Leges Selectae

THE SELECTED LAWS OF THE EMPEROR JUSTINIAN, by which he dealt with the affairs of the Church or testified to his piety toward God.

BOOK I, TITLE III. i

Concerning bishops and clerics.

LEX XLII.

The Emperor Justinian Augustus to Atarbius, Praetorian Prefect.

Exercising all providence concerning the most holy churches, to the honor and glory of the holy and incorrupt and consubstantial Trinity, through which we believe both ourselves and the commonwealth will be kept safe, and attending also to the doctrine of the holy apostles concerning the appointment of blameless priests—who are ordained chiefly for this reason, that by their prayers they may obtain the kindness of the most humane God for public affairs—we sanction by the present law that, as often as it happens that a priestly see is vacant in any city whatsoever, a decree shall be made by those who inhabit that city concerning three persons of right faith, of honorable life, and having the testimony of other good qualities and virtues, so that from among them the more suitable may be promoted to the episcopate. For if the holy and glorious apostles, having obtained the priesthood from the Lord Christ and God, and having filled the whole earth with all good things and imparted His doctrine to all, did not even spare their own life, which they lived in this world, for the sake of our salvation, how would it not be right that those who enter into their order and are appointed priests of the most holy churches should have a pure purpose, and despise money, and refer every matter to the most merciful God?

I i. It is fitting, therefore, that priests of this kind be chosen and ordained who have neither children nor grandchildren; for it can scarcely happen that a man free from the daily cares of this life—cares which children create in the greatest measure for a parent—should expend all his zeal and all his understanding upon the divine liturgy and ecclesiastical affairs. For since certain persons, with the highest hope in God and so that their souls may be saved, hasten to the most holy churches and bring and leave behind all their possessions, so that they may be spent on the poor and the needy and other pious uses, it is unfitting that bishops should take these things for their own profit or spend them on their own offspring and relatives. For a bishop ought, in no way hindered by affections for carnal children, to be the spiritual father of all the faithful. For these reasons, therefore, we prohibit a man who has sons or grandsons from being ordained bishop.

§ 2.

But as for those bishops who now are, or shall be, we sanction that they have in no way the power of making a will, or of giving, or of alienating by any other device whatsoever anything of their property which they have possessed and acquired after they became bishops, whether from wills, or donations, or from any other cause: except only those things which they had before their episcopate from any cause whatsoever, or which after their episcopate have come or shall come to them from parents and thei, that is, paternal or maternal uncles, and from brothers; for whatever after ordination has come to them from any cause outside the aforesaid persons, we order to belong to the most holy Church whose episcopate they held, and to be claimed and recovered by it, no other person having the power to take any gain for himself therefrom. For who would doubt that those who leave or have left their own property to them, even if they transfer or have transferred it to another person, did so contemplating not so much the person as the priesthood itself, and thinking that they will not only piously use what has been left by them, but will also add their own property?

§ 5. From this general law of ours, however, we except only those things, whatsoever and of whatever kind they may be, which up to this day belonged to Epiphanius, archbishop of this blessed city and most holy patriarch. For as to those things which shall be acquired by him from this time on, we command that what has been established by us shall hold, and that they themselves belong to the most holy greater church. — § 4. But after the death of the God-beloved bishops, we command that the stewards (oeconomi) of those churches for the time being render accounts of the property left by them, and that this accrue to the most holy churches which is owed to them by this law of ours.

§ 5. And we order that the stewards themselves be appointed with judgment and careful examination, since they know that each year they shall render to their most holy bishop an account of their administration; and in whatever matter they shall appear to have diminished or harmed the property of the church, or to have sought their own gain, they shall restore it to the property of the church. Therefore, if indeed such persons, while surviving, submit to such accounts, let what has been stated above be done; but if they die without having rendered their accounts, then their heirs shall be subject to such examination, and shall be sued for the restitution of all that it is established they owe on that account. — § 6.

We have also believed it necessary to define something with respect to those who have taken on, or will take on, the care of the venerable xenones, nosocomia, ptochia, orphanotrophia, and brephotrophia; for we remove from them all license to transfer in any way to other persons anything from the property acquired after they have undertaken such administration, whether by testament or by any other means or device: excepting those things which they had previously possessed, or which afterward came to them from parents or uncles or brothers. For all things whatsoever that belong to the holy places, or that have come, or will come, to those set over them after they have undertaken such care, shall belong to those same venerable places; and we wish them to be distributed and dispensed piously among those who are in those places or are being cared for there.

For it is manifest that whoever leaves or donates anything, whether in writing or without writing, to a xenodochium, or a nosocomium, or a ptochotrophium, or an orphanotrophium, gives it for this purpose, that it be piously administered by him, so that he who has been set over such places may have great presumption and occasion from their piety; nor is it just that he should not spend what he receives under the pretext of those who are under his care upon them or for them, but should carry it off for his own person and apply it to his own profit, despising the fear of God. For who would not think that a man set over such a care undertook it for this reason, that he should spend upon that matter not only what comes to him from outside, but also all that he happens to possess?

§ 7. Furthermore, we also command this, that whatever remains after the necessary expenditure upon those who have been entrusted to their care and the due maintenance of the properties and buildings, shall be applied to the acquisition of income; for on every side our aim and intention is to bring to enlargement and increase the things set apart for pious uses; for thus whoever wishes to do anything for his soul will give more readily, if he believes that what has been given by him is to be piously administered. — § 8.

But if it happens that anyone ceases from the administration he had received, we sanction that the one appointed in his place shall, with the fear of the Lord, be subjected to the rendering of accounts for the administration carried out under him, as is contained in our divine law; and he who is appointed after him shall know that he will render an account to the Lord God for these things.

§ 9. Moreover we sanction (as has also been defined by the divine canons) that no bishop or chorepiscopus, or visitor, or circuit inspector, or presbyter, or any other cleric of whatever dignity, shall be ordained through bribery. But neither shall an oeconomus, nor an ecclesiecdicus, nor a xenodochus, nor a nosocomus, nor a ptochotrophus, nor an orphanotrophus, nor a brephotrophus, nor anyone who is to be placed in charge of a poorhouse, be appointed through such bribery, but through the judgment and testing of those who are in those places, the bishops most beloved of God. If, however, anyone is found to have given or received anything on the occasion of the aforesaid ordinations and administrations, whether he be a bishop or a cleric, we order both the one who gave and the one who received to be removed from the priesthood and the clergy, so that hereafter they may be subject to the condemnation of the Lord God.

But if anyone is found to have given something on account of a prefecture, we order that the one who has thus been made prefect be outside the clergy. If, however, an steward or church official or defender or country bishop, that is, a period deut, visitor or hospitaler, or infirmarer, or poorhouse keeper, or orphanotrophus, or overseer of the poor, is found to have given something so that such a charge might be committed to him, we also order that this man be removed from a charge of this kind. § 10. Moreover, we sanction that all clerics established throughout the individual churches sing the night, morning, and evening offices themselves, lest clerics appear to exist from the consumption of ecclesiastical goods alone, having indeed the name of clerics but not fulfilling the reality of clerics in the liturgy of the Lord God. For it is shameful that, on their behalf, written singers should sing, a necessity having been induced for them. For if many of the laity, in order to care for their own soul, flocking to the most holy churches, are shown to be zealous in psalmody, how is it not indecent that clerics ordained for this should not fulfill their duty? Wherefore we order that clerics in every way sing, and that they be examined by the God-beloved bishops for the time being, and by two presbyters in each church, and by him who is called the archos or exarch, and by the church official or defender of each most holy church; and that those who are not found persevering blamelessly in the liturgies be placed outside the clergy.

