION VI.
ANYONE CAN BECOME A MONK EITHER AT THE AGE ESTABLISHED BY THE SIXTH COUNCIL, OR AT THAT FIXED BY THE DIVINE BASILIUS; BUT THE DISPOSITION OF His ESTATE, NO MATTER WHEN HE ENTERED THE MONASTIC ORDER, SHALL BE GOVERNED BY THE RULES WHICH WE ARE ABOUT TO PRESCRIBE, OR A BOY OF TEN YEARS OF AGE CAN BE ADMITTED INTO THE MONASTIC ORDER.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
It is necessary to determine the age at which those who desire to enter a monastic life can do so, for the reason that different rules have been laid down by Our Holy Fathers upon this subject; and, as many of them conflict, the differences should be reconciled. Therefore We, together with Your Holiness and your pious archbishops, have carefully examined the opinion of the great and admirable Basil, namely, that persons can not assume the monastic habit until they are sixteen or seventeen years old, and that of the Sixth Council, which held that they could do so at ten. We have adopted both of these rules and decided that anyone is eligible at either of these ages. So far as the power of alienation of property is concerned, We have determined that whoever assumes the monastic habit at sixteen or seventeen years of age can dispose of the same as he pleases, for We think that the great Basil fixed this age in order that it might not be an impediment to the exercise of this power. When a boy at the age of ten years desires to change his status by embracing a monastic life, it is clear that the Holy Council established the age at which he could do this with a view to aiding him in this respect; but We, nevertheless, do not grant him authority to dispose of his property by will, and decide that he cannot enjoy this right until he has reached the requisite age. If he should die before having done so, all his slaves shall be entitled to their freedom, and his estate shall be divided into three equal parts, one of which shall go to his relatives, and the other two to the monastery. When he has no relatives, the monastery shall be entitled to his entire estate.
CONSTITUTION VII.
WHENEVER ANYONE, THROUGH LACK OF REASON, ATTEMPTS TO RENOUNCE THE CLERICAL HABIT FOR THAT WHICH is PROFANE, HE SHALL BE RESTORED TO His FORMER CONDITION, OR NO CLERK CAN AFTERWARDS BECOME
A LAYMAN.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
Previous to this time, whenever We were investigating the establishment and confirmation of legislation, and the civil law appeared to be stronger and better founded than the ecclesiastical, We gave the former the preference; and, for that reason, thinking that it would be advantageous to ratify the rule of a religious order by means of a decree issued by civil authority, We hereby, in accordance with ecclesiastical discipline, direct that every clerk who is so foolish as to abandon his religious habit, and assume a secular one, shall be compelled to resume the former, even though he may no longer be worthy of again being received in the place from which he escaped in this dishonorable way.
CONSTITUTION Vill.
WHEN ANYONE FORMS THE DESIGN OF ABANDONING A HOLY MONASTERY AND REJECTING THE MONASTIC HABIT, AND, IN ORDER TO DO so, ASSUMES THAT OF PROFANE PERSONS, HE WHO DARES TO COMMIT SUCH AN ACT SHALL, EVEN AGAINST His WILL, BE COMPELLED TO RESUME THE MONASTIC HABIT, AND BE RETURNED TO THE MONASTERY WHENCE HE WICKEDLY FLED, OR CONCERNING MEMBERS OF THE CLERGY WHO ABANDON A MONASTIC LIFE AND ARE ENROLLED AMONG THE ATTENDANTS OF GOVERNORS OF PROVINCES.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
At a time when young persons desiring to live an irregular life, attracted by the elegance of the manners of wicked persons, seek their company, and measures are taken to prevent them from following their inclinations to pursue a vicious and corrupt career, it is a matter of surprise that the ancient law permitted those who had embraced a monastic life, and had ventured to abandon it to accomplish their wishes, and, having resumed their secular habits, in the language of the Holy Scriptures, like dogs returning to their vomit, again tread the filthy paths of their former existence.
A law provided that anyone who renounced the monastic life should be compelled to return to it the first time that this happened,
but if it was repeated he could not return, but must be enrolled in the provincial cohorts of the army. But if it was decided to be proper that a monk who abandoned his monastery could again assume a profane habit, why should he not have been permitted to do so the first time that he fled, and, instead of this, be compelled, even against his will, to resume the profession which he had renounced? And if, on the other hand, the decision in a case of this kind appeared to be just, why was it not adhered to, and why was it established that, after his second desertion, the unfortunate monk should be compelled to adopt a military life?
. This regulation appears to Us absolutely void of propriety, and as We do not approve that anyone who has been enrolled in the legions or the divine soldiery should become one of the military force of Our Empire, We hereby enact as a law the canon of the ecclesiastical order that anyone who, disgusted with religious life, abandons his monastery several times, shall not be permitted to resume the secular habit, for even though he is compelled to return the first time that he leaves it, why should he not be tempted again to depart, if he knows that by doing so he can regain his profane status, and, under no circumstances, be forced to return to monastic life?
CONSTITUTION IX.
CONCERNING SLAVES WHO BECOME MEMBERS OF THE CLERGY WITHOUT THE KNOWLEDGE OF THEIR MASTERS.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople.
Being always desirous of enforcing the rules of ecclesiastical discipline, and the provisions of the sacred canons, We have annulled those of Our laws which are in opposition to them. Hence, in accordance with the will of the Church of God, We decree that any slave who has assumed the revered dignity of the priesthood, without the knowledge of his master, shall be deprived of this honor, and restored to his former servile condition; and We hereby repeal the law, declaring it shall be of no effect, which provides that when a slave, without the consent of his master, becomes a priest, he shall be liberated from servitude.
CONSTITUTION X.
CONCERNING SLAVES WHO ADOPT A MONASTIC LIFE WITH THE KNOWLEDGE OF THEIR MASTERS.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
We are aware of the supreme excellence of monastic life, and how worthy of reverence and honor those are who assume this easy and fortunate yoke. Therefore, far from blaming anyone who decides to do so, We think that he should be exempt from all censure, for the more admirable and divine anything is, the more it is entitled to respect; the dignity of the monastic profession should not be made a cloak for ingratitude and immorality; and where a slave flees from his master
and devotes himself to an ascetic life, why should this be called dishonorable? For as it has been decided by Our predecessors, with reference to runaway slaves who enter monasteries, that if they should be proved to be fugitives within three years, their master will have the privilege of stripping them of their monastic habit, and regaining control of them; but where a slave remained unrecognized for three years and was afterwards found out, he could not be brought under the authority of his master, but afterwards became free in spite of him; and, as at present, innumerable slaves have seized the opportunity to escape from their masters, and enter the honorable monastic profession, whose privileges they abuse for the purpose of concealing their wicked designs (as it is very easy for a slave to remain hidden for three years and in this way obtain his freedom), We hereby order that whenever a slave becomes a monk with this end in view his master can, no matter when he finds him, have him stripped of his monastic habit and again subject him to his authority. For no one can allege that he has assumed it through motives of piety, as this is only a pretense, for he has either deserted a good master, and in this instance he is guilty of ingratitude, as well as of dishonesty, or he has abandoned a wicked master for the reason that he was not able to endure his abuse and ill treatment, and this being the case, how can he exalt that government which desires its citizens to always bear in mind the sufferings and death of Christ upon the cross ?
CONSTITUTION XL
CONCERNING A SLAVE PROMOTED TO THE EPISCOPATE WITHOUT THE KNOWLEDGE OF His MASTER.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
We have decided with reference to a slave, who has surreptitiously attained to the honors of the episcopate, that the same rule shall apply as where one is admitted into the priesthood under similar conditions, without the knowledge of his master; that is to say, he shall be deprived of the honor which he has clandestinely obtained, and be reduced to his former servile status. For if We do not permit persons who have dishonestly or fraudulently taken property from others to retain it, but punish them as malefactors, with much more reason We should not permit those who are bold enough wrongfully to secure an office of this kind, to live in peace, and through a perfidious act obtain two most precious advantages, namely, their freedom and the privileges of the sacerdotal order. Therefore, if any slave should be created a bishop without the knowledge of his master, this shall, in no respect, enable him to escape from servitude.
CONSTITUTION XII.
CONCERNING THE USE OF THE SHOPS OF THE GREAT CHURCH.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
Constantine, the first Christian Emperor, who exalted the brilliancy and majesty of the Imperial throne, thinking that it was not unworthy of his royal care and the glory of his illustrious deeds to provide for the burial of poor persons who did not, after their death, leave anything for their interment, devoted to this purpose the income from a certain number of shops attached to the Holy Church of this City. Then the emulation of the pious was exerted to obtain the benefits resulting from this decree, and although the rents were sufficient, their benevolence induced them to greatly increase the sums obtained. But, at present, this praiseworthy duty is not discharged with the diligence that this three and four times fortunate prince decided to be necessary, for We are aware that the Church, after it collects these rents, although it does not make use of them to defray the expenses of public worship, to which they were devoted in the beginning, applies them to other things; and, in consequence, We order that these sums should be used for the purpose for which they were destined by Constantine, and that they can never be used for anything else, but that the object of their disbursement shall remain unaltered and inviolate. All the shops whose rents are set apart as aforesaid are eleven hundred in number.
CONSTITUTION XIII. CONCERNING PERPETUAL EMPHYTEUSIS.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
It has come to Our ears that the officials having charge of houses consecrated to God, that is to say churches, hospitals, and asylums intended for the support of widows and orphans, are in the habit of fraudulently and illegally extorting money from the tenants to whom they have leased these buildings. It is stated that when the leases have expired and renewal is in question, instead of being content with the fixed rent which is due to them, the said persons exact sums to the amount which their avarice may suggest. Therefore, as extortion of this kind is very burdensome to all lessees, and especially cruel to the poor who are thereby reduced to dire extremity, We expressly forbid it by this law, and prohibit Our officials, under such circumstances, from collecting more than double the sum stated in the emphyteutical contract; everything which they exact over and above the former rent shall be set forth in the lease; and, moreover, they shall not make any change in the building leased that is rather for their own benefit than for the usefulness of the said building.
CONSTITUTION XIV.
CONCERNING THOSE WHO LEAVE A MONASTERY
UNFINISHED. To the Same.
He who begins anything precipitately and with too great eagerness, and even in .the very beginning is deprived of the power and the
ability to complete it, whether he is actually vicious, or has undertaken more than he can accomplish, should be despised and considered worthy of censure. Our Lord Jesus Christ, who always makes use of proverbs in his instructions, mentions this in the Gospels when he speaks of the foundation and completion of a city, and it is therefore reasonable that Our Sacred Laws and Imperial Decrees should also employ the same language whenever they forbid the foundation of a monastery, where the means are insufficient to complete it. For it is only when some enterprise can be perfected that the name which it is destined to bear can be given it, and so long as it is imperfect, it would be absurd to designate it by the appellation that it can only have when it is entirely finished. Therefore, as has already been stated, it is only reasonable that both Our Sacred and Civil Laws should forbid the foundation of a monastery, when sufficient funds are not available
for its completion.
Still, as one can not exactly know when a monastery should be considered finished, for the laws have prescribed nothing definite in this respect, We have deemed it advisable to promulgate an Edict which will render this matter clear and certain. Hence We declare (as has been stated by Our Lord), "Where two or three are gathered together in my name, there am I in the midst of them," the application of which is, that for any building whatever to be able to assume the name of monastery, it must be large enough to accommodate at least three persons; in which case, if considerable property should be added thereto, it will be entitled to be designated a monastery. Thus, in order for a monastery to be devoted to sacred uses, it will he necessary for at least three monks to take part in the consecration. But as the greater portion of the persons who apply themselves to undertakings of this kind die before the latter are completed, We hereby decree that when they have made a will, their monastery can ask to be released from the acceptance of the legacies bequeathed to it; and if the founder should die intestate, which frequently happens on account of the uncertainty of the time of death, the monastery will be entitled to a fourth of his estate where he only left three children, or if he left a larger number it can, in preference to all charges and obligations, take out of their share a portion equal to that of each one of them. When, on the other hand, the deceased had no children, but left some ascendants, his estate shall be divided into two equal parts, one of which shall go to his ascendants, and one to his monastery, and if, instead of children or ascendants, he left only collateral relatives as heirs, the latter, no matter what the number may be, will only be entitled to one-third of the estate, and the other two-thirds will go to the monastery; and finally, if, through forgetfulness, or for any other cause, the testator, having lawful ends in view, made a will in opposition to these provisions, the ecclesiastic in authority in the neighborhood will have the power to take from the estate a sufficient sum to maintain the monastery, and provide for the monks; and the other testamentary dispositions made by the deceased shall be observed, so far as the remainder of the property is concerned.
CONSTITUTION XV.
IT SHALL BE LAWFUL TO CONFER THE SALUTARY RITE OF BAPTISM IN ANY PRIVATE CHAPEL WHATSOEVER.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
A sacred canon, issued by the Sixth Council, provided that the rite of baptism shall be conferred only in temples consecrated for the use of the public, and not in chapels attached to private houses, just as other canons promulgated by the same Council forbid the divine sacrifices and mysteries to be celebrated in private residences. As We have deemed it proper to remedy the latter rule, We should also pay similar attention to the former one, as it relates to the same subject. Therefore We decree that it shall be lawful to confer baptism in every kind of private chapels, as We have already stated that the divine mysteries can be celebrated therein. For it seems to me that when the Council forbade this, it was with a view to preserve true believers from the snares of depraved men who, although they bore the name of priests, were still worldly, and polluted the candidates whom they conducted to the baptismal font; and who, it appears, when called to the houses of persons for the purpose of conducting religious services, did not discharge their sacred duties, but wickedly attempted to corrupt those who were assembled there. But while a provision of this kind may be divine, and contain many things which are salutary, it still does not suffice to restrain men who are full of impiety from practicing their vices; for malice is audacious, and in order to accomplish its purpose can find a way even when places of prayer are closed. Nevertheless, as with the aid of Divine favor, all perverse opinions have been eradicated, I do not see any reason which renders it necessary to preserve the law forbidding the rite of baptism to be celebrated in private chapels.
CONSTITUTION XVI.
ANYONE CAN BE CREATED A SUBDEACON WHO HAS REACHED His TWENTIETH YEAR.
To the Same.
An ancient proverb says that special attention should be given to those who speak of things with which they are familiar; for where they discourse intelligently in general, they discuss subjects of this kind with far greater facility. But what is the application of this? The Civil Law has prescribed that no one under the age of twenty-five years can become a subdeacon; the Canon Law, on the other hand, declares that this can take place at the age of twenty. As the Canon Law has decided with reference to a matter which it is directly concerned, We think that it should have the preference; and in conformity with it, We decree that a subdeacon can be created at the age of twenty years, provided he has not rendered himself unworthy through his conduct up to that time.
CONSTITUTION XVII.
WOMEN IN CHILDBED CANNOT TAKE PART IN THE CELEBRATION OF DIVINE MYSTERIES, AND THEIR INFANTS CAN NOT BE BAPTIZED UNTIL AFTER FORTY DAYS, UNLESS SOME URGENT NECESSITY REQUIRES THIS TO BE DONE.
To the Same.
Your Holiness is better qualified to decide the question which you have proposed than We are, for it is your province to render decisions relating to sacred things. But as you state that it will be inconvenient to consult the Council with reference to a special case, as its attention is only directed to general matters; and, besides, as We can, without applying to the Council determine the point which you have submitted to Us, after having duly considered it, We promulgate the following constitution with reference to the same.
As Our Lord and Saviour Jesus Christ, by whose glory those who walk in darkness are illuminated, designed to clothe himself in our flesh and blood, it is, in my opinion, contrary to His Divine Providence to hold that a woman who has recently brought forth, and is in danger of dying before the expiration of the time established for her to receive the sacraments (namely, the fortieth day after the birth of her child), and that in spite of this, she should be considered unworthy of being enlightened on religious subjects; and that, on account of her physical impurity, she should be permitted to die impure, that is to say without having been baptized, or allowed to participate in the regeneration effected by the sacred rites of the Church. Those who hold this opinion do not take into consideration the extent of the danger, and the evil to which their inconsiderate and fatal belief exposes her, for it is absurd to maintain that she does not need the aid of prayer. It would not be permitted, or, in other words, it is horrible in the eyes of God who grants salvation to all those who believe in Him, and are regenerated by the spirit and by baptism, to abandon such a woman to perish in her unbelief and her original corruption, and in this way to be responsible for her eternal loss when her salvation could have been secured. Is not this a serious and bitter course to pursue?
Therefore, abolishing this unwise conclusion, We hereby decree that where a woman has recently been brought to bed, and afterwards has a natural delivery, and is not, in other respects, dangerously ill, she shall not, before the expiration of forty days, either be baptized (if she has not yet received this rite), or have the other sacraments of the Church administered to her, if she has already received baptism; but that, where any dangerous disease attacks her and threatens her life, she shall, by all means, be permitted to participate in the sacred mysteries. For if persons, on account of the enormity of their crimes, are deprived of communion for many years, why should the natural corruption of her flesh be a reason for withholding these rites from her, when the criminals above mentioned, if they fall dangerously ill, are permitted to partake of the sacrament before the
time of their excommunication has expired? If the ancient law prescribed a time during which a woman should, under such circumstances, be excluded from communion, it is not, as I believe, because of her present condition of impurity, but for other reasons concealed by the policy of the law, and I think that the principal one was to restrain the concupiscence of those who devote themselves to sensual pleasures without moderation, just as many other regulations have been established for the purpose of blunting the indomitable desires of women.
I also think that another reason was to prevent her health from being affected by her confinement; for as everything which is superfluous in nature is useless and conducive to decay, women, being subject to loss of blood in confinement, are forbidden to place any obstruction to this flow during the time prescribed by law; and, in order that they might not be tempted to arrest it, were compelled to remain, during that period, temperate and free from concupiscence.
So far as children newly born are concerned, We hold that they also should not be baptized before the said term of forty days has elapsed, unless circumstances arise which are liable to result in death. For as a foetus, while in the womb of its mother, does not assume its form, and is not endowed with life until the term of forty days from its conception has expired, so also, the spirit of life conferred by baptism should not be imparted before the expiration of forty days. Still, there is nothing absurd in baptizing a child at the end of eight days, if one does not desire to wait longer, for Our Lord was circumcised eight days after his birth, and baptism has been established to take the place of circumcision.
This rule is applicable where no necessity which threatens death exists, for where there is any danger of loss of life, every effort should be made to perform the rite of baptism within eight days, in order that the child may not be deprived of such a great advantage by death.
CONSTITUTION XVIII.
THE PENALTY INCLUDED IN THE CONTRACT OF BETROTHAL SHALL BE EXACTED.
The Same Emperor to Stylianus, Most Illustrious Master of the Imperial Offices.
When a selection is to be made between things and discourses, no one should be blamed for choosing what seems to be the best. But in order to come to a conclusion on this subject it is not necessary to adopt the opinions of those who act or speak, but thoroughly to examine the source from which the deeds or statements are derived. Therefore We think that We should adopt as a law the custom which provides that where a promise of marriage is broken, certain penalties shall be imposed; for I believe that the law relating to this includes some very wise provisions, since while it only condemns him who breaks his word to lose a betrothal gift, or to return twofold its value,
custom demands that he pay the damages and interest set forth in the marriage contract. And, indeed, it seems to me that this rule has a greater tendency to prevent the violation of promises of marriage, as the simple loss of a betrothal gift, by the person who gave it and afterwards broke his or her promise, or the restitution of double its value to him or her by whom it was given, is a punishment of such trifling importance that it only induces the person who desires to violate the agreement to do so; while anyone will hesitate to incur the risk of becoming liable to a penalty mentioned therein. Hence, being convinced that the infliction of a penalty will promote the observance of marriage contracts, We insert it in the present Constitution. I only see in the forfeiture of the betrothal gift an easy method of avoiding a marriage, but this is not the case where the payment of a penalty is involved, for the expense is greater than that set forth in the contract, and compels those who are unwilling, or are irresolute, to comply with what they agreed upon at the time of the betrothal. Therefore what has been confirmed by custom up to this time shall hereafter obtain the force of law, suits shall be determined in accordance with it, and whoever violates a betrothal contract shall be liable to the penalty.
CONSTITUTION XIX.
CONCERNING THE CONTRACT OF A FATHER BY WHICH A
SON BECOMES ENTITLED TO A SHARE OF His ESTATE
EQUAL TO THAT OF THE OTHER HEIRS.
The Same Emperor to Stylianus, Most Illustrious Master of the
Offices.
It is not with the intention of treating with contempt the acts of others, as We have previously stated, nor because We are actuated by the desire to obtain greater glory, that We devote Our attention to the amendment of the laws; but in order that We may abolish what is not advantageous to Our subjects, as far as this can be done, being aware that a just system of laws is the greatest essential of a good administration, for he who declared that the laws are the eyes of government, in my opinion, gave utterance to a statement which was in no wise improper. For as it is absolutely necessary for an animal to have eyes which are steady, so legislation must be just and equitable. Therefore, bearing this in mind, and knowing that there was a law in the Code which is so absurd that it has never been accepted by the minds of men, but has no force or effect, as it is opposed to the natural equality which should be displayed by parents with regard to their children, authorizing them to be unjust to some of them, and enabling them to be guilty of fraud and bad faith in case they wish to do so; and, as I have stated, being aware that there is a law of this kind, although it was not observed even before Our sanction was accorded it, We, nevertheless, are of the opinion that it is Our duty to repeal its authority and use by means of a decree. But what does it say? It provides that a father, when he gives his son in marriage,
and promises to make him the heir to his estate at his death, on the same footing with his brothers, and leave him a share of the other equal to that of each of them, can not break this promise even if he desires to do so, and give more to his other children than to him. But as this law is never observed anywhere in the Empire, We hereby repeal it absolutely, and decree that a father can not change the promise that he made to his son when he was married, to give him a share of his estate equal to that of each of his other children. Every provision made by him which would have a tendency to violate his promise, and diminish the share aforesaid, shall be considered void, and of no effect; and his son shall, in every instance, succeed to the estate on the same footing with his brothers, in accordance with the terms of the contract. For, under no circumstances, shall falsehood be preferred to truth, nor is it just or consonant with reason for an agreement to be wickedly disregarded. But, on the other hand, it is far more worthy of a father to keep his word, unless, substituting falsehood for truth and acting in an irrational manner, he wishes to deprive those things which are founded upon reason of their principal attribute.
Again, it is not right for a parent not to manifest the same affection for all the children born to him, and not make provision for their lives in an equitable manner, but to bestow a larger share upon some than upon others, without showing due consideration for the latter, although he knows that they will hereafter live in want. But it is proper that all his children should be justly provided for by receiving an equal distribution of his estate, and not that more should be given to some than to others, in accordance with the degree of affection with which he may regard them.
CONSTITUTION XX.
NEITHER HUSBAND NOR WIFE SHALL, IN CASE OF THE DEATH OF ONE OF THEM, BE ENTITLED TO ANYTHING EXCEPT THE DONATION GIVEN IN CONSIDERATION OF
MARRIAGE.
4
The Same Emperor to Stylianus, Most Illustrious Master of the Offices.
As it was laid down by the ancient laws, which treated of nuptial contracts, that at the time of the contraction of marriage, as well as when it was dissolved by the death of either of the parties, he or she would be entitled to an equal share of the estate, I do not know for what reason other laws were subsequently enacted which contained contrary provisions. For the more ancient ones declared that when the marriage was contracted, what was mutually given by husband and wife should be of equal value, and that at its dissolution each should take what he or she had brought, unless there were children, or it was stated in the agreement that the survivor should be entitled to more. Where such an arrangement had been made, it was held
that at the time of the death of either of the married persons, the survivor, having taken what he or she had given, would be entitled to whatever it was stated the survivor should receive out of the estate of the other, and that such acquisitions must be of the same value for each, that is to say, if the wife survived she would be entitled in the first place to her dowry, and afterwards to her share of the property given in consideration of marriage, or even to all of it if this had been agreed upon; and that if, on the other hand, the husband survived, he could claim the ante-nuptial donation, and could take either a part or all of the dowry of his wife, in accordance with the terms of the contract. These are the provisions of the ancient laws which were repealed by subsequent enactments. What the latter provided is unjust, for they declared that at the time of the contraction of the marriage the wife should bring a dowry of larger value than the donation made to her by her husband, and that, on the day when the marriage was celebrated, she would acquire the ownership of the articles composing said donation, even if she should contract a second marriage, as is frequently the case.
The more recent laws also provide that where the woman survives, she will be entitled to the entire ante-nuptial donation, along with her dowry, and will take besides out of the remainder of her husband's estate a share equal to the fourth of the dowry and the donation combined, and if, on the other hand, she should die first, her heirs would be entitled to both the dowry and the donation without the husband being able to retain more than a fourth of the two combined; and that this rule should be enforced without regard to any agreement in this respect.
These laws were extremely iniquitous, inasmuch as they provided that, where marriage was dissolved by death, they assuaged the grief of the wife for the loss of her husband by giving her part of his estate, and aggravated the husband's loss by depriving him of all of that of his wife. But is not this unfair? Does it not inflict great wrong under color of law? There is perhaps some reason that, when the husband dies first, his wife should acquire a right to his property, but when she dies first, and her heirs obtain it, the rule in every respect is unjust and outrageous. Wherefore the above-mentioned Emperor, to whom We owe Our origin and to whose power We have succeeded, very properly and wisely held that in order to preserve the authority of the ancient laws, the more modern ones by which they were annulled should be repealed. But custom is refractory and contentious, and absurd opinions are not easily extirpated when they are profoundly rooted in the minds of men, and especially where the latter are not willing to take the time and trouble to examine them. However frivolous a custom may be, people are unwilling to abandon it in order to adopt a better one. Hence, the Constitution enacted by Our Father —whose memory should always be preserved—for the purpose of renewing the ancient laws relating to marriage contracts, has been rejected as absurd, and those which he decided should be abolished are now in general use. What then should We do? As it seemed to be
better that married persons should not bring equal shares of property to one another, but that the dowry should be of greater value than the ante-nuptial donation, this shall have the force of law. And if death should dissolve the marriage, and the husband should die without leaving any children, and no agreement was made with reference to this, the wife will be entitled to both the dowry and the ante-nuptial donation, but to nothing more; and if, on the other hand, death should remove the wife, her heirs will be entitled to the dowry, and the husband will not be deprived of his property, but shall have what belongs to him. For would it not be unjust for strangers to be enriched at his expense, and that, in addition to the loss of his wife, he should be deprived of his own property, or of the ante-nuptial donation which he gave?
CONSTITUTION XXI.
THE PROMISE OF A DOWRY SHALL BE FULFILLED BY THE
DELIVERY OF PROPERTY BELONGING TO THE FATHER'S OR
MOTHER'S ESTATE.
The Same Emperor to Stylianus, Most Illustrious Master of the Offices.
Just as one can make use of a balance to determine the weight of anything when the scales are perfectly equal and do not incline more to one side than the other, so a law is worthy of serving as a rule for the decision of litigation, when it contains nothing which tends to the perversion or corruption of justice. The use of the former is to preserve equilibrium, and of the latter to maintain equity.
What is the application of this? A constitution is included in the Code that contains provisions which I do not think are in conformity with the law providing for the enforcement of promises bestowing dowries and ante-nuptial donations. For it declares that where a father promises a dowry or an ante-nuptial donation for the benefit of his children, and he makes his promise in a general way, he must himself fulfill it by giving his own property alone; but if, on the other hand, he should make a distinction, and speak as follows, "I shall fulfill my promise by taking the property out of my own estate and that of my son," then, if he is poor, he can not comply with his promise, but what he agreed to give shall be entirely taken from the estate of his son; but when he is wealthy, he alone must do what he promised, and his son shall contribute nothing for that purpose, even though he may have stated that the latter must participate with him, and give up his property, for the reason that it is thought to be unjust for the son to surrender anything which he did not agree to donate.
We are of the opinion that this rule is subversive of equity, for no matter how poor the father may be, it is unjust for his son to be obliged to entirely fulfill his promise; and, on the other hand, when the father is wealthy, it is not proper for him to carry out the promise, without his son assisting in doing so. It is for this reason that We have decided that the promise shall be complied with in accordance
with the terms in which it was set forth. Where the father limited it to himself, he alone must execute it; if he made it conjointly with his son, the latter must participate in its execution; and this shall be done equally when anything has been provided in this respect, or each must pay his share in case what each should give was stated. There is no violation of equity in this rule, and, besides, it has in view the welfare of the children, which the constitution included in the Code does not sufficiently provide for. Why is this? Because a father who, above all things, considers the expense, by waiting until his son is old enough to make a valid promise before drawing up the matrimonial contract, often loses the opportunity of an advantageous marriage. Therefore, for the benefit of both parties, as well as in the interests of justice and to promote the welfare of the children, We hereby abolish the decree of the Code, and enact as law what has already been observed as custom. What has been prescribed shall be considered as law and substituted for the enactment contained in the Code.
CONSTITUTION XXII.
A WOMAN WHO DOES NOT MARRY A SECOND TIME SHALL BE ENTITLED TO THE SHARE OF A SINGLE CHILD OUT OF HER HUSBAND'S ESTATE, AND WHERE THE FATHER SURVIVES HE SHALL ENJOY THE SAME PRIVILEGE.
The Same Emperor to Stylianus, Most Illustrious Master of the Offices.
As We have yielded to custom, in numerous instances, when it contained nothing absurd or injurious, and have even given it the force of law when people accustomed to its observance were reluctant to reject it, We think that We should also adopt the provisions having reference to the grant of the ante-nuptial donation to the wife when she survives, and, having children by a first husband, does not marry again. The old law gave her this privilege, and while granting her the usufruct of the property, it also allowed her the share of one child in absolute ownership. A subsequent law permitted her to take the said share, not only out of what composed the ante-nuptial donation but also out of the remainder of the estate of her husband. Custom, however, did not entirely approve of either of these enactments, but, partially following both of them, decided that it was not proper to allow her a share of one of the children, whether it was taken out of the ante-nuptial donation or from other property belonging to the husband; and altering the character of the said share, it allowed her to have a fixed amount of the entire estate of her husband.
Since this practice is in no respect injurious to the welfare of Our subjects, We deem it advisable to adopt it as a law, as We have done in several other instances, and confer upon it absolute legal authority, instead of that which it derived from common usage.
Where all the property of the husband was included in the antenuptial donation, the mother, if she survives, can, along with her children born to said husband, take the share to the full ownership of
which she is entitled, and enjoy the usufruct of the remainder. But where the property of the husband was not sufficient to constitute the donation, the share of the woman will not be subjected to a reduction in proportion to what was lacking, and the result will be the same as if what was thus bestowed had not suffered any diminution, and the ante-nuptial donation had been complete. Therefore, after the woman has received her share in this way, the remainder of the estate will go to their children, who, in case their father left nothing, will be obliged to indemnify her for the loss which she sustains, and prevent her from suffering from poverty. This is the way in which We have provided for the rights of the wife when she survives.
Where on the other hand, the husband survives, he will neither gain nor lose anything when there are no children, as We have elsewhere decreed in amending a law; but when there are children, and he has no intention of marrying again, then, in order to indemnify him for the expense of their education, and on account of the honor and reverence manifested by him to his first marriage, he shall be entitled to a share equal to that of one of his children, to be deducted from the dowry.
CONSTITUTION XXIII.
GOVERNORS SHALL NOT CONTRACT MARRIAGES WITH t FEMALE MEMBERS OF THEIR HOUSEHOLDS WHILE IN
THEIR PROVINCES.
The Same Emperor to the Same Stylianus.
By Hercules, it would be more worthy of the human mind and the virtue of magistrates, because they enjoy more glory and honor than many others, if, when they assume the duties of office, they would exert themselves to observe and keep the precepts of God religiously and carefully, and provide for the welfare of Our subjects instead of grievously oppressing them. But for the reason that there are many of these officials who have a cruel and unjust disposition which leads them astray from the straight path of their duty, and, inducing them to practice tyranny and indulge their avarice, instead of devoting themselves to the cares of government, causes them to display a savage temper, the ancient law, with a view to restraining them, provided that Governors should not have the power to enter into marriage contracts or betrothals while in their provinces, though when establishing this rule with reference to their sons, grandsons, and other male descendants, it did not forbid the marriage of their daughters. Therefore We, with the intention of supplying what is deficient in an excellent law, have decreed that those who obtain the governorship of provinces shall be forbidden to give their daughters, or any other persons of the female sex, in marriage, in their own provinces, just as they are not allowed to permit the marriages of their sons, or any other male relatives, including the servants of their households.
Why should this prohibition apply to their sons and other relatives of the male sex, and their daughters remain free from its observance,
especially when the males can be useful in many ways, not only to themselves but also to their wives, and to others who are related to them ? For they can obtain offices, engage in trade, or undertake other things with a view to earning their livelihood, while women are not fitted for anything of this kind.
CONSTITUTION XXIV.
NATURAL CHILDREN CAN NOT CONTRACT MARRIAGE WITH OTHERS WHO ARE ADOPTIVE.
The Same Emperor to the Same Stylianus.
Many persons who are accustomed to praise former times desire to give them the credit of having enacted and established better laws; and I am well aware that in many respects their laws are superior to those which have subsequently been adopted; but I also know that in some instances they are inferior. There are, indeed, not a few of them that are more beneficial, among which those concerning adoption should be included.
Adoptions formerly were devoid of pomp or ceremony, and took place without sacrifices or any sacred melodies, and the law permitted those who desired to be adopted to do so in an extremely informal manner. The result of this was that the name of sister was frequently changed into that of wife; that of daughter into that of daughter-in-law; that of son into that of son-in-law; and then adoptive sons or daughters contracted matrimonial alliances with their natural brothers or sisters, which could take place because the service of the Church not being employed in adoption, no hindrance was offered to them.
But although marriage was, under such circumstances, considered to some extent disgraceful, *there was nothing criminal about it, since adoption was accomplished without any religious rites. But at present, as it is accompanied with all due solemnity, as as the names of adoptive father and son are bestowed during the holy sacrifice, there is no longer any reason why marriage between natural and adoptive children of the same father should be permitted. Hence, We decree that those who become brother and sister by adoption can not change this relationship through matrimonial union.
CONSTITUTION XXV.
CONCERNING EMANCIPATION AND THE RESTITUTION OF THE DOWRY.
The Same Emperor to the Same Stylianus.
Laws promulgated by the ancient Emperors concerning emancipation were excellent and worthy of being preserved from all innovation; and I do not know why they have not obtained the respect to which they were entitled, for while they are not altogether regarded with contempt, they are to a certain degree despised. This is not just. For these laws declare that where slaves are given their freedom, they
cannot afterwards be deprived of this right, unless where they had been guilty of one of the forbidden causes by which they could again be reduced to servitude, and are convicted of having committed the offence maliciously, in which case they can again be consigned to the servile condition; and all persons religiously observed these laws and reverenced them. But where children are once released from the control of their parents, and are permitted in every respect to follow their own inclinations, this does not seem to have met with public approval; and the general impression is that this provision, being as it were dishonorable, should not be complied with. But it is now clear that these decrees have been deprived of their force without any good reason, for there is no new law which forbids it. And, indeed, a certain judge has decided, and I wonder upon what grounds, that emancipated children shall enjoy the privilege conferred upon them by this ceremony, but that if they do not themselves have issue, their independence will be abrogated, and they will begin to be subjected to paternal control. Nor did the magistrate referred to confine himself to this, for he added that if the emancipated child himself had children, and lost them, he would not only be deprived of the free exercise of his will, but also would not have testamentary capacity, or be permitted to administer the property bestowed upon him by his parents.
This opinion having been adopted by certain persons, their successors were the more readily induced to accept it, so that the ancient legislation having been rejected, these rules are in force at the present time.
Therefore We, restoring the authority of the ancient laws which relate to this subject, do hereby decree that no one of those who contests the restitution of a dowry shall be dismissed without the case being fully heard. But what do the ancient laws say? They declare that if an emancipated child should be deprived of his offspring by death, any donation which his father may have given him is revoked for the benefit of the latter; but the same rule does not apply to a gift from his mother, or a stranger, unless it was expressly stipulated that the revocation should take place in this instance also. Nor does this rule apply to a donation made by his father, when he emancipated him, for the laws provide that he shall be entitled to the property included in it, and can dispose of it by will, unless the donation contains something which prohibits this from being done. Therefore We have adopted these provisions without exception, and do hereby decree that when an emancipated child, who himself has no issue, makes a will, his father shall be entitled to what is granted him by the Falcidian Law, unless he renounces his right to the same while making the donation; but no other relatives, even though they may have been called to the succession ab intestato, will have a right to anything whatever, if they neglected to insert a clause with reference to restitution in the agreement.
While considering this subject, it is well to note that a child can only be subjected to the authority of a person of the male sex; but, without reference to the other methods of emancipation set forth in
these laws, it is clear that a child can be emancipated verbally, either by his father or his grandfather; and We add to these provisions that the child would be emancipated whether the father conferred this privilege on him verbally or not, but merely tacitly permitted him to go and live apart, and, even though he may not be married, his independence must be approved and ratified. For if slaves released from the yoke of servitude cannot again be reduced to slavery so long as they behave themselves properly, why should it not be unworthy for children, when they have been once emancipated, to again be brought under paternal control, and not enjoy the right of always remaining free which is conceded to slaves?
CONSTITUTION XXVI. EUNUCHS CAN ADOPT.
The Same Emperor to Stylianus, Most Illustrious Master of the Offices.
Marriage is the greatest and most excellent gift which has been bestowed by God upon man, for it not only repairs the losses which death inflicts upon nature, and insures the perpetuation of the human race by not permitting it to perish, but also, by means of the procreation of children, it confers inestimable benefits upon life. For what, indeed, is more consoling to man than the enjoyment by which he begets children; and what is more advantageous to the affairs of humanity, especially during our old age, for We see that through the ministry of our children, the annoyance of declining years is diminished.
But as all those who marry are not fortunate enough to have issue, the law has provided that they should owe to its beneficence what was denied them by Nature. Still, this was done in such a general way as to bestow its benefits upon everyone; for in granting certain persons the privilege of obtaining children without the aid of marriage, it has excluded many others from its enjoyment. It would, however, have been proper for everyone to participate in the advantages of laws intended to assuage the grief of parents who have been bereft of their children, and to come to the relief of those whose marriages have not given them any. But this was not the case, and it excludes from this privilege those who are impotent, although they should only inspire compassion. It states as a reason for this exclusion that the law should not recognize persons whom Nature does not consider qualified for generation as suitable for this function. Still, their impotence should be attributed to the injury of man, and not to Nature. Hence, as We do not think that the law should be as cruel as those who have inflicted this outrage upon them, it is hereby decreed that if eunuchs should wish to adopt anyone, they shall have the power to do so; but this privilege should only be exercised where its necessity is perfectly clear.
The adoption of children granted by law is above all necessary to eunuchs, and there is the greatest reason for this, and for them to
become fathers and enjoy the services of children, as it would be exceedingly inhuman to deprive them of every means of having any, because they are incapacitated from procreation. For as a person who is dumb can only express himself by signs, and he who has not power to speak can only convey his meaning by writing, so those who have no children, because they have been deprived of their generative organs, should not be forbidden to obtain them in some other way.
CONSTITUTION XXVII. ALL PERSONS ARE EQUALLY PERMITTED TO ADOPT.
The Same Emperor to the Same Stylianus.
As it is proper for those who exert their industry in the invention of things beneficial to human life to enable all men to enjoy them, instead of restricting their use to certain persons, thereby depriving others of their advantages, it is much more desirable that the benefit of the laws should be shared by everyone; for just as the subjects of a sovereign should profit by all his virtues, so, likewise, We should enjoy the common benefits of the law. But what is the object of this introduction? When I remember that the legislator, with a view to diminish the sorrows of those who have no children by conferring upon them the right of adoption, and in this way enabling them to acquire the appearance of a benefit that Nature refuses, has only bestowed this privilege upon fathers and mothers who have lost their "off spring, and, on the other hand, has denied it to eunuchs and to sterile women whom he did not deem worthy, I cannot understand how he could establish rules so unworthy of his consideration. For instead of increasing the misfortune of eunuchs, who cannot become fathers, he should rather have permitted them to indemnify themselves for this privation, just as he permits those who have lost the members required for natural actions (such as the hands, the feet, or any other part of the body) to use every possible means to supply this defect. On the other hand, it is no more reasonable to deny to sterile women the right of adoption. For why should this privilege be conceded to a mother who has lost her children, and a woman who has none be excluded from it, to live her entire life without any ? For if the chief advantage of having children is that they may support their parents in their old age, it is none the less just to grant them the right of obtaining them.
Adoption affords persons who are poor the means of relieving their misery by means of the assistance which they can expect from their children; and it will be not less advantageous to those who are wealthy. An adopted child devoted to the service of his adoptive mother will take the place of her son, just as she will take the place of his mother; he will manage her property; he will share her burdens, and procure for her a more peaceful and quiet existence. Therefore, annulling the laws which deny the right of adoption to eunuchs, and to women who have not now, nor ever have had children, We grant it equally to both, not only on account of the benefits resulting therefrom, but also because it contributes to the preservation of virginity. For as many
women prefer to remain virgins than to marry, and nevertheless frequently have a desire for children, they should not be tempted to sacrifice their virginity, when they can see that they can obtain them without having recourse to marriage. Nor is it true that a woman should not be permitted to adopt a child for the reason that she cannot have it under her control; for if this should be admitted, the privilege must be refused not only to those who have never had issue, but also to such as have been mothers. The law provides in a general way that a women cannot have children under her control; but this rule has reference to those children who leave their mother because they prefer to live alone, and is not applicable to such as freely acknowledge her power, and consider it their duty always to obey her. Hence the law does not prohibit this obedience which is a species of voluntary servitude, although it is a rare occurrence, and a woman is not deprived of parental authority, except where her commands are not obeyed. If this is the case, why is it that many mothers, who are widows, keep their children with them, retain them under their control for their entire lives, die in their arms, and when dying, give them their blessing, and leave them their property?
We also decree for the general welfare of Our subjects that hereafter they shall not only be permitted to adopt by authority of the Emperor (as was provided by the ancient laws), but also by that of any official who is entrusted with the government of the district.
CONSTITUTION XXVIII.
AT WHAT AGE AND TO WHOM THE ADMINISTRATION OF THEIR PROPERTY SHOULD BE GRANTED TO MINORS.
The Same Emperor to the Same Stylianus.
Legislators have very properly decided that curators should be given to minors in order to take the place of their parents, protect the weakness of their age, and, by their diligence, preserve their estates unimpaired; but We have thought it to be just and proper to make an addition to these provisions. What is this defect? It is that when the curatorship is terminated, minors cannot receive the management of their property from the hands of the Emperor, nor obtain it except at a certain fixed age, that is to say, males at twenty years, and females at eighteen; and when they have arrived at this age the law provides that they shall have full power over their estates.
But as all persons do not become competent at the same age, and it was not possible to state in a general way that all of them could receive the management of their property at a specified time, it was necessary to consider, in accordance with the ability of each one, when it would be proper to grant him or her the administration of their property. For must it be admitted that a certain person is competent merely because he has reached the established age, when his judgment is not yet formed; and that another is incompetent because he has not yet reached that age, when in fact he has the requisite wisdom and
capacity? Thus as men do exhibit great differences from one another in both moral and physical respects, and one before the established age is already endowed with all the force of reason, and another, even after having attained that age, has only a weak mind, the law which prescribes this is defective.
But there are also other parts of this legislation which are imperfect. In the first place, it is extremely difficult, not to say impossible, for everyone to profit by its provisions. For how can those who are separated from the Emperor by a great expanse of land or sea, without mentioning other impediments which may arise in the course of life, such as illness, apprehension of the treachery of enemies, broken limbs, accidents which frequently prevent persons from appearing in the place where the Emperor is residing, and which with good reason prevent the undertaking of a long voyage; how, I ask, can young people, when opposed by such obstacles, and by six hundred others which constantly beset Our lives, succeed in obtaining from the Emperor in person the authority to administer their property ?
Hence, desiring to dispose of this defect of the law (as previously stated), We hereby decree that minors, that is to say, males of twenty years and females of eighteen, shall have the right to manage their own estates, as being endowed at that age with all the discretion necessary to do this. If, however, they should not yet seem to be competent, and when they undertake the management of their affairs, are conscious of their incapacity, even though they may have passed the age at which they are entitled to be independent, this privilege shall not be granted them, for if they cannot accomplish the object of the law, and manage their property judiciously, why should authority to do this be conferred upon them, even though they may have reached the age at which they are entitled to it ? And, for this reason, it should not be refused to those who have not yet attained the prescribed age, provided they are able to conduct their business properly.
There is only one thing required by the law, which is that the property should be well administered, and when this is assured, it is unnecessary to take the age into consideration. Moreover, not only the Emperor, but also the magistrate of the district where the minor resides, can grant this right of administration, and in this way the wisdom of the legislator provides for all who can enjoy the benefit of the law, and the latter can be much more easily executed.
CONSTITUTION XXIX.
THE CHILDREN OP FEMALE SLAVES BORN UPON THE LAND OF ANOTHER BELONG TO THEIR MASTERS.
The Same Emperor to the Same Stylianus.
As We know that this discourse is true and just, and is not contaminated with the perversity of falsehood, in like manner, We should consider as equitable a law which is not tainted with inequity. Therefore, where this rule is not observed, a legislative enactment is not a law, even though it may be considered worthy of the name.
This is a law, for instance: "Let everyone be given what belongs to him;" for how can a rule of action be legal which does not enjoin this? Among such laws, one of the most remarkable is that which provides that where a female slave, who has been taken from her master by theft, or in any other way, brings forth a child while absent, instead of being returned to him along with her offspring when the crime is detected, she alone shall be surrendered and her child shall belong to the person in whose possession she was when it was born. We, considering this provision to be extremely unjust, have deemed it proper to correct it, hence We decree that the child shall follow its mother and be delivered up to her master; for, as the mother must be returned to him as prescribed by this law, it does not follow that he should be deprived of her child, to the advantage of the person on whose premises it was born, for the latter is sufficiently recompensed through having been able to profit by the services of the mother.
Perhaps it might be alleged that if the person in whose possession she was ought to be reimbursed, that the best way to do this is for him to keep the child. But if such a reason can be advanced for retaining it, it is evident that he would only have to increase the sum to which he had a right by way of indemnity, in order to keep the mother also, and is it not more just that he who has suffered the annoyance of having lost her should be indemnified by the benefit of the increase, than that this benefit should be accorded to one who had not lost anything, as he can be indemnified for what the mother cost him, and, in addition to this, has profited by her services ?
Therefore, as We have already stated, he cannot keep the child, and it shall be restored with its mother to her master; but whether he who committed the theft is wealthy enough to make good to him the price paid for his female slave, or whether he is dead, or in poverty, and not able to return the purchase-money, it is always more equitable for the owner who has lost his slave to be indemnified for this misfortune by recovering both her and her child.
CONSTITUTION XXX.
CONCERNING A WOMAN WHO CONTRACTS ANOTHER MARRIAGE DURING THE LIFETIME OF HER HUSBAND.
The Same Emperor to the Same Stylianus.
If a desire for the public welfare has induced Us to substitute good laws for those which are worthless, it must also impel Us to enact such as may contribute to the happiness of Our subjects, instead of others that are bad and injurious, and especially where two of them are conflicting with reference to the same subject. Would it then be in accordance with reason that, when, from the generals and magistrates who are most eminent and best qualified, those who are the most competent and considered to be best adapted to govern Our subjects are selected; on the other hand, one should choose among the laws, whose authority is not temporary like that of the officials who administer
them, not the best but the worst, and even those whose very existence was not known, should be accepted as rules of conduct? But for what purpose have these things been mentioned by Us ?
The Emperor Justinian, who adorned his reign as much by his piety as by his solicitude for the public welfare, while considering the dissolution of marriage, after having decided that if a wife, during the lifetime of her husband, should marry another man, her union with the latter will be regarded as void, and she shall be separated from him on the ground of having been guilty of perfidy; then decreed by a subsequent law that under such circumstances the first marriage did not bring about the annulment of the second. We, however, believing that it is more conducive to general prosperity to ratify his first provisions, since they have a tendency to strengthen the ties of marriage, do hereby direct that the former law shall be observed, and the latter repealed. Therefore, when it is ascertained that a woman, during the lifetime of her husband, has formed the intention of marrying another man, and has accomplished her infamous design, she shall be taken from him with whom her marriage must be dissolved, and rigidly condemned to the pecuniary penalties to which those who abandon their husbands in any other way are liable. For it is proper that she who formed one flesh with her husband, and instead of lavishing her affection upon him, not only showed that she was his enemy, but also insulted her Creator who joined her to him by uniting herself with another man, shall be compelled to renounce her second marriage, if she has violated her former vows; for what greater indication and evidence of hostility can she show to her husband than to desert him and bestow her affection upon another?