For those who established or founded the most holy churches for their own salvation and that of the commonwealth left them property, so that through it the sacred liturgies ought to be performed, and so that God may be worshipped in them by the pious who minister there. Moreover, we grant license to every person who knows that any of these things has been omitted to denounce and make it public. § ii. But those things which have been sanctioned by us, we order to be brought to completion and carried through to effect with God's kindness; but those who have fallen under suspicion of having rashly dared to omit any of these things are to undergo danger first indeed by the judgment of the Lord God, and then the penalties established in this law. Given on the Kalends of March, at Constantinople, in the consulship of our lord Justinian, perpetual Augustus, for the second time, 528.

LEX XLIII.

The same Augustus to Epiphanius, archbishop of Constantinople and patriarch.

Always applying every providence concerning the most holy churches, through which we believe both our empire is sustained and the commonwealth is defended by the grace of the most merciful God, and also.

We, desiring that our own souls and the souls of all others be saved, and being therefore constantly solicitous lest the revenues of the most holy churches, in whatever city they are established, be diminished in any way, and lest the divine liturgies performed in them be hindered or not properly attended to through the absence of the priests most beloved of God, and lest furthermore the resources of the most holy churches be consumed, both on account of journeys and on account of the expenses of priests and clerics accompanying them who travel hither; whence often the necessity arises of borrowing at interest, and from this a burden comes upon the most holy churches themselves; and likewise lest the administration of ecclesiastical affairs proceed improperly during the time of the absence of the bishops most beloved of God, we have judged it proper that these divine letters of ours be used by Your Beatitude. — § i.

Through whom we command it to be made manifest to all the most holy priests subject to them in each metropolis of every province, that it is not fitting for any of them, or of the bishops who are ordained under the metropolitan in the cities of other provinces, to leave, according to their own will and without our special divine command, the most holy church governed by them and to come to this blessed city, whatever matter may arise; but they ought to send here one or two from the pious clergy subject to them, and to make known to our Piety the things of which they have need, either through themselves or through your Blessedness, and so to enjoy our just and ready aid. For if anything of the matters reported to us shall appear to us such as to require the presence of these priests of God, we shall forthwith command them to set out; but without such divine command, we grant no one leave to set out. — § 2.

Knowing that the transgressor of these things, and he who passes over the observance rightly and piously introduced by us for the honor of the most holy churches, will experience no small indignation, but will also be subject to excommunication—if indeed he is a metropolitan, by your blessedness; but if he is a bishop of a city that is subject to the metropolitan, by the metropolitan himself. For we have thought it unnecessary to define a pecuniary penalty against those who contemn our divine disposition, lest from it damage redound to the most holy churches, whose affairs we desire to remain free from all diminution. § 3. Therefore let your holiness take care to bring these things to the knowledge of each of the God-beloved metropolitan bishops ordained under you, and to report to our religion, from each one, the responses sent back, as well through the metropolitans as through the God-beloved bishops of the other cities of the province, concerning what they have learned in this matter. Given on the kalends of March, at Constantinople, in the consulship of our lord Justinian, perpetual Augustus, for the second time, 528.

LAW XLIV.

The same Augustus to Menna, Praetorian Prefect.

Consulting the adornment of the most holy churches and the most pious monasteries, we forbid all those dwelling in monasteries to associate with monastic women, or to devise any occasion by which they may have any communication with them (for this introduces just suspicion, of meeting with them continually or whenever they wish); but they are to be so separated that they have no participation with one another for any cause, nor is any occasion to be devised, either by those or by these, of mutual dwelling together; but men are to live by themselves alone in any monastery, separated from the monasteries neighboring them for any cause; likewise women alone by themselves, not mingled with men, so that all suspicion of indecorous conversation may be wholly removed. But if there are more men, the women ought, by the providence of the bishops of the individual cities, to be transferred to another suitable place, and a monastery given to them, in which they ought thereafter to conduct themselves honorably among themselves; but if more women are found, or even an equal number, the men indeed are to be transferred, but the women to remain in the monastery, so that the movable and immovable and self-moving property of the monastery itself be divided proportionally between those who leave and those who remain.

But necessary responses from those dwelling with them, with the women separated: let one old man be set apart by the most God-beloved bishop of the city; but for performing the divine liturgies and participating in holy communion, let one presbyter and one deacon of honorable life be provided, who ought to do only these things mentioned above, and not also eat and converse with them, or cohabit with them. For if these things are observed, both their life will be blessed—those who have chosen the solitary life—and we shall obtain readier help from the most God-beloved God for the common affairs of our state. What therefore we have now judged to be rightly held concerning common affairs is of this kind. But we have also believed that no small benefit will be seen to have been added to these things from our divine constitution.

§ i. But there is also need of careful observation and caution, lest these things be in any way neglected. This will not happen otherwise than if the most God-beloved bishops of each city diligently inspect the conduct of the monks dwelling in the monasteries arranged under their care; and if they perceive any such lapse, let them restrain such an undertaking of theirs by all means; and let them subject to penalties those who after our prohibition still perpetrate such things; and let them compel their conduct to be pure and separated from all commerce with women.

For it is also clear to the most God-beloved bishops themselves, if they have wished to judge this rightly, that from the observance of this honorable manner of life of the most devoted monks, and if it happens that nothing indecent or dishonorable befalls them, God, being propitious, will prosper the common affairs of our Republic.

§ 2. But lest the most God-beloved bishops themselves consider this our precept superfluous, we wish them to know that if any of them is shown not to investigate these matters with all diligence, or not to correct a manifest lapse according to the aforesaid modes, he will indeed be liable to the judgment of the Lord God, and now the indignation of our imperial majesty will come upon him, and his priesthood will be endangered concerning him, nor will any other greater indignation be needed. — § 3. Therefore let your Excellency make this divine enactment of our law manifest to the most God-beloved bishops of every metropolis and to the most illustrious governors of the provinces, adding also this: that they themselves, if need be, bring all aid to the most pious bishops of the cities for the coercion of such [lapses] as we have ordered to be removed; and if they find that they have acted with any negligence, they shall make it manifest to us by their own report, so that all may assuredly know both what things must be observed by them and the penalty defined for negligence.

But let the most God-beloved metropolitans also make this divine law of ours manifest to the other most reverend bishops of the cities of the same province, and denounce it to all, that they may guard these things with vigilant zeal, fearing the defined penalty. — § 4. And that the full observance of this divine law of ours may not be protracted, and also that the most reverend monks themselves who are presently dwelling in the monasteries may not think that a short time is given them for making the due and enjoined separation, we define for them a decree of one year from the day on which this divine law of ours has been made manifest, so that after the course of a year, if those things which pertain to their manner of life appear to remain in the same form, there may be place in every way for the penalties inserted into this divine law of ours. Given on the fifteenth day before the Kalends of February, at Constantinople, in the consulship of Uecius, most illustrious, 529.

LEX XLV.

The same Augustus to Julianus, Praetorian Prefect.

Since the sacred canons permit neither the most God-beloved presbyters nor the most reverend deacons or subdeacons to contract marriages after ordination of this kind, but grant this only to the most reverend psalmists and readers, we have observed that certain persons, despising indeed the sacred canons, are begetting children from certain women with whom they cannot be joined according to priestly censure.

Since, therefore, the penalty for this crime was solely the loss of the priesthood, but our laws also wish the sacred canons to have no less force than the laws, we decree that what is contained in the sacred canons shall also prevail, just as if it had been written in the civil laws; and that all men of this kind shall be stripped both of the priesthood and of the divine ministry, and even of the very dignity which they hold. For just as such things are forbidden by the sacred canons, so also by our laws the matter itself is forbidden; and in addition to the aforesaid penalty of being cut off from the ministry, those who are born, or have been born, from such disordered defilement shall not even be legitimate and their own fathers' heirs, but shall share the disgrace that arises from such seed; for we ordain that such persons be as those whom the laws define as born from incestuous or abominable marriages, so that they are not understood to be natural, nor bastards, nor spurious, but utterly and on every side prohibited and unworthy of the succession of their begetters; and neither they nor their mothers can receive a donation from them, not even through intervening persons, but the benefits conferred on them by their fathers shall be transferred to the holy church from which those who have committed such things come. For what the sacred canons prohibit, we also abolish by our laws.

But if some simulated obligation is made under the appearance of a loan or of another contract in an instrument, which makes him obligated who has become a participant in this kind of defilement, we wish this also to be invalid, and the giving of such things to come not to the person in whose name the writings were drawn up, but to the most holy church. Given on the fifteenth day before the Kalends of November, at Constantinople, in the consulship of Lampadius and Orestes, most illustrious men, 530.

LEX XLVI.

The same Augustus to Julianus, Praetorian Prefect.

We sanction that if anyone has made a pious disposition in anticipation of death, whether by way of institution of an heir, or by legacy, or trust, or gift in anticipation of death, or by any other lawful manner; whether he has enjoined the bishop of the time to take care that what he wished be fulfilled, or has kept silent on this, or has even forbidden the contrary; the heirs are to have the necessity of both doing and fully carrying out what was ordained. But if they do not do this of their own accord, the God-beloved bishops of the place are to be immediately diligent in these matters, and to demand that they fulfill everything according to the will of the deceased. But if indeed the testator has enjoined the building of a church, they are to press within three years that it be completed; but if the building of a xenon, they are to compel this to be done within one year only, as a sufficient time having been established for completing what pleased the testators: since it is possible both to conduct a house and to lay the sick there in beds, until the work of building the xenon or hospital is completed.

But if certain things are given and at the same time by one performance they have been condemned to pious causes, they must be compelled to do this at once, that is, after the insinuation of the testament and after the inheritance or legacy has been taken up by those who have been honored. § 1. If, however, the aforesaid time has passed and neither a church nor a hospital has been built, nor is there anyone who may arrange this, then the God-beloved bishops themselves shall demand those things which have been ordained for this purpose, and what has been properly sought for that end, and shall see to the building of most holy churches and the preparation of hospitals and gerontocomia or orphanotrophia, or the construction of ptochotrophia or nosocomia, or the redemption of captives, or any other pious action ordained by the testator, and shall also designate or appoint those who are to administer these things—xenodochoi, or orphanotrophoi, or brephotrophoi, or gerontokomoi, or simply administrators and curators of pious actions; and after the lapse of the said time and the said impiety, those who have not done these things shall no longer be able to involve themselves in the hope of administering the aforesaid matters, nor to hinder the God-beloved bishops from the administration of those matters. § 2. The most illustrious governors of the provinces shall impose the necessity upon the heirs to fulfill all these things completely; for it has also been proclaimed by the ancient laws that the necessity is imposed upon those who are permitted to have what they have left behind to fulfill the wishes of the deceased.

§ 3. But let the God-beloved bishops, if those who have departed have expressly appointed certain persons over the matters (for example, hospitalers, feeders of the poor, or caretakers of the sick, or nurturers of infants, or nurturers of orphans, or caretakers of the aged, or resident clergy, or stewards, or, simply speaking, administrators of pious works), permit them indeed to hold the administration; but let the bishops themselves not administer, yet let them inspect or observe the administration of those persons, and indeed praise one who conducts it rightly, but correct one who in some respects transgresses; and if the administration has been made very bad, let them even expel these and appoint others, who think and conceive in their mind the fear of the great God, and the terrible day of the great and never-ending judgment, with regard to which it is fitting that they, looking to it, do all things with a mind ordered toward God. But if those who die have not expressly appointed anyone to the administration, but have placed the matter in the power of the heirs, and these have neglected it, let the God-beloved bishops themselves both administer and appoint the above-written persons (such as feeders of the poor, or caretakers of the sick, and the rest in succession, who also bear in mind the fear of the great God), so that by every means and device the things that have been ordered may be brought to effect. — § 4.

But above all, we sanction that for the whole time during which the written heirs have delayed to carry out the dispositions, they are customarily compelled [to account for] the fruits, revenues, and every lawful accession from the time of the death of the one who made the disposition, without regard to delay reckoned from the joinder of issue or from the summons, but with the delay understood by the law itself (as the common saying goes) to have preceded, and with the accession of fruits and other things having place. § 5. The same rule obtaining, even if such a pious legacy has been left not by an heir but by a fideicommissary or legatee, and the one honored by the legacy has accepted it, and indeed it is thereafter permitted to the God-beloved bishops to require that such persons, honored with certain things, carry out the dispositions.

§ 6.

But if the God-beloved bishops of the places are negligent in doing this, perhaps corrupted by favor toward the written heirs, or legatees, or fideicommissaries, there shall be license either to the metropolitan of the province, or to the archbishop of that diocese, when cognizant of these matters, to inquire and to compel the pious work or pious liberality to be fulfilled in every way; and it shall be lawful for any of the citizens to do the same, since the reason of piety is common, and it is fitting that the affections for the execution of these matters be established as common and popular; each one having license by this our law to move by the condictitious law and to demand that the things left be fulfilled; let him who has neglected these things know, the God-beloved bishop [being aware], that he himself, besides the punishments imminent from heaven, shall also experience the imperial motion upon such contempt. § 7. But so that the heirs of the dying, or those burdened with the charge of procuring and performing these matters, may be terrified by yet greater fear, lest they defer the effect of these matters, we also sanction this, that if, having been urged by the God-beloved bishops who are honored with these matters, they afterwards have ceased or delayed, so that the exaction of the governors becomes necessary, forthwith not only shall they themselves be exacted the single (as it is called) amount, but altogether the double.

For if among the ancients there were certain cases in which, from denial, a double condemnation was imposed, how is it not also fitting here that those who not only failed to act of their own accord, but moreover dragged out the time, and finally, when attacked by the God-beloved bishops, and then did not immediately obey them, have needed even the governor's enforcement—how is it not fitting that they be punished by a double exaction?

§ 8. But if those who are dying wish their own heirs, when the heirs themselves are about to die, to perform some pious action, not during their own lifetime, and wish this to be observed, and the heirs are not compelled to do in the meantime any of the things that the testator wished to be done after their death: but when they themselves die, they shall be under every necessity to perform these things; and if any delay is made by their heirs, then it is necessary that those things be done which we arranged above. — § 9. But if any of those things which are called annual legacies have been left or given to the clergy, perhaps, or to a monastery, or to ascetics, or to deaconesses, or to poorhouses, or to hospices, or to hospitals, or to foundling homes, or to the poor of the most holy churches, or simply to certain pious associations, or to any guilds of the people that are not forbidden; and those who are found at the time wish, after some time, having accepted money, to settle such an action; it shall not be permitted to do this, nor shall what has been done be valid; indeed, he who has redeemed or settled these things shall also suffer deprivation of the property.