CONSTITUTION XXXI.
A WOMAN WHO THROUGH HATRED TO HER HUSBAND PRODUCES AN ABORTION UPON HERSELF MAY BE REPUDIATED BY HIM.
The Same Emperor to the Same Stylianus.
God, who created man from clay, and formed woman from one of his ribs, joined her to him as one of his members, that she, being aware of her origin, might learn from this to preserve her kindness and affection uncontaminated for her husband. Therefore she who is animated by such feelings, and who reserves all her love for her husband, is, indeed, a support for him, and does not violate the intention of her Creator. One, however, who entertains contrary sentiments, not only seems to be ignorant of the end of her existence, but cannot be considered as joined to her husband, although by marriage she is deemed only to form a single being with him. Hence two laws have been enacted, one against a woman who, through dislike to her husband, takes pains to produce an abortion upon herself, and accomplishes the death of her unborn child, and another enacted against the husband requiring him to repudiate a woman who has been guilty of
such an outrage; but We think it advisable to adopt that which authorizes divorce, as being much more advantageous.
It is unreasonable and absolutely wicked for a woman who displays such decided hatred towards a husband as to destroy in her womb the germ of his posterity (without taking into consideration the violation of Nature's law), to still have the right to cohabit with him; for if We avoid as a malefactor a person who injures the work of another, how can a husband retain near him as a member of his family, instead of repulsing her as a dangerous enemy, a woman who has attempted to destroy a work of such excellent character, and one so necessary as procreation, when he experiences the greatest injury from her act? What more conclusive evidence of the hatred she entertains for him could she disclose? Is it not clear that it is his part to establish the fact that she has prevented the child begotten by him from coming alive in the world?
Thus, as We have previously stated, the law which decrees their separation under such circumstances shall be the only one observed, and a husband can leave his wife if he learns that she has been guilty of a crime of this description. For if the law permits a marriage to be dissolved because the wife has passed a night away from home, or is proved to have attended a banquet in the company of men with whom it is not proper to associate, which circumstances do not show the same aversion for her husband, and do not always even establish her disgrace, why should he not be separated from her when she has committed a crime which is an outrage both against Nature and himself, but be obliged to live with a woman who may plot against his life?
CONSTITUTION XXXII. CONCERNING PERSONS TAKEN IN ADULTERY.
The Same Emperor to the Same Stylianus.
The crime of adultery I think to be one of those for which a most severe and horrible penalty should be exacted, and, indeed, one not less appalling than that for homicide. For a murderer frequently only takes life with his bloody hands, but the execrable adulterer attacks the life of many persons, as by breaking the bonds of marriage, he destroys at once the husband, his children, their relatives, and others. This offence was, in former times, punished with death, Ibut subsequently it was deemed advisable to substitute for this penalty one which is less harsh, and, giving preference to the latter, We, along with those who established it, decree that both the guilty parties shall have their noses amputated as a punishment for the crime; and as the husband must be indemnified for the injury which he has suffered We hereby order that he shall be entitled to the dowry of his wife. Moreover, We forbid the latter to marry again, and that the punishment inflicted upon her may not be, to a certain extent, a reward, she shall, by no means, be permitted to associate hereafter with persons of licentious manners.
We also direct that she shall be confined in a convent, where, by repentance, she can lessen the severity of the penalty, just as if she
had been sent into exile. And if she, desiring to embrace a monastic life, should do so, all her property, with the exception of her dowry, shall be divided among her children and the convent; and if she has no children, her ascendants shall take their place, and when there are none of these, her other cognates shall share in the distribution. But if she should die without having embraced a monastic life, as she will have testamentary capacity, her property, with the exception of the dowry, shall be disposed of in accordance with her wishes.
CONSTITUTION XXXIII.
THE WIVES OF CAPTIVES SHALL NOT BE PERMITTED TO MARRY OTHER MEN.
The Same Emperor to the Same Stylianus.
If I had thought that those who formerly promulgated laws had been of the opinion that they did not need any amendment and were unwilling for them to be changed, I, perhaps, never would have changed them, for I never should have attempted to alter enactments even where they were unjust; since, although influenced by solicitude for the public welfare, I would have hesitated to amend them, in order to avoid condemning the work of former legislators. But as, if they were living at the present time, they certainly would not be displeased when an attempt was made to amend their laws, and I even think that they would return thanks to persons who believe that this should be done (for it is not only for their own glory, but also for the benefit of the public that legislation takes place), and being convinced that what is conducive to the general welfare would not be distasteful to the ancient legislators themselves, We, with God's assistance, and after careful consideration, have taken measures to provide remedies for these laws, in the same manner as medicines are administered. by physicians.
In addition to other matters, when they made provision for captives, they declared that where the husband was in the hands of the enemy, but his wife was at liberty, or vice versa,, there was good cause for the dissolution of the marriage; since under such circumstances, where one of the parties was in servitude, the inequality of status did not permit the equality existing at the time of the marriage to continue. We, however, being more inclined to benevolence, have decreed that so long as either the husband or the wife survives, the union shall not be considered as dissolved, nor can either of the parties marry again, unless he or she desires to be considered to have acted wantonly, and become liable to the penalty of losing either the ante-nuptial donation or the dowry.
These are the rules which the ancient legislators adopted with reference to the marriage of captives. The cause does not, however, seem to Us sufficient to authorize the annulment of marriage, as it is not consonant with either reason or humanity, and, while it affords a means of dissolution, it inflicts punishment; for if, as is alleged, the inequality of their legal position does not permit the matrimonial
state to continue to exist; if the captive should recover his liberty, and be restored to his former condition after the marriage had been dissolved and both parties are living in freedom, should it not again become valid? What sincere feeling of humanity can that be which causes injury by the separation of two persons who are attached to each other, and how can this be compensated for by the substitution of others? And again, while all the possessions of the captives, even to articles of trifling value, are estimated in accordance with their condition, can it be believed that the parties interested would have been willing to expose the dearest portion of themselves to the same accidents as their property, and is it not clear that it would be a great misfortune for either of them to be deserted by his companion?
What then should I do? I have determined that when one of the parties is in captivity, and the other, being free, marries again, after the one who was a captive returns, he can, if he desires to do so, take back his wife with whom his marriage will always continue to exist, notwithstanding the second which may have been contracted; for if anyone should hold that the second marriage ought not to be dissolved, is it "not even more just to assert that the first ought to be reestablished? If anyone should allege that the one who married a second time ought not to be separated from his or her new consort, is it not consonant with reason to reply that, as they had been separated, he or she should be reunited to his or her former spouse? It might perhaps be added that the captive husband receives an indemnification under these circumstances, as his wife is obliged to pay him a penalty on account of the second marriage which she had the rashness to contract. I answer that, not only a reason of this kind cannot be advanced, but that it does not even appeal to the mind; for what wretchedness and penury of spirit would he not experience who exchanges his wife for a sum of money!
We therefore decree that the husband or wife who remains free cannot marry again, and should be obliged to wait for his or her consort as long as he or she remains in captivity, whether they write to each other or not; and if anyone, in violation of this law, should be tempted to break his or her former ties in order to form new ones, and should do this without observing the special provisions of the One Hundred and Seventeenth Novel concerning the wives of those who are absent on military expeditions, they will render themselves liable to the penalties prescribed by this law, and, in addition, as We have already stated, the captive husband can, if he regains his freedom, claim and take back his wife.
CONSTITUTION XXXIV.
CONCERNING A GUARDIAN WHO CORRUPTS His FEMALE
WARD.
The Same Emperor to the Same Stylianus.
It is a most abominable thing for those who are considered reliable on account of their position, and who have already shown themselves
to be worthy of trust in the eyes of persons who have formed this good opinion of them, to manifest hatred and perfidiousness instead of virtue and fidelity. Therefore, when guardians, instead of considering the welfare of female wards placed in their care, prove to be their destroyers, their offence is much more serious because of the confidence which has been reposed in them. This occurs where a father is convinced that the guardian to whom he entrusts his children, including his daughter, will treat them with paternal solicitude. Legislators have very properly decided that when a guardian corrupts a female ward under such circumstances, when he should have acted as her father and protector, he must be punished; for they subjected him to deportation and the loss of his property. But their regulations are not, strictly speaking, applicable to all cases, for they do not seem to have taken into consideration the outrage undergone by the ward, as they ordered that all the guardian's property should be confiscated to the Treasury, without noticing that they did not avenge the injury as they intended to do. For how can it be said that it was avenged, when the wrong which the girl was said to have suffered was not atoned for, and the law did not afford her any means of avoiding the evils resulting from the injury? For what refuge is there for the girl when she not only obtains no compensation for her wrongs, but sees that calculation has been made for the profit that may be obtained from her dishonor and infamy as she grows older? Therefore, in order that by means of this law We can, as it were, remove all ^cause for censure from this law, We abolish the provision that the I property of the seducer shall be confiscated to the Treasury; and We / decree that it shall be given to her for whose injury and misfortune ^~~He was responsible.
CONSTITUTION XXXV.
CONCERNING THE PUNISHMENT OF THE RAVISHER OF A VIRGIN AND His ACCOMPLICES.
The Same Emperor to the Same Stylianus.
It is not for the purpose of opposing ecclesiastical canons, or merely to contradict civil enactments, that We have rendered the following decision against the ravisher of a virgin, but because We have noticed that it is more advantageous that the ecclesiastical law, through its mildness, as it were, encourages the evil, while the civil law, as We admit, is too severe in its suppression. The latter provides that not only one who has carried away and ravished a young girl shall be put to death and deprived of all his property, but also that his accomplices in the crime shall be subjected to the same penalty, and that it makes no difference if the girl voluntarily submitted to her ravisher.
Moreover, the law declares that if the father knew of the rape, he shall be punished by deportation, and even if he was not aware of it at the time it was committed, but learned of it afterwards, and attached very little importance to the violation of his daughter, and
pardoned the guilty party, or even gave his daughter to him in marriage, he will be equally liable to deportation as a penalty for his neglect. These are the rules adopted by the ancients.
But Our Father, of eternal memory, paying less attention to the rape itself than to the circumstances with which it was accompanied, regulated his opinion accordingly, and decreed that if the offence was committed with arms, that is to say with swords, or any other lethal weapons, the culprit should be punished with death, because when they were employed, the act implied homicidal intent. So far as those who aided in its perpetration, or harbored the criminal, are concerned, he decided that they should have their noses cut off, be scourged, and shaved.
If, on the other hand, the rape was committed without weapons, the ravisher was not punished with death, because he did not have any intention to inflict it, but he would be condemned to have his hand amputated, and those who assisted him, or had any share whatever in the commission of the crime, were condemned to be scourged, shaved, and deported.
So much for the corporeal punishment; and with reference to the pecuniary penalty, no change is made in former laws, which shall remain in full force. These are the matters which Our Father decreed, and which We approve, and order that they shall always preserve their authority and effect.
CONSTITUTION XXXVI. THE SON OF A CAPTIVE SHALL BE His HEIR.
The Same Emperor to the Same Stylianus.
As the laws are the support and the foundation of government, in order that the latter may be preserved, it is necessary for legislation to remain unimpaired. But who can say that the soundness of the law consists of anything but equity? Therefore We, exerting Ourselves to see that the laws of Our Empire are just, have noticed that the one which excludes the child of two married persons who are in captivity from the succession of one of them when he or she dies in the hands of the enemy, cannot be called equitable, We have desired to render it so. It is not difficult to ascertain in what respect it is unfair, for what influence ought the nature of the place to have over the appointment of a son as heir? Nor indeed, should anyone advance as an objection that when a father is a captive, his son is disinherited on account of his servile condition. For how can the Civil Law which, when a captive has been released, recognizes him as free, not permit his freeborn son to be his heir, while it grants the administration of the property of one who is in the hands of the enemy to a person who is alleged to be a slave? To whom is it thought that the property of a captive should belong? Should it pass to his cognates? And why should the servile status not prevent them from entering upon the estate, and why should it not be granted to those who, not long before, were the heirs? Or should it be given to the Treasury? And why is
this not an obvious injury? For if it is not consonant with reason for the children of captives to obtain relief from the public, why should it not be a manifest wrong for the son of a captive to be deprived of his property, and it be transferred to the Treasury? And as fathers are frequently punished with death for the commission of serious crimes, and their children are not prevented by law from acquiring their estates, what reason is there, when their parents have done themselves credit through their pious intentions (and, indeed, having shed their blood in testimony of their faith, they have often elicited the admiration even of impious persons, on account of their courage and magnanimity), that their children should not be permitted to become the owners of their estates ?
This Constitution does not seem to Us to be worthy of Our Majesty, and therefore We decree that hereafter a child, whether it was born while its father and mother were in captivity, or when its mother was free, shall be the heir of the estates of its parents, whether both of the latter recover their freedom, or after one has been liberated the other dies in the hands of the enemy, or even when both of them die before being liberated; for in all these instances their heirs shall be those appointed by will, so that their son will be entitled to the third of their estates, as his lawful share of the same.
CONSTITUTION XXXVII.
A SLAVE WHO is MANUMITTED BY THE WILL OF His
MASTER HAS TESTAMENTARY CAPACITY, EVEN IP HE DOES
NOT KNOW THAT His MASTER is DEAD AND THAT His
ESTATE HAS BEEN ENTERED UPON.
The Same Emperor to the Same Stylianus.
We correct the present law, which is imperfect, by adding a suitable amendment thereto. It declares that when a slave is not aware that he has obtained freedom under the terms of his master's will, and he receives it without knowing in what way this has been accomplished, he shall not be deprived of it in spite of his ignorance, but shall live in freedom, yet will not have the right to make a will as if he was free, for this law appears to regret having allowed him to enjoy the liberty which it conferred upon him in perpetuity.
But if he has not the power to dispose of his estate by will as a freeman, why does he not return to his former condition of servitude? Therefore We decree that when the law gives him liberty, it must also bestow upon him all the privileges attaching thereto; for is it necessary to forbid him what a freeman is allowed to do, when the law has decided that he is worthy of freedom; and if he is worthy of it, why should he not be considered competent to enjoy its privileges? Hence, a slave who has received his liberty shall actually be free, and can, in whatever way seems to him proper, dispose of anything which his master gave him, no matter how valuable it may be; for it is not just for one who has publicly received the benefit of freedom to be exposed to disgrace, and deprived of testamentary capacity, on account of some ill-founded suspicion.
CONSTITUTION XXXVIII.
THE SLAVES OF THE EMPEROR CAN DISPOSE OF ANY
PROPERTY BELONGING TO THEM IN ANY WAY THAT THEY
MAY DESIRE.
The Same Emperor to the Same Stylianus.
Although the following provision is apparently plausible, and has been legally enacted, still, it seems to me to exceed the bounds of equity; for it declares that slaves shall not be permitted to dispose of their property, and, even though it may have been obtained by their arduous labors, and with many privations, their masters shall be entitled to it. And, indeed, it is surprising that the law originally enacted on this subject was not drawn up with more moderation and justice, and that those responsible for the same adopted it, just as if it had been framed by others.
Moreover, I do not approve of this law and I shall not permit it to apply to my slaves; but, on the contrary, I grant them full authority to manage their own estates, and, hereafter, the slaves of the Emperor shall be the actual owners of their property; so that, when they are in health, or ill, if they think that they are in danger of death, they shall not be deprived of the power of disposing of their property in any way that they may desire, and the ownership of whatever they possess shall not be taken from them under the pretext of servitude. Therefore, this law shall be applicable to Imperial slaves. Magistrates, and the remainder of the people, however, shall have the power to observe the ancient statutes having reference to the property of slaves, when they are not willing to acquiesce in this Our decree.
CONSTITUTION XXXIX. A SPENDTHRIFT CAN DISPOSE OF His OWN PROPERTY.
The Same Emperor to the Same Stylianus.
No mortal is so perfect as not, occasionally, to involve himself in difficulties; nor is anyone, if I am not mistaken, so lacking in intelligence as not frequently to do things to his own advantage. God does not permit anyone, who is always confident in his ability, to act in such a manner as to be free from blame; and He, on the contrary, as He is the Curator of His own creatures, permits persons of weak minds to fail, through imprudence, in everything that they attempt. I have mentioned these matters, having in mind the rule which forbids a spendthrift under any circumstances to plan or execute anything with reference to his own property. This law is, however, of too general a character, and it is necessary, after examining the actions of the spendthrift, to hold that all that he has done which is useless is void, and everything that redounds to his benefit is valid. The law, however, does not prescribe anything of this kind, but absolutely deprives the spendthrift of the power of transacting his own business. We, however, thinking that this is unreasonable, and having repealed the law, do hereby decree that everything that a spendthrift
may do which is unreasonable, and which tends to establish his wastefulness, shall not be considered as worthy either of approval or confirmation ; but that, on the other hand, everything that he does which is advantageous, shall be accepted as proper and not be reproved. For if spendthrifts either leave their estates to their necessary heirs, or distribute them among the poor, or deliver their slaves from the cruel restraints of servitude, what course shall be pursued; and because the testator is a spendthrift, must it be held that he ought not to be permitted to perform such acts? And if he should have an unprofitable tract of land, and someone else, who wishes to correct his vice, purchases said land for more than it is worth, and prevents him from suffering loss, shall his character as a spendthrift prevent him from consulting his own interest, and taking advantage of a good bargain? I do not see any reason for this. As I have already stated, the capacity of the spendthrift for transacting business must be ascertained; and if he does not display the habits of a prodigal, whatever he has done shall be ratified; but if, on the contrary, he does not attend to his affairs with ordinary prudence, his administration of them should neither be approved nor confirmed.
CONSTITUTION XL. CAPTIVES HAVE TESTAMENTARY CAPACITY.
The Same Emperor to the Same Stylianus.
Those who formerly exerted themselves for the purpose of directing human affairs in a proper manner by the promulgation of laws, and have left abundant evidence of their good will in the measures which they adopted for the purpose of preserving order in the State, I do not know for what reason, when treating the subject of captives, did not manifest the same indulgence by authorizing them to dispose of their estates. The legislation relating to wills contains a clause of an excellent and beneficial character, for it was provided that whenever there was a lack of witnesses the will could be signed by a smaller number, and that, even where there were no witnesses present at all, a will was frequently considered valid, like that of a soldier who had fallen in battle, which is a conclusive proof of benevolence.
Nothing of this kind, however, was enacted with reference to captives, nor is there any indulgence manifested in this respect, for they are not allowed to dispose of their property, and are not shown any commiseration whatever, but their captivity is treated in an entirely different way. For are they not captives in a double sense? Why should their misfortune and profound sadness be increased, and as they did not die of sorrow, why should they not only be condemned to expire in captivity, but also, if they had any property at home, should it be taken from them as if it was not theirs, and they be deprived of what they have obtained by their labor, and for the increase of which they have exposed themselves to the perils which resulted in their captivity? Why, when a captive has relatives, for instance, children, a wife, brothers, or others whom the law calls to his succession, should
they, perceiving that they can obtain his property on the ground of intestacy, make attempts to have him released when they expect to be his heirs? We are acquainted with the dispositions of men, and are well aware that if there are very few persons who entertain any true affection for those who are unfortunate, and desire to assist them solely for the pleasure of doing so; on the other hand, there are many who are inclined to go to their relief through hope of reward. Therefore, what would induce a husband, or anyone else, to undertake something for the benefit of a captive? If the latter had the power to dispose of his property, such persons, convinced that any steps that they took could not cause him any loss, would not then manifest indifference, for they would think that if their efforts were successful, and the captive recovered his liberty, they would be rewarded for their care and labor, or if death would put an end to their exertions, the captive would bequeath by his will a much greater share of his estate to one who had exerted himself to release him than to another who had neglected to do so, for he would not forget him, nor would his efforts be considered of no value.
The result of this would be, as I have already stated, that certain persons would zealously devote themselves to the ransom of captives. But where the latter have no power to make a will, and their heirs can obtain their estates ab intestato, I do not know where anyone can be found who would be willing to exert himself for their liberation, as the hope of obtaining the captive's estates on the ground of intestacy, and the fear of laboring ineffectually for their release, in case, for instance, they died before it was obtained, would cause them to be slow in acting, or in other words, they would have no inclination to take the necessary steps for this purpose; which, however, would not occur if the law did not declare the testaments of captives to be void.
And, indeed, if everyone could make use of his property in order to purchase his freedom, would not a captive be subjected to gross injustice, when, in forbidding him to dispose of his property, he is precluded from using a part of it to secure his release?
Moreover, if the law is absurd in this respect, it is still more so in another, inasmuch as it deprives captives of testamentary capacity, and, by so doing, frequently transfers their estates to their worst enemies, and to men upon whom, if they were living, they could not even bear to look. Can anything more detestable be imagined? Therefore We, being convinced that matters should no longer be left in this condition, have determined to correct these regulations in the interests of good government as We have done in other instances, so far as God has given Us ability. Hence We decree that captives who have been forbidden to make wills shall no longer be subject to this restriction, and that they shall be allowed to make their testamentary dispositions either orally or in writing, in the presence of five witnesses, if this is possible, or, at least, in the presence of three; on condition that the latter make oath that this is really the will of the testator, and that the latter, if he had any children, called them to his
succession, or if he had none, that he appointed other heirs. We do not think that it is just for all those who bear the name of citizens of the same state, and are judged to belong to the same nation, not to enjoy these rights under its laws; for example, that such as are free should have the power to dispose of their property, and, on the other hand, that those who are in captivity should not enjoy the same privilege, just as if they had been guilty of crime by having lost their freedom while fighting for their compatriots.
But if a captive, either of his own accord, or compelled by those to whose authority he is subject, should make a will in favor of enemies, it should not be confirmed, and shall be declared void, as not being in accordance with the proprieties which should be observed in the execution of testaments under a Christian government. These provisions are hereby ordered to be applicable to such captives as have executed wills before their death. But when the last moment of life comes suddenly upon a man and he dies intestate, then, where there are any ascendants or descendants entitled to his estate, it shall pass to them. But if there are no relatives of the dead captive, who are entitled to the succession (I refer to such as are neither ascendants nor descendants recognized as such by the family of the deceased), it must first be determined what he owes, and then a sum sufficient to satisfy the indebtedness having been set apart, the remainder shall be divided into two parts, one equal to one-third, and the other to two-thirds of the same; the first of which shall be devoted to prayers for the deceased, and the second shall be transferred to the Treasury without, however, any slaves being included in either; for We wish all of them to obtain their freedom, unless there are not enough assets to discharge the indebtedness. The same distribution shall take place when there are no debts, or where the deceased left no heirs, as has already been stated.
We have, by means of this law, effected the amendment which We had in mind with reference to the legislation imposing restraints upon captives. Your Magnificence will communicate it to Our subjects, in order that as soon as what We have decreed becomes known to all, including such as are in captivity, they will have power to dispose of their property in any way they may desire.
CONSTITUTION XLI.
IN CITIES FIVE WITNESSES, AND ON A JOURNEY AND IN THE COUNTRY THREE, SHALL BE SUFFICIENT TO ESTABLISH THE VALIDITY OF A WILL.
The Same Emperor to the Same Stylianus.
As all the concerns of human life which require the presence of witnesses necessarily derive their force therefrom, this is especially true where arrangements are made in contemplation of the last moments of our lives, and which demand confirmation of this kind; for there is no other way to determine what is right under such circumstances, except by means of witnesses. Hence, since it is abso-
lutely necessary for the dispositions of men about to depart from life to be valid, there is the more need to have these established by testimony. But as what the law strictly requires cannot always be accomplished, and its demands must be brought within the bounds of possibility (for when what is absolutely prescribed cannot be accomplished, the best means available must be adopted), it has seemed to Us proper to fix the number of witnesses who must be present at the execution of wills. This opinion was also entertained by Our Father, of worthy memory, but what he enacted concerning it was not found to be perfectly applicable. For while the ancient legislators held different views on this point, as one thought that seven witnesses should be called, and another that five were necessary (that is to say, seven in cities, where, on account of the number of people there would be no difficulty in obtaining them; and five in the country, and on the highways, because fewer men could be depended upon and be found in such places) ; when, I say, this rule was established, Our Father, without taking into consideration the greater facility of procuring witnesses in cities, decreed that both there and in the country five would be sufficient to establish the validity of a will. I think he came to this conclusion because he remembered how extremely lacking in virtue men are in these days.
This conclusion, however, has already been stated as not entirely responsible, for anyone might say that the same number of witnesses is not required in cities and in the country, and that in the country as well as on the highways the number available is certainly less. Hence, not desiring to make the same mistake, We hereby decree that five witnesses must be called in the cities, and three on the highways, in the country, and in other inhabited places, to establish the validity of a will.
CONSTITUTION XLII.
WHERE THERE is A SUFFICIENT NUMBER OF WITNESSES
THE WILL SHALL BE VALID, EVEN THOUGH THEY MAY
NOT HAVE ATTACHED THEIR SIGNATURES OR SEALS TO THE
INSTRUMENT.
The Same Emperor to the Same Stylianus.
The obscurity of terms affects much of that to which they relate, and, as it were, by enveloping them in a thick cloud, it removes the power of comprehension from the,mind, and prevents giving the administration of affairs a proper direction. Therefore, as We have observed that this obscurity is especially prevalent in those constitutions which have reference to wills, and involves matters in no small perplexity, We have thought it advisable to amend them, and to explain in what way wills should be proved, and how this may be effected by a law which is not ambiguous and can readily be understood. Our predecessors, who have treated of wills, have divided them into two kinds, and have informed Us that they could be either written or unwritten.
In addition to this, they have described how, under these circumstances, a will must be executed in order to render it valid, and have stated that, in order for its validity to be established, all the witnesses must sign and attach their seals to it during the life of the testator, if it was written; but in the case of a nuncupative or verbal will, seven credible witnesses must declare that they heard the testator enumerate with his own lips the provisions embraced therein. This having been settled, they add that if a written will does not include everything necessary to render it perfect, that is to say, the signature of the witnesses which confirms the truth of what they say, and their seals which prove their signatures; if the will does not, as I say, contain all this, which must take place before the testator's death, it will be absolutely void and worthless, either as a written or nuncupative testament. This rule, which bears marks of insufficient consideration without calling it defective, is the cause of much confusion and ambiguity. Some authorities hold that such an instrument should be considered as absolutely void; that other persons should not be entitled to the estate of the deceased, and that the latter should not obtain any benefit from it (just as if a dead person could be benefited from anything), meaning that after his death any disposition which he may have made of his property restores, so to speak, life to others. These, as I have stated, are desirous that the testator should not derive any advantage from his own estate. Others, indeed, whose opinion is not so intolerant, think that where the witnesses have not attached their seals to the will, even if it is not valid as a written testament, it should, at least, have the force of an unwritten or nuncupative one.
Therefore We, being aware that such perplexity is very injurious to human affairs, adopt the last opinion, and convert the darkness and doubt of the ancient law into clearness and certainty; and We hereby decree that, under such circumstances, the will shall be imperfect, so far as the matters which a written testament should contain are concerned; but that, on the other hand, if the evidence required by a nuncupative will is forthcoming, it should be valid as such; and that when this is not the case, as there is nothing to establish its genuineness, it shall be considered void. And, indeed, is it reasonable, or rather is it not actually absurd and foolish, to deem witnesses worthy of confidence who have not corroborated their evidence by writing, and not consider, as such, those whose evidence is confirmed in this manner? Is not this a shameful and detestable betrayal of equity? What if a will was committed to writing, and its contents communicated to credible witnesses, and the notary who drew it up should become ill, or die suddenly; and the testator should also die soon afterwards, as frequently and unexpectedly happens to men; should those whom he, when dying, thought worthy of his bounty, having been deprived of it on this account, suffer such a wrong?
The most unworthy part of this opinion is that the testator, even after his death, experiences its bad effects, and, by annulling his will, it causes him to lose his claim to divine compassion, which, after his decease, his benevolent dispositions ought to give him good reason to
expect. Therefore, We decree clearly and formally that where witnesses merely identify the will as that of a certain person it shall not be rejected, but shall be confirmed and ratified; even though the said witnesses may have failed to attach thereto their seals as well as their signatures.
CONSTITUTION XLIII.
WILLS CAN BE WITNESSED BY PERSONS WHO DO NOT KNOW How TO WRITE.
The Same Emperor to the Same Stylianus.
In enacting the following law, We do not wish to find fault with Our predecessors for having carefully provided for the interests of the general public, but rather for the purpose of confirming their wise enactments; to regulate matters which are not affected by their judicious legislation; and, by providing for this as far as possible, prevent them from being removed from the condition in which they should remain. But what do I mean? It was decided by the ancient authorities, when treating of wills, that their validity must be established by the evidence of seven witnesses, or at least by that of five. They were, however, not content with having done this, but added that where wills were executed in cities where there is no lack of educated men, persons should not act as witnesses who did not know how to write, but that no attention should be paid to this where the same facilities did not exist, and that witnesses might be called there, whether they were able to write or not. Thus what had been decreed with reference to localities where there are very few who know how to write, custom and time extended everywhere, even to cities, although there are many educated persons there; and this custom seems to Us to be worthy of being enacted into law. Hence We decree that in all places, even in cities, wills can be witnessed by persons who are unable to write, provided their morals are such as render them worthy of confidence. Moreover, not only do We restrict the number of witnesses to five, but We also desire three to be sufficient where they are difficult to find; without anyone being able to call their testimony in question.
CONSTITUTION XLIV. BY WHOM WILLS OUGHT TO BE SIGNED.
The Same Emperor to the Same Stylianus.
If all the acts and affairs of mankind which have been reduced to writing required confirmation by any evidence whatsoever, this rule should certainly prevail with reference to wills which men execute at the end of their lives, and in which they set forth their feelings and their wishes when about to depart from life. For the defects of an instrument executed by living persons, even though it may have been signed, can be detected by a careful examination of the language of the person who wrote it, and the subjects to which it has reference; but it is impossible to ascertain whether the dispositions which a testator has committed to writing are absolutely certain, where the evidence of witnesses is not available. An excellent rule was formulated by
the legislator on this point, when, in order to avoid, as far as possible, having recourse to the oath of witnesses to a will, he ordered that the seal of the Master of the Census should be attached to the document, in order to establish its genuineness. For in this way, by imparting an official character to wills of doubtful authenticity through the imposition of the seal of a public magistrate, he did not afford too ready an opportunity to have the witnesses sworn, and the abuse of oaths was restrained, which is a most wise and admirable precaution. This was formerly the rule. It was, however, afterwards changed by custom, and it was settled that, in addition to witnesses, the Quaestor should affix his seal to wills for the purpose of confirming them, which appeared to Our ancestors to be the best method of doing this; and We, following their example, and desiring to render testaments perfectly valid, do hereby order that, hereafter, the seal of the Master of the Census shall no longer be attached to wills, or impart to them any validity, for the reason that this official is no longer charged with the administration or observance of the laws, and has no right to confirm wills, but that the Quaestor shall seal such documents in his stead. Nor do We assign this duty exclusively to him, but Our Most Magnificent Master and Patrician, the Urban Prefect, as well as those magistrates who preside over courts, shall, by means of their seals, attest the authenticity of such instruments. This duty shall be discharged by magistrates in the Capital, in other cities by the prefects, and in the provinces by the Governors of the same.
CONSTITUTION XLV.
JUDGES MUST COMMIT THEIR DECISIONS TO WRITING AND SIGN THEM WITH THEIR OWN HANDS.
The Same Emperor to the Same Stylianus.
As We are anxious for decisions which have been rendered to remain inviolate, and no suspicion or controversy to attach to them, We have determined that those magistrates whose duty it is to decide and dispose of litigation by means of pronouncing judgment in cases brought before them must commit their decisions to writing, and sign them with their own hands, lest, if a decision should subsequently be found to have been rashly given, the magistrate cannot deny that he rendered it, and also in order that no fraudulent or forged written opinion may be produced, and then presented to any magistrate. Therefore, anyone who is honored with the dignity of judge must hereafter comply with the provisions of this law, and when he renders a decision must commit it to writing, and sign it with his own hand.
CONSTITUTION XLVI.
ABROGATION OF CERTAIN LAWS ENACTED WITH REFERENCE TO CURLE AND DECURIONS.
The Same Emperor to the Same Stylianus.
Just as certain other matters are adopted in the common affairs of life on account of the benefits which they confer, and as We approve
everything which is useful, and despise things which are of no value, so, in the enactment of laws, it is absolutely necessary to accept and ratify all provisions whose employment may be, in any way, advantageous to the State; and, on the other hand, abolish such laws as are unreasonable or evil. We make these statements for the reason thatf in former times, certain laws relating to curise and decurions imposed some very inconvenient and grievous burdens upon the latter, while they permitted the former to appoint certain magistrates and govern cities by their own authority. And as all civil institutions are at present changed, and all matters are entrusted to the care and administration of the Emperor, We, by this Our decree, do annul these provisions as having no legal force.
CONSTITUTION XLVII.
ABROGATION OF THE LAW AUTHORIZING THE SENATE TO APPOINT PRAETORS, AND DECURIONS TO APPOINT PREFECTS.
The Same Emperor to the Same Stylianus.
As the condition of the State was formerly different, in like manner, a distinction existed in the order of things. Everything was not submitted to the deliberation of the Emperor, for there were some matters which the Senate was required to consider and dispose of, and these were always decided by it. Thus three Praetors were appointed at Rome for the administration of affairs, and their acts were authorized by law. This practice was not confined to Rome; in other cities the decurions, as they were called, were permitted to elect certain prefects, who, however, were not the same as those who occupy the prefecture at present, but were of higher rank than the latter, and discharged additional duties. Therefore, as matters were regulated at that time in a different way, common usage required the enactment of this law. But now, when everything is committed to the supervision of the Emperor, in order that, with the aid of God and his own wisdom, he may dispose of the questions brought to his attention, and as this law cannot any longer be of advantage to him, We think that it ought to be annulled, as many others already have been. For just as necessity requires laws to be enacted, so, when they are no longer of any use, they should be abolished.
CONSTITUTION XLVIII.
WOMEN SHALL NOT ACT AS WITNESSES IN THE EXECUTION OF CONTRACTS.
The Same Emperor to the Same Stylianus.
I do not know why the ancient authorities, without having thoroughly considered the subject, conferred upon women the right of acting as witnesses. It was, indeed, well known, and they themselves could not fail to be aware that it was dishonorable for them to appear frequently before the eyes of men, and that those who were modest and virtuous should avoid doing so. For this reason, as I have pre-
viously stated, I do not understand why they permitted them to be called as witnesses, a privilege which resulted in their frequently being associated with great crowds of men, and holding conversation with them of a character very unbecoming to the sex. Did they think that in public matters the statements of women should be heard, when they had been admitted to give evidence as men do; like the Scythian women who We know were in the habit of arming themselves in company with their husbands, for the purpose of making war? And, in addition to the monstrous absurdity of such a practice, is it not clear that it brings about confusion of the sexes, by rendering the qualities which distinguish them common to both, and thereby causes perplexity, as well as the destruction of their distinctive attributes; for do not such customs violate the modesty and the virtue peculiar to women, who should always assemble in their own houses with decorum, and never dissolutely or familiarly ?
And, indeed, the power to act as witnesses in the numerous assemblies of men with which they mingle, as well as taking part in public affairs, gives them the habit of speaking more freely than they ought, and, depriving them of the morality and reserve of their sex, encourages them in the exercise of boldness and wickedness which, to some extent, is even insulting to men. For is it not an insult, and a very serious one, for women to be authorized to do something which is especially within the province of the male sex?
Wherefore, with a view to reforming not only the errors of custom, but also of law, We hereby deprive them of the power of acting as witnesses, and by this constitution forbid them to be called to witness contracts under any circumstances. But, so far as matters in which they are exclusively interested are concerned, and when men cannot act as witnesses, as, for instance, in confinements, and other things where only women are allowed to be present, they can give testimony as to what is exclusively their own, and which should be concealed from the eyes of men.
CONSTITUTION XLIX. SLAVES SHALL NOT BE PERMITTED TO GIVE TESTIMONY.
The Same Emperor to the Same Stylianus.
As the right to give evidence is of great importance, and necessary for the maintenance of the integrity of public documents upon which the existence of society depends, those only shall be authorized to act as witnesses whose status is not ignominious; therefore the laws have made this distinction with the greatest show of reason, and do not permit all persons to testify. Nevertheless, because certain statutes have permitted men of servile condition to be witnesses, under certain circumstances, We have come to the conclusion that this exception should be extended; so that while persons who are not free should not generally be admitted to testify, the law as set forth in the new constitution should be confirmed, and, in every instance, should be referred to where the legality of evidence relating to wills, or any
other documents, is in question. For if those who enjoy liberty but do not lead lives worthy of freemen, and fail in certain respects to manifest a greatness of soul superior to servitude, but are subjected to the domination of their illegal acts, are not permitted to give evidence, those who it is proved are not free should, by no means, be allowed to do so. For although this is a different kind of servitude, still it is one which renders the person unworthy of enjoying the dignity of freedom.
CONSTITUTION L.
DONATIONS WHICH HAVE NOT BEEN REDUCED TO WRITING SHALL ONLY BE VALID WHERE SUMS UP TO FIVE HUNDRED AUREI ARE INVOLVED.
The Same Emperor to the Same Stylianus.
As many persons induced either by gratitude or through disinterested benevolence make donations, it has seemed to Us proper to decide under what circumstances they should, or should not, be valid. The ancient authorities, when discussing this question, came to the conclusion that every donation in excess of five hundred aurei, which had not been entered upon the public registers, should be void; even though the donee produced evidence that it had been written down in the donor's own hand. I do not know why this peculiar provision was adopted. For when a donation has been reduced to writing, and thereby is proved to be genuine, I do not see what can be added to it in order to render it more certain.
We, therefore, in enacting the following provision, which We are aware does not apply solely to donations, decree that every gift in excess of five hundred aurei, where it has been reduced to writing, shall be valid, but shall be void for any sum in excess of that amount if it is not in writing, even though the donee may have received the article given in the presence of witnesses. For every donation estimated at five hundred aurei is good in law where it is proved by the statements of three witnesses; hence it must, in this manner, be determined whether the donations are valid or of no force or effect.
CONSTITUTION LI. To WHOM TREASURE TROVE SHOULD BELONG.
The Same Emperor to the Same Stylianus.
Everything would be satisfactory and advantageous if We acted in accordance with the beneficent laws of God, and We would have no reason to have recourse to those of men if, directed by the light of the former, We pursued Our journey safely; for then no necessity for human legislation would exist. But as it is extremely difficult for all persons to leave the filth and mire in which they are engulfed, and raise their souls to the consideration of the Divine precepts, they are compelled to seek safety in human wisdom. It is for this reason that it has been found necessary to enact a law against those wealthy persons who, in spite of the duty enjoined upon them by heaven to be
charitable and assist the unfortunate, and, without evincing any gratitude towards Our Lord and Saviour, or any compassion for suffering humanity, instead of lending a helping hand to the poor, retain their riches, and bury them in the earth, as if they hated the light which rendered them visible.
This law was passed in former times, and afterwards, avarice, which destroys the most excellent institutions, deprived it of its force, but We now restore all its authority. It provided that when anyone found a treasure on land belonging to the sovereign or on any other public property, he must share it equally with the Treasury. Where the land on which it was found was not public, and did not belong to the sovereign but to someone else, he was compelled to share it in the same way with the owner; and, finally, in case the premises belonged to him, he could keep the entire treasure. These are the provisions of this law.
Subsequently, a perverse cupidity having nullified them, I do not know how, caused the law to cease to be observed, and very unjustly made the Treasury the beneficiary of the treasure. The consequence of this was that when any persons knew of the existence of the concealed treasure, being well aware that others would profit by their labors as they would employ them in vain, and, on the other hand, that they would render themselves liable to rigorous investigation if they neglected to acquire the treasure and allowed it to remain perpetually concealed, they kept silent; while if they had produced it, it would have been of great advantage to everyone.
Therefore We order that, hereafter, judgment shall be rendered in conformity with the ancient law, and whenever any treasure is found, if this takes place on public land, or on that belonging to the Empire, the finder of the same shall share it with the Treasury; but when it is found upon the premises of anyone else, the finder and the owner of the land upon which it is found shall divide it between them. But if the finder should be dishonest, and fail to produce all that he obtained, but keeps some of it fraudulently and deceitfully, he shall reap no benefit from his efforts, and shall, as a malicious concealer and thief of the property of others, acquire none of the treasure whatever; but all of it shall belong to the owner of the land.
CONSTITUTION LII.
MONEY COINED BY ANCIENT AS WELL AS MODERN SOVEREIGNS SHALL BE CURRENT, PROVIDED IT is OF LEGAL WEIGHT AND OP PROPER MATERIAL.
The Same Emperor to the Same Stylianus.
If a large amount of money of good quality and weight imparts great power to the State, the ancients were perfectly right in providing against its scarcity; just as if they would avoid a dangerous illness which would tend to deprive them of all their strength, by directing that every kind of coins, even those issued by sovereigns, should be accepted as legal. But I do not know for what reason their
successors were unwilling to let this wise rule stand; and, just as if they had envied the prosperity of their subjects, forbade the use of all coins bearing effigies of former emperors, and only permitted their own to be available in business transactions. They did not seem to consider what confusion might result, or what losses would be sustained in commercial affairs from the enforcement of this rule, especially among the poorer classes, who are more in need of assistance and protection than others. It is certain that if traders of small resources, and those who only live by manual labor, as well as all peasants, could no longer purchase the necessaries of life with the old money which they had made use of up to that time, they must have been reduced to great distress.
Therefore, abolishing this modern regulation, and adopting the ancient one in its entirety, We hereby decree in accordance with the rule of the old priests, which is not only beneficial, but convenient for all, that every kind of coins (provided neither the form nor the material of the same has been changed and they are of proper weight), whether they bear the effigy of an ancient or a recent sovereign, shall be "equally good and current in business transactions, and the penalty of such as do not acquiesce in this law shall be that they shall be scourged, shaved, and, in addition, be fined three pounds of gold.
CONSTITUTION LIII.
ANYONE SHALL BE PERMITTED TO BURY THE DEAD WITHIN CITIES AS WELL AS OUTSIDE THE SAME.
The Same Emperor to the Same Stylianus.
It is my opinion that civil laws which provide for matters relating to the ordinary life of Our subjects are not sufficient, and that it is proper that other suitable ones should be enacted with reference to persons who have ceased to exist. Such laws, however, should not include provisions which may expose the bodies of the dead to insult, and by means of which dishonor and baseness may attach to the common fate of mankind. But does not the law which permits bodies to be buried only outside of cities dishonor human nature? If, when making this provision, it had solely included those whose wealth gave them the means of burial, there would have been a reason for the rule; although, in this instance, it was proper to concede something to the grief of their friends and relatives, as it would be a great consolation to be able to embrace their tombs and shed tears upon them, which duties are not easily performed when interments take place beyond the city Walls.
Still, if this law had only been enacted for such persons, some reason would exist for its severity, but as its provisions are general and extend to all, its absurdity is clearly manifest; and it is clear that such an enactment is a reproach to human nature, for how can those who, when living, were poor and abandoned, be buried after they are dead ? And why, if their burial cannot take place speedily on account of their poverty, and they, being without interment for many
days should remain exposed, presenting a wretched and horrible sight, dishonoring humanity by their wasting and decay? And, in addition to this, as deceased persons are styled the servants of God, and honored on account of their celestial glory, does it not leave their bodies unburied, and thereby even expose them to expiation ?
Therefore, We order that this law shall, by no means, be included among other civil enactments, and We abolish it by this Our decree, just as it has previously been very properly disregarded by custom; and hereafter, everyone shall have the right to bury deceased persons either inside the city or without, as he may desire.
CONSTITUTION LIV. ALL PERSONS SHALL ABSTAIN FROM LABOR ON SUNDAY.
The Same Emperor to the Same Stylianus.
To attempt to communicate useful precepts to mankind is certainly a most laudable undertaking, and those princes who do this, and devote all their attention to the welfare of their subjects, deserve to have their love for the State made a subject of praise, and the laws which they enact religiously observed. It is much more equitable, however, to show reverence to rulers of this kind who, acting to some extent as the legislators of the entire world, experience solicitude of a much more exalted character for the safety of the human race not only on account of the excellence of their opinions, but also because they have drawn up their decrees with the assistance of God.
A law was in force among the disciples of these distinguished men which directed that every kind of labor shall be suspended on the day of the Resurrection. There is, however, another which contradicts this, and provides that all persons shall not be prevented from working upon that day, but that some should be indulged in this respect; for it declares that judges, the inhabitants of cities, and all artisans should rest on this venerated day, but that persons residing in the country can freely engage in the cultivation of their fields, which exception is not founded upon reason. For although, in this instance, the pretext that the crops must be saved can be alleged, this excuse is of no weight, and indeed is futile, as when God gave Us the fruits of the earth he intended that they should be preserved by the effect of the sun, to which, rather than to the industry of the cultivators of the soil, is due the abundance of the crops, and should be so attributed; and as the existence of a law of this kind dishonors the worship of the Lord, and is contrary to what was prescribed by those who, with the assistance of the Holy Spirit, obtained a victory over all their adversaries, We hereby decree, in accordance with the wishes of the Holy Spirit, as proclaimed by Jesus Christ and His Apostles, that, during the sacred day when Our redemption is celebrated, everyone shall desist from labor, and neither farmers nor anyone else shall be allowed to perform any unlawful work. For if those who observed only the shadow and semblance of the laws had so much respect for the Sabbath as to
strictly abstain from every kind of labor, how can those who are enlightened by divine grace, and cultivate the truth, fail to exhibit the same reverence for the one day out of seven which has been consecrated to the glory of God, and on which he has honored Us, and delivered Us from death? And when one day of the seven has been dedicated to Our Lord, does it not evince contempt for religion to refuse to be satisfied with working during the other days and not preserve this one sacred and inviolate for God, nor make a distinction between it and the others by using it for the same purpose?
CONSTITUTION LV.
JEWS SHALL LIVE IN ACCORDANCE WITH THE RITES OF CHRISTIANITY.
The Same Emperor to the Same Stylianus.
Those who formerly were invested with Imperial authority promulgated various laws with reference to the Hebrew people, who, once nourished by Divine protection, became renowned, but are now remarkable for the calamities inflicted upon them because of their contumacy towards Christ and God; and these laws, while regulating their mode of life, compelled them to read the Holy Scriptures, and ordered them not to depart from the ceremonies of their worship. They also provided that their children should adhere to their religion, being obliged to do so as well by the ties of blood, as on account of the institution of circumcision. These are the laws which I have already stated were formerly enforced throughout the Empire. But the Most Holy Sovereign from whom We are descended, more concerned than his predecessors for the salvation of the Jews, instead of allowing them (as they did) to obey only their ancient laws, attempted, by the interpretation of prophesies and the conclusions which he drew from them, to convert them to the Christian religion, by means of the vivifying water of baptism. He fully succeeded in his attempts to transform them into new men, according to the doctrine of Christ, and induced them to denounce their ancient doctrines and abandon their religious ceremonies, such as circumcision, the observance of the Sabbath, and all their other rites. But although he, to a certain extent, overcame the obstinacy of the Jews, he was unable to force them to abolish the laws which permitted them to live in accordance with their ancient customs.
Therefore We, desiring to accomplish what Our Father failed to effect, do hereby annul all the old laws enacted with reference to the Hebrews, and We order that they shall not dare to live in any other manner than in accordance with the rules established by the pure and salutary Christian Faith. And if anyone of them should be proved to, have neglected to observe the ceremonies of the Christian religion, and to have returned to his former practices, he shall pay the penalty prescribed by the law for apostates.
CONSTITUTION LVI. CONCERNING THE SHORES OF THE SEA.
The Same Emperor to the Same Stylianus.
The law which abolishes the common ownership of maritime lands, that is to say, those situated on the shores of the sea, and compels the owner of such lands to pay damages in an action brought against him for forbidding persons to fish thereon, does not seem to Us to be just. For when We acquire property by means of a good title, for instance, by succession, by Our own labor, or in any other way whatsoever, why should We not have the management of it; and why should not the benefits derived from possession of the same be Ours, rather than belong to someone else? Hence no law is equitable which grants the profit of anything to a person who has no right to it, and at the same time deprives another of its possession who is entitled to the same either through the right of relationship, or because he has paid for it, or for any other reason. For if the owner of a tract of land situated on the seashore is required to pay an annual tax, is it not absurd, as well as unjust, for him not to be able to prevent one who, against his will, desires to enjoy the advantages of this property, and if he succeeds in doing so, be compelled to pay him damages? What steps should be taken if he himself fished there? Would he be obliged to remain quiet, and allow strangers alone to enjoy the benefit of fishing; or, if he did not wish to remain idle, must he go and fish upon the lands of others, as he cannot use his own for that purpose? I do not see any reason for holding this opinion.
Therefore, We hereby decree that everyone shall be the actual owner of his land on the seashore, and that no one shall be permitted to enjoy the advantages thereof without his permission, or interfere With said land in any way. For as it is a rule of law that the ownership of a house extends equally to its court and vestibule, this rule, it seems to Us, should also apply to real property on the shore of the sea. And as no one is permitted to gather the fruits of a tract of land against the will of the proprietor, as otherwise, he will be obliged to pay a fine regulated by the custom of the neighborhood, We order that this rule shall also apply to maritime lands.
CONSTITUTION LVII.
How FAR FROM ONE ANOTHER SHOULD FISHING NETS BE PLACED?
The Same Emperor to the Same Stylianus.
Several laws contain provisions with reference to fishing, but as they do not settle anything with reference to what is called «roXV> because at the time when they were enacted this practice was not known; We desire to publish a constitution on this subject. Therefore We establish as a law the custom which was formerly observed, namely, that nets ought to be stretched at a distance of three hundred and sixty-five paces from each other, because this space seems to Us
to be suitable. And, indeed, since without regard to this custom, the general welfare suggested that this should be the case, We do not hesitate to render it legal, in order that it may have, more force and hereafter be more strictly observed. Hence We decree that a space of three hundred and sixty-five paces, a distance which has already been established by common usage, shall be left between nets; and this must be done in such a way that the space shall be equal on both sides, that is to say, that there shall be a hundred and twenty-two and a half paces on one side, and the same on the other from the intermediate point which divides maritime lands.
This is the rule which We adopt to regulate the stretching of nets in the future, but the provisions of this law shall make no alterations in those which have been stretched before its promulgation, which shall remain in the same place where they were in the beginning.
CONSTITUTION LVIII. FOOD SHALL NOT BE COMPOSED OF BLOOD.
The Same Emperor to the Same Stylianus.
In former ages, God ordered Moses not to make use of blood as food, and it was afterwards declared by the Apostles that persons ought to abstain from nourishment of this description. And although in ancient as well as in modern times such food was considered vile and execrable, the obstinacy and perversity of men induced them to pay no attention to the provisions of the law; but, on the contrary, some of them being influenced by the desire for gain, and others by their appetites, boldly violated the law, and fed upon blood, although its use had been prohibited. It has been brought to Our ears that they now stuff entrails with blood, and use them as their daily food. As We do not think that this should be tolerated, the Divine precepts disobeyed, and the State disgraced by the use of such nutriment, which is a wicked invention due to the gluttony of mankind, We hereby forbid all persons either to use, or to sell it; and We give notice that, if anyone should, in contempt of the Divine Law, he found to have prepared blood as food, whether he sells it or buys it, he shall have all his property confiscated, and, after having been severely scourged, and disgracefully shaved, shall be exiled for life. Again, as magistrates of cities would have been able to prevent this crime if they had been sufficiently vigilant, they shall, for the reason that they have been remiss in the performance of their duty, be sentenced by the same judgment to pay a fine of ten pounds of gold.
CONSTITUTION LIX.
REPEAL OF THE LAW WHICH PERMITS A FREEMAN TO SELL HIMSELF.
The Same Emperor to the Same Stylianus.
The law which does not punish a freeman who is so base and abject in mind as to dishonor the dignity of freedom, and share in the
execrable profit of the price obtained by selling himself into slavery, is certainly one of those which are the least worthy of approval and execution. Nor do We think that the one which has been enacted concerning such persons, and which permits an act due to insanity, and so far from imposing any penalty upon those who take part in it, does not even condemn such an infamous transaction, accomplishes the purpose of legislation, and is unworthy of the reverence which should be accorded to the laws. For if laws bear the same relation to citizens as a father does to his children, that is to say, authorizes only what is beneficial and salutary for them, how can an enactment properly be considered legal which permits persons through madness to commit such an improper and injurious act? Hence We do not wish such a law to be included among those of the Empire, and We hereby decree that if anyone should be so demented as to sell himself, thereby sacrificing his own freedom, such a contract shall not be valid; both parties to it shall be scourged with rods, and the status of the one who sold himself shall remain the same as before.
CONSTITUTION LX.
IN WHAT WAY PERSONS WHO CASTRATE OTHERS SHOULD BE PUNISHED.
The Same Emperor to the Same Stylianus.
Man is deprived of the faculty of procreation, which was conferred upon him by God, with the same audacity as if the act was not subject to divine retribution, when, indeed, it should be severely punished; and although the ancient legislators were careful to suitably provide for this offence by law, and desired that the State should be free from its commission, I do not know why their statutes were not obeyed; and, just as if some benefit could be obtained from this mutilation of nature, men were constantly deprived of their generative organs, and transformed into entirely different beings than when they came from the hands of their Creator.
Therefore, We, not desiring to allow a crime of this kind to go unpunished, do hereby prescribe a penalty by which We intend, if possible, to suppress the boldness of those who deform their fellow-creatures, without even alleging the excuse of religious custom.
The laws of former legislators prescribed the penalty of retaliation, and provided that persons who mutilated others in this way should themselves be placed in the same condition, a provision which seems to Me not to be inequitable, although it is, indeed, far from decorous; and it does not seem proper for anyone who ventures to attempt to change the work of God to be punished by imitating what he has done, and mutilating him in the same way. Still, as I have just stated, such a penalty is not inappropriate, so far as the crime itself is concerned. A different punishment was established for those who were audacious enough to commit this wicked act, for their property was confiscated, they were banished for life, and when the person who sustained the injury was a slave, he obtained his freedom. These
were the ancient laws on this subject. We, however, deciding with reference to this same matter, do hereby forbid the Lex Talionis to be enforced against such as are guilty of the crime of castration; and We wish them to be liable to the other penalties prescribed for this offence, although it is Our intention to be indulgent to them. Hence We decree that if anyone summons a practitioner of this detestable calling, he shall, in the first place, if he is in the Imperial service, have his name stricken from the list of those employed therein, and then, after having paid a fine of ten pounds of gold into the Treasury, he shall be exiled for ten years. The one, however, who actually commits the crime, shall be scourged with rods, stripped of all his property, and banished for the same time. When the person upon whom the injury was inflicted is of servile condition, he shall be free for the rest of his life; but if he is a freeman, he shall be considered to have voluntarily submitted to the operation, and shall be responsible for what he has suffered. Moreover, if he who was castrated was compelled to undergo the mutilation for the benefit of his health, as is often the case, he shall not be held to have done anything reprehensible either in Our eyes or in those of the law; for, under such circumstances, the object is not to cause a deformity of nature, but is an attempt to correct it.
CONSTITUTION LXI.
WHAT PENALTY SHALL BE INFLICTED UPON THE COLLECTORS OF TAXES WHERE THEY DEMAND MORE THAN is
DUE.
The Same Emperor to the Same Stylianus.
If men were always willing to tread the path of equity, there would be much greater happiness and prosperity everywhere, as there would be no need for legislators to manifest such severity, and the avenging laws would not expose anyone to difficulty and danger. For although the path of equity is convenient and salutary, most persons are not willing to follow it, but avoid it as being laborious and rough, and offering great hardships to travellers. For there are those, who, I say, delight in everything that is most wicked, who avoid the way of justice, and with alacrity and eagerness betake themselves to that of iniquity, although it is covered with thorns, and by it travellers are conducted to perdition.
The ancient legislators, also, thinking that it was necessary for the rashness of such persons to be restrained, attempted to prohibit it by law, as by the use of a bridle. But what means did they employ to repress iniquity, and, on the other hand, inculcate the practice of justice; and who, I ask, will not approve what We have undertaken? We, however, refuse to confirm a decree by which punishment is inflicted upon delinquents, without taking into consideration the seriousness of the offence. For a law is just when the penalty which it imposes is in proportion to the crime which it is intended to chastise; but when too much severity is used it is much more unjust than equi-
table. Wherefore, We refuse to sanction the law which the ancients promulgated, and by which they impose an excessive penalty, that is death, upon those who are appointed to collect the public taxes (who were ordinarily designated "managers"), when they attempted to collect more than they had a right to do; for We think that, by all means, they should not be subjected to such severe punishment; hence We decree that anyone who is convicted of this crime, provided he has only perpetrated it once, shall pay double the amount of the surplus which he exacted; and if he does this again, he shall reimburse fourfold the person who suffered the injury, and be ignominiously deprived of his office. This penalty shall hereafter be inflicted for this offence, and a fraudulent act of this kind shall never subject the person who commits it to the risk of losing his life.
CONSTITUTION LXII.
CONCERNING THE PENALTY INCURRED BY ONE WHO SELLS ANY PUBLIC PROPERTY WHATSOEVER.
The Same Emperor to the Same Stylianus.
It is right for persons who are guilty of public wrongs to suffer penalties adapted to restrain their inclinations to injure others, and to prevent such acts from being committed. But it is not right for them to be punished with excessive severity, nor for the law to pass beyond its proper bounds, and, by a species of legal vengeance, as it were, cause injustice. For when the person who perpetrates an offence is punished, the penalty imposed upon him is just; but it ceases to be so if it is out of all proportion to the crime, and I think such a provision should not be observed. Therefore Our Majesty being aware that the ancient authorities prescribed penalties which are too harsh in cases where persons have sold public property, We hereby decree that hereafter such prosecutions shall be conducted with less severity. For how can it be just to inflict an irreparable misfortune upon anyone who has caused the Treasury a trifling loss, by depriving him of life, when he sold some article of public property ? For such a crime is not worthy of being punished capitally, nor do We permit those who have been convicted of it to be treated in this way. Anyone, however, who is proved to have disposed of public property, We think will be sufficiently punished if he is compelled to return fourfold his value.
CONSTITUTION LXIII.
CONCERNING THE PENALTY TO WHICH THOSE ARE LIABLE WHO TRANSFER FORBIDDEN THINGS TO THE ENEMY.
The Same Emperor to the Same Stylianus.
This crime, also, being similar in character, was punished by the ancient jurists in the same way; and We, abolishing this unreasonable penalty (that is to say, death), intend to substitute for it a milder one, as previously stated.
It was established by the ancients that nothing should be delivered to the enemy which could increase his strength, and render him more formidable, and they sentenced those who violated this law to lose their lives. But We, prescribing a more moderate penalty for such a crime, even though it deserves exemplary chastisement, do hereby decree that if the guilty party who delivered the goods in question to the enemy is the owner of the vessel which served to transport them, and did not communicate his intention to his sailors, he alone shall be punished, and unless it will reduce him to absolute poverty, he must surrender to the Treasury, in addition to the cargo of his ship, half of all his other possessions. But where his sailors were the only ones who participated in this offence without permitting their evil designs to become known, which is something that they often do, the owner will be released from liability, and they alone shall suffer the penalty. They shall, in the first place, be whipped and shaved, and then, if they are wealthy, they shall pay fourfold the value of what they transported; but if, on the other hand, they are poor, they shall still be whipped and ignominiously shaved, and, in addition to this, shall forfeit their freedom, and be reduced to a servile condition, for this is, indeed, a very moderate punishment for the crime of having caused others to be enslaved. These measures shall be taken when the offence was not perpetrated by common consent. But when this was done with the knowledge of all concerned, the participants in the offence shall together undergo the penalties which We have hereinbefore prescribed.
CONSTITUTION LXIV.
CONCERNING THE PENALTY TO BE IMPOSED UPON THOSE WHO SUPPRESS INFORMATION OF A SHIPWRECK.
The Same Emperor to the Same Stylianus.
I do not understand why persons who conceal property which has been thrown upon the shore by the wreck of a ship should seem to have committed a crime deserving the penalty of death. Anyone who cheats people out of their property, and thereby deprives those who are deserving of the pity of others of the means of subsistence, and the only consolation which they have, when, on the other hand, he should endeavor to aid them in the unfortunate condition to which they are reduced by the loss of their possessions, is guilty of an offence of no little atrocity, and this, indeed, is clearer than light. But I am unwilling for those whose foolish cupidity has impelled to commit this crime to be put to death, as how can what they have taken be compared in importance with the life which they are condemned to lose? He who attempts to profit by an act of this kind must certainly be an extremely wicked and sacrilegious person, like one who despoils the dead, which is sometimes done. Still, his crime does not deserve such severe punishment, for it is not just to deprive him of his immortal soul, by way of retribution for the removal of something that is material and easily destroyed. For if, even with reference to ma-
terial things, the penalty should not be greater in value than the injury, why should he who conceals property belonging to persons who are shipwrecked be subjected to punishment so out of proportion to his crime that words are lacking to express it? Therefore, We order that, for the future, this penalty shall not be imposed, but that he who conceals property under such circumstances shall be condemned to pay fourfold the value of what he appropriated.
CONSTITUTION LXV.
CONCERNING THE PENALTY TO WHICH ENCHANTERS ARE
LIABLE.
The Same Emperor to the Same Stylianus.
Those who assert that wine should be condemned on account of the evil disposition, and the irrational behavior which it causes drunkards to exhibit, and who think that its use as a beverage should be prevented for this reason, attempt to render something wicked which, in itself, is not of that character. But remembering that one of the laws promulgated by the ancient legislators, which sometimes punishes enchantments because it regards them as crimes, and again, on the contrary, authorizes and approves them on the ground that they are not an evil, taking into account the intentions of those who practice such arts, even though by their very nature they are vicious, and, as it were, reeking with filth and stench, I would not say that the said legislators are worthy of censure, but in order that no one may have reason to criticize this law, I am of the opinion that it ought to be repealed. For it provides that enchantments shall be punished because they are instrumental in removing all innate modesty, and are productive of an amorous fury which causes loss of reason; and, on the other hand, it approves of them because they are supposed to aid in the production of grains and fruits, and apparently supply Us with other benefits. Thus this law honors as advantageous something which it thinks should be punished as productive of injury.
We, however, are convinced that enchantments of this kind are pernicious, and We cannot be induced to believe that they are productive of any advantage whatever; and, indeed, if they appear to be the source of any good (as seems to have been the opinion of those who rendered them legal), We believe that they are not an actual benefit, but merely an attractive and dangerous snare set for those to fall into whom, with the prospect of the greatest benefit, it entices to the greatest of evils. For We are aware that those who devote themselves to these matters instead of to worship of the Creator, Our Lord, invoke malevolent and cruel demons, and those who have recourse to them by means of a certain pleasant exterior, receive wounds in their souls; just as timid men who, in order to avoid a blow which threatens their hands, allow it to be inflicted on their heads or their bellies; therefore anyone who employs incantations for the restoration or preservation of his health, or for the purpose of avoiding calamities
which threaten his harvests, if convicted, shall undergo the punishment of an apostate and suffer death.
CONSTITUTION LXVI. CONCERNING THE THEFT OF SLAVES.
The Same Emperor to the Same Stylianus.
In order that the scales of justice may not incline more to the side of compassion than it is proper, a more serious penalty should not be imposed upon delinquents than their offences demand. For if too great commiseration is manifested by the law it would give rise to contempt, and encourage evil deeds; and if, on the other hand, a more severe penalty than is merited should be imposed, then the ends of justice will not be accomplished, and when the laws appear to do something which is equitable, they really effect what is absolutely unjust. But with what object in view has this statement been made? Because there is a law which punishes with death (but I do not know in what way), although it has been decided that anyone who appropriates the slave of another is liable to it, in which instance the penalty is certainly not in proportion to the crime. For if what cannot be recovered is not lost, it is unjust to impose the death penalty upon one who has sold a slave, and thereby inflict upon him irreproachable injury; therefore, since this is the case, and persons undeservedly are subjected to such severe retribution, and as custom has disregarded this law to such an extent that it does not deprive those who steal slaves of life but punishes them in a different manner, We, excluding the said law from all constitutions, do hereby confirm as legal what has been established by usage; and We order that the delinquent shall be compelled to surrender a slave, and pay an amount equal to his value, as well as to give up everything which he had acquired by the industry of said slave, and, in addition to this, pay the owner of the latter all that he would have been able to obtain if the slave had not been stolen; and after this has been done, the delinquent shall not suffer any other punishment.
Thus, he who loses the slave will be sufficiently indemnified, and the person who appropriated him will be suitably punished, for the former will recover the slave together with all the accessions which he had been instrumental in obtaining, and by doing so will enjoy the same advantages as if he had not been taken from him; and the latter will be obliged to give him up, and at the same time pay his value, and will profit in no way whatever by his services.
CONSTITUTION LXVII.
CONCERNING THOSE WHO GO OVER TO THE ENEMY AND VOLUNTARILY RETURN.
The Same Emperor to the Same Stylianus.
Too much harshness and severity, and unreasonable and excessive lenity and indulgence are alike unproductive of what is advantageous.
For he who is inordinately harsh, and is unwilling to mingle gentleness with severity, whether he has control over but one person, or over a family, or a state, always conducts himself to the injury of those subject to his authority. Anyone who wishes to govern with justice must manifest in his actions the same mixed qualities as appear in a salubrious and temperate atmosphere, and not display either too much rigor, or too much lenity which resembles weakness, for such characteristics will expose him to contempt, and render him absolutely unfit for government. What We state with reference to the atmosphere is especially applicable to the laws, for since the Empire is governed by them, they should maintain the wise proportion which I have just mentioned, and evince neither excessive sternness nor immoderate indulgence, as by means of moderation in everything those whom they control will always remain secure. We allude to these things because of their applicability to the rigorous law which has been enacted against persons who go over to the enemy. It provides that if a deserter should, at any time, be influenced by repentance, and return to his own people, expecting his crime to be forgotten, he shall either be thrown to wild beasts to be devoured, or be impaled. This rule seems to me to be productive of great injury to the State, and, instead of contributing to the public welfare, it produces the contrary effect, for it compels deserters to retain no further memory of their country, and forbids them to have any desire to return to it; for there is no one who would not prefer to live among enemies, when he knows that he will be liable to such a cruel death at home.
Wherefore We, desiring to abolish a law of such severity, not to say injustice (for it is not unjust to punish with such barbarity a delinquent, who voluntarily attempts to make reparation for his crime?), do hereby decree that if a deserter should return to his country, he shall be pardoned, if he has only deserted once; if he repeats the offence he shall be sold as a slave, and remain in that condition for the term of three years; and if he deserts a third time, and returns to his country, he shall be reduced to servitude for life, as so unreliable and inconstant a man is unworthy of the freedom which he enjoys. But if a deserter should not return of his own accord, but having been arrested, is brought back to his country by others, then it will be neither unjust nor cruel for him to be punished as an enemy, especially if he has previously stained his hands with the blood of his fellow-citizens.
CONSTITUTION LXVIII.
MONKS AND OTHER MEMBERS OP THE CLERGY CAN BE
APPOINTED GUARDIANS, BUT THEY SHALL BE DEPRIVED
OP THE CONTROL OF THEIR WARDS AS WELL AS OF THE
ADMINISTRATION OF THEIR PROPERTY.
The Same Emperor to the Same Stylianus.
It seemed advisable to the ancient legislators, probably because in their time guardianship was uniform and simple, and the name
of guardian was only given to those who were entrusted with the defence of minors, to establish the rule that monks and all other members of holy orders could not act as guardians; and, indeed, this was very proper, for they believed that those who had devoted themselves to the service of God should be free from the occupations and anxieties attaching to all other pursuits. No one is ignorant of the fact that the responsibility of rearing and governing children distracts the mind to such an extent as to prevent those who undertake it from discharging the duties incumbent upon them. Therefore, as this subject presents no little difficulty, and especially on account of the length of the time required by the trust (for guardians are usually occupied during almost their entire lives through the serious responsibilities involved), they were right, as I have already stated, in enacting such a law. But as their predecessors did not exclusively apply this name to those who administered guardianships, they also extended it to the persons in whom testators reposed sufficient confidence to entrust them with their testamentary dispositions, and charge them with their execution; and, indeed, it was doubtful whether monks or other members of holy orders could, in conformity with this law, be appointed guardians and undertake the performance of their functions.
We hereby establish a distinction, and decree that those must absolutely be excluded from the exercise of guardianship who were excepted by the law formerly enacted, and that it will be lawful for them to act under the one subsequently passed, for the reason that the requirements of the trust are not sufficiently serious to divert them from their religious duties and consume all of their time. Moreover, there is the greater certainty that they will faithfully carry out the intentions of the testator, and that they will live more regularly and piously than those whose attention was exclusively directed to profane matters and to impure and terrestrial affairs.
CONSTITUTION LXIX. BLIND MEN CAN MAKE WILLS SECRETLY.
The Same Emperor to the Same Stylianus.
A doubt occasionally arises as to how blind men can execute wills, and this doubt has given origin to laws which contain provisions which conflict with one another, as well as with the custom at present observed; and I have considered it neither inopportune nor inconsistent with My purpose to explain and settle this question. There is a law which prohibits a blind man from making a will in secret, and provides that such a will shall not be valid, any more than where witnesses allege that they heard the testator mention orally the dispositions which it contains, when the instrument alone does not, of itself, confirm their testimony. On the other hand, another law permits women and illiterate persons to make secret wills, and does not require of the latter any other formalities than that where the testator is unable to write, his signature must be proved, and if he cannot write at all, someone else can sign his name for him. These two laws
are evidently conflicting, for if women and illiterate persons who hardly know what they want can make secret wills, why should not a blind man be permitted to do so? And, indeed, custom as well as law is contradictory in this instance, for custom has established that the wills of women, persons ignorant of letters, and the blind, when executed in secret, are destitute of all validity. Since this is the case, We order that the secret wills of blind men and all other persons shall be absolutely valid; and We add to this provision that, before the witnesses make oath, those who have drawn up the will shall attach their signatures thereto, and shall state that they have written it at the dictation of the testator; and if it should subsequently be ascertained that they have committed forgery, if they are wealthy, they shall be deprived of their property; and if they are poor, they shall be severely scourged, and sent into exile as a penalty for their crime. We also add that if, in order to confirm a will, it becomes necessary to have anyone sworn, as frequently happens, whoever wrote it must agree with those who make oath as to the genuineness and truth of the instrument.
CONSTITUTION LXX. CONCERNING ROBBERY.
The Same Emperor to the Same Stylianus.
You are aware that persons who are united by a common condition generally entertain the same sentiments. Thus those who are associated in business divide its profits and losses equally with one another, just as travelling companions, whenever they happen to find anything, even though all of them did not see it at the same moment, share with one another the ownership of the same. And companions-inarms also, even if they may not all evince the same ardor and impetuosity against the enemy, still participate equally in the rewards of victory. Hence, when an ancient legislator held that where certain persons with malicious intent combined to undertake something for which a penalty was prescribed by law (as, for instance, if a rape, or a parricide or any other kind of a homicide should be perpetrated), even though all of them did not simultaneously take part in it, they will nevertheless be liable to the same penalty.
We, also, for the same reason, approving of the laws formerly enacted against those who, with a view to robbery, combine to attack men, have decreed that all of them, no matter where they may have been, shall undergo the same punishment, even though they all did not cooperate to the same extent in the commission of the offence. For if one of them did not actually exert himself for the purpose of inflicting death, he could not, on that account, be considered as immune from punishment; for if he did not use his own hands, still, he was instrumental in inducing and strengthening those of another to commit murder; for, indeed, it is well established that the act of homicide was, in this instance, instigated by the common perversity of mankind, since if the assistance of others had not been afforded, it is
not certain that the crime would have been perpetrated. Therefore, as has already been stated, it frequently happens that although death resulted from the blow of one person, and others present were not actively engaged in the disturbance, We decree that all shall be liable to the same punishment.1
CONSTITUTION LXXI.
CONCERNING THOSE WHO INTEND TO BUILD UPON TILLABLE LAND OR IN VINEYARDS.
The Same Emperor to the Same Stylianus.
We have deemed it advisable to sanction by legal authority that most excellent and equitable rule established by Our Father, of eternal glory (as it was not inserted in the body of legislation) ; namely, how much space from the field of a neighbor should be left by those who intend to construct houses upon cultivated land or in vineyards, for the purpose of devoting the same to public uses? Therefore, We decree that where anyone desires to erect a new building in a field which is ready to be sowed, he shall, if the size of the place per-
1 This doctrine was incorporated almost verbatim into the Common Law. "Nullus dicitur felo principalis, nisi actor, aut qui prxsens est abettans, aut auxilians actorem ad feloniam faciendam." (Coke, Institutes III, 64, 138.)
"Principals are of two kinds: principals in the first degree, which actually commit the offense, principals in the second degree, which are present, aiding and abetting of the fact to be done." (Hale, Pleas of the Crown I, LV, 615.)
In England, anyone indicted as principal in the first degree cannot be convicted as being responsible in the second; and if accused as principal, he cannot be convicted as accessory; a distinction worthy of the niceties of special pleading, the illegal act being considered from one point of view as indivisible, and from another as separate: "Accessories sequitur naturam sul principalis." (Coke, Institutes III, 64, 139.) By the English law, all are principals in both treason and misdemeanors; a rule which in some States of the Union is extended to every offence, the difference between principal and accessory not being recognized. (Vide Wharton, A Treatise of Criminal Law I, IX, 239.)
French law, in general, punishes accessories and principals in the same way, but when the principal is sentenced to death, the accessory is condemned to perpetual penal servitude. (Code Penal, Arts. 59, 63.)
The Spanish Code makes a distinction between principals and accessories, but punishes them alike, except when the accessory after the fact is a near relative of the culprit, and does not profit by the crime, or aid him in doing so. (Codigo Penal,
Arts. 11, 13, 16, 17.)
In Italy, likewise, principals and accessories, or accomplices, are on the same footing, so far as guilt and its punishment are concerned. (Codice Penale del Regna
d'ltalia, Art. 63.)
Germany establishes several minute and subtle characteristic differences between the actual perpetrators of crime and their accessories, whom it designates as abettors and assistants. The delinquency of the accessory after the fact is clearly defined. The accessory to a minor offence cannot be prosecuted. The penalty is usually less severe than that of the principal, but cannot be more so. (Strafgesetz-buch fiir das Deutsche Reich, Arts. 47, 48, 49, 257.)
The Austrian Penal Code places principals and accessories in the same category. (Allgemeines Strafgesetz, Art. 5.)
Portuguese law on this subject is, in many respects, the counterpart of that
of Spain.—ED.
mits this to be done, be obliged to build it, in accordance with the said constitution, two arrowshots from the boundary of the neighboring land, or one arrowshot, if the distance between the two tracts is too small to admit of this; and, moreover, he shall not be permitted to erect a new structure within the limits of the space above mentioned; the reason for which provision is so manifest that there is no need to mention it, for the nearer the building is to the land of another, the more damage it is liable to cause to the crops.
CONSTITUTION LXXII.
CONTRACTS SHALL BE VALID EVEN WHERE NO PENALTY is ATTACHED TO THEIR VIOLATION.
The Same Emperor to the Same Stylianus.
We see persons sometimes criticize the law which provides that an agreement without a consideration does not confer a right of action, but merely authorizes an exception.1 For as they hold that every agreement is void which is not rendered effective by a penalty, they despise and reject as invalid every agreement—including such as have been committed to writing—in which a penalty is not provided for, even when the parties thereto have affixed the sign of the Holy Cross with their own hands, and have invoked the name of the Holy Trinity. They are wrong in entertaining this opinion, and they by no means prove that human affairs should have the preference over those that are divine; for what advantage can the stipulation for a penalty have in the eyes of a reasonable man, and what superior power can thereby be given to agreements to enable this to be compared to the effect imparted by the sacred sign of the Cross, and the invocation of the name of God? Therefore We decree that every contract which has been confirmed by divine formalities shall be considered valid, and of legal force, even though no penalty may have been provided for its violation.
CONSTITUTION LXXIII.
No ONE SHALL LIVE WITH WOMEN IN HOUSES ATTACHED TO CHURCHES.
The Same Emperor to the Same Stylianus.
A detestable act was formerly committed before it was forbidden by law, and, indeed, even after this prohibition, persons were frequently bold enough to perpetrate it; that is to say, certain individuals were in the habit of living with women in those houses attached to churches which are ordinarily called x^x1®/*™*, ana" this is something that it is not proper to disregard, nor indeed shall it be neglected by Us hereafter. This wrong was tolerated up to the time of the Sixth Council, and remained unpunished, I do not know for what reason, but this Council strictly forbade it, and decreed that any priests who indulged in this practice should be expelled from their holy order,
^•"Nuda pactio obligationem non parit, sed parit exceptionem."—ED.
and that laymen who were found guilty of it should be excluded from communion. But the sacerdotal decree enacted for the suppression of this custom was not effective, as it continued to exist up to the time that Our distinguished father, the Emperor, came to the throne, and he was obliged to enact laws and exert his power to remove this abuse from religious houses.
And, as We are desirous of accomplishing the same thing, We hereby order that no one whosoever, whether he be a member of the priesthood or a layman, shall live with women in said houses; and if anyone should be found to have defiled a religious establishment in this way, he shall be ignominiously driven from it by Imperial authority; and whoever has afforded him an opportunity to reside there (whether he be a priest, or anyone else) shall be deprived of his office, on account of the contempt which he has manifested for the law, and his profanation of sacred things.
CONSTITUTION LXXIV.
. No NUPTIAL BENEDICTION SHALL BE CONFERRED UPON PERSONS WHO ARE BETROTHED BEFORE THE TIME WHEN THEY CAN BE MARRIED.
The Same Emperor to the Same Stylianus.
The provisions having reference to marriage, included in the ninety-eighth canon of the Sixth Council, appear to conflict with certain rules of the Civil Law; for the Council declares in a general way that a woman shall not marry a second time during the lifetime of her husband; and if she does so, she shall be considered as having committed adultery. On the other hand, the Civil Law does not state that she commits a serious offence by such a separation, but if she receives the nuptial benediction before the time when she has a right to marry it condemns her to the loss of the betrothal gift, as well as to the payment of the penalty stipulated in the marriage contract; and as a strict construction reveals an apparent inconsistency in this connection (that is to say, that the marriage may be dissolved after the nuptial benediction, for it is only then that a dissolution can take place), We hereby decree that the nuptial benediction cannot be bestowed before the marriageable age, namely, before the age of fifteen in the case of boys and twelve in the case of girls. Under these circumstances this benediction will not be granted too soon, and if the parties should dissolve the marriage, as this will then be done legally, the rule established by the Civil Law will not conflict with the canons of the Church.
CONSTITUTION LXXV.
A PERSON WHO HAS REACHED THE AGE OF TWENTY YEARS CAN BE CREATED A SUBDEACON.
The Same Emperor to Stephen, Most Holy Archbishop of Constantinople, and Universal Patriarch.
If the authority of the canonical decrees is sometimes enforced in civil matters, and has frequently more effect when applied to the latter than the civil laws which treat of the same subject can exert, how much greater precedence should they enjoy over civil enactments when their own interests are directly involved? Why do I say this? The Sixth Council declared that a subdeacon could be ordained at the age of twenty years, but the Civil Law contradicted this, and ordered that he should not be ordained before he had reached the age of twenty-five. We, however, thinking that the ecclesiastical order should observe its own rules, do hereby direct that those who are worthy of the subdeaconate shall obtain that office when they are twenty years old.
CONSTITUTION LXXVI.
CONCERNING THE PENALTY IMPOSED UPON PRIESTS WHO COMMIT PERJURY.
The Same Emperor to the Same Stylianus.
Various ecclesiastical laws were enacted by the Holy Apostles, with reference to priests who had been convicted of having sworn falsely, which prescribed that they should be deprived of their sacred office. The Civil Law, however, when providing for such cases, established a distinction with reference to the crime of perjury; and, where anyone was convicted of having sworn falsely in a criminal proceeding, he was dismissed from his sacred order; whereas he who had been guilty of perjury in a case where money was involved was relegated for a certain time, but was not absolutely expelled. Hence, We decree that where any priest commits perjury, either in a criminal or a civil case, he shall be expelled from the priesthood, but if he did not give his testimony under oath, when he attempted to conceal his false statements under the appearance of truth, he shall be relegated to some monastery for the term of three years, or shall be subjected to a more rigid mode of life, and after having atoned for his offence he shall be restored to his former condition.
CONSTITUTION LXXVII. CONCERNING THE PENALTY FOR FORGERY.
The Same Emperor to the Same Stylianus.
Obscurity is reprehensible in many instances, but is especially so in the interpretation of laws; for there, as well as elsewhere, it is certainly proper to avoid strained and involved constructions, and seek for perspicuous expression. For the laws ought not to be mysteries which are beyond the comprehension of the public, but they should, on the contrary, be, as far as is possible, so clear that men, women, and children can easily understand them; for this will be conducive to better legislation and be productive of the greatest advantage to society.
Therefore, having directed Our attention to that unintelligible provision of the law, where the legislator seems to have desired to conceal his meaning, and which is as follows: "A forger who is guilty
of the greatest degree of this crime shall be punished with death," and as it is not apparent what kind of forgery was referred to, it seems advisable to explain the meaning of these words. Hence We order that anyone who has committed a forgery which would have been sufficient to condemn to death the person against whom he perpetrated it, shall undergo the same penalty which he attempted to inflict upon another.
CONSTITUTION LXXVIII.
No DECREE OF THE SENATE SHALL BE ENACTED
HEREAFTER.
The Same Emperor to the Same Stylianus.
As We have taken measures to abolish as superfluous all laws which do not contribute to the public welfare, so We think that We should also repeal the one empowering the Senate to enact decrees. And, indeed, the authority of the Senate in this respect was abolished as soon as the supreme power was acquired by the Emperor, and it would be absurd and unprofitable to consider it as still in existence.
CONSTITUTION LXXIX.
CONCERNING THE PENALTY TO BE IMPOSED UPON PRIESTS,
DEACONS, AND SUBDEACONS WHO MARRY AFTER HAVING
BECOME MEMBERS OF THE ECCLESIASTICAL ORDER.
The Same Emperor to the Same Stylianus.
It is well established that when anything has once been dedicated to God, it cannot hereafter be devoted to some other purpose; and this rule not only ought to be observed with reference to gifts, but it is also applicable to men who have been consecrated to divine service by means of the ecclesiastical order; and still more when they have fallen from virtue, and sin has induced them to abandon the calling which they adopted for the purpose of living an honorable life. Hence as We do not approve the ancient rule by which former legislation permitted a priest, deacon, or subdeacon, who married, to renounce the ecclesiastical habit, and return to profane life, We hereby repeal this law, and decree that members of the priesthood shall be liable to no other penalty than to be dismissed from the office which they had obtained before being married; and that they shall retain the clerical habit, and be authorized to discharge all the religious duties which they are not forbidden to exercise.
CONSTITUTION LXXX.
CUTTINGS AND PIECES OF PURPLE CLOTH CAN PUBLICLY
BE SOLD.
The Same Emperor to the Same Stylianus.
I do not know for what reason former Emperors, who were all clad in purple, established the rule that nothing of this kind should be sold, and did not even allow anyone to either purchase or sell stuffs
of this color. And, indeed, if they had forbidden the sale of entire rolls of purple cloth they would not have been thought to have acted unreasonably, but to prohibit the alienation of any cuttings, or small pieces, whose use would be productive of no inconvenience either to the vendor or the purchaser, they could have no other reason for . doing this than jealousy of their subjects. For what evil could result, even if everyone wore purple, and the distinction of Imperial Majesty was thereby, to a certain extent, impaired ?
As We do not approve of this law, We hereby decree that the sale of small fragments and scraps of purple cloth, which afford means of ostentation to Our subjects, shall not be prohibited; for it is not becoming to the Emperor, who contributes so much to the welfare of his subjects, to envy the magnificence which they may desire to exhibit.
CONSTITUTION LXXXI.
THE MANUFACTURE OF ANY ARTICLE OUT OF GOLD OR PRECIOUS STONES is, IN GENERAL, PROHIBITED.
The Same Emperor to the Same Stylianus.
As the law forbidding women to wear jewelry made of gold or precious stones, with the exception of their rings, was enacted with the same end in view as that having reference to stuffs dyed with purple, We likewise place it in the same category. For it is not necessary to absolutely forbid any article to be made of gold, but merely to enumerate the things which cannot be manufactured of this material; for to unqualifiedly prohibit anything to be manufactured of gold or precious jewels is to manifest a desire of being superior to all other persons.
Moreover, is it not a great wrong to condemn anyone who has been convicted of having, in some respect, violated this provision, to pay a fine of a hundred pounds of gold, without taking into consideration the additional penalty (I allude to capital punishment), and if this law is not thought to confer the greatest immunity, why should it be evaded? Hence, while We do not strictly forbid gold or jewels to be worn, We do prohibit anything which is especially reserved for Imperial Majesty to be employed by others, either for the purpose of display or from necessity; and when anyone wishes to erect a monument, or to do anything else which is not above his dignity and rank, he is hereby fully empowered to do so.
CONSTITUTION LXXXII. CONCERNING OPENED WILLS.
The Same Emperor to the Same Stylianus.
Numerous occurrences, at the first glance, appear to be crimes, but, after having been carefully examined, We declare that this should not be classed as such. What do I mean by this? It very frequently happens that a person is injured by the cast of a stone, which act
was not intentional but accidental; and when the matter is investigated, the person who threw the stone is decided to be innocent, and after diligent inquiries no good reason is found for holding him guilty. Wherefore it is proper to consider the circumstances of an occurrence, rather than the nature of the case itself, in order to determine whether it is fortuitous or not. Why have these matters been mentioned here? Because sometimes a person having been compelled to open a will, it is afterwards left in this condition, and then time destroys the impression, and the instrument is deprived of the effect it had when it was sealed, so that doubt may arise with reference to its validity.
It has seemed to Us proper that wills should remain good under such circumstances, and We order, even though the seals may not remain unbroken, that the signature shall be sufficient to establish their validity. For just as signatures prove a will that has not yet been opened, even though the seals may not have been preserved, as may readily happen; so, We consider it just that when a will has been opened, but has not been closed again, and its seal has been destroyed by lapse of time, it shall still remain valid, provided the signatures are
legible.
We also direct that if the judge should fail to have a new seal attached to a will, he shall be subjected to a fine of twelve pounds for his carelessness.
CONSTITUTION LXXXIII.
A LOAN OF MONEY BEARING INTEREST AT FOUR PER CENT CAN LEGALLY BE MADE.
The Same Emperor to the Same Stylianus.
If mankind would permit themselves to be governed by divine laws in such a way that they would not need human ones, this would be most admirable and salutary, but as everyone cannot raise himself to the level of the Divine Spirit and obey its rules, and as the number of those whose virtue leads them to adopt such a course is very small, there are a great many who still live only in accordance with the laws of man. Divine precepts universally prohibit the loan of money at interest; hence Our Father, a sovereign of eternal memory, being well aware of this, thought it advisable to enact a law forbidding interest to be received when anything was loaned. This law, however, on account of the general poverty, did not effect the improvement which the legislator proposed to accomplish; but, on the other hand, made matters worse; for those who previously had been induced to lend money with the expectation of collecting interest, after this law was enacted, for the reason that they could obtain no advantage from the loans, became inexorable and cruel towards those who were in need
of cash.
Again, this afforded a convenient occasion for taking oaths, and the inevitable result, that is to say, the commission of perjury, followed. In short, on account of the extraordinary perversity of human nature, this law was not productive of any benefit, but in fact had a contrary
effect. Therefore, although We do not regard it as actually bad, which, indeed, it was far from being, still, since human nature (as We have previously stated) is not capable of such perfection, We decided to abrogate it; and We now decree, in opposition thereto, that money loaned shall draw interest in accordance with the rate established by Our predecessors, namely four per cent per annum.
CONSTITUTION LXXXIV.
MAGISTRATES OF CITIES SHALL BE PERMITTED TO TRANSACT BUSINESS, TO CONSTRUCT BUILDINGS, AND TO ACCEPT
DONATIONS.
The Same Emperor to the Same Stylianus.
Certain regulations were established by former magistrates of this Royal City forbidding them to purchase any property either movable or immovable, or to erect any building without the authority of the Emperor; and, in addition to this, providing that donations made to said cities during their term of office would not be valid unless the donor confirmed them when they had been completed, or subsequently allowed five years to elapse; and although (as I have previously stated) these rules were adopted with the beneficent intention of preventing any violence from being committed by magistrates; still, for the reason that this abuse can be hindered by other means, they seem to be unnecessary. Therefore We desire that they shall be abrogated, and especially because, being set at naught every day, and this violation remaining unpunished, they ceased to have any effect even before Our decree was promulgated. But why are they not necessary? For the reason that everyone who has been imposed upon, whether he be poor or rich, can petition the Emperor to nullify the act of the magistrate; and this method of relief is extremely expeditious for the inhabitants of this city, so that it is no more necessary for anyone to avail himself of these provisions in this Capital, where there is abundance of assistance, than there is in the provinces, where nothing of the kind exists.
Hence, in accordance with the present condition of affairs, We decree that magistrates can purchase property, build houses, and accept donations voluntarily made, without rendering themselves liable to a criminal accusation; because all those against whom any violence is intended can, in every event, avoid its execution by petitioning the Emperor.
We also think We should order, with reference to provincial magistrates, that no prefect shall, during his term of office, purchase anything, erect any building for his own use, or accept any gift. So far as inferior magistrates are concerned, they must refer all these matters to the prefect, who will determine whether they should be removed from office, or continue to discharge its duties.
CONSTITUTION LXXXV.
FATHERS WHO DO NOT MARRY A SECOND TIME WILL BE ENTITLED TO A SHARE EQUAL TO THAT OF ONE OF THEIR
CHILDREN.
The Same Emperor to the Same Stylianus.
As We have not established any rule concerning donations made in consideration of marriage where a wife dies leaving a husband with children, and as custom makes provision for a wife who predeceases her husband, We do not think that this custom should be changed; but We have decreed that the ante-nuptial donation shall be given to the wife, as hitherto provided by the laws, and that the husband shall not be permitted to receive anything if he marries a second time; but, on the contrary, if he respects his former marriage, he shall be remunerated for this honorable resolution, and a share of his wife's estate, equal to that of one of his children, shall be set apart for him; and if this share should equal, or exceed in value the antenuptial donation, thereby affording him a profit, or at least not causing him any loss, he must remain content with it; but if, on the other hand, this allowance does not equal, but is less than the ante-nuptial donation, the husband shall not surrender any of his property, nor shall he be entitled to anything from his wife's estate.
CONSTITUTION LXXXVI.
CONCERNING THE PENALTY TO BE IMPOSED UPON BISHOPS, PRIESTS, AND OTHER MEMBERS OF THE CLERGY WHO DEVOTE THEMSELVES TO THE PRACTICE OF LAW, TO THE NEGOTIATION OF MARRIAGES, TO THE REDEMPTION OF SLAVES, AND TO OTHER MATTERS OF THIS KIND.
The Same Emperor to the Same Stylianus.
It is proper that those who have been selected by Divine beneficence for the service of the altar should not only be free from the baseness of sin, but also should not engage in the ordinary affairs of life and be subjected to its annoyances. For as it is not lawful for the monuments of divine worship to be profaned and contaminated through being handled by everyone, so those who are living ornaments of the Holy Sanctuary should not be defiled by engaging in pursuits which are common to all mankind, but should devote themselves to those duties for which their pure consecration destines them.
A decree of the Holy Apostles very properly deprives of office any bishop, priest, or other ecclesiastic who takes it upon himself to act as advocate, who arranges marriages, redeems slaves, or occupies himself with any transactions of this kind; for those who, in this manner, dishonor the dignity conferred upon them by the Holy Spirit, and, as far as is in their power, show their want of appreciation of the glory of Divine favor, and the magnitude of its benefits, are considered unworthy of the places they occupy, and shall be deprived of them.
Still, as mankind at the present time are too weak to attain to the elevated life to which these divine legislators desired to restrict them, I do not believe that they will be displeased if I should be a little more indulgent to an offence of this description, inasmuch as it is not absolutely unpardonable; for, indeed, I do not intend to oppose their regulations, but rather to enforce them, and to afford no excuse to those who are disobedient.
Therefore, We decree that if any bishops or ecclesiastics of an inferior rank, or, indeed, any other members of the clergy, should be so regardless of the dignity of their order as to defend lawsuits, negotiate marriages, or perform any other acts of this kind, they shall be excommunicated, and suspended for a time from the celebration of all religious rites; and when they have paid the penalty merited by their offence, and have promised that they, as far as they are able, will abstain from engaging in purely secular transactions, they shall again be permitted to discharge their religious duties; but if they should be found to have polluted themselves in this way a second time, they shall be absolutely excluded from the exercise of all sacred functions as being unworthy and profane.
CONSTITUTION LXXXVII.
CONCERNING THE PENALTY TO BE INFLICTED UPON ECCLESIASTICS WHO INDULGE IN GAMES OF CHANCE.
The Same Emperor to the Same Stylianus.
Men in holy orders who indulge in games of chance are deserving of no slight penalty. Why is this? For the reason that while they should, with a calm mind and spirit, deliver themselves up to the contemplation of divine things, as far as is possible for human nature to do, they, on the contrary, eagerly devote themselves to the amusements of youth. A precept of the Divine Apostles provides that persons of this kind shall be expelled from the priesthood. As, however, it mitigates this sentence to a certain extent by stating that they shall undergo the said penalty if they do not desist from the practice, We have decreed that ecclesiastics who disgrace their sacred calling by engaging in games of chance shall be confined in a monastery (where they shall remain for three years), and when they seem to have sufficiently expiated their offence, they shall be restored to their former condition. If, however, they should afterwards waste their time in such frivolous pursuits, they shall, by way of punishment, be absolutely expelled from the priesthood.
CONSTITUTION LXXXVIII.
INSTITUTION OF CERTAIN FESTIVALS IN HONOR OF MEN CELEBRATED IN THE CHURCH.
The Same Emperor to the Same Stylianus.
By the terms of a venerated decree of the Holy Apostles, which was promulgated for the glory and honor of the festival days when
We worship God as well as those dedicated to the memory of the said illustrious commentators themselves, and other victorious champions of the Faith, who, by their death, put impiety to flight, these days were consecrated; and with the intention of honoring with the same solemnity the memory of the Divine orators who have subsequently adorned the Church, and who, by their learning and their acts, have enlightened and strengthened it, We, adding to their decree a provision which resembles it, and of which it is worthy, do hereby order that the days hallowed by the following names shall be observed with suitable ceremonies, namely: Athanasius, eminent among the principal priests of God; Basil, the royal honor of the Church; Gregory, surnamed the Theologian; John, of the elevated mind and mouth of gold, Gregory, the gentle and illustrious fountain of ecclesiastical knowledge; and along with these, Cyril and Epiphanius, who are equal to each other in glory and illustrious deeds.
CONSTITUTION LXXXIX.
MARRIAGES SHALL NOT BE CONFIRMED WITHOUT THE SACRED BENEDICTION.
The Same Emperor to the Same Stylianus.
Just as antiquity neglected the general formalities of adoption, which it considered an important act, although it allowed it to take place without the offering of prayer and the celebration of sacred rites, so also, it appeared to have neglected the most important part of marriage, since it permitted it to be consummated without the bestowal of the nuptial benediction. But while the ancients may, perhaps, have had good reason for doing this, We, aided by Divine grace, have preferred to adopt a mode of life much more honorable and holy, and have not failed to observe the things above mentioned.
Therefore, as We have directed that prayers shall accompany the act of adoption, We desire that marriage shall likewise be confirmed by the bestowal of the holy benediction, so that if anyone should be married without it, he cannot be said to have entered the matrimonial state, or to enjoy its rights. For there is no medium between marriage and celibacy which should not be considered reprehensible. Have you a desire to embrace conjugal life? If you do, it will be necessary for you to observe the laws relating to marriage. Do the annoyances of the marriage state deter you? You may live unmarried, but do not disgrace matrimony, and conceal your faults under the mask of a spurious celibacy.
CONSTITUTION XC.
PERSONS WHO CONTRACT A THIRD MARRIAGE WILL INCUR THE PENALTY OF THE SACRED CANONS.
The Same Emperor to the Same Stylianus.
It was necessary for Us to have been formed by the hands of God, and endowed with intelligence and reason, in order not to appear
inferior to certain animals. For that weakness which is not free from blame, or not properly subject to just reproaches, is as reprehensible as the wisdom of human nature is superior to brutal instinct. It was as requisite for men to possess greater matrimonial chastity than brutes as to be above them in other respects. For there are many kinds of animated beings which, after the death of their mates, remain in perpetual widowhood, and are unwilling, as it were, to cover their former unions with earth. But as our nature, not considering this weakness to be base, although it is exceedingly so, is not content with a single marriage, but proceeds to contract a second one without any manifestation of shame; and even when it should go no farther, but then desist, it still does not do so, and, in spite of having been forbidden by the Holy Law, it hastens from a second marriage to a third, thereby treating with contempt the penalty established for such an offence, for the reason that it is not inflicted, and above all, because the Civil Law, I do not know why, not approving of the Decree of the Holy Spirit which promulgated it, frees persons from censure who after one marriage are unwilling to abstain from contracting another, We, in accordance with the Decree of the Holy Spirit, do hereby order that persons who contract a third marriage shall be liable to the penalty denounced against them by the sacred canons.