Since it will be necessary that some of them have an abundance of money for a part of the time, while those who are to come will suffer a complete deprivation of the things left. But neither the very name of anniversaries, nor the perpetual memory of the deceased, on account of which he also left this annual sum, shall be preserved, but it shall be extinguished at once, perishing together with the very alienation of the things left. We therefore sanction that they remain perpetually liable to payments of this kind, to such an extent that if any alienation is made, it too shall be invalid, and those who at any time preside over the pious places shall have license to pursue and exact them, with no prescription of time to be opposed to them, since such an action arises through each individual year. Moreover, the goods of him who left them shall be subject to a hypothec for the sake of legacies of this kind: so that they may have license to satisfy the pious works from those very things, not only for the things left but also for their fruits and revenues and every legitimate temporal accession (as has been said), with no prescription retaining them, since one can sue however much time anyone has counted.

Unless between the person burdened with an annual legacy and the one who has been constituted as prelate according to the sacred canons and our laws, a pact of this kind of exaction has been made, by which it has been agreed that a revenue be given for the annual legacy by the burdened person, always valid and perpetual, and not subject to many public burdens; but also having an addition, indeed not less than a fourth part of the pure revenue, or more, to the extent, namely, that has been agreed between them. For if such a thing is made a pact in writing, and such a revenue has been given, and received in writing, by pacts and transactions, and this has been established as manifest through the records of monuments, we sanction that the exaction of the annual legacy cease against the one who is burdened by it; but that the revenue be established in place of the legacy, perpetually assigned to that purpose, and which cannot be alienated by anyone by any mode of alienation whatsoever. But if none of these has followed, we sanction that those who are twice burdened remain perpetually subject (as has been said by us before) to the giving of annual legacies, so that both the name and the memory of the deceased and the annual revenues are preserved perpetually in those very works. Given on the fifteenth day before the Kalends of November, at Constantinople, in the consulship of Lampadius and Orestes, 530.

LAW XLVII.

The same Augustus to Julianus, Praetorian Prefect.

We have deemed it proper that this law also be added to our sacred laws, which assigns religious abbacies or prefectures on the basis of merit, and not on the basis of length of time: namely, so that in pious monasteries or asceteries, when the abbot or abbess has died, the one who is older in time, or the second and thereafter, should not be chosen in every case.

For we assent to nature, that not all are similarly good, nor does he make all equal in doing evil, but whoever indeed both a most excellent life and honorable morals and constancy in pious exercise and the common fulfillment of the remaining monks, or the greatest part of them, have judged suitable for this, and with the sacred Gospels set forth has chosen, is to be called to the prefecture, so that if indeed the first after the deceased is useful and worthy to preside over the monks, he is preferred to the others; but if he who is after him, similarly the vote of the future prefect is borne to him; but if none of these seems worthy, immediately he who from all is suitable, of whatever rank he may be, is appointed abbot beforehand, who is evidently both of honorable life and of honorable conduct, and who can preserve those entrusted to him, since it is fitting that every principate and every prefecture of men be made not from times, nor from lots, nor from fortuitous circumstances, but from election and from what is more excellent; and that good testimony and approval be with all, that order be made for ordination. 4. But these things are to be made manifest to the God-beloved bishop, so that when he has declared him who has been elected and has approved that this is rightly done, he may bear a vote consenting with the electors and promote him to this order of abbot.

It is proper, however, to approve this election itself, both the patriarch for the time being and the God-beloved bishops who are in these places, they themselves also having the judgment of God and fearing future condemnation, lest they make a promotion not through election but looking to some human passion or affection: they themselves being about to have, both in this life and in the future, punishment sent by God, namely, since by their negligence causes of sins are provided to very many souls. — § 2. All these things also obtaining in the case of the most reverend women or virgins who preside over pious monasteries. — § 5. All the rest of the sacred order presiding over the sacred ministry according to their own ranks, and nothing in any matter being innovated by this present law of ours. Given on the fifteenth day before the Kalends of December, at Constantinople, in the consulship of Lampadius and Orestes, 530.

LAW XLVIII.

The same Augustus to John, Praetorian Prefect.

We decree that no one is to be ordained to the episcopate unless he is both useful and excellent in other respects as well, and neither lives with a wife nor is the father of children, but in place of a wife cleaves indeed to the most holy Church and is continent; in place of children, however, let him have all the Christian and orthodox people, knowing that from the beginning we have so disposed those matters which concern the succession of God-beloved bishops, and that our law has proceeded with this manner of thought; and that those who do anything contrary to these provisions, or have done so, are unworthy of every episcopate. For whoever after this our constitution shall dare to make certain men bishops contrary to its force, or to be made so, shall neither be counted among the bishops nor remain in the sacred rites, but, cast out from these, they shall give place to others for ordination, men both most diligent in the first place and also in all things pleasing to God. Given on the fourth day before the Kalends of September, at Constantinople, after the consulships of Lampadius and Orestes, 531.

LAW XLIX.

The same Emperor Justinian Augustus to Joannes, Praetorian Prefect. If anyone, in order to evade the Falcidian law, when he desires to leave his whole substance for the redemption of captives, has written those very captives as his heirs, lest he be seen to have left his judgment open to challenge on the ground that heirs were instituted as though they were uncertain persons, we sanction that an institution of this kind and character is valid by reason of piety, and is not to be rejected. — § 1. But even if he has written the poor as heirs, and no certain poorhouse is found, or the poor of certain churches whom the testator had in mind, but the poor have been instituted as heirs under an uncertain designation, in like manner we decree that an institution of this kind also is valid. — § 2. And if indeed he has written as heirs the captives of the city in which the testator is known to have kept his household and lived, the bishop and the steward shall take up the inheritance, and the inheritance shall proceed in every way to the redemption of captives, whether by annual revenues or by the sale of movable or self-moving things: with no profit whatsoever being left from this, either to the steward, or to the bishop, or to the sacrosanct church. For if for this reason a departure has been made from a specific heir, so that the Falcidian calculation not be brought in, how is it to be tolerated that what has come into the sacred domain be diminished through the Falcidian law or any other occasion? — § 5.

But where the poor have been written as heirs without distinction, there the xenon of that city shall in every way obtain the inheritance, and through the xenodochium distribution of the patrimony shall be made to the sick, according to what we have established in the case of captives, either through the expenditure of annual revenues, or through the sale of movable and self-moving things, so that from these immovable things may be purchased and an annual sustenance may accrue to the sick. For who is poorer than men who are both beset by want and placed in a xenon and laboring under bodily afflictions, unable to bring necessary sustenance to themselves? — § 4. Permission is by all means to be given, both in the former and in the second kind, both to bring an action and to exact debts, so that they may be consumed on captives or on the sick. For if we have given them both the right and the name of heirs, though without the benefit of the Falcidian law, it is necessary for them to exact debts and to answer creditors. — § 5. But if there are larger xenons or ptochotrophia in the city, lest the giving of money appear uncertain, then we decree that the same things or monies be assigned to that xenon or ptochotrophium which is recognized to be poorer, this being examined, namely, by the most reverend bishop of the places and the clerics constituted under him.

§ 6. But if no xenon is found in the city, then, according to the sanction concerning captives, for the time being the steward of the sacrosanct church or the bishop shall receive the inheritance; and without application of the Falcidian portion, those same monies shall be distributed to the poor who are in the city, whether wholly beggars or in need of other support. — § 7. We sanction that all these provisions have place only when no designation of a specific xenon or a specific ptochotrophium or a specific church has followed from the testator, but his intention is uncertain. But if he has had regard to a certain person or a certain venerable house, we sanction that the inheritance or legacy belongs to that one alone, with no Falcidian portion intervening in this part either. — § 8. In all such cases, however, let the administrators of the sacrosanct things expect heavenly wrath if they acquire for themselves any kind of profit from such administrations, or if they consent to this being committed by another, and unless they strive to correct what has been done wrongly by the heaviest penalty and threat.