CONSTITUTION XCI. IT SHALL NOT BE LAWFUL TO KEEP A CONCUBINE.
The Same Emperor to the Same Stylianus.
The law which authorized men who did not blush at such a connection to keep concubines was conducive to neither modesty nor virtue. Hence We do not permit the error of former legislators to disgrace Our government, and We hereby repeal this law forever. For, in accordance with the precepts which We have received from God, and which are becoming to Christians, We prohibit such a practice as being injurious not only to religion but also to nature. And, indeed, if you have a spring and the Divine law invites you to drink from it, do you prefer to resort to a muddy pool, when you can obtain pure water? And even though you have no such a spring, you still should not make use of what is forbidden. It is not difficult to find a consort for life.
CONSTITUTION XCII.
CONCERNING THE PENALTY TO WHICH A PERSON is LIABLE WHO INTENTIONALLY BLINDS ANOTHER.
The Same Emperor to the Same Stylianus.
Although We have prescribed a different punishment from that imposed in ancient times upon one who maliciously and purposely tears out the eyes of another with his hands, We nevertheless, never intended to confirm this as law. For, indeed, it is through motives of piety that We have arrived at this conclusion, which is perfectly clear; for as the vision of a person who has lost it cannot be restored, I have
not thought that it was proper to subject the guilty party to blindness, although he may appear to have merited the same affliction. I have, however, sometimes imposed this serious penalty, in order that he who deprived another of sight might bear the evidence of his crime; and that he who had had his eyes put out might find a solace for his calamity in the sufferings of him who reduced him to that condition. My purpose, as I have just remarked, has never been to enact these regulations into laws. However, as the Master of Our Imperial Offices has asked Us to invest them with this character, on account of their mildness, and in order that, in the future, if anything of this kind should occur, it may be decided as in this instance, We accede to his request, and We promulgate as laws the decisions which We have rendered.
Therefore, if anyone should injure the sight of another, for example, if he should tear out one of his eyes, We order that he shall undergo the penalty of retaliation, but if he should destroy both of his eyes, as, under these circumstances, the infliction of the same penalty would be of no benefit to the person who has lost his sight (for what advantage can a blind man obtain from the fact that another is also blind), and as the penalty of retaliation, while deserved, would be too cruel, since nothing is so pitiable as blindness, We decree that the offender shall not be subjected to it; but that he shall be punished in some other way, so that he who has been injured by him, may, to some extent, be indemnified for his misfortune. Hence We promulgate the following law.
Where anyone has deprived another of both of his eyes, he shall lose one of his own, and although he deserves to have the hand with which he committed the crime cut off, he shall, instead of this, be fined a sum equal to half his property, which shall be transferred to him who was deprived of his eyes, as a consolation for the bitterness of his life. And if the blind man in this way receives what he can use for the purpose of meeting his living expenses, he will experience a certain slight mitigation of his calamity, and he who committed the deed will be punished by being deprived of one of his eyes, as well as of his property, as already mentioned, instead of having his hand amputated.
Punishment should be inflicted in this way when the accused person is wealthy. Where, however, he is extremely poor and in very reduced circumstances, and can offer no compensation to him who has been reduced to utter wretchedness by his violent act, he shall be condemned to undergo a similar misfortune, and, deprived of both his eyes, shall pass the rest of his existence in absolute blindness.
Where any persons have assisted him in the perpetration of this horrible crime, and have taken an active part in depriving the victim of his sight, they shall be punished in the same way; and if they did not participate in the offence, but prompted it, or in some other manner contributed their aid, they shall be scourged, shaved, and sentenced to pay a fine equal to one-third of their property, and those who actually caused the blindness shall be subjected to the penalties aforesaid.
CONSTITUTION XCIII.
WHERE A WOMAN is FOUND TO BE PREGNANT BY SOMEONE ELSE THAN HER HUSBAND, THE MARRIAGE CAN BE
ANNULLED.
.The Same Emperor to the Same Stylianus.
As the ancients who treated of marriage did not enact any very definite laws on this subject, why, I do not know (whether because they did not desire to include in the number of causes for which it can be dissolved the one which We are now about to formulate, or whether the reason which renders this decision necessary did not at this time exist), We are going to add to their legislation what is lacking in this respect. An old constitution authorizes a dissolution of marriage for several causes, for example, a difference of religious opinion, where one of the parties becomes insane, and in many other instances; and it is sufficient for one of these causes to exist to enable the marriage to be dissolved.
What We are now about to consider is not enumerated among them, either for the reason that it did not then, or it was not supposed that it could exist; or there may have been other motives for passing it by in silence. We now come to this cause. Sometimes, during marriage, a woman having had a secret intrigue with some other man than her husband, is discovered to be pregnant. This is not mentioned in any of the ancient laws, but We, supplying the deficiency, do hereby decree that marriage shall be dissolved not only on account of a difference of religious opinion, and because of insanity, or for other reasons, but also for the one which We have just stated, because nothing is more adverse to marriage than this; since, under these circumstances, husband and wife are only united nominally and not in fact. For how can true matrimony exist in an union where there is nothing genuine or natural, where licentiousness, which is a source of discord and hate, and an alienation of minds prevail (a condition which has great influence in inducing women to seek intercourse with strangers) ? How can matrimonial concord and pure conjugal love be maintained under such circumstances? Moreover, reason does not permit anyone to have a child belonging to another under his control. Nor is it just that he who has taken a wife into his house, in the expectation of the enjoyment of a chaste and honorable marriage, should be obliged to recognize as such a woman who has deceived him; who insults the laws of marriage, and delivers herself without hesitation to the lascivious embraces of another?
CONSTITUTION XCIV. ABROGATION OF THE LAW RELATING TO THE CONSULATE.
The Same Emperor to the Same Stylianus.
As Our legal reforms have for their object not only the annulment of laws which are detrimental, or which have in the course of time
fallen into desuetude and hence are useless, and, as it were, on account of their decay, do not seem to be available for public purposes, the result of this is that We are about to remove from the statute books whatever relates to the consulate, together with other useless provisions. In former times, indeed, the consular office was treated with great respect, and caused those who attained it to be eminently distinguished objects of reverence, and the donors of magnificent gifts to the populace, and therefore those who obtained it, desiring that the people should be remunerated on account of the honor acquired through their agency, gifts were liberally showered upon them.
In the beginning, every consul was allowed to display his munificence in accordance with his judgment, but it was afterwards established by a legal decree that this should be restricted within certain limits. This rule appears to have prevailed as long as the dignity of the consulate was known to the government; but now, as the course of time changes everything, it has transformed the consular office from its former glory and greatness into a mere abject formality, and as those who attain to it have hardly sufficient for their own necessities, they are unable to expend anything for the benefit of others. Therefore We, by this Our decree, annul this law relating to the consulship, which has fallen into disuse because of protracted silence, along with other useless legislation, as We have already stated, for it has no right to be included among other legal constitutions.
CONSTITUTION XCV. CONCERNING THE DISPLACEMENT OP SOIL.
The Same Emperor to the Same Stylianus.
Custom, which precedes all laws, originally gave rise to them. For legislators who are concerned with the ordinary affairs of life, carefully examining everything separately, established rules in accordance with the requirements of Nature. Therefore, since these matters relating to the common concerns of life (as We have already stated) give occasion for the birth of laws, and where a case which was provided for by the ancient enactments presents itself, it becomes necessary to formulate a new rule, so that when there is need of it, a legal decision may be rendered in accordance with circumstances: We are about to enact the following law. And what is the character of this
law?
Where two fields are contiguous, and belong to different owners, one of them being situated upon an elevated spot, and the other lower down, and part of the upper field, either with or without trees, becomes detached and covers the lower tract, the owner of the latter can not absolutely and unceremoniously appropriate the soil which has slipped down, nor can the owner of the other tract extend the boundaries of the same to the point to which his own ground has been carried, but the former will be compelled to permit the latter to remove the soil if he desires to do so, no matter whether it contains trees or not, so that he will have an opportunity to recover the
soil if he wishes to take it back to its original place, or to renounce all right to it if he does not desire to do this, by abstaining from any claim to the tract on which it was deposited, and in no way prejudicing the title of the owner of this land.
Again, where two houses are adjacent, and one of them is higher than the other, and the latter falls upon the former, the owner of the first house can remove his materials, and, if he does not do so, they shall be lost, so far as his rights to them is concerned, nor can he annoy the owner of the second building on account of them. This is the rule which should be observed in cases of this kind.1
CONSTITUTION XCVI. CONCERNING THE VIOLATION OP SEPULCHRES.
The Same Emperor to the Same Stylianus.
Crimes which are committed solely through mental depravity can, under no circumstances, be excused on the ground of necessity, or pardoned; nor should any escape from punishment for their perpetration be granted. Those, however, which do not wholly result from a malicious disposition, but whose violence is of a mixed character, and are attributable to special circumstances or to the impetuosity of Nature, should not be considered unpardonable. Therefore I think that the Civil and the Canon Law do not conflict, so far as those who violate tombs are concerned. The Civil Law, indeed, in treating of this offence, only considering the wicked intent of the guilty party, refuses to pardon him, and directs him to be punished; but, on the other hand, the Canon Law, if I am not mistaken, merely taking into account that poverty which causes the wretchedness of our lives and often impels persons in want to commit crime, did not provide any penalty for delinquency in cases of this kind.
Therefore We, adapting Our decree to both of these laws, and attempting to reconcile, as far as possible, the harshness of the one with the lenity of the other, do hereby order that those who have only ventured to commit this offence once shall be treated with indulgence and compassion; but such as have taken advantage of Our clemency to offend a second time, and who, not having become more wise, still show their malice, shall suffer the penalty without any attention being paid to their supplication. This penalty shall consist in having the head shaved and being scourged.
1 Definite information upon this subject seems to be lacking in both the English and American authorities, but it is reasonable to presume that the general rule governing sudden accessions on the seashore and the determination of riparian rights will prevail under such circumstances; which is in perfect accordance with the doctrine of the Civil Law. "In the case of avulsion, the soil still belongs to the first owner, unless he shall have suffered it to remain in its new position, until it cements and coalesces with the soil of the second owner, in which case the property in the soil will be changed, and no right to reclaim it remain." (Washburn, A Treatise on the American Law of Real Property, III, II, 4.)—ED.
CONSTITUTION XCVII.
PARTIES LITIGANT SHALL BE SWORN WHEN ISSUE is JOINED IN A CASE, AND MAGISTRATES SHALL TAKE AN OATH WHEN THEY ASSUME THE DUTIES OP THEIR
OFFICE.
The Same Emperor to the Same Stylianus.
Although the law which directs magistrates, before entering upon their judicial duties, and parties litigant, when they appear in court, to be sworn, may appear contrary to the Divine command which forbids persons to swear at all, still, where anyone understands the meaning of the words, it can be seen that this is not a violation of the command, but, on the other hand, by ordering the oath to be taken, it has the same end in view as the Divine law had in forbidding it; for the latter intends to prevent falsehood, in prohibiting an oath, just as the former wished to do in having recourse to it.
Therefore, paying less attention to the letter than the spirit of the law, We do not think that the civil rule should be rejected as being opposed to the Divine precept, but rather that it should preserve all its force as being devised to accomplish the same object. Moreover, We think that the command of God was not only intended to be applicable to the transactions of ordinary life, but was promulgated in order to enable persons to attain to a more elevated rank in a better world, and He has left us many other precepts of similar character which are contained in the same law, for example: "Do not permit your hearts to be sad, because you are poor, and do not conceal your treasures in the earth," etc., for these things are only intended for persons who wish to be perfect. Therefore, as We have already said, maintaining the Civil Law in full force, We do hereby order that magistrates who are about to assume the discharge of judicial functions, and parties litigant who are on the point of contesting a case, shall swear that they will prefer truth to falsehood, and will, under no circumstances, leave the straight road to follow the crooked path of fraud. .
CONSTITUTION XCVIII.
CONCERNING THE PENALTY TO BE INFLICTED UPON EUNUCHS IF THEY SHOULD MARRY.
The Same Emperor to the Same Stylianus.
The object of the laws is the establishment and maintenance of good government, as well as at times to offer assistance to Nature when it suffers injury. Therefore, it now becomes advisable for a law to be enacted on the subject as to whether eunuchs can marry. But before We discuss this point, a careful examination should be made, and it be ascertained whether an union of this kind can properly be called a marriage; and also whether the various matrimonial ceremonies (that is to say the prayers, the communion, the carnal pleasure, and the other matters which form part of the matrimonial
condition) should take place in this instance. The priest, in imitation of the Creator, pronounces the sacred words of benediction when he unites persons of different sexes for the purpose of perpetuating the human race. The pleasure and joy of the human heart is manifested in the nuptial embraces, and are increased with the hope of offspring. The parents of those who are married looking forward to grandchildren, and the newly made husband and wife entertaining the hope of successors, are overwhelmed with the greatest delight. Under these circumstances, however, nothing of the kind occurs, for how can they experience any satisfaction, and what sacrifice can render their union permanent? For as it is devoid of all pleasure, and is not capable of consecration, communion, or benediction, how can the name of marriage be applicable to it? Why should it not be considered a crime, and therefore punishable by law? Thus it may succinctly be stated that such a condition can not, even in the first place, be designated as a matrimonial one, and further discussion renders its indignity still more apparent. When the Creator of all things united the male and female, He did so for the purpose of increasing the numbers of the human race. Moreover, the object of Nature— which, as His slave, observes the precepts promulgated by Him, as far as it is able to do so—is that persons are married in order to have offspring, and as far as God permits this to be done, it makes use of His agency for that purpose. If, then, the marriage of eunuchs accomplishes the ends of the Author of Nature and of Nature itself, what We have thought should be prohibited ought not to be forbidden; but if, on the contrary, and this is certain, it offers no means of accomplishing the will of God (and is not acknowledged by Nature), why should We not absolutely prohibit it?
If some contentious person should state that if eunuchs are excluded from marriage on account of their impotence, a large number of other persons should also be excluded for the reason that all those who marry are not capable of generation, We would immediately reply that whenever the latter have no children, they did not marry in order to be childless; but, on the other hand, there is no doubt that they were impelled by the desire of having progeny, and their hopes have not been realized. But the same thing cannot be said with reference to eunuchs, who, being well aware of their incapacity, marry with the certainty of not being able to have issue, hence are, to a certain extent, plotting against Nature. And, indeed, in cases of this kind, both husband and wife are worthy of aversion; the wife, for having selected a man who is impotent when she. could have obtained one who was virile, if she wished to be married; and the husband, for the reason that his weakness rendered the blessing of God of no effect.
Moreover, where anyone devastates and leaves uncultivated a tract of land on which another could reap a harvest, should We not entertain a feeling of detestation for such a malevolent person, and should We not suppress an abuse of this kind if it can be done? For why should We permit him to keep land unproductive, and render it of
no use, when, with proper tillage, it would prove fertile, just as if he had committed nothing improper? And why, indeed, should anyone object? But it may be remarked that St. Paul thought that it is wiser to marry than to burn; and hence, taking into consideration the tortures endured under such circumstances, marriage should not be forbidden. You, however, who praise St. Paul, listen to the words he utters. When he speaks of marriage in the place referred to, he has in mind sexual intercourse with a wife. If, then, union with a woman is worthy of the blessing to which persons who enter the matrimonial condition are entitled, call it marriage; but if it does not deserve even the slightest benediction (for how can an act contrary to the law of God and which thwarts the intention of Nature be blessed or consecrated?), who do you invoke the authority of St. Paul for the purpose of supporting an unfruitful and extraordinary marriage of this description?
So far as those who deprive themselves of the power of procreation are concerned, for the purpose (which God condemns, and is a species of rebellion against him) of being no longer able to show themselves to be men, but hereafter not to be susceptible of sensual pleasure, and to become faithful guardians upon whom no suspicion can fall (which, indeed, the sound of their voices seems to disclose), why should not this arouse indignation against them not only because it is unnatural, but also for the reason that they are hostile to persons who desire to render them useful, as it seemed to them, even though it was maliciously done; and, finally, because in their new and strange sex they did not accomplish the object of the one to which they formerly belonged, nor of the latter which they themselves adopted?
Hence We decree that, if an eunuch is convicted of contracting a marriage, he will be liable to the penalty prescribed for rape, and any priest who dares to perform a ceremony of this kind by a profane sacrifice shall be divested of his sacerdotal dignity.
CONSTITUTION XCIX.
HE WHO TENDERS AN OATH MUST HIMSELF FIRST SWEAR THAT HE Is NOT ACTUATED BY MALICE.
The Same Emperor to the Same Stylianus.
It is my intention, as far as possible, to enact such laws as relate to the observance of good morals, or will restore to full force the ancient enactments which had the same purpose; therefore, it is proper to revive the ancient rule which compels a litigant, who tenders the oath to his adversary, himself previously to swear that his act was not prompted by fraud, or with a view to injure him, but only to remove the doubts which obscured his reason, and to ascertain the truth; for although the ancients may very justly have approved of this, and the security which it offers, it is at present neglected, and the party to whom the oath is tendered is obliged to take it, without requiring anything from his opponent.
Therefore, We decree that the law adopted by the ancient legislators with reference to such an oath shall be obeyed, and that he who wishes to have his adversary sworn shall first give the solemn assurance that he does not tender him the oath from any fraudulent motive, but for a necessary and indispensable reason; for I think that when both the parties are thus compelled to be sworn, either the truth will become more apparent from their oaths, or they will be less likely to proceed hastily and unadvisedly in tendering them.
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CONSTITUTION C.
CONCERNING SLAVES WHO MARRY PERSONS WHO ARE
FREE.
The Same Emperor to the Same Stylianus.
As legislation usually proceeds from good judgment, its wisdom and moderation are of great assistance even in disputes which do not frequently take place. If, however, their beneficence is so great, why should it not be generally applicable to the ordinary affairs of life? For when a physician fails to administer remedies to persons who are ill and only treats such as are slightly indisposed, will not the cure of the latter always be attributed to his science and skill? Therefore, desiring to increase the dignity and majesty of the laws, We include among their provisions what custom has established up to this time with reference to two persons of unequal social rank, who, influenced by love, desire to marry (that is to say, where one is a slave and the other free), and We hereby order that when a freeman desires to marry a slave woman, he can only do so under two conditions, that is, he must either become a slave like herself, or purchase her freedom; and the price which he pays shall be considered a species of betrothal gift for the purpose of insuring the union with a person of servile status which he is about to contract.
We also order that the owner of the female slave shall not act inhumanly in this matter, and if the person who marries her prefers to become a slave, they shall both be liberated at the death of their master, but if he does not wish to do this, and has not sufficient property to immediately purchase the freedom of the slave he marries, he shall be obliged to forfeit his own liberty. Still, where he serves the same master, he shall be entitled to an annual salary of two solidi, and his servitude shall only last until he has earned enough to pay the price agreed upon for the freedom of his wife, for his master shall then have no other good reason to retain him in slavery.
CONSTITUTION CI.
WHERE ONE OF Two SLAVES WHO WERE MARRIED OBTAINS His OR HER FREEDOM.
The Same Emperor to the Same Stylianus.
It is not only when marriage is originally contracted between a free person and a slave that various ambiguities and questions arise,
for the reason that such matters have not been settled by law, but the following point is often discussed, namely, where two slaves marry, and one of them is given freedom by his or her master, and the other remains in servitude, thus causing an inequality of status. Therefore, as it is proper for such matters to be legally decided, We have enacted the following law with this end in view. What is this
law?
We order that where two married persons are slaves, and one of them is liberated, but desires to remain united to the one still in servitude, the marriage will not continue to exist without being subject to the same rule which regulates the matrimonial union of free persons with slaves. The individual upon whom freedom is bestowed must refuse to accept it, and undergo the yoke of servitude with the other who is still deprived of freedom until the death of their master; or if he should be unwilling to do this, he must bind himself to pay the price of his companion. When, however, he neglects to do so, and, taking advantage of his own liberty, attempts to release his wife who is still in bondage, not only shall this insolent design fail of its object, but he himself shall forfeit his own freedom, and must again be reduced to servitude for having been unappreciative of the kindness and generosity of his master, and, by his opposition, shown contempt for his good intention, which should be reciprocated and honored.
CONSTITUTION CH.
CONCERNING MARITIME LANDS WHERE THE SPACE is
NOT SUFFICIENT FOR THE PLACING OF SEPARATE NETS,
ALL PERSONS, EVEN AGAINST THEIR WILL, MUST UNITE
FOR THIS PURPOSE.
The Same Emperor to the Same Stylianus.
A community of property, when established with reason and justice, is productive of great benefit to the lives of mortals. For where a strong man unites his strength with that of another who is equally powerful, their exertions, when united, become much greater, and advantageous to both of them. And when opulent men combine their wealth, it obtains for them a much larger amount of pleasure; and, finally, those who are oppressed by poverty, by laboring in unison, mitigate the wretchedness of their condition. But no matter how convenient and useful common property and association may be in the ordinary affairs of life, a wicked and extraordinary depravity often takes possession of the minds of men, and not only presents an impediment to utility, but also renders them hostile to the interests of others, and induces them to injure them in their business, rather than to obtain any profit by making a division with their neighbors.
We have ascertained that something of this kind has happened with reference to certain persons who, being the owners of maritime lands, which, of themselves, are almost absolutely unproductive, but would yield enormous revenues if they were joined with those of
others in the vicinity, through perversity refuse to unite them, although this is the sole means of obtaining any benefit therefrom, but prefer to suffer actual loss, provided they can injure their neighbors. But as they are not willing to acknowledge the wrong which they commit, and conduct their affairs badly by spitefully neglecting their only advantage, in the attempt to injure those residing near them, We do not permit this malicious spirit to be maintained in ordinary life, and no matter how unworthy of Our notice such persons may be, We shall not fail to go to their relief.
Therefore, directing Our attention to them, We hereby decree that if the maritime lands referred to are not sufficiently extensive on the side of the sea to permit these persons to stretch their nets, they shall be compelled to place them along with those of their neighbors, in order to acquire the right of obtaining in this way some advantage from their property, and if any one of the said owners is not willing to use his nets in this manner, he shall be compelled to do so in spite of himself; for to oblige anyone to participate in a benefit is, We are convinced, an act of benevolence. And, indeed, there is a great deal of kindness in the law which enables a man to enjoy a privilege which he does not recognize, and which also causes him who was unjustly deprived of it to become aware of its benefit.
CONSTITUTION CIII.
CONCERNING THOSE WHO MAKE USE OF THEIR MARITIME LANDS IN COMMON FOR THE PURPOSE OF STRETCHING
NETS.
It is customary, in partnerships, for him who contributes the most to be entitled to the largest share of the profits; and, indeed, those who make such an arrangement transact their business justly and properly. Still, in the partnership which has reference to maritime lands, it is not equitable that the one who has the largest tract should derive more profit than he whose premises are smaller. Thus, for example, if one tract of land extends for a hundred paces along the shore, and another is of much inferior dimensions, it is in accordance with reason that each owner should be entitled to an equal share of the profits, without taking into account the size of the different tracts. Why is this? Because in other transactions of this kind, that is, in an ordinary partnership, whether money, cattle, or even real-property is placed in the common stock, what each contributes can only produce a certain revenue, but this is not the case with maritime lands, since a specified portion of such lands, considered by itself, cannot yield a separate income, as fish are not always found in the same place; and, moreover, a great extent of shore is unavailable where it is not joined to some other that is of less extent; for how can anything which is imperfect be made use of, and what advantage can be derived from it? But if this imperfection disappears when a small extent of shore is joined to a greater one, and the first renders the second useful when it could not
alone yield any revenue, it is only consonant with reason that the owners should share the profits equally.
Hence We enact a law which shall hereafter regulate this matter with justice; and We hereby decree that where there are maritime lands, some of which are of large dimensions and the others restricted in extent, they shall be united for the purpose of enabling nets to be stretched, and the owners of said lands shall divide the profits equally between them.
CONSTITUTION CIV.
CONCERNING FISHING NETS BETWEEN WHICH NO SPACE is REQUIRED BY LAW.
The Same Emperor to the Same Stylianus.
Whenever the space required by law is not left between the nets of fishermen, this frequently gives rise to disputes and litigation. Hence We have decreed with reference to these controversies that where the defendant is legally defeated, and the space will permit, he shall,- in conformity with law, be compelled to remove his nets as far as possible; but if space is lacking to enable him to do this, it must be ascertained from what time the nets were set in the place which is in dispute; and if the plaintiff was present, and asserted no claim, and ten years have passed since the nets were first stretched there, they shall remain undisturbed. But where the plaintiff has been absent, the expiration of ten years will not be sufficient to have them removed, and it will be necessary for twenty years to elapse.
This rule shall be applicable to private individuals, but as title by prescription is acquired against churches, monasteries, and other religious houses, as well as the Treasury, only after the lapse of forty years, the removal of the nets can be demanded by them during this period. Nevertheless, in establishing this rule, We declare that the plaintiff shall not be deprived of the income of his land for the reason that his claim was not allowed on account of lapse of time.
CONSTITUTION CV.
WHERE A MAGISTRATE is CONVICTED OF HAVING PLUNDERED THE TREASURY.
Legal penalties are praiseworthy because they correct disorder and evil inclinations, and prevent persons from indulging in them by restraining them against their will. These things, I say, are praiseworthy, when he who imposes them observes that clemency which is becoming to the law, and does not exceed it, nor show himself to be cruel under the pretext of administering punishment. For a father who chastises his son with moderation deserves to have his wisdom lauded at the same time as his severity, but no one will approve of the cruelty of a parent who, abandoning all paternal feeling, instead of correcting his son as a father ought to do, inflicts an atrocious castiga-tion upon him.
And, indeed, if the laws are the parents of the State, which is true, it is proper for them to prescribe penalties in proportion to crimes, and by no means to inflict punishment of extreme severity, which is much greater than the nature of the offence deserves. For where anyone who is not convicted of having caused death is punished capitally, can this be considered a proper remedy, and one adapted to the purpose?
Physicians do not order a sound limb to be amputated, and as the law has much more consideration for Our misfortunes than physicians have (for the benefits of medicine are only intended for the body, but those of the law are prescribed for the mind as well as the body), shall it display such harshness towards those whom it desires to cure ? Having these things in view, We have decreed that the law imposing the death penalty upon a magistrate convicted of having despoiled the Treasury, as well as against his accomplices, shall no longer be included in the number of Our laws, and shall not even be cited, but must be banished from the Empire as being superfluous, and foreign to human reason and the spirit of judicious legislation. Hereafter, when magistrates are convicted of having robbed the Treasury, they shall be deprived of office, and pay double the amount which they have appropriated. So far as their accomplices are concerned, if they are wealthy, they shall undergo the same penalty, and if they are poor, they shall be scourged ignominiously, shaved, and sent into exile.
CONSTITUTION CVI.
CONCERNING THE AMOUNT TO WHICH WOMEN WHO ARE
UNENDOWED SHALL BE ENTITLED OUT OF THE ESTATES OF
THEIR DECEASED HUSBANDS.
We think that We are doing something which is both proper and valuable, by amending a provision that is, to some extent, absurd, and which appears to be opposed to equity. What is this provision? Poor women who are married to wealthy men (which is something that is not unusual) do not, after their death, receive the share of their estates to which they are entitled, that is to say, a fourth when they have less than four children, and a portion equal to one child's share when they have four or more. But they can not claim absolute ownership of this and the right to dispose of it by will, but only the usufruct of the same for their support; and when they die, their share vests in their children, nor while they are living do they enjoy the privilege of using it as they please; and, moreover, when they are childless, this misfortune enables them to acquire the full ownership of the said share; so that I do not know whether a woman would prefer to have children, or would rather be guilty of the indignity of praying to God not to give her any, in order that she might enjoy the ownership of the property which she will receive out of the estate of her husband.
Therefore, in order to remedy this absurdity, We do hereby decree that a woman shall not be deprived of the ownership of the share aforesaid, but that she can dispose of it in any way that she may desire,
and that her children shall only be entitled to what is granted to them by the terms of the Falcidian Law. She must not, however, forget her first marriage, and treat the bed of her deceased husband with contempt by introducing a second one therein; for if this should take place, she will forfeit the ownership of the property bestowed upon her by this law, and it will then go to her children.
CONSTITUTION CVII.
A PLAINTIFF MUST, BEFORE JOINDER OF ISSUE, AND
WHEN HE FILES His COMPLAINT WITH THE JUDGE,
PROVE THAT HE DOES so IN GOOD FAITH.
If whatever is honorable and beneficial to human existence would never grow old, or lose its usefulness, but would remain forever green, this would be an extremely excellent thing. Wherefore, although it sometimes happens (and, indeed, this is very frequently the case) that the usefulness of a measure is lost because of neglect, those who are charged with maintaining the common welfare should be careful to restore it, in order that what is so generally advantageous may not be wasted. Hence We, restoring the force of a law, which was formerly beneficial but which subsequently fell into desuetude, do now remove the inconvenience attaching to its antiquity, and enable it to again enjoy the utility which it formerly possessed. It relates to persons who bring legal actions, and provides that before joinder of issue they must establish their good faith in court, by stating in writing that they do not desire to take any improper advantage of their adversaries; that they have not been convicted of a criminal offence; that they know that they have not been prohibited from engaging in litigation; and that they have no intention of injuring their opponents. These are the provisions of this law; they are wisely conceived and impose a penalty upon anyone who violates them, and they are applicable not only to parties litigant but also to advocates.
Therefore, as We have already stated, We invest this law, which has fallen into desuetude and has become useless, with full force, and replace it in the number of Imperial enactments; and We decree that persons who, hereafter, may desire to institute legal proceedings, shall, before beginning litigation, observe what is prescribed.
CONSTITUTION CVIII.
CONCERNING ONE WHO DOES NOT APPEAR IN COURT AFTER HAVING BEEN NOTIFIED THE FIRST TIME.
There is a matter which it is not well to leave uncorrected, although it has, up to the present time, been neglected and treated with contempt, for being of great benefit to human affairs it is very advisable that it should be remedied. Therefore We, being resolved to amend this, just as We have also amended the law prescribing a certain form for those who desire to institute legal proceedings, do hereby decree
that anyone who does not appear after a first summons has been served upon him, either personally, or upon someone authorized to represent him, shall be notified a second time; and if he does not appear, he shall then be notified a third time; and if after the plaintiff, having waited with so much patience only to have the third summons treated with contempt, and the defendant, without having been prevented by any good reason, still does not put in an appearance either in person or by a representative, he shall have judgment rendered against him, even though he may be absent, and shall not afterwards be allowed to revive the case, or avoid the consequences of the decision. These provisions are applicable to both parties, whether the defendant fails to appear; or the plaintiff, after his adversary has come into court, desists in order to annoy him and prolong the litigation. Hence if he does not appear after three citations have been served upon him, he shall be condemned even in his absence; provided, however, as I have already stated, he can allege no good excuse for his nonappear-ance.
CONSTITUTION CIX.
A BETROTHAL CANNOT TAKE PLACE BEFORE THE PARTIES HAVE REACHED THEIR SEVENTH YEAR, NOR CAN A MARRIAGE BE CELEBRATED BEFORE MALES HAVE ATTAINED THEIR FIFTEENTH YEAR AND FEMALES THEIR THIRTEENTH.
A wise man has said that there is a time for everything, which maxim is acknowledged and approved by persons who are of sane mind, and is of general application. Therefore, in all Our actions, it is most desirable to observe the proper time, and while there are matters with reference to which this is not indispensable, marriage certainly is not one of them; for, as it is essential for the preservation of the life of all persons, it should take place with due prudence and caution. Hence, in accordance with what the ancients who have enacted a very wise law on this subject have provided, We decree that, under no circumstances, can a betrothal take place before the age of seven years, or a marriage be consummated by females before attaining the age of twelve years, or by males before they reach the age of fourteen.
So far as the public welfare is concerned, this shall be the law. But as it frequently happens that the Emperor, by means of a decree when forming a new family, permits persons to be betrothed and married before the prescribed age, it shall not be considered a violation of the law by those to whom the government of the world (which resembles a great family) has been entrusted, to allow marriages to be celebrated without reference to the rules which govern their subjects in this respect.
CONSTITUTION CX.
A WOMAN AFTER HER MARRIAGE HAS BEEN DISSOLVED SHOULD DRAW UP AN INVENTORY CONTAINING HER DOWRY, THE ANTE-NUPTIAL DONATION, AND ALL THE REMAINING PROPERTY OF HER HUSBAND; AND HAVING PRODUCED IT, CAN ASK TO BE INDEMNIFIED FOR ANY Loss TO HER PROPERTY WHICH SHE HAS SUSTAINED AT THE HANDS OF HER HUSBAND, BUT IF SHE FAILS TO FILE SUCH AN INVENTORY, OR OFFER CONVINCING PROOF OF HER ALLEGATIONS, SHE CAN NEITHER CLAIM NOR RECOVER ANYTHING.
Among many other judicious provisions enacted by the ancients with reference to marriage, they have done well to establish the following rule, namely, that a woman, after the dissolution of her marriage, cannot arbitrarily take and hold her husband's estate, but if any controversy should arise concerning said estate, she must, in the first place, publish an inventory of her dowry, of the donation made in consideration of marriage, as well as of all the property belonging to her husband found after his death; and then if it should be proved that he has used up a part of said dowry, she can recover it out of his estate. As all this, I say, has been justly and equitably settled by the ancient authorities (although their regulations are no longer in force), and as Our intention is to profit by their wisdom, We absolutely renew the said rule, and decree that, hereafter, the widow shall make an inventory of her dowry, of the ante-nuptial donation, and of all the property of her deceased husband, in order that, if suit should be brought against her on account of said property and she should wish to be indemnified for any loss which she may have sustained, the evidence of the justice of her claim can be found in this inventory, and she may be • authorized to retain the estate of her husband; provided it is established that the value of her property as shown by the inventory has been diminished by his expenditures; and if she does not do this she cannot present any claim, or obtain anything which she may demand. We finally decree that the said inventory shall be drawn up within three months, and if this is not done, that the fine prescribed by the ancient authorities against guardians shall be collected in such cases.
CONSTITUTION CXI.
IF A WIFE SHOULD LOSE HER MIND AND THIS is DUE TO THE MALICE OF HER HUSBAND, OR WITHOUT ANYONE ELSE HAVING CAUSED IT BY WITCHCRAFT WITH HER HUSBAND'S KNOWLEDGE, AND HER AFFLICTION SHOULD LAST MORE THAN THREE YEARS, THE MARRIAGE MAY BE DISSOLVED, AND THE HUSBAND SHALL BE AT LIBERTY TO MARRY AGAIN.
The Same Emperor to the Same Stylianus.
There is nothing so necessary for the preservation of the human race as marriage, for it is the support of a chaste man, as the Creator
who founded it teaches and as Nature itself proves in the Holy Scriptures. And since this is the case, it was but just and proper to enact a law concerning matrimony which would insure the happiness of husband and wife for their entire lives, would accomplish the end of marriage, and not cause the conjugal relation to be a source of affliction, perpetual misery, and grief.
Therefore, if the marital union should be of this character (as, indeed, it certainly should be), the law which imposes upon the husband the obligation of always retaining his wife when she becomes demented, and of tolerating her acts of insanity, does not seem to me to be worthy of acceptance. For how can it be approved, or be considered consonant with reason, and worthy of the object of marriage, for a husband to be always bound to a crazy woman, and be subjected to her irresponsible vagaries? For if there is no man so cruel as to shut up another, even for a moment, with wild beasts, how can the law, which should manifest benevolence, direct a husband to pass his life with a wife suffering from insanity? Some persons hold that husband and wife, through their marriage, constitute but one body, and that each of its members should be affected with the diseases experienced by the other; and the Divine law says: "what God has joined together let no one put asunder." The word of God is undoubtedly of great authority, but in this instance what He asserts has not received the proper construction, nor one in accordance with the Divine intention. For if marriage always preserved its original state, and anyone should separate the parties to it, he would certainly be considered wicked, and could not escape condemnation. But when a woman has become insane, and no longer possesses any human attributes, not even that of speech, and does not permit her husband to enjoy any of the pleasures or joys of marriage, why should not this frightful and horrible union be dissolved ?
Therefore, We decree that if a woman should become insane during marriage, her husband must tolerate this misfortune for three years; and if she is not free from it, and does not recover her senses within that time, then the marriage shall be dissolved, and the husband released from the endurance of this intolerable calamity. We add to this regulation that the cause of her insanity shall be investigated, and it be ascertained whether the husband, either in person, or through the agency of his relatives, has not made use of witchcraft and fraud to induce this condition; and if this should be found to be the case, and the husband himself is accused of witchcraft, We decree that he shall be transformed into a monk and confined in a monastery, whether he consents or not, in order to pay the penalty for his wickedness, and have the remedies prescribed by the Divine canons applied for the purpose of healing his soul. Where, however, the misfortune was caused by his relatives or other persons, with his knowledge . . .
CONSTITUTION CXII.
WHERE THE HUSBAND BECOMES INSANE DURING MARRIAGE IT CANNOT BE DISSOLVED UNTIL AFTER THE EXPIRATION OF FIVE YEARS; BUT AFTER THIS PERIOD HAS ELAPSED, IT MAY BE DISSOLVED IF HE STILL REMAINS
DEMENTED.
It is not Our intention either to repeal or criticize the rule of ancient jurists by which it was established that insanity presented an impediment to marriage, but was not a proper cause for its dissolution, after it had once been celebrated; but I limit myself to the consideration of the reason which induced them to arrive at such a conclusion, which I neither assent to nor confirm, because it appears to Me unworthy of approbation. For how can the opinion be adopted that if insanity is an impediment to marriage before it takes place, it cannot afterwards have this effect, when it has once been contracted? For if the conjugal relation is for the benefit of both parties concerned, how can he who does not consent to the dissolution in the beginning, because it would not have the desired effect, be unwilling for this to be done after it had been solemnized, when the same condition exists ? Must precautions only be taken to preserve someone from affliction, and if it should come upon him subsequently, should he be refused all relief, and not be entitled to pity on account of the calamity which he suffers? It is just as if a physician should administer remedies to prevent disease, but let the patient die without assistance when he becomes ill.
Still, in saying what I did, I had no intention whatever to criticize the ancient jurists, but, on the other hand, I am very far from agreeing with them, above all when I see that they have established so many other causes authorizing the dissolution of marriage, none of which can justly be compared with the evil of insanity. For how can the wastefulness of a husband, his sexual impotence, difference of religion, or any other cause sufficient to effect divorce, for example, where the woman is of a servile condition, or where she is unable to pay all that was promised in a marriage contract; how, I repeat, can these causes and others like them, by which a marriage can legally be dissolved, be compared to the misfortune of insanity?
Hence We decree that if the husband should become insane, the marriage shall continue to exist for five years without power being granted to dissolve it; for if We think that it would be cruel to hold that it never can be dissolved and even though the insanity promises to be perpetual, it still seems to Us necessary to wait this time. If, however, after so long a period, the evil does not cease, and the insane person does not recover, the marriage shall be dissolved, whether this may be beneficial to one of the parties, or not. We do not enact this provision for the purpose of finding fault with the ancient legislators, but that We may discharge Our duty to Our subjects. But where insanity develops upon the very day of marriage, even after it has been
confirmed by participation in the Holy Communion, it shall be dissolved, just as if the condition had manifested itself before the ceremony.
Certain authorities may, perhaps, hold that it is unreasonable for marriage to be annulled after consecration, because after the sacrament uniting the two parties into one body has been administered, it is impossible to separate them; and besides, the husband is the head, that is the principal member of this new body, and when the principal members are attacked by any disease it is not customary to amputate them. Those who advance this objection arising from the intimate union of husband and wife and attempt to maintain it, seem to Me to be ignorant of the object of the nuptial benediction, for it is presumed that marriage will be a source of happiness, that it joins the parties in a species of indissoluble bond, and sanctifies marital joys and the reproduction of the human race. But, I ask, how can the condition of insanity accord with these opinions? How can modesty be preserved when reason is absent, or stifled under the weight of wretched ignorance? How can any hope be entertained that children will be born of a union where an unfortunate woman only sees in the condition of her consort, who is more unfortunate still, a horrible spectacle, and can have no sexual relations with him? Finally, how can it be said that the parties are united by love, when the husband is distracted by madness, and does not even preserve the form of humanity? And, certainly, if there should be any issue of such a marriage, as Nature always causes the fruits of everything to resemble what produces it, this will be detrimental to humanity.
Therefore, taking all these things into consideration, it seems to Me only just and consonant with reason to decree that insanity shall be a cause for the dissolution of marriage, without this rule being contrary to the nuptial benediction, or having in any respect the appearance of crime. Still, if anyone should find this conclusion, to a certain extent, reprehensible, let him subject himself to the experience of a similar matrimonial union, and he will soon acknowledge to how much weight his opinion is entitled.
CONSTITUTION CXIII.
GALLERIES, COMMONLY CALLED BALCONIES, SHALL BE
CONSTRUCTED AT A DISTANCE OF TEN FEET FROM A
NEIGHBORING BUILDING, AS THIS HAS BEEN PROVIDED BY
LAW WITH REFERENCE TO OTHER STRUCTURES.
Whatever the ancient authorities provided with reference to the erection of houses and other structures is extremely judicious, and they were right in directing that a distance of ten feet should be left between neighboring buildings. But as their laws on this subject do not make any provision for galleries or balconies as they are designated, which were devised for the purpose of providing protection from the light, and receive their name from the sun (for they are
called solar porticoes), and nothing was enacted with reference to them, We have deemed it necessary to promulgate the present law to prevent the litigation to which they undoubtedly will give rise
Therefore, We decree that between such structures, as between all others, a space of ten feet shall be left, for if this distance has been prescribed between buildings in order to prevent the violation of privacy, the same reason exists for establishing it between constructions of this kind, and it seems even stronger in this instance as they are more exposed. For it is certain that anyone who is seated or employed in the interior of his house can easily escape the observation o± his neighbors, because there are walls between them; whilst the galleries or balconies to which We allude are open on all sides.
Hence We order that no one shall place such balconies nearer than ten feet from the adjoining buildings; and We add that anyone who desires to change the facade of his house, and cover it with marble, cannot do so unless the space of ten feet still remains between his building and that of his neighbor, unless some right authorizing him to do so exists; or the time established by law for acquiring title by prescription has elapsed after the work has been completed; or a house has been erected by virtue of an agreement; as, under such circumstances, it shall remain in the same condition, even though the prescribed distance of ten feet from the adjacent building has not been maintained.
END OF THE CONSTITUTIONS OF LEO.
GENERAL INDEX VOLUMES 1-17
GENERAL INDEX
Roman numerals refer to volumes; Arabic numerals refer to pages.
ABBOT, selection of, XVI, 29; how created, 29; choice of, how made, XVII, 99.
ABOLITION, what it is, XV, 71; when requested, 71; general, 72.
ABORTION, by married woman, X, 328; when produced by wife, punished by
divorce, XVII, 234, 235. ABSENCE, on public business, instances of, III, 102, 103; when relief granted
in, 103, 104; relief not granted to those who are negligent, 104; what
constitutes, 111, 112, 113. ABSENT person, when liable, I, 169; not condemned, XI, 97.
ACCOUNT BOOK, liability incurred by witness in, different claims recorded in,
1,168,169.
ACCOUNTANTS, rules concerning, XV, 301, 302. ACCRETION, law of, II, 50; rules governing, IX, 157-159,161,165-167,172,174.
ACCUSATIONS, how made, I, 261, 262; public, who can bring, XI, 15,16; forms of, 17; of slaves, rules concerning, 19; when brought by a woman, 20; heirs not forced to file, 20; when should be made, prosecuted, 21; of crime, who not allowed to bring, XIV, 353; when withdrawn, cannot be revived, 355; soldiers may bring, when, 355; when woman can bring, 356; rules governing, 356, 357; in writing, how made, 358; of capital crime, 359; by public officials, 359; second, of same official illegal, 360; examples of, 360-362.
ACCUSED PERSONS, disposal of, XIV, 362; custody of, how maintained, 362, 363; woman not in prison, 364; when penalty inflicted, 365.
ACQUITTAL, meaning of, I, 323.
ACTIO DE PECULIO, why introduced, I, 198; rules governing, 199; V, 274; X, 194, 205.
ACTIO, DE PECUNIA CONSTITUTA, when it lies, II, 149; de peculio, 149; prejudicial, 150; formulas required, 150; vindication, 150; condictio, 150; in rem and in personam, when lie, 151; what available when unlawful act committed, 151; when mixed, 151; for single, double, or triple values, 152; when they lie, 152; for recovery of property, 152; bona fide, 153; arbitrary, what they are, 153; instances of, 154-156; when brought for too much, case lost, 154; judgment in, must be definite, 154; for peculium, 156-158; brought by married woman for dowry, 156; against ascendant or patron, 156; based on transaction with slave, 157.
ACTIO EXERCITORIA, when it lies, 1,198; XIII, 55.
ACTIO IN PACTUM, when available, V, 105, 107, 115, 172; Vill, 329; IX, 276, 277; when brought, 277.
ACTIO IN REM, brought against possessor, XII, 282. ACTIO INSTITORIA, nature of, 1,198; XIII, 55.
ACTIO PRJESCRIPTIS VEKBIS, when it lies, V, 107; instances of, 108-113; XII, 182; XIII, 114, 127, 128, 175; XIV, 336.
ACTIO RECEPTITIA, XIII, 30, 31.
ACTIO REI UXORIJE, XIII, 184, 186-188.
ACTIO TRIBUTORIA, against whom brought, I, 198; II, 157; when it lies, 157.
ACTION, to which heirs entitled under a trust, I, 146; decree of Senate relating to, 146; relating to Roman citizenship, 191; in loss of civil rights, 191; in general, of two kinds, in rem and in personam, II, 147; when to be brought, 147, 148; origin of, 148; Servian and quasi-Servian, 149; introduced by Praetor, 149; perpetual and temporary, when lie against heir, 164; cannot be brought against person under our control, III, 144; when judge forbidden to preside in, 144; who to be plaintiff in, 144; when brought by him, 145; when heir is absent what must be done, 145; when will lie at Rome, 147; terminated when issue joined, 148; when party to dies, where defended, 149; orders for bringing, 150-152; can be brought against son of family, 153; when terminated, 153; brought by woman for dowry when husband dies, 154; Servian, V, 121; against wife for property appropriated by her, VI, 31; when brought against father, 31; if husband dies his heir can bring, 32; husband may swear to amount of property appropriated, 33; woman not allowed to tender back oath, 33; concubine who appropriates property liable for debt, 34; woman liable to when appropriates pledge, 34; when wife can steal from husband, 35; based on theft, 35; is personal, when, 36; valuation made from date when taken, 36; of theft, when will lie, X, 252; ought to be erased or removed from public records, 258; can be brought on account of free persons, 260; when it lies where slave given in pledge is stolen, 264; when property restored, 264; when right of, extinguished, 270; has reference to the penalty, 271; when lies against debtor, 279; for double damages, 286; for robbery by violence can be brought in a year, 299; when will not lie, 299; for injury, when it lies, 309; when plaintiff can tender oath, 310; when child wishes to bring, against father, 311; when extinguished, 313; not granted to freedman against patron, 313; not granted in favor of or against an heir, 314; when does not lie, 314; available for use of foul language, 317; betrothed man can bring, 317; liability when torture applied, 319, 320; cases when it lies, 322; lies in favor of freeman when seized as slave, 324; when brought for annoyance, 326; popular, what they are, XI, 12; to whom granted, 12; lawful, when absolutely annulled, 305; involving freedom, when brought, XII, 285; against illustrious persons, when begun, 286; privileges considered in, 287; against Treasury, 289; personal, right of person against debtor, when not extinguished, XIII, 21; for corrupting slaves, XIII, 292.
ACTION AT LAW, decision of, I, 314; cause of, 314; when it can be amended or changed, XII, 166; party to can ask for production of creditors' accounts, 166.
ACTRESSES, cannot become heirs, XII, 57.
ADOPTED.CHILDREN, when emancipated, strangers, I, 129.
ADOPTION, how obtained, I, 96; deprives parent of authority, 101; of independent son, 129; confers parental authority, 230; methods of, 230; who capable of, 231; how effected, 16, 234; rules concerning, 234; who can adopt, 235; kinds of, 236; who not susceptible of, 236; when applicable to ward, 237; gives right of agnation, 237, 238; rank not diminished by, 239; not available a second time, 239; when illegal may be confirmed by
emperor, 239; all persons have right of, XVII, 230; advantages of, 230, 231; not effected by private documents, XIV, 321; when citizenship not changed by, 321; cases of, 322, 323; to whom applicable, 323, 324; ancient formalities of, abolished, 324.
ADSERTORES, duties of, XIV, 147.
ADULTERER, when father has right to kill, XI, 41; rules concerning this right, 42, 43.
ADULTERY, who can bring the accusation of, XI, 32; when strangers can prosecute for, 33; what it is, 34; who are liable to accusation for, 34; woman guilty of, cannot be defended while absent, 35; time prescribed for prosecution of, 35; must be committed while marriage exists, 37; who forbidden to prosecute for, 39; when husband accuses both parties, 39; service of notice in case of, 40; woman can be prosecuted after death of husband, 40; torture of slaves time to prove, 44, 45; all punished who profit by, 45; limitation for accusation of, 46; when minor accused of, 48; no delay granted in, 50; slaves of those accused of, tortured, XV, 8, 9; accusation of, must be brought in five years, 9; penalty for, 10; wife convicted of, must be repudiated, 10; examples of, 11-13; slaves cannot accuse wives of, 13; not extinguished by subsequent marriage, 14; who can prosecute for, 15; disposition of woman guilty of, 16; when committed in religious houses, XVII, 60; penalty for, 143; penalty for them taken in, 235, 236.
ADVOCATE, when assigned by Prastor, III, 3; must be a Christian, XII, 59, 60; when name stricken from rolls, and fined, 159; when collects excess fees, expelled, 185, 186; must not contract with litigant, 186; when guilty of prevarication, 187; must discharge duties of curule employments, 188; no charge to be imposed upon, 188, 189; number of Prsetors, 189; two selected to represent Treasury, 190; supernumeraries, 190; number of Alexandrians, 191; of the Treasury, formulas of, 191-194; salary goes to, 192; how enumerated, 194, 196; taxes due from, 195; cannot leave jurisdiction to reside elsewhere, 197; when suit brought against, 198; of Treasury, can appear against the government, 199.
AFFINITY, rules concerning, Vill, 269; degrees of, 268, 269; names of those
thus connected, 268, 269. AFRICA, churches of, rules governing, XVI, 187.
AGENCY, how established, I, 172; voluntary, operation of, 260; liability for, 260; voluntary, right of action in, III, 34-36; liability in case of, 34, 35; rules governing, 35; instances of, 35-37; when action will lie for, 38, 39; when responsibility for fraud incurred in, 39; by son of family, 40; when begun in slavery, 40, 41; purchase of property during, 41; in action on, all of claim must be paid, 42; work undertaken under must be complete, 42; when property purchased by becomes necessary, 43; when debt not due collected under, 43; expenses under, recovered, 43; cases of liability under, 43-45; when interest required, 45; by husband after divorce, 48; when pledge not restored under, 48; in case of a ward, 49; in case of a debtor, 49, 50; at request of slave, 50; when debt of estate paid, 51; action on, to whom granted, 51; voluntary, when assumed for benefit of minors, XII, 214; examples of, 214; when action for will lie, 214; when sick slave cared for, 215; when performed for the benefit of relatives, 215, 216; when part of estate sold by heirs, 216; does not involve liability for accidents, 217.
AGENT, responsibility of, 269, 270; acts of slaves as, 272; how appointed, III, 14; when necessary, 15; who can appoint, 15; must be willing, 16; who are eligible, 16; who can be compelled to act, 16; for conduct of case, 17; when changed, 18; when case transferred, 18; when barred by exception, 19; liability of, 19, 20; when several, first appointed, acts as, 19; slave cannot have an, 19; when appears must defend principal, 20, 21; patron may accuse freedman by an, 21; must furnish security for ratification, 22; when status of anyone contested by, 22; when demands security, 23; cannot be appointed in popular action, 23; when action of mandate lies in, 24; rules governing conduct of, 24, 25; must render account, 26; expenses repaid to, 26; when two agents appointed, 26; liability, 27; who cannot act as an, 27; can apply for production in court, 27; can collect debt, 27; power to compromise not given in general mandate to, 28; when uses interdict, 28; when can alienate property, 28; how relieved, 28; guaranty by, effect of, 28, 29; right of action not always acquired by, 29; public official cannot transact business through an, 30; how defence should be made by, 30; when not barred by an exception, 30; government, rank, and class of, XV, 263; chiefs of, 264, 265.
AGNATES, who they are, 1,104,118; who entitled to guardianship, 105; curator of insane person can alienate property, 118; not succeeded by next agnate in degree, 151; civilly dead, not admitted to an estate, 152; definition of, 232; not cessionary guardians, 233; acceptance by, 251, 252; appointment of agents, 260; legal guardianship by, II, 22; legal succession of, 92; not granted at once to all, but to those next in degree, 92; rule of Law of Twelve Tables, 93; concerning next of kin called, 94; ascendants, when called, 94; admitted up to tenth degree, 98; distinction between agnates and cognates abolished, XVII, 64.
AGNATION, right of extinguished by loss of civil rights, I, 104.
AGREEMENT, nature of, II, 300; kinds of, 300; for dowry, 300; public, what it is, 301; on legislative enactment, 301; relating to land, 302; when fraudulent, void, 302, 303; when exception will lie, 303; void when contrary to Common Law, 303; affecting creditors, 304; when penalty provided, 305; when made by head of company, 306; by a guardian, 306; with purchaser of estate, 306; right of action under, 306; unlawful possession of, in estates, 307; by son of family, 307; written, when made by servant, 307; by surety, 308; personal, does not affect third party, 308; with debtor, 308; not to sue, effect of, 309; when not valid, 311; when slave cannot make, 311; with debtor not to bring suit, 312; when obscure, construed against vendor or lessor, 313; by joinder with creditors, 314; examples of, 315, 316; when property delivered, 315; relating to both person and property, 317; withdrawal from, 317; informal, nature and force of, XII, 168; when of no force, 169; examples of, 169-172; when action will lie to enforce, 171.
ALIEN, bound by claims, I, 169; claim belongs to Law of Nations, 169; as to claims on account book, 169; under Civil Law, 169; liability of, 169; cannot acquire property by usucaption, 63.
ALIENATION of property, when allowed, II, 51; when consent of guardian necessary, 51; effect of, III, 113-116; who has right of, XI, 300; consent to, 314; of ecclesiastical property prohibited, XII, 22.
ALLUVIAL DEPOSIT, law of, II, 36, 37.
ALLUVION, law of, I, 119; IX, 156, 157, 162; land acquired by right of, XIV, 182, 183.
ANIMALS, wild or savage, must be kept securely, V, 177.
ANTE-NUPTIAL donation, lands composing cannot be hypothecated or alienated by husband, XVI, 248; examples of, 248-250.
APOCRISIARII, who they are, XVI, 34; penalty for misconduct of, 57; must remain fifty days in jurisdiction, 57, 58; how must be shown, 58; when no legal recourse against, 60; duties of, XVII, 94, 95.
APOSTATES, property of confiscated, XII, 72; proceedings against estates of, 73; action against perpetuated, 73; penalty for encouraging, 74.
APPEAL, how taken, I, 331; effect of, XI, 137; to what applicable, 138; to whom should be made, 138, 147; cannot be taken from execution, 139; who can take an, 139, 140; when not permitted, 140; when one sufficient, 141; instances of, 141-146; slaves cannot take an, 142; from whom cannot be taken, 146,147; when should be taken, 147-150; when rejected, 152; notice of, how made, 152; no change can be made in, 153; when decision rescinded without, 153-155; rules relating to, XIV, 203-205; when petition for must be filed, 205; who can be prosecuted, 206; when oral allowed, 206; who entitled to, 207; from whose decision taken, 207, 208; from provincial tribunals, 208; when petition for may be withdrawn, 209; when refused, time allowed, 210; rules concerning, 211, 212; from specially appointed judges, 212; limitation of right of, 212; sum authorizing, 214; time in which may be taken, 215; when only one litigant takes an, 216; when new allegations or exceptions pleaded in, 217; rules relating to time of filing, 217, 218; when necessary, 219-221; who cannot file an, 221; not taken against claim of Treasury, 222; not taken from an execution, 222; continued by heirs after death of appellant, 223; against temporary possessors, 225, 226; cannot be taken third time in same case, 226; jurisdiction of praetorian officials in, XVI, 106, 107; how conducted, 142; to Imperial Consistory, 143; in different provinces, 143; before whom brought, 144; must be prosecuted within two years, 218, 219; from various provinces, 220, 221; two months granted in which to file an, 306; examination of, rules concerning, XVII, 39; how decided, 40; rules concerning, 108, 109; judges must name, 109.
APPEARANCE in court, prevention of, II, 285; action for, 286, 288; failure to put in, 286; exception allowed, when, 287-289; of joint debtors, 289; requisition of, 291; promise of slave for, 291; of guardians, 291; when not necessary, 292.
APPELLANTS, must have an interest in the case, XI, 151; right of, protected by judge in absence, XIV, 213.
APRONIAN DECREE OF SENATE, Vill, 66.
AQUEDUCTS, how repaired, XV, 196; must not be interfered with, 196, 197.
AQUILIAN stipulation, nature of, II, 133; form of, 133.
ARABIA, duties of governor of, XVII, 9-12.
ARBITER, duties of, III, 117; when forced to act, 117; when not compelled, 117, 118; by whom appointed, 117; when objected to, 118; when not compelled to give an award, 118, 119; should fix time, 120; authority of Praetor over, 120; when excused, 120; must dispose of the whole case, 122; cannot correct decision of, even when an error occurs, 122; when given ambiguous award it is void, 122; when orders a dishonorable act, need not be obeyed, 123; may extend time for arbitration, 125; award of must be complied with, 125; when several arbiters make different
awards, 126; award of not valid when all litigants not present, 126; when prevented by a litigant from making award, 126; not compelled to make award when penalty incurred, 127; not compelled to make award after compromise, 128; when conceals himself, 129; when a litigant is envious of, 129; is subject to the terms of reference, 129; when can order litigant to be present, 130; when makes award on holiday, 131; cannot make award concerning subsequent matters, 132; how may order parties to appear, 133; when interested cannot make award, 133; when may enforce penalty, 133; what he is, XI, 274; appeal cannot be taken from decision of, when legal compromise made, XII, 250; when adversary refuses to appear before, 250; when award remains inviolate, 251; when action in factum will lie, 251; where litigants did not sign decree of arbiter, 252; agreement in presence of, 253; when decision void, XIV, 186; chosen by consent, XVI, 308. ARBITRATION, how conducted, III, 116; when referred to two persons, 121; when ends, 130.
ARMENIA, division of, XVI, 180-182; Count of, 182; his jurisdiction, 182, 183. ARMENIANS, laws relating to, XVI, 108-110.
ARMS, prohibition of manufacture of, or dealing in, XVI, 314, 315; penalty for allowing, 315, 316.
ARMY, provisions for passage of through provinces, XVII, 122-124.
ARREST, by plaintiff, I, 57.
ARROGATION, only at Rome, and who capable of, I, 231; how effected, II, 17; operation of, 17; woman subject to, how, 237; not available a second time, 239; presence necessary, 238; effect of when further adopted, 240; of infant, 240; when granted by the Emperor, XIV, 320.
ARSON, penalty for, I, 70, 324, 329; definition of and penalty for, X, 304, 305.
ASCENDANT, legal guardianship by, 1,106.
ASIA, vicegerent of, his authority, XVI, 53, 54.
ASSASSINS AND POISONERS, who designated, XI, 59; acts of involving liability, 60-62.
ASSEMBLY of people forbidden, when, I, 76.
ASSIGNMENT, for benefit of creditors, IX, 246; when he who makes an, can be afterwards sued, 246; when debtor's property sold after, 247; can be made in and out of court, 247; for benefit of creditors not always allowed, XIV, 228; statement of person making, required, 228; petition to make, filed, 229; division by judge of property under, 230; of debt, how effected, 304; of property when forced, illegal, XVII, 146, 147.
ASTROLOGERS, banished from Rome, XII, 59.
ASYLUM, right of, when not operative, XVI, 90, 91.
ASSESSORS, duties of, II, 263; who can act as, 263; cannot appear before the - same tribunals, 264; who are, XII, 154; how aid superiors, 157; favors to and responsibility of, 157; who can appoint, 158; cannot act for two magistrates, 158.
ATILIAN LAW, II, 24; distinctions of, 25.
ATTENDANTS, of various officials, duties and responsibilities of, XV, 310-314; rules governing, 314-317.
ATTORNEY, who excluded as, I, 259; woman can act as an, 259; responsibility of, XII, 204; when accused of crime cannot appear for others, 205; when exceeds authority cannot prejudice client, 205; no right to sell property
of principal, 207; cannot be forced to act against consent, 207; husband can act as, for wife, 208; when case in court has control of, 208; anyone can answer by, supervision of governor over, 209, 210; liable for fraud and negligence, XIII, 89. AUTHORITY, effect of when delegated, II, 262; limitation of, 262, 263.
B
BALCONIES, regulations concerning, XVII, 296, 297.
BANKER, action by, must take set-off in, I, 197; rules to be observed in loan of money by, XVII, 148; how must conduct business, 149; when has prior lien, 149; interest to be charged by, 150; relief of, when granted, 151.
BANKRUPT, purchase of estate of, I, 197; set-off only allowed when debt due, 197; amount of the indebtedness of inserted in statement of claim, 197.
BAPTISM, when performed twice, punished with death, XII, 71, 72; when can be conferred, XVII, 218, 219.
BASTARDS, who are, I, 227; follow mother, 228; disinheritance of, II, 93; maintenance of, when required, VI, 37; recognition of, by father, 38; recognition of, by mother, 40.
BENEFICIARY, of a trust can be charged with one in favor of another, 1,148.
BENEFIT to property, action for, when it lies, IV, 260-263; instances of, 261-267; when action for brought against real owner, 267.
BEQUEST, what property object of, I, 138; by permission, form of, 140; by preferred legacy, how made, 140; when right given to larger share of than heir entitled to, 141; when made to stranger, void, 141; limited to property of testator, 141; when property held by quiritarian right to, 142; of same property of two or more legatees, 142; before heir appointed, void, 143; difference between those left under a trust and those left directly, 148; of freedom conditional, 68.
BETROTHALS, when legal, I, 276; mere consent necessary to, V, 241; of absent persons, 241; no limit to age of parties, 242; when may be contracted, 244; consecration of betrothed persons to God, XII, 54; woman may repudiate contract, XIII, 137; when either party to dies, gifts returned, 137; woman liable for double gift of, 138; gifts to person in authority, 139; rules concerning, 139, 140; when does not become void, 141; kiss of, 142; penalty of, when executed, XVII, 220, 221; legal age of, 292.
BISHOP, not compelled to testify, XII, 31; removal of from office, 34; disabilities of, 34; not liable to contribution, 39; right to dispose of property, 47; release of from slavery and serfdom, 48; rules for consecration of, XVI, 30; status of a, 30; must be familiar with dogmas of the Church, 31; shall not purchase office, 31, 32; when corrupt, how punished, 33; how long may be absent from Church, 33; must have permission to visit capital, 34; becomes own master by consecration, 303; how selected and consecrated, XVII, 82; age of candidate for, 82; when accused of misconduct, 83; must not pay for office, 83; fee for right of see, 84; office of, confers freedom, 85; not called as witness or before secular judge, 86, 87; sent before metropolitan, 93, 94; what property cannot bequeath, 129; mode of consecration of, 154; when candidate for accused, 155, 156; duties of, 156; may relieve poor relations with Church funds, 207; when becomes slave, deprived of office, 215; when engages in any business, or violates regulations, how punished, 276.
BLINDNESS, causing, punishment for, XVII, 278, 279.
BLOOD, cannot be used as food, XVII, 257.
BODIES, when can be removed, XII, 343, 344; burial, rules of, 345, 346; transfer of, how authorized, 346; not to be buried in city, 345; when provisions of Emperor must be obtained, 346.
BONA FIDE ACTIONS, what they are, I, 197.
BOOKS OB PARCHMENTS, ownership of, I, 120; rule opposite with paintings, 120.
BOOTY, acquired by natural law, I, 119.
BOUNDARY, settlement of, I, 72; action to establish, personal, IV, 21; discretion of judge in decision of, 21; may be brought between several estates, 22; when will not lie, 23; when destroyed by inundation, 23; rule to be observed in, 24; removal of, penalty for, XI, 10; when removed and land sold, XII, 337; question raised as to, 338.
BRONZE AND BALANCE, sale by, I, 98, 175.
BUILDING MATERIALS, appropriation of, I, 69.
BUILDINGS, rules for the construction of, XIV, 244-246; space to be left between, 246.
C
CALUMNY, what it is, I, 261; oath of, when tendered, XII, 254, 255; what should be added to, 255; when taken in presence of Senate, 256; when taken in house of litigant, 256; must not be avoided, 257; when plaintiff refused to take, 257; must be taken before litigation begins, 258; how prosecuted, XV, 74, 75; when penalty for cannot be inflicted, 75; when proves false, how punished, 76.
CANONS, number of prescribed, XII, 16.
CAP OP LIBERTY, slaves who receive, become Eoman citizens, XIV, 124.
CAPPADOCIA, Proconsul of, importance of office, XVI, 171; change of government, 172, 173; authority of, 174; rules for conduct of, 174-178; care of rustics enjoined upon, 178; rank of, 178, 179; must punish crime, 179.
CAPTIVES, rights of, XI, 176; relatives disinherited when refuse to ransom,
XII, 51; wives of, cannot marry others, rules concerning, XVII, 236, 237; children of, inherit, 239; have testamentary capacity, 242-244.
CARBONIAN DECREE OF SENATE, VI, 46.
CARBONIAN EDICT, Vill, 146, 177, 178; application of, 177, 178; rules of, 178, 184, 185; when a decree rendered under, 185; when minor can obtain possession under, 186; when no ground for application of exists, 186;
XIII, 312.
CASE, presentation of, II, 294; what must be stated, and how, 294; production of losses and accounts in, only once, 295-297; oath in, when exacted, 296; law relating to bankers and brokers in, 297; action for production does not lie, when, 298, 299; lost when brought before wrong tribunal, XII, 279; when Emperor takes cognizance of, where minor or widow is interested in, 280; for possession, 281.
CASTRATION, how punished, XVII, 258, 259.
CATO, rule of, what it is, VII, 289; when not applicable, 289.
CATTLE THIEVES, penalty of, I, 323; how punished, XI, 3; not guilty of public offence, 3.
CHATTELS, not readily acquired by usucaption, I, 116; production of in court, 187; made of proceeding in action for, 187; when a party brought into court because of, 187.
CHILD, born eleven months after father's death, status of, XVI, 195, 196; of serf and free woman is free, 231; when exposed becomes free, XVII, 180; when parents serfs, 184; natural, cannot marry adopted, 227; emancipated entitled to privileges, 228; of female slaves, to whom belongs, 232, 233.
CHILDREN, paternal control of, I, 89; follow condition of mother, 93; status of, female citizen who becomes a slave, 95; natural and adoptive subject to paternal control, 96; adoption of by popular vote, 96; how freed from paternal authority, 99; adoption of one who has been convicted of crime, interdicted from fire and water, 100; released when priests, or vestal virgins, 100; of colonists released, 100; also those emancipated, 100; sale of by father, 100; when passed over, testament valid, 127; who are Koman citizens and independent, 129; called to the succession by Praetor, 153; illegitimate, who are, 227; follow mother, 228; who are Latin, 228; of slaves, 279; disinheritance of, II, 60; must be disinherited by name, 60; when heirs by quasi-agnation, 60, 61; adoption of, when ordered by Praetors, 61; adopted subject to same rules as natural, 61; adopted by soldiers, 62; number and status of, 228, 229; when follow condition of father, 230; maintenance of, when required, VI, 37; recognition of, by father, 38; of mother, when bastards, 40; order of court for, 41; must respect parents, 41; supposititious, introducing, XI, 77; _—-37 unborn, when considered already in existence, 293; sale of by father, XIII, 99; when ungrateful, excluded from estates of ancestors, 170; disposition of after divorce, 212; by whom brought up and supported, 212, 213; must aid relatives in ascending line, 213; natural, how becomes legitimate, 214; what may be left to natural, 215; when natural can succeed to estates of fathers, 217; fathers can appoint natural, their heirs, 219; when assigned to curia, 219, 220; rules relating to curial obligations of, 220, 221; status of, how decided, 222, 223; emancipation of, how effected, XIV, 324, 325; revoked, when ungrateful, 326; abandonment of, causes loss of parental rights, 332, 333; substitution of, capital crime, XV, 41, 43; deceased, disposition of property of, XVI, 258; natural, when legitimated by will, 281, 322-325; must produce will, 282; by adoption, 282; three kinds of, 285; right of, born after dotal contracts, 104; if ungrateful, estate goes to others, 122; entitled to property, prospective marriages, 128. CHRISTIANS, religious discussion of forbidden in public, XII, 10; doctrines of,
12-15; cannot be held in slavery by Jew, pagan, or heretic, 55. CHURCH, burial in, forbidden, XII, 15; supplies to, shall remain undiminished, 18; laws contrary to liberties of, void, 18; loss sustained by made good, 20; rules concerning encumbrance of property of, 21; can exchange property with one another, 25; donations to, 26; debts of, how paid, 27; property of, free from interference, 27; when legacies left to, 28, 41; when action will lie in favor of, 28; property of cannot be seized, 30; penalty for not rendering accounts to, 30; those who take refuge in, not to be removed, 83; disposition of armed slave who seeks asylum in, 82; when thief resorts to, 84; manumission in, how effected, 85; revenues of, how and by whom expended, XVI, 20; can make permanent emphyteutical contracts with another, 234; liability of, sanctioned by bishop, 259; alienation of immovable property of, 260.
CIRCUMCISION, penalty for, I, 325.
CITATION, peremptory, when granted, III, 155, 156; when may be annulled, 156.
CITIZEN, who properly so called, XI, 204.
CIVIL CONDITION, when change of takes place, III, 99; criminal responsibility not altered or removed by, 99; when arrogated children forfeit, 99; when others are emancipated, 99; by loss of citizenship, 99; three kinds of description of, 101.
CIVIL EMPLOYMENTS, three kinds of, XI, 226; when personal, 226, 227; when patrimonial, 227; expenses of, how paid, 228; how exemption from can be claimed, 228, 230, 231; valid excuses, 229-232; immunity from, does not descend to heirs, 232; of owners of vessels, 234; of farmers of the revenue, 235; exemption by condition, 235.
CIVIL LAW, what it consists of, I, 81.
CIVIL OBLIGATIONS, how divided, XV, 138, 139; examples of, 139-141; who excused for exercise of, 141-146.
CIVIL EIGHTS, loss of, what it is, I, 104; division of, 104; forfeiture of, 233; how lost, II, 22; effect of, 22.
CLAUDIAN DECREE OF THE SENATE, effect of, I, 93; VI, 318.
CLERGY, contributions of, how made, XVI, 235; examples of, 235; salaries of, to whom paid, when they abandon churches, 236; before whom sued, 310, 311; shall not hold public offices, XVII, 85, 86; if marry liable to expulsion, 89; when decurion can become member of, 89, 90; how serfs may be ordained members of, 91; members of can dispose of own property, 92; shall be sued before bishops, 92-94; fees payable by, 96; abuse of penalty, 96; appointed guardians, XVII, 264, 265; members of who marry, punished, 271.
CLERKS, limit to ordination of, XVI, 84.
CODICILS, whence derived, II, 86; when made, 86; not valid for gift of estate, or disinheritance, 86; when valid, VII, 4, 5; who can and cannot make, 5, 6; has force from will, 6; how drawn up, 6; when confirmed, 7; examples of, 8-10; effect of, XIV, 31, 32.
COEMPTION, marriage by, I, 97; method of, 98; fiduciary, for what purpose,
98; and mancipation, difference between, 99; with stranger, effect of,
102; persons sold by are slaves, 102. COGNATES, when not admitted, I, 153; when entitled to succeed, II, 97; rights
of collateral heirs who are, 97; degrees of, 98, 99; servile cognation not
included, 99.
CO-HEIRS, rights of, I, 67. COHORTALS, penalties of, XV, 265, 266.
COLLATION, object of, Vill, 154; when ground for, 155; security furnished in, 156; adopted and captive child must make, 156, 157; dowry of wife not placed in, 157, 161; must take place when fraud committed, 158; as applicable to emancipated son, 160, 161; when dowry subject to, 164; expenses deducted in, 165; instances of, 165-167.
COLLECTORS of public moneys, requirements of, XV, 161, 162. COLONIES, subject to Italian law, XI, 256, 257, 259.
COMPROMISE, anyone can accept a, II, 318; law concerning, 319; with regard to a trust, 319; not valid when will in dispute, 319; can be made after
judgment, 320; in bequests, 320, 321; amount involved must be considered, 321; consent of Prsetor necessary, 322; examples of, 323, 324; when made by father, rights of child not prejudiced, 324; with reference to legacies, 324; when made by vendor of estate, 325; disposing of litigation, when made with guardians or curators void, XII, 175; instances of, 175, 176; when claim not prejudiced by, 176; when made through fear, void, 178; with reference to capital crime, except adultery, not forbidden, 179; authority of, 179; who can legally make, 181; general, cannot be rescinded, 181; when promises not fulfilled, penalty may be exacted, 183; when violation of involves infamy, 184.
CONCEALING stolen goods, penalty, I, 178,
CONCUBINE, when forbidden, I, 277; when woman continues as, with patron, V, 339, 340; cannot leave patron without his consent, VI, 50; must be twelve years old, 50; not allowed in house during marriage, XIII, 213; how can become lawful wife, XVI, 103; when cannot be kept, XVII, 278.
CONDITION, bequests on, when valid, VII, 299, 300; instances of, 300-311; considered fulfilled, 305; of deceased person cannot be called in question, when, XIV, 153.
CONFESSION of judgment, IX, 244; mistake made, 244; rules concerning, 244, 245; not sufficient when made by guardian alone, 245.
CONFISCATION of property of criminals, XI, 125; what not taken, 126; when it occurs, what given to children, 126-128; does not apply to dowry, 128.
CONFUSION, what it is, 1,318.
CONSANGUINITY, how proved, XIII, 33, 34.
CONSIDERATION, when infamous, no liability incurred, XIII, 17; instances of, 17, 18.
CONSISTORY, COUNTS OF, prestige of, XV, 250.
CONSTANTINOPLE, shops of, set apart for expenses of Church, XVI, 204.
CONSUL, must appoint council, II, 247; restricted to certain expenditures, XV, 243, 244; former extravagance of, XVII, 16; rules for expenditures of, 16-19; distribution of largesses by, 20.
CONSULTATIONS, argued before all the Senators, XVI, 250, 251.
CONTINUANCE, causes for, I, 59.
CONTRACTS, different kinds of, 1,162; obligations of, 259; bona fide, 259; when void, 259; who not considered bound by, X, 79; must bind personally, 80; examples of, 80, 81, 83; when party binds himself to pay, 82; actions enforcing, 83; when not themselves valid, cannot be made so by judicial decree, 83; when fulfillment of impossible, void, 84; action on, granted against municipal magistrates, 86; can be made by independent male after puberty, 87; stipulations by which established, 88; various methods of making, 89; rules of, 89, 90; verbal, how made, 91; rules governing stipulations, 91-95, 105-108, 136; for tract of land, 131; by means of free persons not subject to authority, 132; to appear in court, 132; when and how extinguished, 139; when stranger included in, 140; involving fraud, XI, 299; bona fide, basis of, is consent, 309; with slaves, when valid, XIII, 58, 59; do not bind masters, 59; to defraud creditors, when revoked, XIV, 235; son of debtor has power to revoke, 235; verbal, how proved, XVI, 278, 279.
CONTROL, by father and mother, II, 12; liability of person under, IV, 226; examples of, 226.
CONTUMACY, penalty for, IX, 241.
CORPORATE BODIES, privileges of, XV, 179; requirements of members of, 180.
CORPORATIONS, who can form, III, 30; when agent of, brings suit, 32; right
of action in behalf of, 32; when not defended, 32; creation of, XI, 10, 11;
when illegal, how dissolved, 11; liability of members of, 11. CORPSE, cannot be buried or burned in city, I, 74, 267; preparation of for
burial, 75; transfer of, IV, 99. COUNCIL OF ROME, composition of, I, 84.
COUNCILS, ECCLESIASTICAL, rules adopted by, must be observed, XVII, 125,
155,156.
COUNCILS AND SYNODS, must be held frequently, XVII, 87, 88. COUNT OF THE EAST, provision of games committed to, XII, 143, 144. COUNT OF THE IMPERIAL PALACE, collects debts due the Emperor, XII, 142. COUNT OF PRIVATE AFFAIRS, investigation by, when, XII, 142. COUNT OF SACRED LARGESSES, his duties, XII, 142. COUNTER ACTION, when applicable, I, 217, 218.
COUNTERFEITING, when not complete, XI, 77; torture used to detect, XV, 49; confiscation for, 50; is treason, 50.
COURT, appearance in, I, 57; application to, III, 3; duty of Praetors, 3.
COURT OFFICIALS, to what fees entitled, XV, 258, 266; rules relating to, 258-261.
CREDIT, how given when pledges furnished for two contracts, X, 212.
CREDITORS, when preferred in cases of pledge, V, 134; rights of different, 137, 143; when can recover hypothecated property, 139; when first of, sells pledge, 143; right of, to sell any pledge, 144; can purchase pledges from debtors, 145; must assign rights, 145; when consent to sale, 150; when preferred, IX, 259; privileges of, 259, 260; when heir considered suspicious, 264; privileges of estimated by nature of debt, 265; when entitled to preference, 263; when defrauded, 271; rule when pledge released by, 271; when minor attempts to defraud, 273; when debtor intending to defraud, sells land, 273, 274; when fraud of, must result, 274; when suit can be brought against one who has received a pledge, 276; when husband tries to defraud, by returning dowry, 279; when dowry given to defraud, 281; attack upon sureties to injure principal debtors liable in action by, X, 323; when not guilty of fraud, XI, 310; when lose lien, 313; when receive from husband wife's land as security, XIII, 64; preferred, rights of, XIV, 264-266; who succeed to, 269; when pledge sold by, 270; cannot sue for debtor's property in hands of third party, XVI, 22, 23; may accept bond, 23; what are, 24; suit by, to recover property when parties insolvent, 193; instances of, 194; cannot molest heirs of debtor for ten days, XVII, 46, 47; shall not retain child of debtor as security, 142.
CRETIO, meaning and derivation of, I, 133.
CRIME, punishment of, X, 327; how punishment varies, 331; when punishment governed by custom, 332; how committed, XI, 116; penalties for, more severe in certain provinces, 117; merely thinking not a, 118; gradation of capital, 119; against relatives and patrons more severely punished, 120, 121; extinguished by death, XV, 3; heirs of persons accused of not liable for estate, when, 4; crime against nature, denunciation of, XVII, 160, 161.
CRIMINAL CASE, abandonment of, XI, 95, 96; when should be prosecuted, XII, 280.
CRIMINAL PROSECUTION, when should be ended, XV, 72, 73; who desist from, 74.
CRIMINALS, those who harbor, classed as robbers, XI, 5; custody of, how secured, 21; when sureties for appearance furnished, 22; when must be guarded, 23; when escape, soldiers responsible, 24; penalty for escape of, 24, 25; laws relating to prosecutions of, 13; of capital offences, 13; course of procedure in, 15; when acquitted cannot again be accused, 17; who cannot prosecute, 18, 19; who cannot be accused, 19; punishment of, how regulated, 107, 108; when citizenship lost by, 108; regulation of, 109, 110; mode of capital punishment, 111, 112; sentence of to the mines, 112; if escape, serve double time, 112; prohibition of to transact business, 113, 114; forbidden to seek sanctuary at statues of emperor, 120; when sentenced to death lose citizenship and freedom, 121; bodies of, given to their relations, 137; penalty for harboring, XV, 23; liability of those guilty of harboring, 23; must be tried where offence committed, XVI, 262, 263; how brought into court, XVII, 141.
CROP, penalty for destruction of, I, 70; title to, II, 40; when usufruct of granted, 40; of land pledged used to pay interest on loan, XIII, 81.
CURATOR, when appointed, I, 110; kinds of, 235; for whom appointed, 235; when appointed, II, 27; when required, 27, 28; security by, 28, 29; accountability of, 29; when excused, 29-32; appointment of, VI, 53, 61, 74, 112; when asked for, 54; cannot be legally appointed by will, 65; when acts till puberty, 75; duty of, 103; can be removed for suspicion, 115; tax collector not excused from acting as, 132; when added to guardian, 150; for insane person and spendthrift, 175, 176; duties of, 177-179; concerning appointment, IX, 269; praetor applied to, for, 269; need not be creditor, 270; how appointed for insane persons, XII, 61; rules to be observed by, 61, 62; for a minor cannot abandon a case, XIII, 234; money of ward cannot be lent at interest by a, 238; when refuses to endow female ward, 239; remedy for negligence or fraud of, 240; accounts of, when cannot be demanded, 240; when minor can claim property of, 241; inventory made by, 243, 244; right of action against, 244; shall not refuse to defend ward, 245, 246; freedman liable as, when, 246; not liable for unavoidable accidents, 247; right of action not assignable by guardian to ward, 248; not allowed to collect taxes, 249; must furnish security, 249; liable when transfer of trust delayed, 251; ad litem, duties of, 252, 253; when appropriates money, 257; liable for legal interest, 264; action may be brought against sureties of, 264, 265; of insane person, rules concerning, 276-278; when not appointed, 277; when appointed by will, 278; oath required of, 279; when dies, another appointed, 280; when account of not questioned, 289; acquisition of minor's property by, XVI, 269; creditor not eligible to place of, 270; when added to guardian, 270; must prove debt to be released, 270, 271; cannot accept transfer of property of minor, 271; use of money of minor by, 272.
CUSTOM, long-established, authority of, XIV, 333; resembles law, 334.
CUSTOMS, what they are, I, 223; rules concerning, XIII, 122-124; from whom exacted, 123; new, cannot be created by a municipality, 125.
D
DAMAGE, liability for, I, 69; by water, how settled, 72; unlawful, action for,
181; to property, action for, 182; when it lies, 182. DARDANARII, punished arbitrarily, XI, 123. DAUGHTERS, marriage with slaves, I, 277. DAY, when legal, begins, II, 293.
DE PECULIO, actions, when, not granted, XI, 303; action, XIII, 62. DEACONESS, who cannot be ordained, XII, 32; when may not be ordained,
XVI, 36; rules for admission to order of, 37. DEAD, may be buried in cities, XVII, 253, 254. DEBT, of adopted person, disposition of, I, 161; when liable for, 162; no one
imprisoned for, when due Treasury, XII, 151; when payment demanded
before acceptance of estate, XIII, 28.
DEBTOR, sale of property of, when allowed, I, 161; arrest of, 188; when fraudulent release of just, IX, 249; when conceals himself, 250-252.
DECEASED PERSONS, bodies of, not to be molested by creditors, XVI, 244, 245.
DECEIT, rules concerning, XI, 67-74, 80.
DECISION, before sunset, I, 58; final, what it must include, XIV, 187; when of no force, 188; for damages, must not exceed double value of property, 190; cannot be revoked, 193; even by Emperor, 200.
DECREE, interlocutory, effect of, XIV, 189, 200.
DECREES, what they are, I, 211.
DECURIONS, appointment of, XI, 205; rules concerning, 210; can be recalled, when, 214; when removed from order, 215; when guilty of crime, 216; disabilities of, 216; provisions furnished to, 217; not subject to torture, 219; names entered on registers of, 219; two-thirds must assemble to legally act, 243; when decree of may be recorded, 244; duties of, XIV, 245; how released from official duties, XV, 114; illiterate persons may perform duties of, 114; exemption of, 115, 117; when abandon office, 115; when restored to order, 118; not assigned to curia by reason of penalty, 119; cannot change condition, 120; penalty for injuring chief of, 120; requisites and appointment of, 121; must remain attached to curia, 122; if Alexandria, duties of, 123; cannot have substitutes, 124; how released from duties, 127, 128; lands of, how alienated, 128; dis-tribution«of estates of, 130-132; rules relating to conduct of, XVI, 188; formalities to be observed by, 188, 189; when leave no issue, 189; when do not dispose of estates, 190; when leave legitimate children, 190; how estates of divided, 191; succession of, 326; rules relating to, 326-329, 332; whom they may select as heirs, XVII, 6; curia will share estate of, 8, 9; when daughter of will take entire estate, 8, 9; when husband can enjoy usufruct of estate of, 9; when subject to judicial procedure, 178.
DEDITITII, who they were, I, 84, 224; disabilities of, 85.
DEFENDANT, when can resist arrest, 1,189; summons of, 218; when summoned to another province, XVI, 225, 226; allowed twenty days, 226, 227; cause of action must be specifically communicated to, 227; when absent, what must be done, 264, 265.
DEFENDERS, duties of, XII, 162, 163; must send malefactors before judges, 163; of cities, rules concerning, XVI, 63; avarice of, punished, 64;
regulations concerning, 81, 82; oath to be taken by, 82; documents must be registered by, 82; duties of, 82, 83; appeals from decisions of, 83; shall receive no compensation, 84.
DELAY, when only granted once, II, 293; rules concerning, XII, 273, 274; when improper to ask, 274.
DELEGATION, how it takes place, X, 177; who can make, 178; not made without consent, XIV, 305.
DELIBERATION, for acceptance of estate, time for, how computed, reason for, I, 134; right of, when transmitted to children, XVII, 186, 187.
DELIVERY, obligations for, I, 162.
DEPORTATION, causes loss of citizenship, XI, 131; how differs from relegation, 132; when husband returns wife can claim her property, XV, 82, 83; if returns can recover estate, 87.
DEPOSIT, when used, theft, I, 179; action on, two formulas of, 1,196; no set-off for, 273; what it is, IV, 288; agreements accepting responsibility, effect of, 288; when action on lies, 289; when made without guardian's authority, 290; action lies in favor of possessor, 290; is bona fide, 291; oath taken as to value of, 291; examples of, 292, 293; son under control liable for, 293; when made with two persons, 293; conditional, 294; counteraction on, 294; when made with sequestrator, 294, 295; when action on does not lie against co-heirs, 296; when and how returned, 296, 297; when fraudulent, 297; when made with slave, 299; when bailee converts to own use, 300, 301; methods of making a, 302; when suit on can be brought, 302; action on, XIII, 85; interest on calculated from day of default, 85; when not returned, and judgment rendered, restitution made, 86; who cannot direct return of, 86.
DEPOSITARY, fraud by, 1,181.
DESERTERS, penalty imposed on, XI, 123; definition of, 189; when death penalty inflicted on, 189; punishment of, when return, 189; all not punished alike, 192; when tortured, 193; anyone can arrest, XII, 291; penalty for harboring, XV, 298; if returns, arrested, 298; XVII, 263, 264.
DETECTION, by dish and girdle, I, 61.
DETENTION, of property, when legal, 1,189.
DISINHERITANCE, necessary form of, 1,128; must be specific and unconditional, VI, 186, 187; terms of, 190, 191, 197, 203; by father when son is a captive, valid, 197; clause of, how should be inserted in will, XIV, 6; rules concerning, 7-9; when allowed, 8; of posthumous heirs, 9; of children, enumeration of causes for, XVII, 41-45; rules of must be observed in all cases, 45; of parents, cause for, 45, 46.
DIVORCE, reason must be given for, I, 69; when notice of served, V, 337; when marriage dissolved by, 341; causes for which a husband may obtain, XVII, 53-55; for what reasons a wife can obtain, 55, 56.
DOCUMENTARY EVIDENCE, when introduced, XIII, 41, 42; when lost, other evidence introduced, 42; when conflicting, of no effect, 43; when demand for proof of made, 45; comparison of, 45; when oath taken concerning, 46, 47; when offered in contracts, truth rather considered than the instrument, 48.
DOMICILE, meaning of, XI, 205, 206; rules concerning, 206; how created, 208; possession of houses in another town does not establish, 209; widow retains domicile of deceased husband, 210; of soldier, 211; of one who is relegated, 212; change of, 212; rules relating to, XV, 136, 137.
DONATION, by husband and wife, I, 279; mortis causa, 297; when forfeited, 319; when made to two persons, 319; between husband and wife void, V, 302, 303; when married persons forbidden to make, 304, 305; wife cannot acquire property in, 307; when made by intermediary void, 307; when debtor promises, act void, 308; of burial place permitted, 309; when set-off exists, 311; for manumission, valid, 312; made on account of divorce, valid, 315; mortis causa, rules of, 317, 318; instances of, SIS-SIS; when husband pledges property forming, 322; when divorce takes place after, 323; when both parties taken by enemy, 323; when bequeathed by husband, 324; when becomes operative, 324; when wife cannot sue for, 326; when can be recovered, 327; valid when given to obtain office, 328; possession of property does not imply, 329; what husband gives as, remains his, 329; father-in-law cannot make, 331; when made by way of dowry, valid, 332; allowed in case of divorce, 333; valid when woman not yet married, 334; when wife buys slave with money of, 334; to husband or wife, when reverts to donor, VII, 281; mortis causa, like legacy, when, 293; various kinds of, IX, 24; when order of father necessary for, 24; when payment of debt promised, 25; of money, 25; dishonorable not prohibited, 26; when power to make inferred, 26; by soldiers, 27; after accusation of capital crime, when valid, 28; consent to take necessary, 29; who cannot make, 31; when considered made, 32; made to concubine cannot be revoked, 32; instances of, 32-34; who not prohibited from making, 33; kinds of, 35; bequests of, 36; examples of, mortis causa, 35-37; rules relating to, 37-40; mortis causa, not forfeit till donor's death, 41; how differs from gift, 41, 43; in what ways made, 41, 42; resembles legacy, 42; between husband and wife, 44; rules concerning, 222; when declared inofficious,
XII, 305; examples of, 306, 307; ante-nuptial, when may be increased,
XIII, 143; may also be diminished, 143; when not recorded, 144; simple, not made because of marriage, 144,145; when dowry given it should be followed by a, 145; ante-nuptial, effected by special contract, 146; of husband and wife to each other, how made, 194; when wife takes crops of dotal land, 195; when of dotal land encumbered by husband, 196; when silence of donor renders valid, 199; of rights of future expectations, XIV, 335; valid between absent persons, 335; when void, 336; when made by third party, valid, 337; must be legal, 338, 339; registry of, necessary, 339, 340; when made for pious uses, 342; of money, of income, 343; of entire estate, 344; when registry of, not required, 345; when conditional, 346; when may be revoked, 347; when not revocable, 349; causa mortis, when cannot be rescinded, 350; rules concerning, 351; to husband or wife, when excessive, to date from death, XVI, 127; when may be increased or diminished, 129; made before marriage, 129, 130; administration of, 137; to Emperor not recorded, 224; to de-curion, rule concerning, 319, 320; ante-nuptial, a special contract, XVII, 66; ante-nuptial, must be recovered, 111; when not. committed to writing, when valid, 251; when recovered, must be confirmed, 196; ante-nuptial, who shall receive, 222, 223.
DOTAL LANDS, given as dowry after appraisement, XIII, 212.
DOWRY, how obtained, I, 228; kinds of, 228; V, 261-265; disposal of, I, 228; in case of divorce, 229; when divorced wife dies, when heir has no right of action, 229; retention of, when, 229; effect of adultery on, 229; nature of, 278; right of, perpetual, V, 261; when promised by son under control, 263; when promised by daughter of another, 263; when
usufruct given as, 264; general rules concerning, 264, 265; when slave given as, 266; when property of acquired before and after marriage, 266, 267; when not delivered by wife, 268; in matters relating to husband responsible for fraud, 268; when must be returned, 269; can be changed, 269; when bequeathed, 270; when a stranger has promised a, 270; what can be given by name of, 271; when wife does not lose right of action for, 272; when promised, all parties liable for, 272; when a debtor promises a, 272; form of promise of, 274, 275, 277, 278; instances of grant of, 276; property purchased with, 276; under control of husband, 277; when consent of curator necessary for, 279; stipulation for return of, 280; when property acquired by slave given as, 280; when promised by woman after divorce, 282; when returned, amount must be stated, 282; father of husband responsible for, when negligent, 283; when wife gives usufruct of land, 284; when land held in common given as, 285, 286; agreement to return, effect of, 288-292; agreement for payment of, 292; when a husband can retain, 294; example of agreements concerning, 295-297; when land constituting cannot be alienated, 298; when wife appointed husband's heir and dowry bequeathed, 300; when husband sells land forming, 300; when wife not entitled to action for, 339; case of always takes precedence, VI, 3; when father brings action on, 3; division of, when divorce occurs, 4; rules relating to dotal land, 7, 8; when wife gives property belonging to another as, 7; judgment against husband's heir for, 8; when lost by bad faith of husband, 9; when conditional, 10; when wife is insane, disposal of, 12; when property is deteriorated, after divorce, 14; when return of stipulated for, 15; when husband's property confiscated, 16; when woman receives tract of land as, 16; a freedwoman when divorced can sue patron for, 17; when husband cannot retain, 20; if husband pays by mistake, can recover, 21; when release of given, 26; expenses of decrease, when, 27; when wife pays necessary expenses of, 28; various expenses of, 29; when expense willful and unnecessary, 29; what expenses paid by husband, 30; praetorian action to recover granted to husband, XIII, 20; when personal, husband has action to recover, when obligation for released, 174; when property composing is evicted, 174; when stipulation made for return of part of, 174; woman may give all her property by way of, 175; when return of not stipulated, 176; mother cannot be forced to give her daughter a dowry, 177; agreement for return of, 178; stipulation for disposal of, 179; when income of property constituting, must be paid, 182; right of action under stipulation for, 183-186; alienation of land constituting, forbidden, 188; when income for dotal land cannot be recovered, 189; agreements relating to, 190; equality to be observed with regard to, and antenuptial donations, 191; how recovered, 208, 209; when wife does not give, 191; payment constitutes a, 193; contract for must be fulfilled, 70; alienation of, XVI, 12; when promised and not delivered, 16; collation in case of, 99; when returned during marriage, 132; of first wife has preference, 343; instances of, 344; when husband did not have, paid to him, 344; must equal ante-nuptial donation, 354; increase of, 354, 355; rules concerning, 355; privileges of, as against claims of creditors, 356, 357; when returned to father, 357; collation of, when husband insolvent, 358, 359; property of acquired by marriage belongs to husband or wife if they do not marry again, 361; when preserved for children, 361; when marriage dissolved, how disposed of, 362, 363; when husband does not receive rights, not prejudiced, XVII, 3; cannot
be claimed after ten years, 4; when heirs do not demand, 5; must be delivered, 224, 225; restitution of, 227, 228.
DUPLICATIO, what it is, I, 209.
DURESS, praetorian law of, III, 56; fear necessary, 57; payment of money under, 57; various cases of, 5T, 58; action granted because of, 59; when property delivered by, 59; release of sureties because of, 60; employed by creditor, 60; when action for fourfold damages lies, 61; agreement under, 62; when employed by several, 63; action based on, granted to heirs, 64; when dowry promised through, 65; acceptance of an estate because of, 65.
E
ECCLESIASTICAL LANDS, how alienated, and released when pledged XVI 211-213.
ECCLESIASTICAL PROPERTY, emphyteutas of must be received in person, XVII, 70; when transferred to the Imperial domain, 70; acquisition of usufruct of, 71; when may be encumbered, 71, 72; outside of Constantinople, 72-75; exchange of, 75, 76; when emphyteuta does not pay rent, 76; can be alienated to ransom captives, 77; penalty for violation of law of, 78.
ECCLESIASTICS, when they marry, XII, 31; penalty for paying, 32; must not interfere in politics, 35; association with women prohibited, 36; who die intestate, disposition of estates of, 36; duties of, to curia, how discharged, 37; when summoned to court can go before bishop, 38; fees to bailiff payable by, 38, 45; shall not purchase office, 42; penalty for simony, 42; when can act as parties litigant, 43; not compelled to furnish security, 43, 44; not compelled to leave province where they live, 44; entertainment of strangers by, 45; no costs taxed against, 46; penalty for summoning before a secular tribunal, 46; what can be acquired and held by, 46; have power to donate property, when, 47; quasi-castrense peculium of, 51, 52; exempt from guardianship, 52; appeals by for delay, 56; of churches of Constantinople, number and duties of, XVI, 17; enumeration of, 18; cannot be transferred, 19; who may and may not be ordained, 35; cannot leave profession, 37; what cannot marry, 133.
EDICT OP ^DILES, principles of, V, 154; applies to sale of ward's property, 155; cases to which it is applicable, 155-157; refers to all diseases, 157; instances of, 157-160.
EMANCIPATED DAUGHTER, rule concerning, I, 127.
EMANCIPATION, effect of, I, 280.
EMBEZZLEMENT, by judges, capital offence, XV, 54.