LAW L.

The same Augustus to John, Praetorian Prefect.

Since by the Leonine law it was granted to the most reverend bishops, presbyters, and deacons to have a peculium as if it were a castrense peculium, with the addition that they may also make a will in respect of it, it was doubted whether wills of this kind ought to be attacked by a complaint of undutiful will, since the same question had arisen concerning all persons who had earned a peculium of this kind. We therefore sanction that the most reverend bishops, presbyters, and deacons who possess such a peculium as if it were a castrense peculium may, in respect of those things only which belong to the quasi-castrense peculium, not only make their last testaments according to the laws (which derives from the Leonine constitution), but also that their last wills made concerning these matters only shall not be subject at all to a complaint of undutiful will. Given on the Nones of February, at Constantinople, in the consulship after Lampadius and Orestes, year 2, 532.

LAW LI.

The same Augustus to John, Praetorian Prefect.

If anyone, in drawing up an instrument, has confessed that he will not use the prescription of the forum by reason of the prerogative of the priesthood, we sanction that it is not permitted him to go against his own agreements and to deceive the contracting parties, since it is a rule of ancient law that all have license to renounce those things which have been granted in their favor. We sanction that this general law shall obtain in all cases which have not yet been settled by judicial sentence or amicable agreement. Given on the Kalends of September, at Constantinople, after the consulships of Lampadius and Orestes, most illustrious men, 532.

LAW LII.

The same Augustus to John, Praetorian Prefect.

We sanction generally that all most reverend bishops, as well as presbyters, deacons, and subdeacons, and especially monks, although they are not clerics, have by the law itself complete immunity from all tutelage, whether testamentary, legitimate, or dative; and that they be free not only from tutelage, but also from cura, not only of pupilli and adults, but also of the insane, the mute, the deaf, and other persons to whom tutors or curators are given by the ancient laws. — § 1. We sanction, however, that those clerics and monks have the benefit of this kind who remain at the sacrosanct churches or monasteries, not wandering about nor slothful in the divine ministries; since for this very reason we grant them the benefit, that, with all other things abandoned, they may cleave to the ministries of God Almighty. — § 1.

And we sanction that this shall obtain not only in old Rome, or in this royal city, but also in every land, wherever the name of Christians is held in honor.

LAW LIII.

The same Augustus to John, Praetorian Prefect.

We sanction that from henceforth no one at all shall become a curialis, or a taxeotes, a bishop or a presbyter; this law in no way pertaining to or touching those who before it were held worthy of such priesthood; but from henceforth no one at all who is of the aforesaid condition shall ascend to the aforesaid consecrations; and especially if he had already previously served as a minister, or had served the taxeotic orders; for it is certainly not equitable that he who has been nurtured in violent (or harsh) executions and in the sins that arise from that circumstance should now, on the one hand, forthwith be both a taxeotes and a bouleutes and do the harshest of all things, and then presently be ordained a priest, expounding doctrines of humanity and innocence.

Unless, from infancy and while still of an age not yet exceeding the ephebiate, it has befallen him to be numbered among the most reverend monks and to remain in that very habit; for then we permit him both to become a presbyter and to attain to the episcopate, since it is manifest that as soon as such a thing has occurred and he has appeared worthy of the priesthood, he shall forthwith have license to remain in the episcopate and to minister, provided that he give a fourth part of his substance to the decurions and to the fisc (according to the law recently laid down by us concerning the fourth part), or to the fisc alone, if indeed it has befallen him to be liable for the taxotic theft. But if he is also counted among the most reverend archimandrites and has remained among them, we grant release from fortune in this manner also, he being then to give a fourth part of his substance (as we have said); otherwise, however, we neither permit him to be ordained nor, once ordained, to do any such thing. Let your Excellency know that these things must be observed by all God-beloved bishops, who are to expect a penalty in respect of the priesthood itself if they have done any such thing; besides this, that even he who has been ordained shall not enjoy the priesthood, although he was previously ordained in some grade of the priesthood, but shall be reduced among private persons and shall perform the ministries to which he was previously subject.

We wish all these provisions to obtain for future time, since they have now first been discovered by us, this law in no way pertaining (as we have said) to those who have once been adorned with this sacerdotal dignity, but who themselves have the license to minister through substitutes, according to the constitution of Theodosius and Valentinian of pious memory, which was written in reply to Thomas. — § 1. In addition to these things, we sanction that this also is just, and shall obtain, and shall be in use, which, having been established from the beginning and observed by custom, has, we know not how, fallen into disuse. For we remember that we came upon the Constitution of Arcadius and Honorius of pious memory, wishing that clerics, if they have neglected their orders and passed over into any armed military service whatsoever, or, having been deposed by God-beloved bishops, have dared to serve as soldiers, should indeed be sent to the military service they have obtained, but should be handed over to the curiae of cities to minister publicly in the future, since they have withdrawn themselves from the service of the Lord God for as long as they served as soldiers. We sanction by this our law that all these things shall obtain, ordering that they themselves immediately and forthwith be made curiales of that city from which they are, unless the city abounds exceedingly in curiales; in which case, of the neighboring or even the further city, up to another province, where the greatest scarcity of curiales has been established. But if they hide themselves (as is probable), we grant to the curiales license immediately to enter their property, to retain their goods, and to satisfy themselves therefrom according to law.

We therefore sanction that these provisions obtain in perpetuity concerning the most reverend clerics of whatever rank, and we wish that law which also existed previously to obtain in those matters which have already been carried out. But since we have found a certain constitution concerning monks that speaks and wishes that they not abandon their own monasteries nor disturb the cities, which some suspect was also sanctioned for a certain time, we have deemed it necessary, taking occasion from it, to reform this also more perfectly and for all time, so that from henceforth no one of the most reverend monks shall have license to do any such thing, and indeed to abandon the monastic habit, but to gird himself with any military service whatsoever, or with a belt, or with a dignity, or to follow the life of those who are engaged in judicial proceedings, and to prefer human occupations to the service of God or to take cognizance of them; with the one who has done any such thing being given to the curia of that city from which he is, or even to another, as has been said, and if indeed he is wealthy, he shall also undergo extraordinary public duties, but if not, corporal public duties; and here license is to be given to the curiae (as we have said), if they become invisible, to seize their goods and to satisfy themselves from these according to law.

In all cases, however, in which we order the municipal councils to receive from these causes, we wish the curiales to receive half of these indeed not in gold, but in immovable property, either that which is subject or that which is to be acquired according to the law previously issued by us, while the other half is to be brought into the general account of your excellency's table; so that your throne also may provide vigilantly, lest any such thing committed lie hidden, but as soon as anything has been done, a suitable remedy be applied concerning this, except if now they themselves voluntarily and of their own accord have left the militia, or simply the schema which they have, and seriously and truly return again to the monastic life, and hasten to be numbered among the most reverend clerics. For if they have done this within one year from the issuance of this law, we remit the penalty for them, thinking that amendment from their exercise suffices for them. But we wish these things to obtain for the following time, not leaving those outside the said penalty, as many as having become monks from our principate have done any such thing; for that which preceded we dismiss both on account of humanity and also fearing the time, since nothing had been expressly established before. — § 2.

We also decree this: whether a father, a mother, or anyone else has introduced a restitution or substitution on account of the lack of children, in favor of certain males or females, and these persons have chosen not to enter into marriage because of the manner of their way of life, such restitutions or substitutions are to be rescinded; and they are to have the power to consecrate to whatever pious purpose they wish what proceeds from these, and either to consume it while they survive or to leave it when they die; just as, if something has been left to them under the condition of having children, they ought to have this very thing without being compelled in the least to have children. We extend and establish the same rule of law also in the case of women who have professed virginity, and of the most reverend clerics who are altogether prohibited from taking wives, and we render this grace worthy of God for our times. — § 3.

To these provisions we also sanction that, whether a man wishes to come to a solitary life, or a woman, having left her husband, has come to the practice of monastic life, this shall not provide a cause of loss; but that she receive her own in every way, so that it is permitted the wife to receive her dowry, and the donation on account of marriage to him who had lived with her; and the profit that comes from there, not according to her who claims it through repudiation or separation, nor to remain with him who did not depart, but according to what was agreed in the pact for the case of death; as if he who departs seems to be dead to the common fellowship of the other in the other's household, since he is entirely useless to the one cohabiting; but whatever has been received in the dowry instruments from the pacts for the case of death, let it be understood as owed. A woman not daring to look to another marriage before the lapse of a year, on account of the uncertainty of generation (or of seed). But if any such thing is to happen, let divorce be sent immediately, which is for that reason called by good grace, by the person who does not choose conversion, and so let her do what she wishes, the profits (as was said before) pertaining to herself. Of course, that which would be gained from such a cause is to be preserved in every way, if both in the prior marriage either the man or the woman had remained, for the common children born from that marriage, if there are any. Given on the fifth day before the Kalends of December, at Constantinople, after the consulships of Lampadius and Orestes, in the year 1, 532.

LAW 54.

The same Augustus to Hermogenes, master of the offices. We decree that those who ravish virgins, or widows, or deaconesses who have been dedicated to God, committing the worst of crimes, are to be punished with the supreme penalty, because it is committed not only to the injury of men, but also to the irreverence of Almighty God himself. Therefore those who have committed a crime of this kind, and those who have given them aid at the time of the invasion, when they are found in the very act of ravishment and caught while the crime is still blazing, having been convicted by the parents of the holy virgins, or widows, or deaconesses, or by their blood relatives, or tutors, or curators, shall be put to death. But if, after such a detestable crime has been committed, the ravisher has been able to defend himself by power, or to escape by flight, then in this royal city both the eminent prefect of the praetorian guard and the most glorious prefect of the city, but in the provinces both the most eminent prefect of the praetorian guard throughout Illyricum and Africa, and the masters of the soldiers throughout the various regions of our world, as well as the honorable prefect of Egypt, and the vicars, and the proconsuls, and likewise the honorable dukes, and the most illustrious governors of the provinces, nor.

Let not other judges of whatever rank who are found in those places fail to apply similar zeal with great care, so that they can seize them; and having seized them in such a crime, after lawful proofs known to the law, without any strong prescription, let them inflict the harshest penalties and condemn them to the punishment of death. But their goods, if this has been committed against a consecrated virgin who lives either in an asceterium or a monastery, whether the same virgin has been constituted a deaconess or not, are to be assigned to the same monastery or asceterium where she was consecrated, so that from these things she herself may have a sufficient solace while she lives, and the sacrosanct asceterium or monastery may have all things in full ownership; but if she is a deaconess of any church, yet established in no monastery or asceterium, but living by herself, her substance is to be assigned to the church of which she is a deaconess, so that from these resources she herself indeed may obtain the usufruct from the same church while she survives; but the church is to have all the ownership and full possession of the same things by our beneficence, with no one, whether judge or any other person, daring to despise these things. But the penalties which we have foretold (that is, of death and loss of goods) we have established not only against the ravagers, but also against those who accompanied them in the very invasion and ravishment.

But all others who are found and convicted to be accomplices and agents of this kind of crime, or who have received them, or have given them any assistance whatsoever, whether they be male or female, of whatever condition, rank, or dignity, we subject only to capital punishment. So that all may be subject to this penalty, whether such a crime has been perpetrated with the willing or unwilling consent of nuns and virgins, or of the other women mentioned above. Given on the fifteenth day before the Kalends of December, at Constantinople, in the consulship of Justinian, Father of the Fatherland, Augustus, for the third time, 533.

LAW LV.

The same Augustus.

That it shall not be lawful for parents to prevent their children, who wish it, from becoming monks or clerics, or to disinherit them for this reason alone: but if they themselves make a will, they must leave them a quarter; but if they have not done this, the case shall be one of intestacy.

§1. But if they leave monasteries or churches to them, and they remain in the world, all their right pertains to the monastery or church.

LAW 56.

The same Augustus to John, Praetorian Prefect.

With God twice giving aid, we hasten to establish by laws and to fulfill in deeds all things that we undertake to be done for the honor of the holy catholic Church according to God's good pleasure. And indeed with His aid we have already established many things that accord with ecclesiastical doctrine and order; but at present, in this pious deliberation, we have deemed it necessary to correct what has hitherto been done contrary to the fear of God. For it has come to our knowledge that if a betrothed man or a betrothed woman, after the earnest-money had been given and received, wished to devote himself or herself to divine service and to withdraw from secular conversation and to live a monastic life and to remain in the fear of God, the man was compelled to lose what he had given by way of earnest-money, while the betrothed woman was compelled to repay double what she had received. This has seemed to Our Clemency to be contrary to religion. Wherefore by the present law, to be valid in perpetuity, we command: that if a betrothed man or a betrothed woman has desired to despise the life of this world and to live in the monastic conversation, the betrothed man shall receive back without any diminution all that he gave by way of earnest-money for the sake of the future marriage; but the betrothed woman shall restore to the betrothed man not double (as hitherto), but only that which she received by way of earnest-money, and she shall not be compelled to repay anything more than what she is proven to have received.

For provision has already been made by an earlier law of ours for both husbands and wives who renounce the world: that, whether the husband or the wife has withdrawn from the marriage for the sake of religion and chosen a solitary life, each of them shall recover his or her own property which he or she had given by way of dowry or ante-nuptial donation, and he or she shall obtain as profit from the one who has chosen the solitary life only that which he or she would have been entitled to demand, either by law or by agreement, in the event of death.

§ 1. We also judge that this matter, having come to our knowledge, is worthy of our correction: that if any man or woman established under the power of parents, or perhaps released from such power by law, has chosen to join a monastery or the clergy, and has wished to spend the remaining time of his or her life in holy devotion, the parents shall not be permitted in any way to withdraw them, or to repel them from their inheritance or succession for this reason alone, as though they were ungrateful; but it shall be necessary for them in every way, when they make their final will, whether by writing or in another lawful manner, to leave them indeed a fourth portion according to our laws; but if they wish to bestow even more upon them, we grant this to their will.

But if the parents are shown to have declared their last will neither by testament nor by any other final utterance, let the heirs to whom the succession ab intestato belongs claim the whole substance of the parents for themselves according to our laws, with no impediment arising for them from the monastic conversation, whether they are called to the succession alone or together with others. § 1. Moreover, we wish those to obtain the benefits of this our perpetual law who have persevered in a monastery or in the clergy. For if any of those concerning whom we have set forth the present law have chosen the monastic life, but afterwards have returned to secular conversation, we order that all their property pertain to the right of the same church or monastery from which they withdrew. § 3. These matters having been thus disposed, with the law repeated we order that no Jew, or pagan, or heretic have Christian slaves. But if they are found in such a charge, we sanction that the slaves shall be free in every way, according to the earlier tenor of our laws. In the present law, moreover, we decree this further, that.