EMPEROR, decrees of, effect of, II, 227; law, what applicable to, 227; laws of not to be interpreted with too great subtlety, XII, 86; description of, 86; how violated, 87; regulates future matters, 87; opinion of judge necessary to construe laws, 88; interpretation of by sovereign valid, 88, 89; cases referred to, XIV, 202, 203; private estate of, not subject to purchase, when, XV, 230; exemptions and liabilities for serfs attached to, 232.
EMPHYTEUSIS, of church property, XII, 23; terms of, 23; contract, how executed, 23, 24; not classed with ordinary leases or conveyances, XIII, 134; penalty may be inserted in contracts of, 134, 135; rules relating to, 135, 136; land held by, how regulated, XV, 224; how rent paid under, 228, 229.
EMPHYTEUTICAL ACTIONS, object of, III, 226, 227.
ENVOYS, of municipalities, when they fail to perform their duties, XI, 236; rules relating to embassies of, 236; cannot appoint substitutes, 236; time which may profit, 237; when damage sustained by, can bring action, 237; when appointed during absence, 238.
ERROR, in marriage with foreigner, consequences of, I, 91-93; of fact, prejudices no one, XII, 120.
ESTATE, not subject to sale, when, I, 112; surrender of by testamentary heir, when void, 114, 115; when rejected, 132; must be formally accepted by heir, 134; distribution of profit and loss pro rate, 146; belongs to agnates when no proper heirs, 151; of freedmen, division of per capita, 158; of criminal freedmen granted to patrons, 160; rejection of, 300; how effected, 300; when forbidden, 300; division of into twelve parts, II, 63; when left under a condition, 64; value of, when computed, 80; action to recover by heir, III, 171; when possession rendered in, 171; rules of, 172; who liable, 173; instances of, 173-175; may be brought against a debtor, 176; when security not given, 178; what it includes, 178; property and profits of the same must be surrendered by the possessor, 183; provisions of decree of the Senate relating to, 184-186; is a proceeding both in rem and in -personam, 187; when may be brought against a master as possessor of a right, 190; when anyone volunteers to defend, suit for, 193; interest on profits after suit brought not to be paid, 195; when recovered by suit, double damages paid, 195; when two parties are in possession of, 197; when belongs to several persons, 196, 197; extent of defence by possessor of, 199; possessory action for recovery of, 200; action to recover trust, effect of, 200, 201; does not lie against one who has surrendered, 201; acceptance and rejection of, VI, 280; who cannot enter on, 280; how acquired without acceptance, 281; child under puberty can reject, 281; who can accept or reject, 283; form of order to enter upon, 287; rules concerning acceptance of, 287; when next of kin to posthumous child cannot enter upon, 288; when heir uncertain of death of testator, cannot accept, 289; interference with, effect of, 292; acceptance of, by slaves, 292; when possession of acquired, 293; when accepted passes to heir from date of decease, 294; when a necessary heir rejects an, 294; when slave appointed heir to part of, 295; when insane person cannot acquire, 296; when heir cannot reject, 298; when duress employed to compel acceptance of, 302; relief when rejected by minor, 303; form of rejection of, 304; heir forfeits rights by rejection of, 308; fraudulent rejection of, 309; when property of, not confiscated, 330; taken from him who fails to avenge death of deceased, 332; demand for, when not delayed, 333; when rejected by heir can be compelled to accept, Vill, 56; person charged must transfer, 57; when father charged to transfer to son, 59; when master charged to deliver to slave, 66; when suspected of being insolvent, 67; when ward transfers with guardian's authority, 73; rules concerning transfer of, under trust, 80-83; when return to heir stipulated, 85; when patron appointed heir to, 84; when heir suspects insolvency of, 91; heir not obliged to give security against eviction of, 91; when transferred, servitudes remain valid, 92; form of changes for transfer of, 94-100; separation of property of, IX, 264; rules relating to, 264, 265; can be obtained against the Treasury, 265; cannot be granted when security given by heir, 266'; when several creditors exist, 267; cannot be divided when sold, 267; granted when debt is conditional, 268; when heir is
insolvent, 268, 269; can be obtained when claims filed against him, 269; acceptance of, when merged by operation of law, X, 209; spoliation of, prosecuted when action for theft not available, XI, 7; a wife cannot be accused of theft of, 7; same in law as praetorian possession of property, 275; to whom legally belongs, 278; general meaning of, 283; decree for surrender of, when made, XII, 309; when demand made for, it must be ascertained whether testator free, 309; when freedom demanded by slaves for possession of, 311; of husband cannot be given wife as dowry, XIII, 211, 212; when fourth of must be restored, 60, 61; can be legally left without writing, 62; when encumbered, 109; who can transmit share of before will opened, XIV, 75; heir cannot prosecute for plunder of, XV, 57; how must be distributed, XVII, 23-25; when a trust exists, 26; trustee can use property of, when, 26; legal division of, XVI, 95; shares of which fathers must leave children, 96; bequest of ownership and usufruct of, 96, 97; division of in life of testator, 99, 100; rules concerning distribution of, 124-128; division of in case of divorce, 128, 129. EUNUCHS, can adopt, I, 96; penalty for making, XIII, 99; XVII, 162, 163;
when they marry, how punished, 283-285.
EVICTION, when land lost by, V, 189; loss of slave by, 189; when action will lie for double damages, 191; when property obtained by creditor under, 192; cases of, 192-198; liability of vendor, when it attaches, 199; when part of land lost by, 201; in case of partition, 202; guarantee against, XIV, 311; when an action will lie for, 312; damages recovered for, 312, 313; when no appeal taken after, 315; when risk of at an end, 316; instances of, 317; creditor not responsible for, 317, 318. EVIDENCE, how and when adduced, V, 224; rules of, 224-227; records best,
225; documentary force of, 231; of slaves accepted, when, 235. EXCEPTIONS, how drawn up, I, 207; peremptory always valid, dilatory for a time, 207; use of, II, 165; rules governing, 165; when pleaded by debtors, 165; whence derived, 166; kinds of, 166; abrogation of certain, 167; on ground of land sold, when available, V, 206; examples of, 207; when and by whom employed, X, 39; how pleaded, 40; instances of, 40, 48, 62, 63; several cannot be used, 41; when cannot be pleaded in bar, 41, 42; when replication not pleaded against, 42; can be employed by surety, 43; based on res judicata, 44; when can be opposed, 44; when case lost cannot be employed, 47; when plaintiff not barred by, 47, 49-52; temporary, effect of, 54. 55; founded on fraud and fear, 59; when formulated, 59; when available, 60; instances of, 62, 63; when lies because of fraud of slave, 64; when father-in-law pleads if sued for a dowry, 66; based on fraud by vendor cannot be pleaded against purchaser, 66; creditor barred by, because of loss of debtor's money, 69; when operate as a bar, 45, 46, 52-54; when case lost, cannot be employed, 47; on ground of fraud, when filed, XII, 125; when ordered, course to be personal, 125; on ground of jurisdiction, when cannot be pleaded by soldiers, 288; dilatory, when pleaded, XIII, 35; for unpaid money, when available, 71; when an action in factum granted because of, 72; on the ground of money unpaid, when cannot be pleaded, 72; power to plead, when abolished, 73; when not available, oath cannot be tendered, 74; when can be opposed by creditors, 74; when may be pleaded, XIV, 286, 287; effect of, dilatory, 288.
EXCHANGE, nature of, V, 105; when it resembles a sale, 106; of property of religious houses, how effected, XVI, 231, 232.
EXECUTION OP JUDGMENT, claims of debtor can be taken in, XIV, 197.
EXPENSES, kinds of, I, 229; definitions of, 229, 230.
EXTORTION, prosecution for, not public, X, 335, 336; what constitutes, XI, 81;
various kinds of, 81, 82; extinguished by death, 96; penalties for, XV,
52, 53; duties of officials in case of, 53.
F
FACT, denial of no evidence, XIII, 36.
FALCIDIAN LAW, not applicable to what, VII, 181; when wife charged with liability, 182; instances of, 183-184; in case of dowry to woman who is divorced before it is paid, 184; in lieu of dowry, 185; of share of articles, rule of, 187; instances of, 188-190; of slaves, 190, 191; of provisions, must be exactly complied with, 192, 193; rules concerning, 193, 194; how interpreted, 194, 195; of equipment of land, 195, 196; how devised, 196; what included in equipment, 197-199; of income of land, 198; what not included in equipment, 198-201; of implements, disposition of, 201; fruits not included, 202; when land left with equipment, 202-204; when slaves included, 205; of other things, 205, 206, 209-211; of land, when included, 207, 208; of stewards, 208; of slave with peculium, 213; of peculium alone, 213; when debt of slave deducted from portion of, 214; when amount of peculium to be estimated under, 215, 216; of peculium to slave, 216, 217; of manumitted slave, 217; not necessary to except peculium of slave under, 218; of provisions, 220-222; what included in, 222-224; of household goods, what included in, 224-228; of subsistence, to whom made, 228-230; regarding freedom, 230-232; of foster-child, 233; of rule of relating to clothing, jewels and ornaments, 239, 240; terms of, 240, 241; of statue, 242; of gold and silver, 243-246; what included in clothing under, 246, 247; of toilet articles, 248-250, 254; of obligations, 255; of release to debtors, 256; of release of part of debt, 258; of deposit, 260; of a loan, 262; when legacy extinguished, 262; of debt, when amount not stated, 263; of release of fellow-guardian, 269; reservation in, 270; when both absolute and conditional, 272, 273; when void, 274; only one to whom portion left can be deprived of legacy, 274; to a deceased person, void, 290.
FALCIDIAN PORTION, applies to all persons in accordance with their legacies and trusts, XIV, 64; debts deducted in enforcement of, 65; when rule of does not apply, 66, 67; applicable to gifts between husband and wife, 67; not operative when assets of estate exhausted, 68; when benefit of cannot be claimed, 69.
FALLEN FRUIT, right to, I, 72.
FALSE ACCUSATION, how detected and punished, XI, 90; instances of, 91, 92; who liable for, 93, 94; punishment in proportion to gravity of offence, 93.
FAMILY, authority of head of, II, 232, 233; effect of conviction on, 233.
FARMER, land of shall not be retained as security for loan, when, XVI, 183, 184; interest on loan to, 184.
FARMER OF THE REVENUE, edict against, IX, 17, authority of, 18; action against, 17, 18; custom of neighborhood must be observed by, 19; who he is, 21; must not deceive taxpayers, 23; when can double tax, 23; when receives more than is due must refund excess, 24.
FATHER, power of over son, I, 64; absolute right of to dispose of estate, 66; adopter can give adopted son in adoption, 96; when considered to have reserved authority, 102; son, when independent, cannot be sued for
each other's contracts, XIII, 24; when usufructuary of son's estate, required to support his slaves and children, XIV, 109; when can sell property, 110; cannot acquire anything left children by grandparents, XIV, 102; usufruct to be enjoyed by, may be excepted, 103, 105, 109.
FEES, illegal, penalty for taking, XVII, 105,106.
FEMALE, alone in hand of another, I, 97; how disinherited, 128.
FEMALE AGNATES, called in the third degree, I, 153.
FEMALE CHILDREN of slave mother, property of master, I, 94.
FEMALE WARD, corruption of by guardian, penalty, XVII, 237, 238.
FEKJE NATURE, ownership of, how acquired, I, 119; II, 35; rules concerning, IX, 155, 156.
FESTIVALS and holidays, what acts legal when performed on, XII, 275-278; torture may be inflicted on, 277; May, XV, 199.
FICTIONS, in personal action, I, 190; in certain formulas, 190; in bankruptcy, 191; in Publician Action, 191; in Roman citizenship, 191; in loss of civil rights, 191.
FIDUCIARY GUARDIANSHIP, what it is, I, 105, 106.
FIDUCIARY OWNERSHIP, when contracted, I, 118.
FINE, who cannot impose, XII, 160.
FISHING, regulations concerning, XVII, 256, 257.
FOOD, price increased, X, 331.
FORCE and fear, sale effected by void, XII, 220; not material by whom employed, 219; instances of, 220, 221.
FORGERY, what punished as, XI, 74; definition of, 78; alteration of edict, 80; accusation of, XV, 41, 42; barred after twenty years, 43; investigation and proof of, how made, 46; civil and criminal proceedings in, 47.
FORM of bequest of freedom, I, 148.
FORMULA, division of, I, 192; ground of action in, statement of case assigned by judge in authority granted to dismiss action, 192; actions of law and fact in, 192; duty of Praetor in use of, 193; judgment for unliquidated damages in, 193; rules for judge, 194; must be certain, 195.
FORMULARY SYSTEM, suit can be brought for legacies under, I, 149.
FORNICATION, with slaves, effect of and penalty for, XV, 19.
FRAUD, liability for, I, 262; expenses, how recovered, 267; proof of, how defined, XI, 305; by act of surety, XII, 221; examples of, 221, 222; must be proved by conclusive evidence, 222.
FRAUDULENT CLAIM TO PROPERTY, penalty for making, I, 77.
FRAUDULENT INTENT, nature of, III, 67; instances of, 68-71; when agent guilty of, 71; when action based on not granted, 71, 72; when granted to heirs, 72; also against heirs, 72; when principal profits by, through agent, 72, 73; restitution, in cases of, 73; when actions on ground of does not lie, 73; examples of, 73-77.
FREE BIRTH, how established, XIII, 33.
FREEDMAN, cannot pass over his patron in will, I, 155; when obtain citizenship without consent of patrons, right of, 160; classes of, 223; various kinds of manumissions of, 223; estates of, how divided, 252, 286; rights of patron to, 254; services of, 286; who were, II, 9; classes of, 10; patron entitled to one-half of estate, 101; must support members of patron's family, VI, 43; must show inability to support patrons if it exists,
43; services of, what they are, Vill, 211; instances of, 211, 212; demand for services cannot be made, when, 212; can be required by children of patroness, 212; services of, only due to patron, 213; when cannot be claimed for, 213; where several kinds of services are specified, 214; where, when, and how services must be rendered by, 214-216; how services rendered when several patrons, 216; rule when hired, 217; when has two patrons, 222; nature of services of, dependent on what, 222; possession of estate of, 223; when leaves part of estate to patron, 225; when taken captive, 225; when accuses son of patron of crime, 230; when son of patron accuses, 231; when appoints foreign heir, 234; when returned to slavery after being freed, 236; when son of rejects estate of father, 238; when will of, forged, 240; when fraudulently arrogated, 242; estate of granted to municipality, 244; form of assignment of, 244; can be assigned while a captive, 244; when assignment to two children, 246; when assigned under a condition, 247; when defrauds patron, 248, 249; when dies intestate, 253; contract for services, when cannot be made before being liberated, X, 205; forbidden to practice law, XII, 185; patron cannot receive money for security of, XIII, 300; when owing services, is harbored, 301; right of to property, 302; respect due from to patron inviolate, 303; alienation by to defraud patron, 303; when cannot be forced to render services, 303, 304; ingratitude of, how punished, 305; not heard against patron, 305; right of, to wear gold ring, 306; can have son under control, XIV, 80; when alleges he is a slave cannot change condition, 146; must not maltreat or injure patron, XVI, 291, 292; when not reduced to servitude, 292. FREEDOM, annulled by noxal action, I, 102; not granted by way of penal bequest, 143; when conferred by a trust, 226; how extinguished, 226; can be taken away by will, 226; by a trust, formula of, 308, 309; how presumed, 310; granted by will, IX, 68-70; when can, and cannot be demanded, 70; under terms of trust, 71; presence of slave not necessary for grant of, 71; when received under trust, 72; when legatee to grant, 73; when creditors defrauded by grant, void, 73; ward cannot grant under trust without authority of guardian, 76; one charged with cannot render condition of slave worse, 77; when legally granted by trust, 77; when trustee conceals himself, Praetor must grant, 79; when grant of cannot be deferred, 79; grant of to unborn slave valid, 80; conferred by testator's intention, 81; when slave transferred to third party, 84; when granted female slave by a trust, 85; parties must be summoned before Praetor, when, 86; when recourse to empower grant of, had, 86; obtained by payment to heirs, 115, 116; when slave does not comply with condition upon which freedom is granted, 120; when obtained without manumission, 124; how this is accomplished, 124, 125; instances of, 125; when not obtained after manumission granted, 125-129; of no effect when made by slave, 130; actions concerning, 135, 136; when relatives may appear in, 143; when right to bring action barred, 143; when one who demands, accused of theft, 143; when he who brings suit for, enlists, 145; who cannot demand, 149, 150; slave entitled to, when alienated, 87; if proper heir rejects estate, slave entitled to can have relief, 88; may be granted to slave of another under a trust, 89; when trustee unwilling to grant, 91; absolute grant of, not delayed, 92; when testamentary guardian charged with, 94; when peculium surrendered, 95; after accounts rendered, 95-97; not allowed after slave placed in chains, 97; conditional, examples of, 97-100; status of slave under a trust, 100; legal deprivation of, 103; examples of condition of,
107-109; alienation of usufruct does not affect condition, 110; when condition concealed by heir he will be liable to an action, 111; slave must pay balance due for him to obtain, 111; when money must be paid by slave, 112; grant under a trust must be demanded, XIV, 118; when conditional, 118; rules concerning, 119, 120, 187, 188; to unborn slave valid, 120; annullment of, conditional, 123; when obtained by Latins, 123; not revoked under sole pretext of proper respect not shown, 145; actions concerning, must be heard first, 147; maintained by prescription, 154.
FKEEDWOMAN, guardianship of, I, 109; when has four children released from guardianship of patr'on, 109, 155; when marries patron, XVI, 131.
FREEMAN, when purchased as a slave, IX, 146; private agreement cannot make a, 146; who is decided to be a, 150; rules of, 151; when ownership of property obtained by, 163.
FRUIT, on tree part of soil, III, 214.
FUNERAL, only one can take place, I, 75; expenses of, IV, 90; how regulated, 90; interference with, 90; when legacies bequeathed, 91; when action will lie, 91; what part of expense of can be recovered, 92-94; when dowry liable for, 94, 95; when deceased was under paternal control, 95; when husband liable for, 95; when peculium castrense exists, 96.
FUNERAL CEREMONIES, not expensive, I, 74.
FUNERAL EXPENSES, how apportioned and paid, XVI, 239, 240; fees of clergy for, 240-242.
FUNERAL PYRE, where erected, I, 76. FUNERAL WREATHS, I, 75. FURLOUGH, length of, XV, 297.
G
GAMBLERS, rules against, IV, 82, 83; when force others to play, 83.
GAMING, prohibition of, XII, 342, 343.
GARDENERS OF CONSTANTINOPLE, regulation of, XVI, 252-254.
GENERAL AMNESTY, effect of, XV, 86.
GENERAL OF THE ARMY, duties of, XII, 134, 135; authority of, 139.
GENTILES, when called to the inheritance, I, 152.
GIFT, title by, II, 41; intention important to determine, 42; various kinds of,
49, 50; how differs from present, XI, 286. GOLD, must be removed from corpse, I, 76. GOLD RINGS, right to wear, II, 273; IX, 133, 134; effect of, 133, 134; right of
freedman to, XVI, 291.
GOVERNOR, to whom title applies, II, 257; next to Emperor, 257; duties of, 257-259; when may be applied to, 258; must keep peace in province, 259; cannot leave limits of jurisdiction, 260; must enforce respect, 260; jurisdiction of, XI, 213; of province, of what have cognizance, XII, 145; XVI, 55; what cases cannot hear, 145, 146; punishment of, 147; cannot accept donations, 160; limit of fines by, 161; oath taken by, XVI, 55, 56; must collect taxes, 56; journeys of, how conducted, 92; no jurisdiction of religious matters, 92; duty of, when assuming office, 94; must hear civil and criminal cases, 316, 317; when suspicious, bishop must sit with, 317; when injury committed by, 318; candidates for to be recommended by bishop, XVII, 175, 176; qualifications and duties of, 193; suit against, 194; restrictions on marriage of, 226, 227.
GRAIN, for the City of Rome, by whom delivered, XV, 182,183; for Constantinople, rules concerning, 183, 184; civil contributions of, how made, 184; from Alexandria, amount of, and how distributed, 185, 186.
GRANDCHILDREN, succession of, I, 151; how succeed to grandfather's estate, XIV, 79.
GRANDSON, not released with father, I, 101.
GUARDIAN, penalty for fraud by, I, 71, 72, 283; for wife in hand, 103; how appointed, 103, 232; liberty of choice, 104; different privileges of, selection of, 104; dative, 104, 233; nearest agnates appointed, 104; demanded in place of absent patron, 107; ad litem, when appointed, 107; under Lex Atilia, 107; when captured, substitute demanded, 108; curators to furnish security for, 110; exception to this, 110; of woman when forced to give consent to will, 127; when appointed must be certain person, 144; with curator, must give security, 203; legal, 232; cession-ary, 233; by decree of Senate, 234; excuses of, 283; rights and liabilities of, II, 20; testamentary, 20, 21; VI, 58; who can be appointed, II, 21, 22; fiduciary, 24, 69; whom suspected, removed by Praetor, 32; who cannot accuse, 32; VI, 70; failure of to appear, 33; proceedings against, by ward, 53; when appointed, 54; when son appointed, father liable, 54; when conditional, 56; when office of terminated, 56; office of does not pass by inheritance, 56; who is a, 57; when appointed under conditions, 58; insane person may be appointed, 58; must manage property, 59; not forced to give security, 60; must be competent to take under a will, 62; form of appointment of, 62; penalty of for refusal to accept, 63; confirmation of, 65; cannot be appointed for natural son, 66; legal, who is, 67, 68; office lost by change of status, 68; of slave, 68; when does not give security, 70; who can appoint, 71, 74; when freedman not compelled to act as, 73; how appointment of demanded, 76; when minors can apply for, 77; when suspected, 78; can be compelled to act, 79; can bring suit, 80; when several appointed, 80; when ceases to discharge duties, 82; must draw up inventory, 83; when guilty of delay, 83; must pay legal interest, 84-86; when liable for ward to third party, 86; responsibility of, 87; when not heard, 88; when responsible for acts of another, 89; can renew obligation for ward, 90; considered as owner, 91; duty to protect ward, 92; diligence required of, 93; must accept credits, 94; liable for acts, when, 94; right of action against, 95; when heir of not liable, 96; who released from liability, 98; can collect from debtors of ward, 101; not liable for double damages, 104; instances of responsibility of, 105-108; extent of authority of, 108; ward cannot legally bind himself, 109; when buys property of ward purchase void, 109; consent of, absolute, 110; when not liable, 111; fraud of, does not prejudice wards, 113; relief, when granted, 114; when considered suspicious, 114, 115; sent to Urban Prefect to be punished, 115; can accuse fellow guardian, 115; who can be removed, 117; when guilty of gross neglect, 118; who should not be appointed, 120-124; excuses of persons exempt from duties of, 125-136, 140-143; must show good cause for discharge, 128; when barred by an exception, 130; rules relating to, 130; who has promised cannot withdraw, 131; released when exiled, 136; accounting of, when can be compelled, 145; required to keep accounts, 146; when not responsible, 146; action against heir of, 147; when action based on voluntary agency, lies against, 148; when heir of, sued, 153; can reimburse himself, 156; acting, power of, 156; counter-action, rules governing, 155, 156; transactions of false, 159-
161; liability of sureties of, 162-164; when security for required by magistrate, 166; when encumbers land, 173; who only can be appointed, VI, 70, 71; when property of cannot be seized for debts of ward, XIII, 27; testamentary, rules governing, 224, 225; when uncle appointed a, 225; confirmation of, 226; to whom granted by law, 227; when appointment of requested, 228; for whom application for a, can be made, 230, 231; who can appoint, 232; who not eligible, 232-234; woman appointed, 235; when institutes vexatious action, 239; cannot administer estate without giving security, 249, 250; removal of on ground of suspicion, 251, 252; one who acts as, how removed, 254; indemnity provided for, 254; action against, by ward, 258; right of action not barred by prescription, 258; lien in favor of ward's heirs against, 259, 262; cannot manage property before inventory drawn up, 260; liability of each, 260; one cannot release another from liability, 261; oath of, 261; heir of not responsible for neglect, 262; heir of required to restore property of ward, 263; when does not act, liable, 263; duties of cannot be ended by will of ward, 268; how agent appointed by a, 268; excuses of, when valid, 268, 269, 273, 274; when void, 270, 272; not required to appeal, 272; when absent on public business, excused, 274; proceedings against, appointed by municipal magistrates, 288. GUARDIANSHIP, who are subject to, I, 102, 103; of freedmen, who entitled to, 105; of Latins under puberty, 105; cessionary, what is, 106; how males and females released from, 234, 235; how terminated, II, 26; curators, when appointed during, 27; when required, 27, 28; security for, 28, 29; accountability for, 29; when excused from, 29-32; counter-action of, XIII, 265; rules concerning, 266; suit for corruption during, 292; all persons liable to, XVII, 64; no distinction between agnates and cognates in appointment to, 64.
H
HANDLING, another's property, theft, I, 179.
HANDWRITING, comparison of, XIII, 46; when denied and case lost double damages incurred, 71; when one denies own, XVI, 100, 101; by guardian and curator, penalty for, 101, 102; comparison of, when available, 219; how many witnesses required to prove, 277; comparison of, when made, 278.
HEIR, of intestate, I, 67, 68; must be appointed in regular form, how this is done, 126; how appointed to render will valid, 128; kinds of, 131; proper and necessary, who they are, why so called, may relinquish possession, rule applies to wife, 132; foreign, who, 133; power of deliberation granted to, interference with property by, 133; when appointed without time for deliberation, 133; substitution of, 134; slave when appointed must be freed, 136; must enter on estate by order of master, 137; under control when appointed, can be charged with legacy, 145; when appointed trustee, 145; stipulation of with beneficiary, 146; liability of when estate accepted, 147; when refuses to accept may be compelled to transfer it, 147; may be asked by a codicil to transfer the estate, 148; when disputes legacy, sued for simple damages, 149; surrender of estate by, 162; released by legatee, when, 175; how appointed, 241; who eligible, 241, 242; how slave may be appointed, 242; acceptance by, 244; condition of appointment of, 288; when substituted, 288, 289; form of appointment of slave, when necessary, II, 63; may be appointed after master's death, 63; any number of heirs
may be appointed, 63; necessary, 70; proper, 70; foreign, rules concerning, 71; right of to deliberate, 71; when cannot reject estate, 71; when acceptance implied, 71; appointed by will, VI, 208; formula, 208-210, 214, 215, 217-220, 223, 225-227, 232; under condition, 210, 211; when master appoints slave, 211; when name not mentioned, 213; when two heirs appointed, 213, 215; when slave substituted, 228; when Emperor appointed, 238; when conditional, appointment of void, 257; must comply with all conditions, 258; various examples of, 260-264; when void, 261; time for deliberation of, 264; when appointment of by soldier not valid, 269; when intention of, makes responsible, 285; when accepts estate and retains it, VII, 312; proper and at law, who are, Vill, 289; succession of, 289, 290; how inheritance passes to, 290, 291; who are not, of kin, 291; child, born after ten months, admitted as, 293; rights of, how lost, 294; acceptance, not necessary, when, 294; illegitimate child, when admitted as, 295, 296; when estate of mother not transmitted to, 295, 296; when mother entitled to estate as, 297, 305, 306; when right remains in suspense, 298; rules concerning, 300; when estate rejected by, 300; when curator demanded by mother for unborn, 301; when guardian required for, 302; adoptive father does not exclude mother as, 303; who not entitled to be an, XIII, 342, 343; appointment of husband by wife, 343; when stranger can be appointed, 344; conditional appointment of, 345-348; substitution of, 349; kinds of substitution of, 350; who can make substitution of, 351; instances of substitution of, 351, 352; necessary, insolvent person can appoint, XIV, 3; proper, cannot be excluded, 12; child, when acts as, 13; son, when independent, can claim estate as, 13; necessity of acceptance of estate by, 16; rules concerning conduct of, 17; time granted when absent, 18; when estate surrendered to creditors by, 18; when conceals property of estate, to return double the amount, 19; must make an inventory, 20; entitled to deliberation before acceptance, 20; when estate declined by, cannot be sued, 22, 23; when placed in possession of estate, 25; when must surrender estate, 27; penalty for not avenging death of testator, 28; instances of, 28, 29; cannot be appointed or substituted by, 31; property when concealed by, penalty, 38; rejection of property by, 41; when charged with legacies must pay them, XVI, 4; when security must be given by, 4, 5; when inventory to be made by, 7; duties of, 8, 9; rules for the protection of, XVII, 199-201.
HEIR AT LAW, who can succeed to estate as, XII, 294; brothers and sisters enjoy equal rights as, XIV, 89; when no, in descending line, 90; when no proper, who succeed, 91.
HELLESPONT, Governor of, extent of jurisdiction, XVI, 162, 163; title of, 163, 164.
HEREDITARY ACTIONS, when heir liable for, XIII, 28.
HERETICS, who are denounced as, XII, 9, 10; cannot enjoy privileges, 63; who are, 63; assemblage of, prohibited, 64; wills of, when void, 64; penalty for aiding and concealing, 64, 65; enumeration of various, 65, 66; books of to be burned, 66; disabilities of, 66-68; transfer of property to the orthodox, void, 68, 69; confiscation to Treasury, 69; succession to, 69, 70; when suspected, considered infamous, 70; cannot testify against orthodox persons, 71; when not released from curial obligations, XVI, 209; when cannot testify, 210; cannot acquire land, XVII, 130; assemblies of, prohibited, 132.
HOMICIDE, unlawful, definitions of, I, 181; justifiable, 326; by insane person, not punished, XI, 66; of slave, penalty for, XV, 28, 29; excusable, 29, 30; of infant, 30; of parents, penalty for, 31; by poison, 31.
HOTCHPOT, rules of, XIII, 313-319; disposition of, 320; peculium under, 316.
HOUSEHOLD, testimony of members of, not competent, XIII, 36.
HUSBAND, if becomes insane, when marriage dissolved, XVII, 295.
HUSBAND AND WIFE, capacity to take under will, I, 236; who does not avenge death of wife loses dowry, VII, 298; when enters clerical order, provisions relating to, XII, 54; cannot be sued for contracts of each other XIII, 211.
HYPOTHECARY ACTION, when right to bring, extinguished, XIV, 176.
HYPOTHECATION, how contracted, V, 120; how differs from pledge, 121; when interest paid, 123; what property subject to, 124; when land increased by alluvion, 124; rights of creditor under, 125-127; instances of, 127-130; when debtor given property in, 134; examples of, 135, 140; right of, granted husband during marriage, XIII, 65; woman may demand, 67.
I
IGNORANCE, of law injurious, of fact not, V, 239; when not excusable, 239; money paid through cannot be recovered, XII, 120.
ILLEGAL CLAIM, penalty for, I, 77.
ILLUSTRIOUS PERSONS must be represented by attorneys, XVI, 268.
IMPERIAL HOUSEHOLD, privileges of lands belonging to, XV, 237.
IMPERIAL ORDER, must be signed by quaestor, XVII, 38.
IMPERIAL SECRETARY, duties and privileges of, XV, 255-258.
IMPERIAL STEWARD, duties of, II, 261; disabilities of, 261.
IN CAUSA CADUCI, cases of, XIV, 70.
IN HAND, ceremony of, I, 97.
INCEST, prosecution for, XI, 37; examples of, 48, 49; not prescribed after ten years, 50; instances of, 51.
INFAMY, who branded with, III, 7-9, 12; who do not incur, 10, 11; penalty of, 12-14; instances of, XII, 201-203; not incurred by imprisonment, 200; when estate is plundered, 202; affects those who have agreed with reference to crime, 203.
INFORMER, who can be, I, 320, 321; rules relating to, XI, 159; when withdraws accusation what should be done, 163; penalty inflicted on, 164; who cannot act as, 164, 165; cannot desist, 167; corruption of, 167; persons who protect interests of the government not to be classed as, XV, 98.
INHERITANCES, nature of, I, 124.
INJURY, how suffered, I, 312; who can commit, 312; kinds of, 312, 313; action for, 312; penalty for, 312; accusation for, 313; definition of, II, 144; how committed, 144; various kinds of, 144; when inflicted on slave, 144; upon a freeman, 145; penalty under Twelve Tables, 145; what it is, and how caused, X, 305; what it involves, 306; by whom caused, 306; when committed against others, 307, 308; how can be suffered, 309; when slave killed to cause, 310, 311; what is atrocious, 312; when a slave inflicts, master can be sued, 312; loud abuse constitutes, 315; against one under control of another, 321; cases of, XV, 59, 60; gives rise to private action, 60; how instituted, 61.
INJURY, THREATENED, edict of Praetor, Vill, 319; instances of, 319-323; who can enter into stipulation against, 323; when security against demanded, 324; when security demanded by several, 326; when owner absent, 327; rule when land is leased, 327; what action will lie, 327; when security given to tenant, 330; stipulation by vendor against, 330; when possession permitted because of remedy, 332; when indemnity against permitted by owner, 332, 333; when plaintiff placed in possession because of, 333; what provided for in stipulation against, 334; proceedings for, available when light cut off, 335; joint-owners can each stipulate, 336; when action under bond of indemnity not granted, 336, 337; party-wall, rule concerning, 338-341; when bond against refused, 342.
INNKEEPERS, responsibility of, III, 134; what must be safely kept by, 135; liability for acts of travellers, 136; not liable outside of their business, 136; not paid for safe-keeping of property, 137; liable to action in factum, 138.
INSANE PERSON, status of, II, 230; children of may be disinherited if they neglect their parents, XII, 62.
INSOLVENT DEBTOR, when property of is sold during his lifetime, I, 161.
iNSTiTpgiAN ACTION, what it is, IV, 212; rules of agency in, 213, 214; may be brought by surety, when, 214; granted against agent, 214; when agent a minor, 215; when master of slaves is liable in, 217.
INSTRUMENT, written, proof of a genuineness of, how established, XVI, 275; when presence of security not required, 276; how should be drawn up, 276.
INTERDICTS, object of, I, 211; kinds of, 211; for possession, 211; when confiscated property is purchased, 212; Salvian decree, 212; prohibitory, 214; order and effect of, 214; secondary, 216; description of, 315; proceedings under, 316; effect of when issued, 316; when they lie, 316; when available, IX, 283; object of, relating to private property, 284; noxal, what they are, 284; quorum bonorum, edict of Praetor concerning, 285; debtors of estate not liable under, 285; quod legatorum, object of, 285; when will not apply, 286; rules relating to usufruct, 286; when ground for, 287; when security given, 287; when restitution not made, 287; prohibiting violence, 288; when not liable, 289; instances of, 289, 295-298; for production of papers relating to a will, form of, 290; can be issued whether will valid or not, 291; amount of damages when legacy is in dispute, 292; in favor of whom will lie, 292; concerning public places and highways, 293, 294; edict relating to, 294; when lessee may apply for, 300; concerning rivers and navigation, 301-303; public rivers, 302; against obstruction of rivers, 304, 305; not available against heirs, 306; against raising banks of streams, 307; against violence, edict concerning, 308; only applies where possession interfered with, 308; when forcible ejection takes place, 309, 310; will not lie in favor of everyone, 310; rules for application of, 311, 312; lie in favor of heir and other successors, 313; action, when perpetual, 313; when one opposed by another, 314; rules relating to, 315, 316; relating to conduits, edict of Prastor concerning, X, 3; interpretation of, 3-5; relating to springs, when applicable, 6; relating to sewers, rules of, 7, 8; relating to work done clandestinely, 9; examples of violence, 9, 10; when notice should be served, 11; against whom available, 12; when exception against may be pleaded, 13; grounds for, 15; removal of supports of vines, 15; when land sold after work completed, 16; other sales of land, effect of, 17; when interdict Quod vi aut clam will lie, 18; employed against party in
possession, 19; granted against heir and other successors, 20; amount of judgment under, on what based, 20; how interest established, 20; Quod m aut clam acquired by anyone for owner, 21; violence, when prohibited, 21; employed when anyone loses rights, 22; relating to cutting trees, 31; examples of, 31, 32; relative to production of free person in court, 32; who not liable to, 33; lie in favor of anyone, 34; perpetual, 34; relative to production of children in court, 35; when granted against child himself, 36; Utrubi, relate to movables, 37; relating to removal of tenants, 37; for whom introduced, 38; granted against whom, 38; possession must first be determined before available, XIV, 236; Quorum bonorum, when applicable, 237; Quorum legatorum, effect of, 238; Unde vi, use of, 238-241; Vti Possidetis, 242; Salvian, 243.
INTEREST, rate of, 1,274; rate, how determined, V, 207; when security for given by defendant, 208; when demand made on surety for, 208; rules concerning, 212; need not be paid on profits after issue joined, 213; Treasury does not pay, 214; illegal, not payable, 215; rate of, must be stated, 217; when due through default, 218; to what time calculated, 220; penalty instead of, not allowed, 221; collectible even if agreement not in writing, XIII, 78; can be demanded when pledge retained, 78; when tendered not afterwards collectible, 79; when grain given as, 81; upon what part of debt credited, 82; mother compelled to pay, on child's money, 82; rules concerning payment of, 82, 83; more than double cannot be collected, 83; on money transported by sea, 84; on judgment, legal rate of, XIV, 197; when delay granted, 198; notice by judge to pay, 200; not collected on a penalty, XV, 95.
INTERROGATORIES, when made in court, IV, 68; rules concerning, 68, 69; when need not be answered, 69; replies to, how made, 70, 71; when asked of heir, 71; what may consist of, 70; when party released from liability, 72; when answer to can be recalled, 72; rules governing, 73, 74.
INTESTACY, rules of, II, 87, 88; proper heirs, 87, 88; emancipated children do not succeed by, 89; rule relating to adopted children, 89, 90; succession under, by grandchildren, 91; division under among heirs per stirpes, 92; how children in female line succeed in case of, XVI, 97; law of relating to concubines and their offspring, 98; rules relating to, 98.
INTESTATE SUCCESSION, Vill, 255; rules of, 255, 256; when pnetorian possession can be demanded because of intestacy, 256; rules concerning emancipated children, 257; rights of parents by, 257; rule concerning agnates, 258-260; rights of cognates in case of, 261-263; dependent upon Praetor, 261; rules of descent in case of, XVII, 61, 62; of collaterals, 63, 64.
IRENARCH, reference to, XI, 23; duties of, XV, 163. ISAURIA, Count of, rank and jurisdiction, XVI, 160-162.
ISSUE, joinder of, when it takes place, XII, 272; what is to be done which does not take place within two months, 272, 273.
J
JEWS, punishment of, who maltreat Christians, servants of sect, XII, 75; not immune from curial charges, 75; cannot marry Christians, 75, 76; other disabilities of, 76, 77; shall not be molested on the Sabbath, 77; shall not be oppressed, 77; chiefs of, cannot collect taxes, 78; cannot hold office, 78; shall not circumcise a slave, 79; how can conduct religious rites, XVII, 169, 171; must live in accordance with Christian rites, 255.
JOINDER OF ISSUE, when must take place, XVI, 352.
JOINT LEGATEES, rights of, 1,140.
JOINT LIABILITY, of sureties, XVI, 363, 364; when insolvent, 364; who shall hear cases of, 364.
JOINT OWNERS, right of in estate of former slave, 1,158.
JOINT STIPULATOR, liability of, I, 182.
JUDGE, who makes case his own, III, 144; when party makes, his heir, 145; when party not held to have accepted a, 151; appointment of, 151; when dies, successor must follow his course, 154; limitation of jurisdiction of, 154; estimate of damages made by, 154; can be compelled to render decision, 156; when father and son may be, 157; when mistake in name of, 158; all considered to have rendered decisions when all present, IX, 238; may examine prisoners on Sunday, XII, 58; cannot leave province, 148; civil, restrictions of, 149; military, duties of, 149,150; must remain forty days in province after leaving office, 152; when must relinquish authority, 153; must end litigation in twenty days, 153; when complaints made against them, given up for punishment, 157; of Alexandria, 165; cannot purchase property without a rescript, 159, 160; must commit sentence to writing, 161; must supply anything written by litigant or advocates, 200; when delegated by another cannot delegate a third, 259; must carefully examine case, and interrogate parties litigant, 260; hearing refused by, when, 260; cannot protract cases for more than three years, 261; must not inform party who was absent of what was done when he appears, 265; cannot increase costs when sworn to, 266; when suspected, who shall hear case, 266; when special appointed, what is to be done, 267; what fines imposed by, 267, 268; no one can act as own, 270; recourse to another, when, 274; special, by whom appointed, 268; when can delegate jurisdiction, and how, 269, 270; general competency of, 278; when jurisdiction of cannot be questioned, 278; when application to, not necessary, 291; should render decision in writing, XIV, 186; when may decide orally, 186; when renders obiter dictum decision void, 191; penalty of attempting to corrupt, 192, 193; degraded, XV, 241; must not purchase office, XVI, 51, 52; selection of, by Emperor, 304; can delegate cases, 305; jurisdiction of ordinary, 306; fees of, 306, 307; must examine bills of costs, 307, 308; letters to, 309; when no judges, application made to defender, 318; penalty paid by, when convicted of bribery, XVII, 105; shall not compel compromise, 106; civil or military must not appoint deputies, 118, 138-140; authority of to punish crime, XVII, 118; when transferred, may appoint agents, 119.
JUDGMENT, must be for definite sum of interest, IX, 242; rule in action to enforce, 243; when rendered, right of action on guardianship not extinguished, XII, 258; when plaintiff not found, 261; when either of parties in default, 262; when rendered in absence of either party, 262; against minors, not valid, 270; order of, to be opened, 271, 272; balance due on account of cannot be recovered or set off, XIII, 75; against several at once, effect of, XIV, 199; against two guardians, 200; right of absent party not prejudiced by, 200; when based on forged documents, 201; cannot prejudice rights of third parties, 202; appeal from, cannot be denied, 204.
JUDICIAL CORRUPTION, penalty for, I, 73.
JUDICIAL INQUIRIES, when made by governors, XI, 251, 252, 256; what included in, 252, 254; four kinds of, 254, 255; when magistrate liable in, 255.
JUDICIAL ORDER, when void, XI, 154; when necessity for does not exist, 154; when made by guardian or curator, 156; if death occurs when appeal pending, 156; when no heir, is extinguished, 157.
JURATORY SECURITY, when available, XVI, 228; magistrate may compel appearance of defendant, 228.
JURIDICUS, meaning of title, II, 262.
JURISDICTION, nature of, II, 265; simple or mixed, 265; extent of, 266; examples of, 266; when right of action reciprocal, 267; of municipal magistrates, 267; magistrate may delegate, 267; limitation of, 267; of Praetor, 267; if exceeded, judgment may be disobeyed, 268; refusal to obey, 270.
Jus QUIRITIUM, when not applicable, XIV, 160.
JUSTICE, divisions, II, 209; when dispensed, II, 293; administration of, when suspended, 293.
JUSTICE AND JURISDICTION, definition of, II, 5.
L
LAITY, when shall not take part in religious processions, XVII, 155.
LAND, enclosure of, I, 72; in provinces not subject to usucaption, 116; possession of, when vacant, 116; acquired by alluvion under natural law, 119; division of, has effect of sale, XII, 334; who cannot transfer to strangers, XV, 214; abandoned, rules concerning, 217; by whom fiscal obligations of, discharged, 217-219; when owner forced to reserve possession of, 219; liability of owner of, 220; and forests of Imperial domain, regulations of, 223; when may be retained by private person, 223; rent of must be paid, 224; fugitive serfs of, returned, 227; of cities, how leased, XV, 234, 235; of Treasury, who cannot lease, 236; not released from pecuniary obligations, 237; maritime law concerning, XVII, 256.
LAND MARKS, removal of crime, I, 265.
LANDLORD, when liable, V, 88.
LAPSED LEGACY, disposal of, I, 237.
LATINI JUNIANI, who they were, I, 85; rights of, 157.
LATINITY, rights of, I, 96.
LATINS, can take under the terms of a trust, I, 149; not legally manumitted, 224; how obtain citizenship, 226, 227; how gained by repetition, 227.
LATIUM, same laws operative in as at Eome, I, 73.
LAW, division of, I, 83; perfect and imperfect, 223; definition of, 223; precepts of, II, 5; public and private, 5, 211; of Nature and nations, 5; sources of, 6, 7; of persons, duties of, 8; when derogated and when abrogated, XI, 274.
LEASE, verbal, valid when, XIII, 132.
LEASING AND HIRING, rule of, I, 171; action for, II, 123; various kinds of, 123; contract of must be strictly complied with, 124; governed by same rules as purchase and sale, V, 78; when lessees responsible for negligence, 80; when lessor liable for acts of slaves and sub-tenants, 80, 81; when liable for fire, 81; when clothing claimed, 82; when lessee responsible in full, 82; duration of, 82, 83; what implements must be furnished in a contract of, 85; action passes to heir, 86; may be made condition-
ally, 87; when contract for cannot be rescinded, 87; when an action against tenant will lie, 88; instances of, 92-97.
LEGACY, how many kinds of, 1,137; forms of bequests of, 137; of property of another, when valid, 138; when left to two or more persons, 138; when bequeathed as a claim, conditionally, 138; how bequeathed by condemnation, 139; of property not in existence, 139; when of property not subject to mancipation, 139; when no owner of, 139; when left to uncertain person, void, 144; to a posthumous stranger, void, 144; bequeathed conditionally, question as to validity of, 145; left by a codicil, not valid unless confirmed by testator, 148; bequeathed in Greek, not valid, 149; preferred, how paid, 291; heir appointed before payment, 291; when property hypothecated, 291; when consists of usufruct, 292, 293; articles included in, 293, 294; of land and crops, 294, 295; other property bequeathed, 295-297; when left or taken away as penalty, void, II, 78; revocation of, how made, 79; transfer of, 79; when selection of slave left by, VII, 11, 12; of property in hands of enemy, 12; when left to slave, 12; when left twice to same person, 13; when bequeathed to two persons, and one is dead, 14; general rules relating to, 14-16; of debt to creditor, 17; left on condition, 18; to several persons, 18, 19; lapsed share of, rule concerning, 85; by two wills, 19; forms of, 19; part of cannot be accepted, 21; all corporeal property subject of, 23; what cannot be bequeathed, 24; when extinguished, 25; when dependent on will of third party valid, 25; of claims, 26; of slaves, 26, 30, 33-36, 44, 46-49; when conditional, 29; by surety to creditor, 29; to a slave, 30, 46; to a substitute, 31; when insulting, void, 32; if property encumbered, 32; of land with servitudes, 35; when left to villages, lawful, 37; of trust, form of, 38; of share of slave, 42; of dowry, 43; of pledged slave, 44; recovery of, 45; of property of enemy, 50; when left to city, 59; when dependent on will of third party, 62; when articles of, specified, 62; when money left as, not found, 64; to debtor, 65; to slave owned in common, 66; when no date given, must be delivered on day of acceptance of estate, 68; how claimed by heirs, 69; for use, 72; definition of, 72; of animal that dies, 75; when heir charged with legacy to be paid wife, 76, 77; to Emperor, 78; when heir, not aware of, pays funeral expenses, 79; payment of before due, 100; when left to a municipality latter is a trustee, 109; returned when condition violated, 114; to concubine, 117; examples of preferred, 121; when increased, 133; when slave included in, 134; to insane person, how conditional, 135; what included in, 136-150, 153, 154; when heir charged with trust, 157; how interpreted, 157; instances of, 158-166; considered multiple, 160; when void, 161, 165; of usufruct, 169, 170; to wife, 171; to woman till dowry paid, 172; specific bequests under, 177, 178; of servitudes, instances of, 178-180; of dowry, what it includes, 180; when preferred, 180; Falcidian law not applicable to, 181; when wife charged with trust in, 182; instances of, 182-184; of dowry to woman who is divorced before it is paid, 184; in lieu of dowry, 185; of share of articles, rules of, 188; instances of, 188-190; of slaves, 190, 191; of provisions, must be exactly complied with, 192; rules concerning, 192-194; how interpreted, 194, 195; of equipment of land, 195, 196; how made, 196; what included in, 197, 222-224; of income of land, 198; what not included in, of equipment, 198-201; of necessary implements, 201; fruits not included, 202; when house left with equipment by, 203; when slaves included in, 204; other things of, 205, 206, 209; of land,
when included, 207, 208; of steward, 208; of slave with peculium, 213; of peculium alone, 213; when debt of slave deducted from, 214; when amount of peculium to be estimated, 216; of peculium to slave, 216; by manumitted slave, 217; of slave, not necessary to except peculium, 220; of provisions, 220-224; of household goods, what it includes, 224-228; of subsistence, to whom made, 228-230; of freedom, 230-233; for foster-child, 233; of clothing, jewels and ornaments, 239, 240; terms of, 240, 242; of a statue, 242; of gold and silver, 244, 245; of clothing, what included in, 247, 248; of toilet articles, 254; of obligations, 255; of release to debtor, 256; of release to surety, 257; of part of debt, 258; of deposit, 260; of a lease, 262; when extinguished, 262; of debt, when amount not stated, 263; of release of fellow-guardian, 269; reservation in, 270; when both absolute and conditional, 273; when void, 274; only one to whom it is left can be deprived of, 274; to a deceased person void, 290; when takes effect, Vill, 101; rules concerning vesting of, 101; when effects of, suspended, 102; annual, how paid, 103; forms of, 107-111; security for payment of, rules concerning, 111-118; collectible even when estate sold, XIV, 33; mistake in name does not affect right to, 33; when can be revoked, 35; no special form required for, 36; construction of bequests of, 36, 37, 40; by married persons to each other, 42; when cannot legally be claimed, 46; every word showing intention of testator to bequeath, valid, 52, 53; when choice of articles left as, 54; false statements do not render, void, 56; when interest on can be collected, 59, 60; when bequeathed conjointly, 73, 74; a person who is unworthy deprived of, 74; payable annually, when collected, 76; must be paid in a year, XVI, 9.