If any of the aforesaid Jews, or pagans, or heretics has slaves not yet imbued with the most holy mysteries of the catholic faith, and the aforesaid slaves desire to come to the orthodox faith, after they have been joined to the catholic church, they shall by all means be delivered into freedom by the present law; and both the judges of the provinces and the defenders of the sacrosanct church, as well as the most blessed bishops, shall defend them, with the owners receiving absolutely nothing for their prices. But if perhaps hereafter their very owners also should be converted to the orthodox faith, it shall not be lawful for them to recall to servitude those who preceded them to the orthodox faith. But if anyone usurps such things, he shall be subject to the most severe penalties. Therefore all these things which Our Eternity has sanctioned by reason of piety, let all judges and the most religious bishops, whether of the African diocese (in which we have learned that such vices especially abound) or of other provinces, take care to observe diligently and most zealously. For contemners shall be struck not only with a pecuniary fine, but also with the punishment of capital sentence.

LAW LVII.

The same Augustus to John, Praetorian Prefect.

The present law refers to the mention of another law written by us, which we have undoubtedly judged ought to be confirmed again with a certain better addition, by bringing forth a greater penalty against offenders; not because we delight in increases of penalties (for nothing is so pleasing to us as what is more humane), but so that by fear of punishment we may keep those who are inclined to sin from sinning. We know, therefore, that we have written a law saying that there is no license for the stewards of the most holy churches, or for the overseers of orphanages, or of hospitals, or of poorhouses, or of monasteries, whether of men or of women, or of other such bodies which the aforesaid constitution mentions, to sell for a fixed price according to some agreement, or otherwise alienate by any manner whatsoever, those things which have been left to them in perpetuity, which the laws call annual, and to deprive their posterity of the solace that would come to them therefrom; and we have added reasons consonant with the law, so that, since no longer on account of such a device not even the claim of the annual is preserved, unless it happens to be furnished through individual years, but once it has been paid over, it thereafter perishes completely.

Renewing this law again with a certain addition, we sanction: if anyone of the most reverend stewards, or of the managers of guest-houses, or of hospitals, or of poorhouses, or of old-age homes, or of foundling homes, or of orphanages, or of archimandrites, or of the other persons contained in our previous divine constitution, shall attempt to alter what has been left in perpetuity to the venerable houses over which they preside, whether in gold or in other things, so that it may not appear to be perpetual, but by transactions or sales or certain other machinations, so that what ought to remain perpetual may be terminated, he shall attempt it; beyond the force of the divine law recently issued by us in matters of this kind, he shall have no license in any way to do this; but even if he shall have done it, what has been done shall be void; and there shall be license for him who shall afterward undertake the same care, or even, if he is negligent (as can happen), for all the others in succession immediately to revoke what has been done, and so to declare it invalid, as if it had not proceeded from the beginning, so that both the fruits of the intervening time and the interest and every benefit shall belong in every way to the pious place, with all things that have been attempted in the meantime being set at rest.

For to every man there is one course of life given by the Creator, whose end is altogether death; but for the venerable houses and their communities, ceaselessly guarded by God, it is not right to introduce any limit even with respect to their possessions; but for as long as the venerable houses shall endure (and they endure in perpetuity, and even to the consummation of this age, for as long as the name of Christians shall exist among men and be cultivated), it is likewise right that the bequests and the immortal revenues left to them should remain, and remain in perpetuity, ever to serve the pious actions that shall never cease.

Therefore, whoever has committed any such offense, and has presumed either to transfer property after receiving gold, or on any other occasion, no loss indeed is to be brought upon the houses against which such things were perpetrated (according to what has been said above), but those houses are to gain both the gold and the property which they received; and nonetheless they are to demand what was left behind without any diminution whatsoever, both from the one who did this and from his heirs and successors, and his property and goods are to be bound to the one who contracted with him; and he himself is to claim them, both against his person and against his goods, up to full and competent indemnity for himself, so that, namely, he may not hope for any recovery of what was given, or restoration of what was done, against the venerable house which he defrauded contrary to divine law; but as pertains to the one with whom he contracted, he is to have every license from the laws to proceed against him, and his heirs, and his property, and to demand what was given, if he can; so that, if not from fear of God, then from fear for their own substance and that of their heirs, they may become slower to make agreements of this kind; which it is admitted they celebrate for no good purpose, but either corrupted by money or overcome by certain affections. All these things we prohibit by this divine law, and we sanction that it be inscribed in our sacred laws, and we offer it to the Lord God of all and our Savior Jesus Christ, bringing to him a certain beautiful and fitting sacrifice, namely this law itself.

Given on the day before the Ides of September at Constantinople, in the year of our lord Justinian, perpetual Augustus, the fourth consulship, and of Paulinus, most illustrious, consul, 534.

BOOK 1, TITLE IV.

Concerning episcopal audience and the various chapters that pertain to pontifical right, care, and reverence.

LAW XXI.

The Emperor Justinian Augustus to Menna, Praetorian Prefect.

If indeed the person who is written to have paid out money or given other things is present, but holds some administration in the provinces, so that it seems difficult to send to him a denunciation concerning money not paid out, we grant permission to the one who wishes to use the said exception to approach other judges and to make clear to him through them that he objects an exception of this kind, and that the complaint concerning money not paid out has been made by him. But if there is no other civil or military administrator, or for some reason it is difficult for the one who opposes the said complaint to approach him and do the things that have been stated, we grant permission also to make the same exception of his known to the creditor through the most reverend bishop, and thus to interrupt the statutory time. — § 1. This has also been accepted to have place in the exception of a dowry not paid out. Given on the Kalends of July at Constantinople, in the year of our lord Justinian Augustus, consul for the second time, 528.

LAW XXII.

Emperor Justinian Augustus to Menna, Praetorian Prefect.

We wish no one to be thrown into custody without the order of the most glorious, or illustrious, or most distinguished magistrates of this most fortunate city, or of the provinces, or of the defenders of the cities.

§ 1. But concerning those who have been thrown into custody or are to be thrown into it, we order the God-beloved bishops of the places, on one day of each week, that is, the fourth day of the week, or the sixth, which is also called Parasceve, to visit those who are held in custody and diligently to inquire into the cause for which they are detained; and whether they be slaves or free, whether they have been thrown into custody for debts or for other accusations or for homicides, to admonish the most illustrious and most respectable and most distinguished magistrates, both those who are in this most fortunate city and those who are in the provinces, to carry out concerning them what our divine constitution issued to the illustrious prefects on this matter prescribes; with leave granted to the bishops most dear to God for the time being, if they learn that any negligence has been committed by the most illustrious and most magnificent and most distinguished magistrates for the time being, or by the offices that are subordinate to them, to report such negligence of theirs, so that the motion of our mind may rise up fittingly against the negligent. Given on the fifteenth day before the Kalends of February, at Constantinople, in the consulship of Decius, 529.

LAW XXIII.

The same Augustus to Menna, Praetorian Prefect.

We forbid private prisons to be established in every way in cities and in villages: those who are held in custody being released from detention by the providence of the bishops, most beloved of God. Given on the twelfth day before the Kalends of February, at Constantinople, in the consulship of Decius, 529.

LAW XXIV. I

The same Augustus to Demosthenes, Praetorian Prefect.