LEGATEE, when appointed heir to military will, I, 125; cannot be charged with a legacy, I, 148; must ascertain, II, 76; mistake in name of, 77; form of bequest to, 77; creditor not entitled to personal action against, XIII, 29.
LEGITIMACY, after death of husband, I, 65.
LESSEE, obligations of, V, 89; must pay rent while he uses the premises, 90; liability of, 91, 95; action against, when it lies, 95; surety for, is liable, 97; when abandons land, 98; heir of, will hold possession, 99; when cannot be ejected, XIII, 128, 129; heirs of do not succeed, 130; must observe only provisions of lease, 131; when rents own property, contract void, 131; may be sued for fraud or negligence, 132; when does not surrender property, 133.
LEX .^EBUTIA, effect of, 1,190.
LEX JELIA SENTIA, provisions of, I, 88; effect of, II, 11,12; Vill, 205, 292; IX, 125-127.
LEX APULEIA, as to partnership, right of action of recovery, not applicable to sureties, I, 167; effect of, 167.
LEX AQUILIA, effect of, II, 141; to what it applies, 141,142; value of object sued for under, 142; estimate of damages, 143; actio.ns under, III, 342-344; IV, 20, 52, 69, 77, 104, 122; V, 48, 62, 91, 94; X, 258, 289-291; XII, 183, 326, 327.
LEX ASINIA ANTISTIA, effect of, 1,101. LEX ATILIA, I, 233. LEX CALPURNIA, effect of, 1,188.
LEX CICEREIA, publication of claim, amount, number of sureties, I, 167, 168; preliminary trial, release from liability under, 168; effect of, 168.
LEX CINTIA, XVII, 195.
LEX CLAUDIA, effect of, 1,104; abolition of guardianship by, 106; XIII, 227.
LEX COMMISSORIA, provisions of, I, 273.
LEX CORNELIA, on sureties, 1,168; penalties under, 325; XI, 60, 67-76, 80, 123; XIV, 327, 354; XV, 30, 41, 48.
LEX FABIA, IV, 344; XI, 87-89; XV, 38.
LEX FALCIDIA, provisions of, I, 143, 249; retention by, 297; what not subject to, 297; cause of passage of, II, 80; estates estimated by, 80; V, 227, 239; provisions of, Vill, 3; to whom applies, 3-6; when servitude bequeathed, 7; establishment of amount due under, 12; rule of with regard to coheirs, 14; how applicable to foreign heirs, 16; when loss caused by death, 16; how amount due heir estimated, 18; when slaves bequeathed to be manumitted, does not apply, 20; when property must be appraised, 22; includes all payments, 22; when value of peculium computed under, 24, 25; estimates of share of estate under, 27; becomes operative when conditional bequest fulfilled, 30; usufruct subject to, 33; examples of, applicability of, 35-37; XIV, 64, 65; XVI, 8; XVII, 69, 129.
LEX FURIA, limitation of bequests by, I, 142; applicable to Italy, 167; liability of sponsor and guarantor, unless for debt, 167; when applicable, 167.
LEX FURIA CANINIA, restricts grant of freedom, I, 143; effect of, 225, 309; forms of, 225, 226; operation of, II, 12; XIV, 118.
LEX JULIA, I, 118; prohibits unmarried persons from taking estates and legacies, 150; on taxes, 168, 234; exemption from penalties, 235; effect of, 329, 330; V, 233, 235, 253, 297, 300; XI, 19, 26, 38, 39, 46, 51, 55, 57, 81-87; XIII, 188, 212; XIV, 228; XV, 4-24, 51-54.
LEX JULIA ET PAPIA, effect of, I, 103; V, 238, 251; XI, 163; XIII, 154.
LEX JULIA ET TITIA, II, 24.
LEX JULIA MISCELLA, XVI, 134-137.
LEX JUNIA, provisions of, I, 234; XVI, 290.
LEX JUNIA PATRONIA, IX, 50.
LEX MINICIA, provisions of, I, 92.
LEX PAPIA, provisions of, I, 155; effect of, II, 101; patron and descendants called to succession by, 101, 102; rule applicable to collateral relatives, 102; assignment of, 103; XIV, 69, 70.
LEX PINARIA, effect of, 1,186.
LExPoMPEiA, provisions of, I, 327; XI, 64.
LEX PUBLILIA, for money expended, 168; obligation by writing, 168; as to purchase, lease, or partnership, 169; validity after money paid, 169; effect of, 188.
LEX RHODIA, effect of, I, 270; general average under, I, 271.
LEX SERVIA, V, 117.
LEX VALLIA, effect of, 1,189; VI, 196.
LEX VISCELLIA, I, 227; XV, 40, 41.
LEX VOCONIA, effect of, 1,142.
LIBEL, how punished, XV, 62.
LIBERTY, judgment in favor of, I, 68.
LIBONIAN DECREE OF SENATE, VI, 63; XI, 67.
LITIGANT, must swear that he did not bribe judge, XVII, 104; must be sworn when, 283.
LITIGATION, costs and expenses of, how ascertained, XIV, 193, 194; time granted for, 215; what property subject to, XVII, 32; bond must be furnished by plaintiff, 33; decision must be rendered in a year when plaintiff contumacious, 34; pragmatic sanction not operative in, 35-37.
LOANS, kinds of, I, 268; action on, not granted insane persons, IV, 178; nature and rules of, 179; diligence required in, 179; examples of, 181, 182; in, for use, both ownership and possession retained by lender, 182; instances of liability, 183; property of others can be lent, 184; bailee responsible for bad faith, 184; counter-action on loan, nature of, 184; when it lies, 184, 185; if when loaned, a slave commits theft, 186; novation of, XIII, 8; origin of, not considered, 9; payment of several claims should not be opposed because only one evidence of debt, 9; debtor liable for, when used for another, 10; to a judge, effect of, 10.
LUCRATIVE POSSESSION, and usucaption, I, 117.
LYCAONIA, Praetor of, XVI, 150; jurisdiction of, 150-152; duties of, 153-154.
M
MACEDONIAN DECREE OF SENATE, I, 272; effect of, II, 159; what it was, IV, 228, 229; judgment rendered under, 230; instances of application of, 230, 231, 233; XIII, 61-63; when cannot be invoked, 62.
MAGIC ARTS, penalty for, I, 69; prohibited, XV, 32; penalty for practicing, 33, 34.
MAGISTRATES, jurisdiction of, I, 82; suits against, when they lie, VI, 164; when magistrates exact security from, 168; municipal, have power to draw up decrees, XII, 165; creation of, XVI, 53; cannot appoint deputies, 54; how sworn, and when must give security, 61, 62; form of oath of, 64, 65; duties of, 87, 88; must prevent sedition, 88; restrictions of, 89; treatment of criminals by, 89; when should not leave province, 350; duty of, when giving up office, 351; municipal, power of, XVII, 274; when robs Treasury, how punished, 290.
MALES, at puberty, released from guardianship, 1,110.
MANCIPATION, persons subject to, I, 98; what it is, 98, 238; who and what are included, 98; difference between land and other property, 99; what subject to it, 238.
MANDATE, effect of, I, 173; when against good morals, void, 173; revocation of, 173; when death occurs, annulled, 173; action of, when lies, 173; when may be refused, 274; how contracted, II, 127; when for sole benefit of mandator, 127; when for benefit of both parties, 127, 128; principles of, 128, 129; when not obligatory, 129; execution of, 129; when void, 129; acceptance not compulsory, 129; is in fact bailment, if not gratuitous, 130; for obligation contracted, and on what based, IV, 304; examples of, 304; action on, can be brought when, 304; does not apply to dishonorable act, 305; as applicable to attorneys, 306; in case of guardian, 306; when sureties not liable to action on, 307; when security is necessary in, 308; when crops are gathered, 308; liability when stipulation made, 309; when sureties entitled to action on, 310; when master can sue on, 310; when heir of surety entitled to action on, 313; profit on, not permitted, 314; terminated with death, 317, 318; liability of sureties on, 319; when action only granted on one side, 324;
when surety has paid by mistake, 327; by slaves and others, 328-330; questions concerning, 331-333; when obligation on, arises, V, 115; action of, when it lies, XIII, 87; examples of, application of, 88; against attorney for acts, 88; when terminated, 89; what at stake in, 90; when a slave directs a stranger to purchase him, 92.
MANDATOR, when bound for interest paid, XIV, 299; may be sued with principal debtor, 301, 302; when not released from liability, 303.
MANIFEST THEFT, penalty, 1,178.
MANUFACTURERS, what is required of, XV, 175; enrollment of, 175-176; need not answer in court, when, 176.
MANUMISSION, requisites of, I, 84; power of, restricted, 87; causes for, 87; of slaves, limitation of, 87, 88; by joint-owner, 225; when usufruct and ownership exist, 225; not granted after death of heir, 225; when void, 225; operative when heir accepts estate, 225; must be definite, 225; forms of, 226; rules of, 307; II, 9,10; who can, and cannot grant, 10, 11; of slaves, when bequeathed, IX, 45; when pledged, not subject to, 45; when done by purchaser of slave himself, 46; who cannot give, 48; when cannot be accomplished, 48; when consent of father required, 49; rule as to dotal slaves, 50; before a magistrate, 51; minors must grant in court, 52; just cause for, what is, 52; of foster-children, 53; reason for must be given, 54; when, and before whom can take place, 54; of female slaves for marriage, 55; when made by lictors, 55; of municipal slaves, 56; testamentary, form of, 56; other forms of, 57, 58; under a condition, 58, 60-62, 64, 65; not granted for specified time, 64; when granted by mistake, 66; of slave not part of estate, 100; when purchaser must grant to slave, 101; granted under a certain condition, rules of, 103,104; valid if heir does not consent, 104; when slave ordered to pay him, 105; not granted to thief, 106; not granted to defraud creditors, 130; not allowed, if false statement made by master, 130; void when made by insolvent person, 131; of slave, part of castrense peculium, 132; modes of granting, XIV, 112; by patron, 113; by will, 113; when estate rejected, 113; must be made when estate accepted, 116; in the presence of friends, 124; of slave owned in common, 127; of slave by joint-owner, 128; can be bequeathed to himself, 129; of slave when pledged, effect of, 129; rules relating to, 130; when bequeathed by other than master, 131; of minor under twenty years of age, 132; who cannot bestow, 132, 133; of slaves forming part of peculium, void, 133; when fraudulently granted, void, 133; when cannot be given, 134; when granted as a reward, 134, 135; of freeborn persons, 135, 136.
MANUS INJECTIO, form of, I, 188.
MARKET, privileges of holding, time when expires, XI, 246, 247.
MARRIAGE, of Senators with plebeians, prohibited, I, 76; with slaves, forbidden, 89; restriction of, 90; with foreigners, consequences of, 91; when legal, 227; definition of, 227; not legal with slaves or blood relatives, 228; when incestuous, 228; of free persons with slaves, illegal, 277; who cannot contract, 276; effect of, when not allowed, II, 14, 15; when may take place, V, 244, 245; when prohibited, 245-247; when relationship an impediment to, 248; when legal, if compulsory, 248; when void, 249; forbidden between guardian and ward, 250; of daughter of public official forbidden, 250; of senators, when prohibited, 252, 253; when consent of patron necessary to, 253; of actress, 254; of freedwoman,
255; of liberated female slave, 255, 257; of adopted son and ward, 258; of daughter of guardian to ward, 259; of children of guardians to wards, 259, 260; how dissolved, 335-342; when question as to a, arises, must be referred to the Governor, XIII, 146; with an official, when legal, 147; when proved by neighbors' testimony, 147; no one can be compelled to contract, 148; with whom cannot be contracted, 149; wishes of father to be considered, 149; formalities of by soldiers not required, 150; of actresses and their daughters, 152; of children of insane persons, 153, 154; of freedmen, 154, 155; incestuous, penalty for, 156, 157; of wives of deceased brothers, void, XIII, 158; of guardian or curator with ward, forbidden, 158, 159; of public official who relies on his power to effect it, 160; by means of a rescript, prohibited, 160, 161; when woman who contracts a second, becomes infamous, 161, 162; when a woman contracts a second within a year, succeeds to children, 162, 163; when profit obtained during, belongs to children, 165; rules relating to second, 166-170; after a second, property of woman hypothecated to children, 169; not dissolved by deportation or interdiction, 201, 202; not dissolved to injury of parents, 202; dissolved by notice of repudiation, 202; when ended by common consent, 205; second, of woman, XVI, 14; can enjoy ante-nuptial donation, 15; when woman entitled to interest, 15; illegal, penalty for, 70, 71; legitimate children become independent when contracted, 71; second, how persons relieved from penalty for, 112; dotal contracts not necessary for, 112; dissolution of, how effected, 112-117; with female slaves, result of, 115; contracted with dotal agreements, 119; by woman after one year of mourning, 124; when dotal agreements necessary to render valid, 282, 283; when not required, 284; of illustrious persons by means of dotal instruments, XVII, 52; when contracted without dowry, 52, 53; support of children after dissolution of, 53, 54; when cannot be dissolved by consent, 56; how dissolved without a penalty, 58; improper notice of repudiation by wife, result of, 58; cannot be dissolved because wife beaten, 59; when may be dissolved by common consent, 159; annulled because of pregnancy of woman, 280.
MASTER, when responsible for theft by slave, I, 284; who is his own, 227.
MASTER OP SHIP, action against, rules governing, IV, 200; how appointed, 201; liability of, 201, 202; responsibility, when several, 202-204; when contract of master is with one owner he can sue others, 205.
MASTER OF THE OFFICES, rules governing administration of, XII, 139, 140.
MAXIMS, and rules of the law, XI, 297-318.
MEN, conditions of, I, 83.
MERCHANTS, responsibility of, XIII, 125; when must hold markets, 126; number of associations of, 126; forbidden military services, XV, 279, 280.
MILITARY COMMANDERS, from whom receive pay, XII, 137.
MILITARY OFFICIALS, released from responsibility of appointments when, XV, 309, 310.
MINES AND MINERS, regulations concerning, XV, 169,170.
MINOR, under puberty cannot manumit a slave, I, 224; when relief granted to, 320; III, 79, 81; protection of by Praetor, 77; rule of edict concerning, 77; questions relating to, 78; when arrogated, what course to be pursued, 79; peculium of, 80; relief of, when obligation contracted by another, 81; when has failed to profit, 82; can ask relief when
case lost by contumacy, 83; when guilty of crime, no relief granted, 83; relief not allowed when voluntarily enslaved, 84; when sells slave to'be manumitted, 84; relief not granted to, indiscriminately, 85; when ask restitution against each other, 86; contract of with son under paternal control, 86; relief granted to in rem, 86; when defrauded in partnership, 87; who can grant complete restitution to, 88; may be granted to successors of, 88; when demanded by, against acceptance of estate, 90; transactions with, not always rescinded, 90; when gives release to debtor, 92; cases of restitution to, 93-98; relief not usually granted to, after emancipation, 95; when appears before Governor for relief, 95; entitled to action when property lost by usucaption, 97; relief granted to, in case of surety, 98; when must suffer sale of property, IX, 254; when absent, and slaves have stipulated for him, X, 225; guardian bound by, 226; when stipulation with guardian, 228; when security furnished for preservation of property, 228; not presumed to give or refuse consent, XI, 316; when released from incapacity by Emperor, XII, 240; estate rejected by, 234; cannot alienate real property without a decree, 240; when seven years old, can enter on estate, XIV, 14; may manumit by will, XVII, 66; when wishes to demand restitution, 67; when can administer property, 231; at what age competent, 232.
MONASTERIES, persons who enter cannot dispose of property by will, XII, 18, 19; property can be left to, 19; cases against inmates of, heard by bishop, 45, 46; foundation and construction of, XVI, 25; rules of, 27; alienation of, 49; inmates of not compelled to leave property to, 287; when husband and wife enter a, XVII, 101, 102; when left unfinished, how to be completed, 216, 217.
MONASTIC LIFE, rules of, XVII, 132-137; does not prevent disposal of property, 210, 211; when property is subsequently acquired, 211; ages of those who enter, 212; rejection of, rules relating to, 213, 214; slave who adopts status of, 214, 215.
MONEY, transported by sea, at whose risk, V, 222;'when penalty cannot be demanded, 224; how recovered when paid by mistake, XIII, 12; cannot be recovered when increased by delayed litigation, 13; when paid to soldier as attorney, must be refunded, 15; paid to advocate, when refunded, 17; agreement to pay, form of, 29, 30; what can be exacted, 31; when demand made for by creditor, authority necessary, 31; action to recover money not paid over, 70.
MONEY AND PROPERTY PROMISED, who liable in action for, IV, 170; what can be recovered, 170, 171; when place of payment indefinite, 171; when promise made to guardian, 172; when pledge promised, 173; when two persons promise, 173; rule when peculium involved, 175; when delivery of slave promised, 176; when liability attaches, 177.
MONKS, when abandon monastery, XVI, 28; when travel from one place to another, 28; must not keep concubines, 28, 29; before whom must be tried, 294; defended by attorney, XVII, 95; dedicate themselves and their property to monastery, 101; when abandon monastery, 102; lives of, how regulated, 132, 133; can own nothing, 133; novitiate and rules of conduct of, 99, 100.
MONOPOLIES, prohibited, XIII, 120; instances of, 120, 121.
MONSTERS, to be killed, I, 65.
MOTHER, of three children, when released from guardianship, I, 109; who can succeed to children, XVI, 138-140; when debtor to minor or creditors,
may be guardian, 347, 348; when can dispose of estate, XVII, 50, 51;
must render account of guardianship, 182-184. MOURNING, term of, I, 267; no impediment to marriage, III, 11; time governed
by affection, 14.
MUCIAN BOND, when furnished, VII, 323. MUNICIPALITY, how citizen of created, XI, 204; what magistrates of, supposed
to know, 207; what they cannot do, 211; who excused from office of, 217;
employments, from what derived, 219, 220. MURDER, punishment of, XI, 63-67.
N
NATURAL CHILDREN, succession of, rules concerning, XVI, 332-334; when curator appointed for, 335; of prohibited intercourse, do not inherit, 335.
NATURE, crime against, prohibited, XVI, 288.
NEAREST AGNATE, guardian, I, 67.
NETS of fishermen, how placed on maritime lands, XVII, 287-289.
NEW STRUCTURE, notice of, Vill, 305, 306; how served, 306; rules concerning, 306; who can serve notice, 307, 308; must be served on property itself, 308; instances of, 309-311; guardian or curator can serve, 312; how extinguished, 312; when not binding, 312; when party entitled to interdict, 314, 315; forbidding erection of, XIV, 253.
NEW WORK, notice of, XVI, 251.
NOCTURNAL ASSEMBLIES, penalty for, I, 74.
NONINIAN DECREE OF THE SENATE, XIV, 152.
NOTARIES, must be present at execution of legal documents, XVI, 207; rule for acknowledgments by, 207-209.
NOTICE placed upon lands, penalty for, XII, 210, 211; fine imposed, 211.
NOVATION, force of, 1,176; how affected by a condition, 176; how created, 317; what it is, X, 175; what it is subject to, 175; all liens and pledges released by, 178; can be made by others for us, 179; when cannot arise, 179, 180; when can be applied to a debt due on peculium, 182; of several obligations by an agreement, 182.
NOVICE, rules concerning, XVI, 25, 26; when a slave becomes a, 26.
NOXAL ACTION, when granted, I, 200; how established, 200; follows person of culprit, 200; does not lie against father or master, 200; when right of action in suspense, 200; effect of after mancipation, 200; for what purpose established, II, 160; granted by Praetor or by statute, 160; when slave causes injury and gives rise to, 160; when applicable to children, 161; when quadruped has caused damage, 161; when available, III, 321, 322; when will not lie, 321; right of person to, 322; causes of, 324-327; when applicable to slaves, 328-336; when slaves killed, 337, 338; why so called, IV, 8; liability to, 8; surrender of slave in, 8, 9; when not granted, 9; when slave owned in common, 10; granted against persons in bad faith, 10; rules in case of slaves, 11-17; when right to refuse to answer in exists, 17; when will lie, XII, 339, 340.
NUNS, ravishers of, penalty, XVII, 103.
O
OATH, force of, I, 74; when tendered, and by whom, 268; effect of, 268; when and how taken, IV, 113, 114; weight of, 113; when of no effect, 114;
when waived, 115; when exception allowed, 116; when good defence, 116; when it gives right of action, 117; instances of, 117, 118; when cannot be tendered back, 119; when tendered by agent, not valid, 119; takes place of payment, 121; when taken by one joint debtor, 121; effect of when taken by freedman, 123; a ward cannot dispute, 123; cannot be tendered to a ward, 124; when may be employed, 124; of calumny, 124; when tendered by guardian, 125; effect of, when declined, 126; when dispensed with, 126; when should not be ordered by judge, 128; when he must tender, 128; when taken, judge can dismiss case, 129; in court has effect of judgment, X, 72; when case decided by, cannot be revived, XIII, 3; when tendered by ward to guardian, 3; when tendered, action in factum will lie in favor of plaintiff, 4; when recalled, cannot be renewed, 4, 5; when ordered by judge must be taken, 5; party who tenders cannot appeal, 6; when taken, 6; he who tenders must first be sworn, XVII, 285.
OBLIGATIONS, only transferable by agreement, 1,115; division of, 162; verbally contracted by question and answer, 162; formula of, 162; contraction of, 163, 164; how created, 169; reciprocal liability of, 169; by dependent, binding, 174; when acquired by slave, 174; when extinguished, 174, 175; by novation, 175, 176; by joinder of issue, 180; when released verbally, 175; for commission of crime, 177; verbal, how contracted, 317; division of, II, 109; various methods of contracting, 110; by deposit and pledge, 111; verbal, nature of, 111; in writing, rule of, 120; by consent, 120; liability in, 120; how acquired through others, 132; how dissolved, 132; formula of, 132; for crime, classes of, 134; for quasi-crime, 146; examples of, 147; how they arise, X, 75; liability in loan for use, 76; verbally contracted by stipulation, 76; a mute cannot contract verbal, 77; contracted by correspondence, 77; who not considered liable to, 78.
OFFICE, corrupt seeking of, XI, 87; public, when freedman should discharge duties of, 221; when patrimonial, 221; employments and honors of, 221; minors not admitted to, 223; requirements of, 224, 225; power of administering, not promiscuous, 225; purchase of, 226; no one can hold two at once, XV, 277; penalty for, 278.
OFFICER, cannot lend money in province where stationed, XIII, 8.
ORPHITIAN DECREE OF THE SENATE, I, 305; Vill, 295, 296; XIV, 85.
OWNER, of property by different titles, I, 115; when no power to alienate property, 118; when forbidden by Lex Julia, 118.
OWNERSHIP, when nature of article changed, I, 120.
P
PAGANS, temples of shall be closed, XII, 79; sacrifices of, prohibited, 80; violence must not be offered to, 80, 81.
PALATINES, entitled to castrense peculium, XV, 276.
PALESTINE, PROCONSUL OF, jurisdiction and attributes of, XVII, 12; military force at the disposal of, 14; authority of, 15.
PANDERING, by husband, permits prosecution for adultery, XI, 30-32.
PANDERS, unlawful practices of, XVI, 78-80; penalty for, 80.
PAPHLAGONIA, PR.ETOR OF, what required to do, XVI, 167, 168; not authorized to appoint deputies, 168; remuneration of, 169; oath taken by, 169; penalty for maladministration of, 170.
PARABOLANI, what they are, duties of, XII, 35.
PAEDON, effects restitution of property, when, XV, 88.
PARENTS, must treat children by different marriages equally, XVI, 140, 141.
PARRICIDE, who liable for, XI, 64; penalty for, 65, 66; accusation of, always permitted, 67.
PARTITION of estates, all property to be divided, I, 266; suit for, IV, 24; origin of, 24; who can bring, 25; position of heir in, 25; creditors can sue in, 26; what things not included in, 27; when bond to be executed, 28; rules with reference to slaves, 29; effect of malicious act in, 30; when property taken by slave, 30; when injury committed by heir, 30; where heir has profited by estate, 31; in personal action, 34; when several estates involved, single action brought, 34; rules in case of, 34-36; duty of judge to order sale in, 37; when usufruct is bequeathed, 43; when chattels are stolen, 44; entire property appraised, 46; profits must be included, 46; double action in, 47; when case not defended, 48; when joint-owner profits, 49; ownership and usufruct may be divided in, 50; rules governing joint-owners in, 52-58; what the action includes, 53; when right of way involved, 55; action in, rules governing, XII, 327, 328; claims cannot be denied by, 328; estates of intestates, how divided, 329; when made by agreement, 330; when property awarded to daughter in, 330; heirs responsible when property appropriated, 331; contract for, 335; action in, when can only be brought, 336.
PARTNERS, liability of, I, 172; agreement of, 172.
PARTNERSHIP, dissolution of, I, 172; how formed, II, 124; equality in, personal, 124; examples of, 125; duration of, 125; how dissolved, 125; liability in, 125; how terminated, 125; for what time may be formed, IV, 334; rules relating to general, 334, 335; when contracted fraudulently, 335; may be formed verbally, 335; debt of partner not capital, 338; general principles of, 338-340; liability of members of, 340, 341; when action on will lie, 342; heirs not included, 342; when security given in, 342; action will lie when fraud or theft committed, 343; when right extinguished, 343; good faith in, 345; terminated by death, 346; when action on will lie for expenses, 347; when fraud by slave in, 349; when exception not granted in, 351; when heir can be sued in, 352; distribution of, when property sold, 353; release of liability by, 354; dissolved by confiscation, 355; no perpetual, can be formed, 356; how may be created, XIII, 92; dependent on parties' consent, 93.
PASTURES, rent of, when increased, XV, 222; animals of soldiers excluded from, 222.
PATERNAL CONTROL, who under, I, 227; not applicable to public affairs, Vill, 56; disabilities resulting from, XIV, 318; freedmen have children under, 319.
PATRIA POTESTAS, what it is, II, 13; when acquired, 16; abrogation, when exists, 18.
PATRICIAN, when takes office becomes independent of paternal control, XVI, 301.
PATRON, penalty for defrauding client, I, 72; legal guardianship by, II, 23; when freedman fails in duty to, Vill, 203; rules of testator of fraudulent, 203, 204; when excluded from praetorian possession of freedman's estate, 205; when alienation is of no effect, 206; when freedman un-
grateful to, 207; when excluded from praetorian possession, 207; respect due to, 209; when accused of fraud by freedman, 210; when hires services of freedman, 217; when action granted against freedman, 218; cannot exact services after freedwoman is more than fifty years old, 219; release by, of services, 219, 221; has not right to peculium castrense, 224; when entitled to praetorian possession, 224; when patron evicted, 227; when son of, disinherited, 228, 229; when substituted for heir, 232; cannot be summoned to court by freedman, XII, 167.
PATRON AND PARENTS, legal guardianship by, I, 109; daughter of, can demand half of estate of freedman, 156; foreign heirs of do not enjoy right, 156; rejection by, of share to freedman's estate, 158; emancipated son of, when passed over, preferred to foreign heirs, 159.
PATRONAGE, right of, when used to defraud Treasury, penalty, XV, 212.
PATRONESS, right of, I, 156, 157.
PAYMENT, by bronze and balance, I, 175; method of, 175; when creditor can select debt for, X, 183; interest should be paid first, 184; when made pro rata on all sums, 184; may be made to agent, 185; must be ratified by principal, 185; when made to guardian, 186; to slave, 187; rules concerning, 191-199; instances of, 199-201, 207, 208; of debt, must be made in money, if bequeathed, 215; means of, XI, 270, 272; debtor has right to say when to be credited, XIV, 306; rules concerning, 306, 307; when does not release from liability, 308; when obligation extinguished by, 309; if services accepted in, 309; burden of proof of, on whom, 310.
PECULATION, law concerning, XI, 83; penalty for, 84; cannot be prosecuted after five years, 85; definition of, 85; who liable for, 86; public prosecution for, not brought against heir, 86.
PECULIUM, action on, how right of obtained, IV, 235; only granted against whom, 235; when applicable, 236, 237; when father liable, 237; when master liable, 238; rules concerning, 238; definition of, 238; who can have, 239; to whom it belongs, 239; when deduction made from, 240-244; when deduction not made, 243; when peculium of slave belongs to one of two masters, 243, 244; when action granted usufructuary, 245; action on cannot be granted one party against another, 245; when master should not be heard'in action on, 246; management of, 246; when slaves alienated, an action brought on, 247; when slave ordered to be free, disposal of, 248; slave may be sued in, when appointed heir, 249; when heir commits fraud, liable in full, 249; what may consist of, 253; action on, granted to arrogator, 253; when creditor can sue on, 253; when slave sold without, 254; when action on brought against partners, 256; when removed during suit, 257; when left to a stranger, 258; action limited to one year, 258-260.
PECULIUM CASTRENSE, of son in army, father not heir to, XI, 196; son can always recover, 197; rules concerning, 197, 198; what it is, 198; what does not constitute, 199; stipulation for, 200; slave who forms part of, how treated and disposed of, 201, 202; father entitled to, if slave dies intestate, 202.
PEGASIAN DECREE OF THE SENATE, when applies, I, 147; prohibits those who have no children from enjoying trusts, 150; effect of, 299; XII, 112.
PENALTY, for theft of deposit, I, 62; for illegal interest, 62; for non-payment of debt, 63, 64; for arson, 70, 324, 329; for serious personal injury, 70, 71; for public abuse, 70; for perjury, 71; for homicide, 71; for magic
incantations, 71; for homicide of an ascendant, 71; for theft by slave with master's knowledge, 77; amount deposited, 186; and forfeits, 217; when not enforced, 217; in what actions allowed, 217; should rather be mitigated than increased in severity, XI, 124; remission of, for illegal marriages, XVII, 157, 158.
PEOPLE, vote of, when necessary, I, 76; vote of, essential in important affairs, 76.
PERJURY, subornation of, how punished, XI, 67; penalty same as for forgery,
79; by priests, how punished, XVII, 270. PERPETUAL EDICT, effect of, XIII, 56, 59.
PERSONS, freeborn, who they are, II, 9; division of, 227; freedmen, who they
are, 228; under control, law of, 231. PETITION, must contain nothing injurious to the Treasury, or contrary to law,
XII, 122; when a second cannot be presented, 122; to whom should be
presented, 122; when presented to the Emperor, effect of, 123; cannot
be presented while case is pending, 124.
PIGNORIS CAPIO, when employed, I, 189; introduced in military affairs, 189.
PISIDIA, authority and duties of governor of, XVI, 145-147.
PISONIAN DECREE OF THE SENATE, VI, 331.
PLACES, when holy, I, 111.
PLAINTIFF, must prove good faith before issue joined, XVII, 291.
PLANCIAN DECREE OF THE SENATE, Vill, 26.
PLEDGE, sale by creditors, I, 269; when recovered by use, 118; theft of, and action for, 180; action of, when it lies, IV, 187; when agreement made concerning, 188; expense incurred for, 188; when several slaves pledged, 189; when heir pays his share of debt, 189; how agreements for sale of, drawn up, 189; for what can be joint, 189; who can bring action, 190; when money paid, 190; when returned, 191; when guardian pledges property of ward, 191; when mere ownership pledged, 192; when property of third party pledged, 192; when stolen, 193; when thief pledges stolen goods, 193; when made for more than debt, 194; when slave receives, 195; creditor can bring counter-action, when, 196; when rented, 198; debtor cannot purchase, 198; creditor must surrender excess obtained by sale, 199; when valid, V, 117; when property pledged to two persons at same time, 121; not applicable to servitudes, 122; when released, 122; on condition, 123; when not returned, suit for damages will lie, 127; when void, 127; rights of creditors under, 135; property brought in by tenant subject to, 131; when surety gives property in, 131; tacit, when created, 132; what not subject to, 133; when debtor gives as security, 135; sale of property under, 142-146; how released, 146-150; when sale of, rescinded, 151, 152; which can be sold by common law, XIII, 21; transfer of, to creditors, not release from liability, XIV, 253; delivery of, when no money paid will not hold, 282, 283; ownership of, how acquired, 283; when worth less than debt, 284; contracts relating to, 285; when void, XVI, 224.
POLL TAX, how imposed, XV, 202.
POPULAR ASSEMBLIES, none to be held during obsequies, I, 76.
POSSESSION, how inoperative when granted, I, 154; when party is in, 213; how retained, 213; intention necessary, 213; interdict to recover, 213; by order of court, 315; when given of personal property, Vill, 119 J
instances of, 119, 120; when security must be furnished, 120; praetorian, includes everything, 126; to whom granted, 127; contrary to provisions of will, 127,128; when slave can be granted, 128; praetorian, when guardian cannot reject, 128; by edict of Prator, when refused, 129; when cannot be granted, 130; when granted, to the insane, infants and defectives, 130; when contrary to the provisions of the will, 130, 131; granted to independent children, 131; rules relating to, 132-135; right of emancipated children to, 135; disinheritance no bar to, 135, 136; rule of concerning adopted children, 136-141; how legacies affected by, 144, 145; examples of, 145-147; he who demands, not obliged to pay all the legacies, 149, 152; praatorian, when appointed heir demands, 187; when granted in accordance with terms of will, 188, 189; to obtain, heir must know will existed, 189; when can be demanded, 191; applicant for, must have right of testation, 191; when testator becomes insane, 193, 194; form of grant of, 196; can be demanded by every posthumous child, 197; rule when substitute appointed, 198, 199; identity of heir must be established, 199; in case of manumission of son, 200; in case of soldier's will, 202; examples of, IX, 179, 205; how acquired, 178; by whom obtained, 180; municipalities can hold, 181; only corporeal property susceptible of, 181; by intention, 182, 183; no one can change title to, 183; two kinds of, 184; when considered held, 185; ownership has nothing in common with, 185; rules relating to, 186-189; does not exist when cannot be retained, 190; when infant has, 192; delivery of, to agent, 193; may be delivered conditionally, 193; when slave held in common, 197; may be acquired by agent without knowledge of principal, 197; by title of ownership, 226, 227; instances of, 227, 228; reason for, 247, 248; instances, when granted, 220, 247-249; edict of Praetor on, 250; when granted by Praetor to preserve property, 253; when creditor whose claim is conditional not placed in, 253; sale of, by judicial authority, 253; when action in factum granted to one in, 256; party in, can recover expenses when not fraudulent, 256; when creditor placed in, curator appointed, 258; when one placed in, to execute a trust, 261; praatorian, of estate, when can be demanded, XIII, 306; when not accepted within a year, 307; in accordance with will, 308, 309; in opposition to will, 309; of a freedman to patron, 309; when father cannot reject, 313; can be acquired without knowledge, XIV, 161; by donation, 161; unjust, does not give valid title, 162; may be based on law or fact, 162; for twenty years, effect of, 163, 164; must be obtained in good faith, 164; loss of documents does not prejudice right of, 165; when long time does not confer title, 167; when prescription cannot be pleaded to hold, 168, 169; when interfered with, remedy, 241.
POSSESSORS, who are, II, 283; when cannot be forced to refund interest, XII, 308; cannot be compelled to disclose title to claimant, 310; when action on contract brought against, 311; expenses, when not recoverable by, 313; in bad faith, must surrender crops, 316.
POST AND POST-HOUSES, regulation of, XV, 303; permit to travel by, 303, 304; cannot be used by private person, 305; who charged with, 305; to what time drivers entitled, 307.
POSTHUMOUS CHILDREN, can have guardians, I, 103; must be appointed heirs or disinherited, 128; rights of, 243.
POSTHUMOUS STRANGER, cannot be appointed heir, I, 144.
POSTLIMINIUM, law of, I, 100; to what, right of, attaches, XI, 176; exists in both war and peace, 176, 179; how it operates, 177; how it affects a
child, 178, 182; rules concerning descent of estate under, 180; who does not retain by right of, 181; laws governing slaves with reference to, 181; two kinds of, 183; applies to what was lost by war and recovered, 183; not enjoyed by a deserter, 184; applicable to both sexes and all conditions, 185; freedom under the right of, 185; rules of return under, 186; peculium of slaves under, 186; instances of, 187, 188; right of, XIV, 326; rules relating to, 327-332.
POWER OF OTHERS, release from, I, 99.
PRAETOR, interposition of, I, 211; jurisdiction conferred upon, and decrees of, XII, 145.
PRAETORIAN POSSESSION, not excluded by Lex Julia, I, 131; of unborn child, how given, Vill, 172; when child disinherited, 173; various rules concerning, 173, 174; curator appointed for unborn child, when, 174; how long can be held by child, 175; debts of estate must be paid, 176; when woman granted, 177; if supposititious child introduced, 179; not promised an appointed heir, 179, 180; granted in one year, 182; when security not given, 183; effect of, I, 131; how granted, 253; on ground of intestacy, 253; rules of, 253-255; who can-reject, Vill, 263, 264; who cannot reject, 264; order of, 286-288.
PRAETORS OF THE PEOPLE, who they are, XVI, 73; duties of, 73, 74; how appointed, 75; who shall assist, 76; requirements of, 77.
PRECARIOUS TENURE, definition of, X, 24; resembles loan for use, 24; exists with reference to chattels, also, 25; when cannot be renewed, 25; when property to be restored to original condition, 27; to establish, parties may be present or absent, 28; when comes to end, 28; how property held under, 29; anyone can give land under, though not in possession, 29; ward can hold under a, 30.
PREFECT, PRAETORIAN, office and duty of, II, 248; authority of, 248; urban, power of jurisdiction of, 248-251; of the East, authority of, XII, 129; jurisdiction of, 130; of Africa, number of subordinates of, 131; taxes for expenses of, 132; must send frequent reports, 136; urban, rank and authority of, 137, 138; who subject to jurisdiction of, 138; Augustal, duties of, in Egypt, 144; right to petition against, decision of, XIV, 183; who take precedence of, XV, 245.
PREFECT OF NIGHT WATCH, duties of, 251, 252.
PREFECT OF THE WATCH, shall not decide capital cases, XII, 149.
PREFECTURES, what ones can grant release from curial obligations, XVI, 266, 267.
PREGNANCY, proof of, I, 280.
PREJUDICIAL ACTION, IX, 151.
PRESCRIPTION, why so called, I, 210; when operative, 310, 311; when ownership acquired by, II, 48; land in long possession, X, 55; when time included, 57, 58; when it runs against the Treasury, XIV, 169, 171,172; does not run against the Crown, 172; when right to bring action in rem barred, 174; of thirty and forty years, when pleaded, 176; from what time computed, 177; rules relative to, 178-180; what claims barred by, 181; available for twenty years, forty in case of religious persons, XVII, 30, 31; how absent and present persons affected by, 68; of forty years in favor of Church, when pleaded, 126.
PREVARICATION, what it is, XI, 4; how committed, 4.
PRICE, must be certain, I, 170; when left to another, 171.
PRIEST, requirements of candidate for ordination as, XVII, 89; ordination of, gratuitous, 90, 91; marriage of must take place before ordination, 207.
PRINCIPAL, when solvent and is sued, surety is released, XIII, 265.
PRINCIPAL DEBTOR, must be sued before surety, XVI, 21, 22.
PRISONS, to be emptied at Easter, XII, 56; private, forbidden, XIV, 365, 366.
PRIVATE OFFENCE, action to be brought by heir, X, 242; instances of, 243-245.
PRIVATE RELIGIOUS RITES, when used, I, 74.
PRIVATE VIOLENCE, what it is, XI, 57, 58.
PRIVILEGES, to the injury of others illegal, I, 73.
PROCEDURE, ancient form of used before Centumviri, I, 203.
PROCONSUL, office of, II, 252; authority of, 253, 254; when he can delegate his authority, 254; power of deputy of, 254; superior power of, in province, 255; duties of, 255; may appoint advocates, 255; when cannot dismiss deputies, 256; right to appoint judges, 256; has lictors, 256; no authority after he enters Rome, 256.
PRODUCTION, action for, need not be brought by owner of property, IV, 58; is personal, 59; rules governing, 59, 60; several may bring, 60; brought against actual possessor, 61; instances when it lies, 61, 62; why municipality can be sued, 62; when slave should be produced, 65; when freedom is to be proved, 65; heir can bring in own name, 67; of property, action to compel, when it lies, XII, 341; cannot be contested, 341; brought against possessor, 342.
PROFITS, bidding for, I, 215, 216; yield of flock in, V, 217; rents of urban estates are, 218; other instances of, 219, 220.
PROMISES, liability for, XI, 247; to whom obligation attaches for, 247, 248; when value of diminished, 248; when liability in full exists, 249; when made in consideration of office, 250, 251.
PROPER HEIRS AND AGNATES, called by Prastor to possession ab intestato, I, 154.
PROPERTY, in litigation cannot be rendered sacred, I, 76; how transferred in court, 113; when not acquired by usucaption, 116; how acquired by delivery, 118; acquisition of, through others, 121; not acquired through freeman when independent, 123; left by condemnation, rule of, 140; heir not bound by such legacy, 140; who is entitled to the same, 140; left to another under a trust, must be delivered or paid for, 147; ownership of, praetorian possession, not absolute, 161; division of, 238; how acquired, 238; surrender in court, 238; how obtained, as by slave, 239; used for another's benefit, 272; when acquired for use, II, 52; acquired for ascendants, 53; acquired by means of delivery and stipulation, 53; acquired through slaves, 53; not obtainable through another's freemen, 54; possession of, granted by Prsetor, 103; when promised, 103; who called to possession of, 104; possession by will, 104; Prastorian jurisdiction of, 104; various kinds of possession, 105, 106; when acquired by arrogation, 106; when transferred because of freedom, 107; rule of, 107; acquired through slaves, 132; which must be delivered in certain place, IV, 166; suit for, 166; duty of judge, 167, 168; when heir directed to pay, 168; acquisition of ownership of, IX, 154; rules relating to, 154, 155; possession of, how obtained, 161; instances of, 165; by slaves without consent, 167; delivery does not transfer ownership, 167; when slave stipulates for, 170; when belongs to first occupant, 173; included in sale of usufruct, 255; in litigation,
when purchased, X, 75; lost through violence, 299, 300; of cities, how to be administered, XI, 239; rules concerning purchases and payments, 240; action for maladministration of, lies in favor of whom, 240; leases of, 240, 241, when accounts with reference to, approved, person cannot be convicted, 242; responsibility for loss of, 242; recovery of, action for, XII, 312; he to whom delivery first made entitled to preference, 315; alleged owner of must establish title to, 317; owned in common, division of, cases of, 332, 333; duty of arbiters when dividing, 333; no one compelled to release interest in, 334; stolen, action to recover, XIII, 18; title to must be fully established, 32; acquisition of, by slave, 60; when seized and sold by court, rules relating to, XIV, 230, 231; when sold by creditors, 232, 233; when Treasury has lien on, 233; when claims of Treasury assigned creditors barred, 233; removed by violence, action for, XV, 58; of criminals, when confiscated, 80-85; inventory of made, 81; conviction necessary for confiscation, 90; without an owner, reverts to Treasury, 96; mode of valuation of officials, 97; of Church, not to be alienated, XVI, 40-42; immovable, gift of by Emperor, 43; rules for emphyteusis of, 44, 45; usufruct of ecclesiastical, how created, 46; how may be encumbered, 47; penalties of perpetual lease of, 47, 48; purchase of, 48, 49.
PROSECUTION, barred by compromise, I, 62.
PROSTITUTE, when swears not to abandon calling, oath not binding, XVI, 222;
penalty for, 222, 223. PROSTITUTION, one living in, V, 251. PROTA, first principles of the law, XII, 111. PSALTERIUM, what it is, I, 313. PUBLIC ACCUSERS, by whom appointed, I, 73. PUBLIC DEBTOR, cannot hold office, XV, 188; from whom debt collected when
insolvent, 188, 189; payments and release of, 192. PUBLIC DOCUMENTS, formula for heading of, XVI, 214; dates of, how written,
214, 215. PUBLIC DUTIES, which cannot be evaded, XV, 145; physicians and teachers
exempt from, 147-149; soldiers, when excluded from, 151; others, when
cannot perform, 152-155. PUBLIC VIOLENCE, liability for, XI, 51; how caused, and by whom, 51, 52; ill
treatment of Roman citizens by magistrate, a form of, 54, 55; who are
armed persons that commit, 55, 56; penalty for, 57. PUBLIC WORKS, money bequeathed for, XI, 245; exemption from erection of,
void, XIV, 248; when credit given for, 248; repair of, 249; not to be
used by private persons, 250; interference with by governor, 253. PUBLICIAN ACTION, nature of, III, 221; when can be brought, 221-223; when
will lie against minor, 222; land in ownership, 222; rules of same as
in action for recovery, 222; relates to good faith of purchaser alone,
222; when available, 224, 225; when cannot be brought, 226; origin of,
226; V, 202. PUNISHMENTS, military, nature of, I, 331; examples of, XV, 76-79; only those
liable subject to, 79, 80. PURCHASE, action on, form of, I, 209; advantages and liabilities attached to,
when sale completed, XIII, 105, 106; profits of, belong to whom, 108. PURCHASER, when title vests, V, 18; risk of, when goods sold in bulk, 20;
when offers better terms, 29; when cannot sue, 30; when entitled to
profits, 31; acquires all profits of succession, and liable to loss, 35; when right of action should be assigned to, 37; liability of for loss or damage, 44; when in default must pay interest, 49; when stipulates for full delivery, 54; when entitled to action, 57; when price should be tendered by, 61; responsible when he and vendor both in default, 76; when can recover from vendor if evicted, 184; when loses slave by eviction, 185; when land lost by estimate made of value, 186; when action will lie in favor of, 186; fraud of, how established, XIII, 101; when vendor can make complaint, 101, 102; examples of, 102, 103. PURPLE, dyers of, rules to be observed by, XV, 170, 171; children of, 173.
Q
QUADRUPEDS, damage by, I, 69, 265.
QUAESTOR, origin of, II, 250; kinds of, 250; Prefect, 251, 252; honors to, XV, 247; number of assistants of, XVI, 186, 296; magistrate of the army, jurisdiction and duties of, 199; jurisdiction over farmers, 297; beggars, regulation of by, 298; salary of, 298, 299; may resist magistrate, when, 299, 300.
QUASI-CONTRACTS, nature of, II, 130; voluntary agency, 130; guardianship, 130; partition, 131; payment by mistake, 131; ancient rule of, 131.
QUOD Vi AUT CLAM, interdict, IX, 13.
R
RAIN-WATER, action to compel care of, IX, 3; rules concerning, 3, 4; source of not inquired into, 4, 5; lower tract always subject to upper, 5, 6; when ditch not cleared, 6; restoration of levee when disputed, 6, 7; when torrent turned aside and damage results, 7; usufructuary cannot sue or be sued for damage by, 8; when a tenant liable under interdict for, 9; diversion of, 9, 10; action relating to, real, 10; defendant must join issue, 10; when aqueduct cannot be built, 11; right of joint owners relating to, 13; when action must be brought, 14; servitudes concerning, 14; when there is an intermediate tract, 15; action will lie when usufruct bequeathed, 15, 16; action available when land public, 16; obstruction of water-course, 16.
RAPE, punishment of, XV, 24; upon whom committed, 24.
RATIFICATION, when principal fails to give, X, 240.
RAVISHER, of women consecrated to God, how punished, XII, 53; of virgin, penalty, XVII, 238, 239.
REAL ACTION, of twofold nature, I, 202; no security when in plaintiff's name, 203.
RECEIVERS, OF PUBLIC MONEY, duties of, XV, 158-160; of taxes, fraud by penalty, XV, 216.
RECOVERY, suit for, IV, 101; in case of loan, 101; mutuum, 102; pledge, 102; rules governing, 103; when action will lie, 103; instances of, 104-109; rules relating to money loaned, 106; in joint ownership, 106; suit for, when money paid on condition, 130; when money paid by a freeman, recovery as slave, 131; when money received to manumit slave, 133; when father gives dowry for daughter, 133; when money paid by mistake, 135; when gift made on condition, 137; suit for, when not due, 139; case under a will, 140; cannot be sued for by guardian or
agent, 140; when act of agent ratified, 140; when debt paid by debtor and surety, 142; when land conveyed by mistake, 143; when compromise made, 143; penal sums not usually recovered, 151; when a surety legally released pays, 154; when promise made without consideration, 158.
KEFERENDARII, number and qualifications of, XVI, 67, 68.
EELATIONSHIP, ascending and descending lines of, Vill, 270; various degrees of, 266-268; twofold, 268; next of kin, "proper," 271; consideration of degrees of, 271-284; order of, 286-288.
RELEASE, of children from paternal control, how effected, I, 231; when granted debtor, conditionally, X, 187; cannot be made by son under paternal control, 188; of debtor, when hypothecated land sold and claim satisfied, 189; when debtor tenders money, suit not allowed, 189; when not granted, 196; object of, 217; form of, 217, 218; verbal contract only dissolved by, 218; part of stipulation can be annulled by, 218; when obligation for services performed can be extinguished by, 219; when given for usufruct, 219; when given to surety, 220; when given by one joint-stipulator, complete, 220; can be joint in one or several contracts, 221; when not operative, 221; a slave cannot give, by order of his master, 222; verbal, when valid, XIV, 310, 311.
KELEGATION, persons sentenced to, retain rights, XI, 131; can petition emperor, 133; sentenced to pay fine, 134; what it is, 135; what is retained in, 135; person cannot remain at Rome, 135.
RELIGIOUS AND SACRED PLACES, what they are, IV, 86, 87; how made such, 87-90; how access obtained to, 91.
RELIGIOUS SERVICES, when not to be celebrated in private houses, XVI, 236; penalty for disobedience, XVII, 127, 132.
REPLICATIO, when filed, I, 208; what it is, X, 43.
REPUDIATION, of husband or wife must be for good cause, XIII, 203; when given, children, how provided for, 204, 205; causes for, 203-205; divorce, causes for, XVI, 117, 118; when made by son under paternal control, effect of, 120; unjust, how punished, XVII, 144, 145.
RES JUDICATA, how accomplished, IX, 228; rules relating to, 229, 230; when property sold by defeated party, 230; not applicable to insane, 231; when execution of judgment authorized, 232; chattels must first be sold under, 232; pledged when property taken in execution, 233; execution of judgment under, 234; who are only liable for what they can pay under, 235; in action to recover dowry, 235; when surety has been accepted, 236; time to satisfy judgment granted to party, and heir, 236; when judgment for different amounts, smallest adopted, 238; when creditor cannot be barred by exception, 239; damages cannot be increased or diminished after, 240; judgment must be rendered in the presence of all parties, 240; rules concerning, XIV, 195, 196.
RESCRIPTS, when opposed, offence equal to sacrilege, XII, 126; when shall be produced, 127.
RESCUE, of slave, II, 278.
RESPONSA PRUDENTUM, what they were, I, 83.
RESTITUTION, nature of complete, I, 262; when not available, 263; complete, when promised, III, 55; when entitled to, 55; how granted, 56; when minors can obtain, 56; complete when allowed a minor, XII, 223;
relief of, granted by Governor, 223; when minor under paternal control, 224; should be obtained for sureties, 225; when action will lie against guardian because of, 225, 226; of property owned in common, 226; when a judgment has been rendered, 227; application for to Prsetor, 228; because of sale, 228; when pledge sold, 229; on account of a donation, 229; when freedom has been granted under a trust, 230; when slave manumitted through fraudulent inducements, 230; on ground of want of age against a compromise, 231; when payment made by ward or guardian, 231; when a dowry has been improperly given up, 232; when applicable to crime, 232; granted minor when ownership acquired by usucaption, 233; when applied for against the Treasury, 233; when asked for against a creditor, 234; when estate not accepted by a minor, 234; when an exception cannot be pleaded, 236; who cannot demand, 237; not granted when false statements of age made, 238; when demanded more than once, denied, 239; who authorized to grant and when, 241, 242; complete, proceedings for may be instituted by an attorney, 243; heirs of soldiers can demand in a year, 243; rule applicable to absent persons, 245; period within which can be demanded, 246; when benefit of continued by usucaption, 246; can be claimed when one minor succeeds to rights of another, 247; when defence of action for, required, delay granted, 247, 248; in cases when persons have attained majority, 248, 249; fiduciary, how limited, XVII, 187-189; examples of, 189-192.
RHODES, ancient law of, IV, 207; rule of jettison under, 207; when merchandise saved, 207, 208; estimate and contribution under, 209; when ship wrecked or stranded, 211.
RIGHT OF ASSEMBLY, I, 72.
RIGHT OF BIRTH, restitution of, IX, 135,136.
RIGHTS, restoration to, when allowed, XI, 136; how obtained, 136.
RISK, of articles loaned for use, who assumes, XIII, 52.
ROAD, width of, I, 73; III, 294.
ROBBERY, force essential element of, II, 140; penalty for action of, 140; with violence, action for, X, 281; who commits when liable for non-manifest theft, 292; public action for, 293; by violence, always malicious, 295; action for, when it lies, 296; who liable to action for, 296, 297; when committed by crowd, 298; property taken by, not acquired through usucaption, 300; when committed at a fire or a shipwreck, 300; instances of, 300, 301; how punished, XI, 6; liability of all engaged in, XVII, 266, 267.
S
SACRED AND RELIGIOUS things, I, 111.
SACRILEGE, definition, I, 323; penalty for, XI, 84; XII, 33; how committed, 32, 33; XV, 54, 55.
SALE, by verbal agreement valid, I, 68; dependent upon payment, 68; how and when contracted, 169, 170; of other property, liability for, 275; when title passes, 275; contract of, when concluded, II, 120; when bill of sale necessary, 121; price must be fixed in, 121; money necessary, 121; risk attaches to purchaser, 122; when quantity increased, 122; may be conditional, 122; action on, when lies, 122; contract of, V, 3; derived from Law of Nations, 4; of land, 4; of slave, 5, 7; requisites of, 6; when void, 7, 18, 19; when price of property reduced, 8; ambiguity of
contract prejudices vendor, 8; property of others subject to, 9; of slave, does not include peculium, 9; of what, can be made, 10; of man not subject to, 10; of ward's property cannot be made to guardian, 11; when article lost by theft, 12; general rules with reference to, 12; when held to be effected, 12; what included in, 14, 17; examples of, 14, 15; to official, when illegal, 17; not annulled for trifling reason, 18; instances of, 19; when slave ordered to make, 20; when guarantee given, 20; conditions of, 21; form of contract for, 22; of land, what embraced in, 22, 23; of uncut grain, 23; when title in question, void, 24; conditional, form of, 25; when annulled, 26; of pledge by creditor, 26, 27, 29, 59; by several vendors, 28; conditional annulment of, 30; of right of inheritance to estate, 33; form of, 38; how rescinded, 41; instances of, 42-44; of wine in bulk, 46; everything included with sale of land, 46; of slave to be manumitted, 50; action on, when property not delivered, 53; of right of way, 55; when security not furnished in, 58; when no warranty given against eviction, 59; of house, what included in, 64-66; synonymous with purchase, 66; of another's property, 74; annulment of, before delivery, X, 211; when can be made, XIII, 94; when purchase-money not paid, 95; obligation of contract for, 95, 96; of rights of action, 96, 97; title in vendor till delivery, 97; what articles not subject to, 98; rescission of, 100, 101; contract of can be rescinded by common consent, 103; of property for taxes, 104; cannot take place without payment of taxes, 104; vendor can assume payment of taxes, 105; action of, to recover price, 107; crops can be reserved by, 107; of land, and possession not given, 107; when possession is restored after, 110; ownership transferred to third party by, 111; of property of others, 111, 112; of property in common, 112, 113; when made on credit, 114; when ownership reverts to vendor, after, 115; agreement for must be inviolate, 115; of land under condition, 119, 120; exchange equivalent to, 127, 128.
SAMARITANS, disabilities of, XVII, 166, 167.
SAMAKITES, disabilities of, removed, XVII, 120-122.
SCHOLARII, who is included in, XII, 141.
SEAL, not attached to property without authority of judge, XII, 212.
SECURITY, when for indefinite sum, I, 168; when given by litigant, 202; when not to be given, 203; by defendant, when given, 203; nature of action, when required, 204; how given, kinds of, 218, 219; when demanded, 263; giving of, II, 162; when released, 163; in different action, 163;'changes in law, 163; may be given out of court, when, 163; for payment of judgment, 164; when stipulation for, operative, X, 228; for ratification, when stipulated for, 235; when given by false agent, 235; given by acts as well as words, 236; when usually made, 237; when action will lie for, 237; rules concerning, 238-240; when given by agent, 242; attorney not compelled to furnish, XII, 253, 254; juratory, rules concerning, XVI, 135.
SEDITION, penalty for, I, 325; definition and penalties, XV, 55. SENATE, meeting place of, XVI, 250; who can give opinion in, 251.
SENATORS, cannot marry plebeians, I, 76; when forbidden to marry, 235; rank and privileges of, II, 245; expulsion, effect of, 245; status of children of, 245, 247; residence of, 247; property of, when exempt from charges, XV, 240, 241.
SEPULCHRE, violation of, I, 267; arms, X, 334; remedy for, 332, 333; action for, 334; to whom granted, 334; violation of, how punished, XV, 34; degrees of the offence, 35, 36.
SERF, ordination of not valid, XII, 48; when applies to become a monk, 48; when can enter clerical order, 48, 49; attached to the soil, rules relating to, XV, 200, 201; cannot be sold separately, 201; recovery of fugitive, 202, 203; when female marries, 203; payment of rent by, 204; must not be unpunished when marries free woman, 208; when imposed on by master can accuse him, 208; of Palestine, 209; of Illyria, 210; marriage of, when on lands of others, not separated from children, XVII, 185, 186; to whom children of, belong, 197.
SERVIAN ACTION, X, 67.
SERVITUDES, not subject to sale, I, 112; kinds of, II, 43; III, 279; rule governing, II, 43, 44; limitation of, III, 279; times of enjoyment of, 279; general rules governing, 280; not acquired on part of ownership, 280; right of way, 280; of rustic estates, 281; of urban estates, 282; of lights, 283; when lost by want of use, 283; drip of water, 287, 288; retained by person when two servitudes exist, 288; forms of imposition of, 288; when property is held in common, 288; freedom from, how obtained, 290; no one can impose a, on his own building, 291; of rustic estates, enumeration of, 292, 293; can be recovered by an action, 293-295; examples of, 295, 298, 299; right of way, how granted, 297; attached to all the land, 297; rules applicable to all, 301-303; right of action concerning, belongs to owner of land, 306; what action available, 306; when the granting of an action will lie, 310; how merged, 315; when not lost, 315-317; rights of passage, 318, 319; rule concerning conduct of water, XII, 323; when structure interfered with, 324; when owed to land of neighbor, 324; cause of action determined by nature of, 325; examples of, 325, 326.
SET-OFF, each party must receive less than is due, when pleaded, I, 196; when judge need not consider, 197; difference in, 197; only allowed when debt due, 197; amount of inserted in statement of claim, 197; of different debt, when allowed, 270; when acts as bar, IV, 284; why necessary, 284; law of, applicable to price paid vendor, XIII, 76; when cannot take place, 76; by operation of law in all actions, 77; not granted to those wrongfully in possession, 77.
SETTLEMENT, by litigants, I, 58.
SHIP, when not excused from transport of public property, XII, 17.
SHIPOWNERS, liability of, XV, 163-166.
SHIPWRECK, rules concerning, XV, 167-169.
SICILY, appeals in, how disposed of, XVI, 286; Prsetor of, shall collect taxes,
XVI, 15.
SILANIAN DECREE OF THE SENATE, I, 289; VI, 319, 332; XI, 163; XIV, 30. SILENTARII, privileges of, XV, 251-253. SLANDER, action for injury brought for, X, 317. SLAVERY, right of, II, 8. SLAVES, restrictions of funerals of, I, 75; for what reasons manumitted, 84;
when they become Latins, 86; power of masters over, 88; harshness to,
forbidden, 88; female, issue of, and Roman citizen, status of, 94;
acquire for themselves everything obtained after patron's death, 132;
may be liberated under a trust, 148; if belonging to another must be
354
purchased and manumitted, 148; when manumitted under a trust are freedmen of emancipator, 148; under thirty years cannot be appointed heirs and declared free, 148; or animal killed, appraised, 181; suit, or prosecution for act, 182; cause for manumission, necessary, 224; statement of, free when manumitted by insolvent master, 224; cannot be manumitted to defraud creditors, 224; when made by a Latin, 224; free on condition, 225, 226; of whom the freedmen, 226; fugitive, rules governing, 261; female, debauchery of, 264; are tortured, 289, 290; defence of, 310; cruelty to, not allowed, II, 231; production of in court, 284; services of, not lost by forfeiture of civil rights, III, 268; included in usufruct, 268; when action brought for, 268; how must estimate value, 268; corruption of, who not liable for, IV, 75; when action lies, 75; when slave made worse, 76; right of usufructuary, 78; action granted for double damages, 78; appraisement necessary, 78; action perpetual, 79; debtor entitled to action, 79; estimate of damages, how made, 80; suit for granted by husband against wife, 80; who conceals fugitive a thief, 80; who arrests fugitive, bound to produce him, 81; careful custody necessary, 81; defects of, liability of vendor for, V, 181-183; when prospect of freedom concealed, 204; accused for not aiding master when killed, examples, VI, 323, 324; when man sells himself for part of purchase-money, IX, 136; what action will lie, 140; when liable for acts, XIII, 26; when sold to be exported, 116; when not to be prostituted, 116, 117; alienation of, on condition, 117, 118; when runaways sold, 119; fugitive, how punished when captured, 289, 290; public, must remain in own town, 290; concealment of, penalty, 291; action when property stolen by, 291; when legacy bequeathed to, without freedom, XIV, 5, 6; status of, how determined, 140; rights of, not prejudiced, when, 140; freemen cannot become, by agreement, 141; cannot remain such by choice, 143; patron can revoke freedom of, 144; when cannot state that they are free, 148; right to peculium of, 153, 154; when not emancipated, usucaption of, 156; harboring fugitive, is theft, XV, 39, 40; when manumitted, has testamentary capacity, XVII, 240; of Emperor can dispose of property, 241; cannot testify, 250; theft of, penalty for, 263; when permitted to marry free persons, 286; when obtain freedom, 287.
SOLDIER, succession of, Vill, 285; character of offences of, XI, 188; vagabond, what he is, 189; punishments of, 188-195; when conspires, how punished, 190, 193; when forbidden to purchase land, 194, 195; when can take property, 194; discharge of, how classified, 195; sale of arms by, 196; when deprived of pay, 196; can appoint heir for specified time, XIII, 323; dishonorable discharge is infamous, XV, 280; can be joined by family, 281; not to be transferred, 282; excluded from civil duties, 282; fees paid by, 284; when commits offence, 285; cas-trense peculium of, 285; supplies for, 286; rations and pay of, 287, 288; leave of absence of, 289; trial of, 290; detail of, 291; clothing of, by whom furnished, 292; lodging of, 294; by whom provided, 295; cannot be kept in private house, XVII, 48, 49; penalty, 49.
SOLDIERS' WILLS, favor to, I, 246.
SON, free when sold three times, I, 65; under control, when appointed heir or disinherited, 127; must be expressly disinherited, 127; when passed over in silence, will broken, 130; under paternal control, action with, XIII, 56; when can become surety, 57; when contract made with, 58;
when borrows money, 62; right of to mother's estate, XIV, 107; rule when a minor, 108; cannot write in will at his father's dictation that he is his heir, XV, 48.
SOOTHSAYERS, penalty of, I, 324, 326.
SPECIFIC PROPERTY, action to recover, applicable to all chattels, III, 201; applies to flocks and herds, 202; action for division of property in common can also be brought, 202; when property must be delivered, 205; deterioration of article must be considered, 205, 206; rule when suit brought for slave, 206; security required of defendant, 207; possessor must deliver all he has obtained, 207; rule of accession, 208, 209; recovery of materials, 209; increased value of slave through education accounted for, 211; rule of alluvion, 212; when suit for share brought, 212; when a slave sells land, 214; when negligence is to be considered, 214; when possessor of land dies before issue is joined, 216; peculium, separate articles of must be sued for, 216; when suit brought in bad faith, 217.
SPENDTHRIFT, who can dispose of property of, XVII, 241, 242.
SPIES, required to prove accusations, XV, 267.
SPONSOR, what he is, I, 166; heir not liable, 167.
SPONSORS AND GUARANTORS, who they are, I, 166; form of interrogation of, 166; when accepted, 166; differences between, 166, 167; heirs of, when liable, 167; when released, 167; release of, 167.
SPORTUL^E, must not be increased, XII, 132; reduced, XV, 284.
STATE, sale of property of, how effected, XV, 187; who must be present at, 188.
STATUES, must not be erected without imperial permission, XII, 127, 128; when refuge taken at those of Emperor, 128.
STATUS of deceased person can be raised after five years, IX, 151, 152; proceedings to establish, 152; collusion of masters and slaves to fix, 153.
STELLIONATUS, nature of, does not involve infamy, XI, 8; no legal punishment for, prescribed, 8; instances of, 8.
STEWARD, when can be sued, XII, 44.
STIPULATION, made for something impossible, void, I, 164; instances of invalidation of, 164; void when question not asked, 164; not valid when made with one without authority, 165; or with person who is deaf or dumb, or insane, 165; when joint, how made, 165; less, but not more may be agreed upon, 166; act of slave making, void, 166; when void, 164, 165; joint, when legal, may be for less, not more, 166; form of, 268; effect of, security for, 318; formulas of, II, 111-117; conditional, 112; places of, 112; objects of, 112, 114; parties to, 113, 118; by slave, 113; division of, 114; praetorian, nature of, 114; conventional, common, 114; inoperative, 114-116; who incapable of making, 116; by absent person, invalid, 116; ancient rule of, 117; valid after death, 117; when made for another, 118; rules governing, 118; various kinds of, X, 94, 95; from what arise, 94, 95; examples of, 95-98; when dishonorable, void, 98; when made with thief, not valid, 99; for own property, when valid, 99; by person under control of others, 101; cannot be made for others, 102; rules governing, 103-105; for services, 107; can be made for transfer of usufruct, when, 108, 109; for payment of money, 109; when made for penalty, valid, 110, 111; if made by slave, void, when, 112; certain and uncertain, effect of, 112-114; when
made for land, crops not included, 114; cannot make for own property, 114; for choice, 120, 124; promise to pay under, 121; freeman cannot be object of, 123; for security, 123-125; made with condition, 126; with reference to fraud, kinds of, 128; concerning a crime void from beginning, 131; made by father for son same as for himself, 133; for right of way to reach land, when annulled, 137; double, effect of, 139; different dates may be given in, 140; liability of parties to, 141; joint-promisors in a, how liable, 141, 142; intention of parties to, how ascertained, 142-144; of slave, rules concerning, 145-154; when slave has two masters, 147, 150; when use of property bequeathed, 151; to pay judgment, 176; when ward ratines a, 177; when made absolutely, 178; praetorian, three kinds of, 223; rules with reference to, 223; what it involves, 223, 224; when security for ceases to exist in law, 224; when ambiguous, interpreted by Praetor, 225; for payment of a judgment of threefold nature, 231; has reference to an indeterminate sum, 232; when can, and cannot be defended, 232; when one of two sureties pays his share, 233; clause denying fraud in, 234; rules concerning, XIV, 290, 291; validity of, not affected by absence of guardian, 291; technicalities of, abolished, 292; construction of, 293, 294; made under puberty void, 294; when no right of action under, 295; when two or more enter into a, 296; when different debts paid under, 296.
STOLEN GOODS, recovery of, I, 178; delivery of, 178; search for, 178.
STOLEN PROPERTY, must be recovered by owner alone, IV, 160; suit for, can be brought against son under paternal control, 161; profits included, 161; when stolen slave bequeathed, 163; when various articles are stolen, 163; when right to recover lost, 163, 164; under whose control it is, IX, 219.
STRATORES, fees of, XV, 270, 271.
STUDENTS OF LAW, rules to be observed by, XII, 94-97; warning against improper conduct of, 98.
SUBDEACON, age of creation of, XVII, 218.
SUBSTITUTION, rules of, I, 134, 135; must be publicly made, 135, 136; applicable to posthumous children, for strangers, 136; degrees of, II, 65; for minor children, form of, 65; pupillary, rules of, 66; for disinherited children, 66; may be made separately, 66; up to what age valid, 66, 67; of heirs, VI, 76; rules of, 239, 240; when not legal, 242; pupillary, when terminated, 244; several degrees of, legal, 250; instances of, 250-254; form of, 253-256.
SUCCESSION, per stirpes and per capita, I, 152; exclusion of sons and grandson's of different patrons from, 158; to estates of Latins, 158; abrogation of, in purchase of insolvent estate, II, 109; rules of, XIV, 80-85; of illegitimate children, 88; degrees of, 90; intestate, when sister preferred, 91; of a brother without issue, 92; rule of descent applicable to, 94, 95; when emancipated son called to, 95; stepfather not entitled to, of son, 96; when paternal uncle entitled to, 97; when issue of son or daughter called to, 98; to estates of mothers, 99, 100; of shipmaster, who entitled to, 111; to son who dies intestate, XVI, 13.
SUFFRAGE, payment for can be collected, XIII, 11.
SUICIDE, when criminal has no heirs, XI, 129; property of, forfeited to the Treasury, 130, 170; estate of confiscated, XV, 85.
SUIT, for more than is due, in what way brought, I, 194; less than debt may be claimed in, 196; when more is claimed case is lost, 196; under
stipulation by slave, 210; who can bring in own name, or in that of another, II, 162; by agent, 162; what order must be observed in bringing, XV, 190.
SUMMONS, who not subject to, II, 271, 272; opinions concerning, 272-275; penalty for illegal, 276; must be obeyed, 276, 277.
SUNDAY, no one may labor on, rule relating to, XVII, 254, 255.
SUPERINDUCED WOMEN, penalty for entertaining, XVII, 96.
SURETY, perpetually liable, I, 167; right of recovery of, 168; unlike sponsor and guarantor, 166; when may be taken, II, 119; liability of, 119; when several, all responsible, 119; not bound for more than debt, 119; when entitled to action on mandate, 119; rules of, 279, 280; may object to jurisdiction of court, 280; woman not accepted a, 281; when bond given by, 281; guardian and curator must give, 281; arbiter for examination of, 282; when rejected, 282; possessor of land not required to furnish, 282, 283; in noxal action, 283, 284; can be added to every obligation, X, 155; how bound, 155,156; when given by testamentary guardian, 156; can be taken for part, 157; when principal debtor becomes heir of, 158; when one surety has paid, 159; when can be accepted, 159; relief granted to, 160; when becomes heir of stipulator, 161; when one appears for another, 162; when released debtor gives, after debt due, surety not liable, 164; when furnished by two joint-debtors, 165; cannot be accepted for deported debtors, 166; when a minor by fraud becomes a, 167; when co-heir accepted as, 168; when property of claimed by Treasury, 168; when not accepted, 169; cannot be sued before principal debtor becomes liable, 170; must personally promise to be liable, 171; can be accepted by slave, 173; when becomes heir of principal, released, 209; when liable, XIV, 297; when cannot be sued, 298; when released, 299; any may be sued, 300; when did not sign bond, 300; for magistrates, liability of, XV, 189.
SURVEYOR, rules governing, IV, 84, 85; liability of, 85; action may be brought against others than, 86.
SWINDLING, instances of, XV, 58, 59.
T
TAX, of five percent, I, 302; ecclesiastics free from, XII, 29, 30; supplementary, when not payable, XV, 103, 104; sale of property for, 106, 107; receipts given for payment of, 107; collectors of, how restrained, 318, 319; authority of, 319; interference with collecting of, how punished, XVI, 205, 206; in kind, when payable, XVII, 113; collected at risk of officials, 114; proper weights and measures must be used in collection of, 115, 116; transfer of, when made, 201, 202; extortion by collectors of, penalty for, 259.
TAX COLLECTOR, duties of, XV, 104-106.
TAXATION, when fraudulently evaded, punished by confiscation, IX, 19; collection of taxes when leased, 20; when cannot be collected, 20; what must be declared for, 23; how real property declared for, XI, 257, 258; correction of return for, 258; no one exempt from payable in kind, XV, 112.
TENURE, precarious, what it is, V, 78.
TERMS, signification of, XI, 259; "day's journey," 259; "property," 260; "destroyed," 260; "creditors," 261; "woman," "lost," 261; "public,"
•T. "' ' '
"taxes," 262; "restitution," 262; "possession," 263; "inheritance," "part," "alienation," 263; "action," "litigation," "prodigy," 264; "adjuration," "slave," "arms," 265; "release," 266; "parent," 266; definitions, 267-297.
TERTULLIAN DECREE OP SENATE, II, 95; how operative, 95; position of children of deceased mother, 95; changes of, 95; relief to mothers by, 96; succession of illegitimate children admitted by, 96; XIV, 81, 82; XV, 73; XVI, 140.
TESTAMENTARY CAPACITY, how ascertained, I, 126. TESTAMENTARY GUARDIANS, for whom appointed, 1,103.
TESTATOR, when appoints poor his heirs, XII, 50; course to be pursued by bishop, 51; when obstacles placed in way of, XIV, 26; can hypothecate estate, 52.
TESTIFY, penalty for refusal to, I, 71.
THEFT, by day, punishment of, I, 60; kinds of, 177, 283; action for, 180; by violence, 181; rules governing, 179; of persons, 179; of own property, 180; when committed by avarice, 180; consists of intent, 181; child under puberty, not liable, 181; object of action for, 283; when it lies, 283; penalty, 284; when debtor commits, 284; committed by slave, 284; of slave, 285; what is, II, 134; when committed, 135; examples of, 136, 137; from parents and masters, 138; when creditor can bring action for, 138; action granted for, 139; of deposit, 139; who can commit, 134, 136, 139; III, 137; when liability for attaches, X, 245; handling of article essential, 246; who entitled to action for, 247; not granted person in bad faith, 247; when action for does not lie, 248; examples of liability for, 248-251; when person guilty of, liable to usufructuary, 251; when committed by slave, 252; how property described in action for, 252; owner guilty of when takes pledged article, 253; in case of deposit, 253; when not committed, instances, 254, 255; of land, cannot be committed, 256; when tenant can bring action for, 256; one who assists is not always manifest thief, 258; when one who aids, liable, 259; cases of, 260-262; does not exist when property abandoned, 262; rule when property thrown overboard from ship, 262; by a partner, 263; of slave subject to usufruct, 263; when party does not sue, 265; not committed without fraud, 266; when wife liable for, 267; when creditor liable for, 267, 270; instances of, 268, 269; of peculium, 271, 272; of article loaned, 273; of pledge, 275; when stolen slave steals from thief, 276; of property belonging to an estate, 277; use of property lent 'or deposited not, 278; by false agent, 279; of crops for land, 280; of timber joined to a building, 282, 283; by slaves, 284, 285; against captains of vessels and landlords, 286; when committed by body of slaves, rule of, 287, 288; of trees cut down, 289; what trees are, 289; action for, 289; action for, does not lie against heirs, XIII, 294; when one collects a debt without creditor's consent, he is guilty of, 295; when action will lie for, 297; of borrowed property, 298.
THIEF, legally killed in act, I, 59; suit against, 62; nocturnal, how tried and punished, XI, 5, 6.
THINGS, division of, I, 111; public or private, 111; corporeal and incorporeal, 111; susceptible of mancipation, 112; unsalable, pass by delivery, 112; sacred and religious, what they are, II, 34; title to, how acquired, 35-42; classes of, 241; public and private, sacred, religious and holy the property of no one, 243; definition of, 241-245.
THRACE, Praetor of, administration of office by, XVI, 155-157; court of, of whom composed, 157; duties of, 157-159; compensation of, 159, 160.
THREATENED INJURY, definition of, Vill, 317; when security not furnished against, 317; how notice of served, 317, 318; when injury already sustained, 319.
TIME, allowed to pay judgment, I, 63; for title by usucaption, 68; how differs from penalty, XI, 278; granted absent party in case to appear, XVI, 263, 264.
TITLE, to stolen property does not pass, I, 62; lucrative, does not arise from promise of dowry, X, 81; by stipulation, property under, 116; to property, when disputed, course to be taken, XIV, 288; examples of, 289, 290.
TOMB, not acquired by usucaption, I, 76.
TOOTH, penalty'for loss of, I, 71.
TORTURE, when inflicted, I, 321, 322; of slaves, 322; when inflicted on slaves, VI, 319, 320; when not permitted, 320; rules regarding, 320-323; purpose of, XI, 98-100; when freedmen cannot suffer, 99; of enemies, 101; when slave not liable to, 102, 103; not inflicted in a pecuniary case, or upon minors, 103; in cases of high treason, 103; after slave has been appraised, 104; can be repeated, 104; not to be applied without due consideration, 105; only to be used against slaves in case of adultery, XV, 66; interrogation under, rules of, 68-70.
TRANSACTION, with son or slave, who responsible for, I, 198.
TRANSFER, of property to enemy, penalty for, XVII, 260, 261.
TREASON, trial and penalty for, I, 74, 330; when judge cannot be accused of, XV, 4, 5; one accused of liable to torture, 5; rules concerning prosecution of, 6, 7; accusation of, can be made after death, 8, 9.
TREASURE TROVE, rules governing, II, 40; XV, 100; who entitled to, XVII, 251, 252.
TREASURY, rights of, I, 319; preference of, 320; when notice must be given to, XI, 158; examples of, 159-163; what property can be claimed by the, 162; nothing acquired by when persons sentenced to mines, 162; right of, when lands sold by, purchaser liable for taxes, 169; liability of purchaser for, 170; entitled to real action when secret trust exists, 170; alienation of property to defraud, revoked, 170; grants of freedom to defraud, rescinded, 171; what can be denounced to, 172; when copies of documents furnished by, 172; when fraud attempted against, liability for double damages incurred, 173; has always right of pledge, 173; when land of, sublet, 174; offices of, when can sue and be sued, XV, 91, 92; rights of action of, 89, 90; in auction sale, 92; sale by, 93, 94; revocation of decisions against, 95.
TREBELLIAN DECREE OF THE SENATE, effect of, I, 146, 299, 305; VI, 111; Vill, 47; objects of, 47, 48; applies to soldier's will, other instances of, 41, 48-51; when applicable, arbiter appointed to appraise estate, 42; when security required under, 43; does not apply to certain wills, 43; how amount under, fixed, 44; XII, 112; XIV, 60, 61.
TREES, penalty for cutting, I, 62. TRESPASS BY CATTLE, penalty for, I, 70.
TRIAL, of case, I, 59; proceedings in, XII, 264, 265; must take place where crime committed, 280, 281.
TRIARII, Chief Centurion of, pay and duties of, XV, 320.
TRIBUTE, in grain, by whom payable, XV, 101; rules relating to, 101; release from, how effected, XVII, 197, 198.
TRIBUTORIAN ACTION, excluded, when, IV, 216; to whom applicable, 220; liability when fraud committed, 220; examples of, 222-225.
TRIPLICATIO, use of, I, 209.
TRITICARIAN ACTION, when it lies, IV, 165.
TRUST, form of words to create a, I, 145; extinguished when estate rejected, 146; any article may be left under a, 147; applies to property of heir, legatee or anyone else, 147; bequeathed in Greek, valid, 149; property cannot be left under, by way of penalty, 150; form of bequest of, 249; what may be left by, 250; when valid, 250; cannot be created by way of penalty, 250; freedom can be granted by a, 251; who charged with, 298; form of charge of, 298; when void, '298; when title to vests, 298; how executed, 299; cannot be charged under condition, VII, 109; when beneficiary of sureties loses, 116; of legacy if paid when not due can be recovered, XIII, 13; when no bond required for execution of, XIV, 62; property passes with all charges under a, 72; when security to execute demanded, 77; when right of action against magistrates not given, 78, 79; rules relating to, 44, 45; intention of deceased decided by judge, 45; no one can be charged with, without receiving some consideration, 45; when legacy embraced in, 47; guardians as trustees must execute, 48; can be left in the presence of witnesses, 48; when rejected, exception on ground of fraud can be pleaded, 49; when oath concerning, tendered heir, 50; when not executed in a year, 51; beneficiary of, entitled to personal rights of action, 51, 52; when beneficiary of should not sell or hypothecate property, 54; when property of, pledged, 55; purpose of must be observed, 57; when conditional, 58-60. TRUST ESTATE, rules of, II, 81; transfer of, 81-83; surrender of, 81; refusal to enter upon, 82; when articles deducted, 84; transfer by intestate, 84; at first dependent on heirs' good faith, 84; rule applicable to, 84; special bequests, 85; what may be included in, 85; freedom left as part of, 85; who can bequeath, VII, 10; form of, 10, 11, 40, 41, 52, 53; when legatee charged with, 39; when all heirs charged with, T50, 74; examples of, 53, 54; void when contrary to good morals, 55; conditional, 55; to appoint someone else heir, void, 56; trust to emancipate children, not compulsory, 57; when heir charged with delivery under, 60; when posthumous child charged with, 61; when heir specifically charged with, 68; when left to freedman conditionally, 71; when words creating a, are omitted, 83; property given by husband to wife not included in, 83; when heir charged to pay double amount of legacy by, 85; residuary estate left by, 86; rule of, relating to servitudes, 87; when curator of minor charged under a, 91; when heirs charged to surrender, at death, 91; when several trusts charged, 93, 94; cannot be executed in violation of Falcidian Law, 94; when freedom left a slave under a, 97; when heir at law charged with, by intestate, 108.
TRUSTEE, is still heir after transference of estate, I, 145; must be sued first, XIII, 22; when enters a monastery, XIV, 63; when conceals himself, 64.
U
UNDE COGNATI, signification of, XIII, 310, 311. UNDE LEGITIMI, nature of, XIII, 310, 311.
UNDE LIBERI, proceedings of, what it is, XIII, 310.
UNDE Vi, IX, 316, 317; when applicable, 318.
UNDE VIR ET UXOR, succession of, XIII, 312.
URBAN PRAETOR, when guardian demanded of, I, 107.
USE, does not imply complete non-payment, III, 269; rules of, 269-271; when left conditionally, 271; of tract of land, 273; limitations of, 273; part cannot be left, 274; use of water personal, 274.
USUCAPTION, of chattels complete in year, land in two years, I, 115; sacred property not acquired by, 116; how obtained, II, 47; when not applicable, 47; of land, 48; not gained when title bad, 48; when acquired by soldier, III, 109; when acquired by one in public service, 110; property bought from insane person acquired by, 222; what it applies to, 222; why introduced, IX, 198; who can acquire by, 198; how ward acquires by, 199; of female slave, 200; forcible deprivation of, effect, 200, 201; release of a servitude may be acquired by, but servitudes themselves cannot, 202; pledges not acquired by, 203; when law forbids, good faith no advantage, 205; cannot take place without possession, 206; error of law never benefits possession in, 207; may be completed before estate entered on, 211; when property cannot be acquired by, 213; stolen property not acquired by, 214; child of female slave, when acquired by, 220; gift acquired by, 222; does not take place in gifts between husband and wife, 222; possession of legacy, when acquired by, 225; not acquired by child of female slave while in possession of thief, XIII, 293.
USUFRUCT, only transferable in court, I, 113; creation of, in slaves, 114; how separable from property, II, 44; how created, 45; in what ways ended, 45, 46; III, 228; often part of ownership, 228; when bequeathed, 228; what it includes, 228-230; when retained, 231; when bequeathed, owner of property can demand security, 232; when not regarded as part of property, 241; when left to two persons, 241; when left to tenant, rights of, 241; effect of stipulation on, 243; when not retained, 243; when value of bequeathed, 243; when bequest of, void, 247; when right to, disputed, 247; when right of accrual of exists, 250; rules of accrual of, 251; when lost reverts to legatee, 251; when merger of, 252; instances of bequest of, 253; when left to different persons, 253; when and how legacy of vests, 254; estate must be entered upon first, 254; in what ways lost, 255; may be bequeathed for separate years, 256; various bequests of, 258, 259; not lost by change of ownership, 259; when left to a city, 260; lost by non-use, 260; sale of, by owner, 261; when left to debtor, security required, 262; of articles consumed, 262-264; action for recovery of, 264, 265; when brought under a will, 265; when an action in rem will lie, 266; bequest of, VII, 173; to wife, 174, 176, 177; to daughter, 174; when left to freedman, 283; of slave, 329; cannot be acquired for an estate by a slave, IX, 177; left by will reverts to property, XII, 318; not extinguished during life of usufructuary, 318; beneficiary of must make repairs, 318; when owner leases, 319; bequest of, doubt concerning, 320; when acquired by slaves for master, 321; course of extinction of, 322; when not extinguished, 322, 323; when given as money, XVI, 130.
USUFRUCTUARY, cannot acquire a slave by usucaption, I, 123; power of, III, 230; can transfer right, 230; liable for damage committed, 232; cannot make condition of property worse, 233; can change house, 233; must
GENERAL INDEX
not abuse slave, 234; owner of property must not interfere with, 234; can acquire profits by labor of slave, 239; rules relating to usufruct of slaves, 239; compelled to tolerate a servitude on land, 240; when not held to use right, 243; what he cannot do, 245; when responsible for negligence, 247; when can bring suit, 247; can hunt on land, 248; obliged to repair wrong by own act, 248; liability under Lex Aquilia, 248, 249; can sell right without heir's consent, 249; must make up losses, 249, 250; when can build on land, 250; when entitled to interdict, 257; responsible for safekeeping, 275; when obtains ownership of, 276, 278.
UTI POSSIDETIS, I, 212; object of, IX, 318, 319; protects possessor of land, how, 319; of twofold nature, 320; when available, 320; examples of, 321; should be granted usufructuaries, 321; concerning private rights of way, 323; is prohibitory, 323; what must be proved under, 323; when delay granted no prejudice results, 324; available when usufruct purchased, 326; security must be furnished, 327; concerning the use of water, 328; has reference to running water alone, 329; rule relating to aqueducts, 330; ground for, when water in or out of a town, 330; when land sold will still apply, 331; edict of Prsetor concerning, 332, 333; rules regulating conduct of water, 333, 334; XIV, 242; Salvian, 243.
UTRUBI, when available, I, 212.
V
VELLEIAN DECREE OP SENATE, I, 272; purpose of, IV, 272;" relief of women cause of, 272; instances of application of, 273, 274; when sureties taken, 274; when a woman borrows money, 276; when a woman becomes surety, 275-278; when ple'dge taken, 278; when a woman suffers loss, 279; women protected by when given, 281; when woman orders credit given to slave, 281; when she enters on estate, 283; when she sells land, 283; when she binds herself under, 284; XIII, 63-70; when it applies, 64.
VENDOR, false statement by, I, 275; immunity of, V, 16; when reserves crops, 24; when condition cannot be improved, 25; can sell to best purchasers, 27; when liable in full, 28; not forced to give security, 33; when has profited by sale, 34; when reserves a slave, 35; when has paid taxes, 36; when loses money of estate, not liable, 36; of claim, must deliver all he has obtained to purchaser, 40; diligence required of, 45; when takes security, 50; when liable, 55; when guilty of fraud, 56; when entitled to action, 63; can recover expenses, 63; when reserves lodging, 64; if conceals tax purposely, liable, 66; liable when makes false statement, 67; must furnish accessories, 69.
VETERANS, privileges of, I, 89; XI, 203; enjoyment of immunity from taxation, by, 204; privileges of, when lost, XV, 299.
VEXATIOUS LITIGATION, action of, I, 217; when applicable, 217; oath may be exacted instead of, 217; remedy for, III, 51; when money paid to begin, 52; instances of, 52; rule of liability, 53; when one not entitled to sue, 53; action must be brought within a year, 53; when year begins, 54; proceedings in case of, 54, 55.
VICEGERENT, authority of, XII, 144.
VIOLENCE, act of, what it means, XI, 304; crimes attended by, XV, 19, 20; slaves guilty of, 21; judge infamous if he does not punish, 21.
VOTE OF GREAT COMITIA, necessary, when, I, 73.
W
WARD, female, transfer of guardianship of, I, 106; no right of action against guardian, 109; cannot alienate property, 120; loan of money by, 121; acquisition of property by delivery to, 121; authority of guardian necessary, 165; when accepts interest, VI, 98; when property of, lost, 102; cannot alienate property without consent of guardian, 110; cannot release guardian from liability, 112; when can sue and be sued, 113; where brought up, 142; expenses of, altered by Praetor, 143, 144; when allowance of decreased, 144; when one becomes heir of another, 149; when suffers loss, 151, 152; can avail himself of subsidiary actions, 165; when purchases land, 169; when land of claimed, 169; when land pledged to, 170; cannot stipulate, 170; sale of land by, 171; when land of illegally sold, 174; how brought up, XIII, 255; support of, how regulated, 256; release by, does not cause loss of right of action, 266; land of, not sold without a decree, 281-283; when property of may be sold without a decree, 284; ratification of 'sale by, after reaching majority, 287; donation by, not confirmed by a decree, 287; right of not prejudiced when estate rejected, XIV, 23; corruption of female, by guardian, penalty, XV, 18.
WATER, public right to use, XV, 194, 195; servitude of, abolished, 195, 196; inspectors of, how identified, 197.
WIFE, released from hand of husband by remancipation, I, 102; while in hands of husband a proper heir, 150.
WILD BEASTS, not subject to sale, I, 112; how long owned, 119; chase of, XV, 198.
WILL, different kinds of, I, 124, 239; by bronze and balance, 124; witnesses to, 124; who are disqualified as witnesses, 124; military, 125; who appointed heirs to military, 125; male under fourteen cannot make, 125; testamentary capacity, how ascertained, 126; how validity is ascertained, 126; heir appointed in regular form, how this is done, 126; of woman, void without guardian's consent, 126; attestation of seals of seven witnesses necessary, 126; guardians of women forced to give consent to, 127; son under control, when appointed heir or disinherited, 127; when children passed over, valid, 127; rule of, concerning emancipated daughter, 127; form of disinheritance necessary, 128; when invalidated by manumitted son, 129; revoked by one subsequently executed, 130; void when testator loses civil rights, 130; when illegal not absolutely void, 130; invalidated by contrary intention, 131; how executed, 240; who can execute, 240, 241; disposal of peculium by, 240; how broken, 245; when void, 245; who can make, 286, 287; who disqualified to make, 287; inofficious, 300, 301; penalty for opening, 328; how executed, II, 55; in procinctu, 55; forms of, 55; number of witnesses required, 55; ancient fiction concerning, 56; when witnesses excluded, 56; copies of, may be made, 57; in writing, 57; military rules concerning, 57, 58; who are forbidden to make, 58-60; how invalidated, 67; when broken, 67; when, and how revoked, 67; by loss of civil rights, 68; inofficious, action of, 68, 69; inofficious, can be attacked by parents and children, III, 158; proceedings based on unsound mind of testator, 158; meaning of this, 158; may be attacked by posthumous child, 159; when right of action passes to him, 159; father cannot act in behalf of son against, 160; abandonment disposes of case of, 160; instances of, 160-165; when in case of loss, bequest is for-
feited, 162; if legacy accepted under, cannot attack, 163; when set aside, 165; when one of two sons attack, 168; when right to attack exists after compromise, 169; bastards can attack mother's will, 170; when son acts as advocate or agent he cannot attack, 170; who can make, VI, 179, 180; what persons incapable of making, 180-182; when valid, 181; who can take under, 182; heir cannot witness, 182, 183; competency of witness, 183; how changed, 184; witnesses to, examination of, 184; how sealed, 185; copies of, 185; when a slave can draw up a, 186; heirs, appointment of by, 188, 189, 192, 194-196; when children cannot break, 196, 197; when illegal, 198; when broken by posthumous child, 199, 203, 204; who do not break, 200; when becomes invalid, 200-202; broken by adoption, 202; when erased or cancelled, valid, 205, 206; delay in opening does not affect heir, 210; when testator makes mistake in, 212; various provisions of, 227, 228; military, 267; rules of, 267, 268; captive cannot execute, 268; what can be left by, 268; how heirs appointed by, 270, 271; rules governing military, 271-276; of discharged soldiers, 277, 278; substitution by, 279; opening and inspection of, when allowed, 305; ordered by Prsetor, 306; when opened, witnesses must be present, 306; relinquishment of rights under, 317, 318; when not opened through bad faith, 326; when partly opened, 327; when testator prevented from making, penalty, VII, 3; when children appointed to unequal share under a, 58; when real property left to slave by, 59; slave left twice by, 80; when defective words creating a will render it defective, 92; cannot be made when testator doubtful of status, 106; examples of, 106-108; various bequests by, 125-131; trust under, 131, 13"2; use or usufruct of a right cannot be bequeathed by, 167; services of slave can be left by, 167; when land left absolutely by, 167; fraudulent alienation of, XI, 74, 75; theft of, 76; destruction of, 79; opening of, penalty for, 123; when defect in, found after division of estate, act not prejudiced when done through ignorance, XII, 119; inofficious, when appointed heirs should not be possessors, 291, 292; when sons can attack as inofficious, 292, 293; when daughter can bring action against, 295; instances of, 295-297; what child must prove when he brings proceedings to declare inofficious, 297; causes of action for inofficiousness, 299-301; when action will not lie, 301; rules concerning, 302, 303; military, not liable to complaint for inofficiousness, 303-305; disposition of peculium by, 304; military, rules concerning, XIII, 321, 323; appointment of heir solicited to become such by, void, 323; privileges of, 324, 325; who can execute, 325-328; insane person can make, during lucid interval, 327; when destroyed, 329; mistake does not invalidate, 329; valid when stolen, 331; formalities of, abolished in, 331, 332; when sealed, 334; when not signed, 335; when nuncupative, not valid, 335; to whom property can be left by, 335; before whom must be opened, 336; rules relative to unwritten, 337; must be continuously executed, 338; number of witnesses to, required, 339, 341; what renders a will void, 341; ordered produced by judge, XIV, 24; when contestant of, appears, 25; cannot be revoked by a codicil, 28; number of witnesses necessary when executed, 32; tombs cannot be left by, but right of burial can, 35; when void, grants of freedom not valid, 115; number of witnesses necessary to prove, XVII, 244, 245; when valid, though not attested by signatures or seals, 245; how rendered valid, 246, 247; by whom may be witnessed, 247; who should sign, 247, 248; signature to, establishes validity of, 273.
WINE, must not be poured on a corpse or funeral pyre, I, 75.
WITNESS, when disqualified, I, 321, 322; when can be produced, V, 232; rank and integrity of considered, 233; more attention paid to them than to evidence, 233; how summoned, 234; who excluded as, 234; who incompetent, 235-237; competency of, rules concerning, XIII, 37, 38; when cannot be excluded, 39; must be summoned, 40; when not compelled to leave home, 40; when called to effect compromise, 40, 41; must be of good repute, XVI, 337; when subject to corporeal punishment, 337; when testament of reduced to writing, 338; shall only testify twice in same case, 339; can only be examined in their own province, 340; must prove freedom, 341; mediator cannot act as, 341; sworn on Gospels, 342.
WOMAN, who has lived with a husband for year, is legal wife, I, 68; restraint of mourning by, 75; how adopted, 96; cannot adopt, 96; in hand, not released from paternal control without coemption, 101; generally in tutelage, 109; loan of money by, 121; legally paid without tutelary authority, 121; estate of passes by right of agnation, 152; when cannot manumit, 224; in hand of husband, meaning of, 231; freeborn, marriage with a slave, 277, 278; pregnant, when to be watched, VI, 38, 39; notice to be given of pregnancy, when, 39; when pregnancy denied, proof of, 44, 45; witnesses at delivery of, 45; when placed in possession because of unborn child, 46; when action granted, 48; when guilty of fraud, 48; when can bring suit, 49; when consented to or signed evidence of husband's debt, act void, XIII, 68; cannot obligate herself, 69; can make payment in behalf of another, 65; cannot become surety, 66; relief of, 66; to whom husband left usufruct, 171; who gives preference to child in will, XVI, 10, 11; rules concerning, 12, 13; acts as surety void, XVII, 142; cannot marry her ravisher, 165; who contracts a second marriage while husband alive, 234; cannot act as witness to contract, 249, 250; when must publish inventory of dowry, 293; when loses mind through fault of husband, 293, 294; how long must be endured, 294.
WREATHS, of large size forbidden at funerals, I, 75.
Y
YEAR, how reckoned, I, 213.