We wish it to be permitted to no one, whether a little child born of freeborn parents, or of a freedwoman's offspring, or stained by servile condition, has been exposed, to claim that child into his own ownership, whether under the name of ownership, or of ascriptitian, or of colonary condition. But neither do we grant permission to those who have taken them up to be nourished to take them up at all, with any distinction. But with no discrimination made, those who have been educated, or nourished, or raised by persons of this kind shall appear free and freeborn, and shall acquire for themselves, and transmit to their posterity or to extraneous heirs all that they have had, in whatever way they wish. This being observed not only by the governors of provinces, but also by the most religious bishops. Given at Chalcedon, on the eighth day before the Kalends of July, in the consulship of the most illustrious Lampadius and Orestes, 510.

LAW XXV.

The same Augustus to Demosthenes, Praetorian Prefect.

What has been ordained by us concerning dice-playing, or (as they call it) cottus, and the prohibition of these things, let it be permitted to the bishops most beloved of God both to investigate and to restrain, if they occur, and to bring the shameful back to moderation through the most illustrious governors of the provinces and the fathers and defenders of the cities. Given on the Kalends of October, at Constantinople, in the consulship of Decius, 529.

LAW XXVI.

The same Augustus to Julian, Praetorian Prefect.

Concerning those matters which pertain each year to the cities (whether they be civil revenues, or fruits, from public or private monies, which are either left or given to them by certain persons, or are devised or instituted in some other manner, whether they pertain to works, or to the grain supply, or to public aqueducts, or to the heating of baths, or to harbors, or to the building of walls or towers, or to the repair of bridges and roads, or finally to public causes), we ordain that, from both public and private causes, as has been said, the most religious bishop and three men of good reputation, and who excel the rest in that city, shall assemble together, and each year inspect the works done; and they shall take care both to measure them and to have an account rendered by those who administer or who have administered them, and in the management of the records to show the completion of the works, or the administration of the grain monies and the bath monies, or those which are spent on the paving of roads, or on aqueducts, or on other matters.

We wish all these things never to be diminished in any way. But in the administration of the monuments, let it appear whether the one who administered them was free or bound, and whether he paid what he owed, and thus provision will be made for the one who undertook that care. For we shall send, when it pleases us, whomever is suitable, to inspect the accounts made by them; and when he finds that they have been made correctly, he shall render a reckoning by which provision shall be made for them and their heirs and successors, and no occasion for other accounts or disputes shall be left. But let all things be done diligently with the holy Gospels set forth, for we shall order an inquiry to be made when it pleases us. Therefore the most religious bishop, and those who draw up the accounts with him, ought to take care that the works prescribed at great expense be diligently done each year and restored from the public produce and revenues. But if the one who administers them is unwilling to submit to the accounts, and does not win over the most holy bishop of his place, and those possessors who are appointed for that matter, and who summon him to render accounts, let him be compelled to do this through the most illustrious governor of the province and the cohort that is accustomed to obey him: and without any loss let him be compelled in every way to submit the accounts to the most religious bishop, and to the leading men of that city; and whatever appears to be owed by him shall be restored to the city. — § i. But we remove all liberty from our governors of sending inspectors into the fields, or accountants, or equalizers for the execution of public accounts.

But if anything of this kind is done without our knowledge, if indeed a sacred form has been issued to anyone by surreption, let the most religious bishop of that city be permitted to receive the sacred form, yet to report to us, so that we may know whether it was made by our command to that governor, or by obreption, so that if what was done appears to have been done by surreption, it be made invalid, and he who sought it undergo the penalty. If truly a decree or admonition or any precept or account in writing has been issued by any of our prefects, and permission is granted on any of the aforesaid heads, we wish that by all means the bishop of that world and the leading men of the cities not be placed over those matters, but let the governor of the province and the possessors themselves and the citizens be permitted to reject the orders, and not to pay even a single obol for that reason. If truly in that matter the most holy bishop has been negligent, he will have our Lord God offended, and shall await imperial vengeance, if he has passed over these things in servile silence, unworthy of priestly lilies. — § 2.

But if anyone in a province has denounced the processions of magistrates or consuls, or the general forms of the most glorious prefects, or of any other of our magistrates, or a constitution, or a sacred commonitorium, or general letters, or the erection of imperial statues, it shall not be permitted to receive more than six gold solidi at each market, or three small forms, or constitutions, or sacred commonitoria, or general letters, or the erection of statues, in each of the provinces to which he has received the letters; and, although there are many cities in that province, nothing more shall be paid than those six solidi. But if he has received anything more, he shall restore fourfold; and the bishop of that city shall be permitted to prohibit this. Nevertheless the same penalty of ten pounds of gold is imposed both on the governor of the province and on his subordinate office, and on the bishop, if they permit them to demand more, and do not prohibit it by all means. — § 3. For we permit absolutely none of our magistrates to issue forms of this kind throughout the provinces concerning the cleaning of rivers, or the purging of sewers, or the removal of buildings from the walls, or of stations from the porticoes, or of those who are called produlia, or concerning the overturning of rubble and half-columns, or concerning images, or if anything has been devised in any other way, or even concerning any civil disputes whatsoever.

But let it be permitted to the bishop and to those who are foremost in his city, and to the governors of the provinces, and to the landowners and citizens, to bring to notice in some form—not indeed to defer to him, but to prohibit and restrain every exaction and every force that arises from it. And let the most holy bishop inflict the same penalty, unless they have prohibited it. — § 1. But it is also fitting for the bishop, and the father of the city, and the other landowners of repute, to see to it that no mean or public place next to the walls of the city, or in the public porticoes, or in the streets, or in any other place whatsoever, is possessed unduly by anyone, and that no public place is handed over to anyone without our sacred strong [decree].

§ 5. The same persons shall inquire concerning the distribution of waters, which sacred form belongs to each, so that one does not have more, another less, than is proper to him. — § 6. Nor indeed shall we suffer our subjects to be burdened by reason of suretyship, or beyond the form of the mandate, but if indeed they have suitable immovable property, let them give only an oath and be enrolled; but if they do not have it, let them provide suretyship up to the valuation of the amount, without any loss.

But if the tax collectors have doubted the surety's trustworthiness, means, or security, let the most religious bishop, the fathers of the city, and the defender meet in the same place and determine whether the surety appears suitable up to the amount in question; and the tax collector must accept as surety one who will give nothing for the suretyship or by oath, except where it is decreed by our private order or that of some higher magistrate that a person is to be brought forward, and that the surety is not to be trusted. For then it will be permitted to the tax collector not to accept the surety, and to act in that matter without any loss. Otherwise the same fine is imposed against the most religious bishop and the most illustrious governor of the province, if they have allowed any of these things to be transgressed, or if, when it has been transgressed, they have not immediately reported it. — § 7. Nor let them suffer more than the portion defined by our constitution to be received for fees, nor let any registration be made in the cities for any reason except for those only which we have enumerated above: the reports of processions, of constitutions, of the sacred and general commonitorium, or of a form, or of letters, and of all things of this kind concerning which we have previously sanctioned; likewise those things which the citizens have wished to do for their own preservation and safety, perhaps for public works, or for grain supply, or for any other cause whatsoever that pleases all to be done for the honor of the city, from which the commonwealth is aided.

But against those who have attempted to transgress these provisions, even if the most religious bishops have not reported it to us, let those things be observed which were previously instructed by us. — § 8. And it is fitting that the most God-loving bishops of each city, when they have learned all that has been disposed by us concerning these matters—both concerning the exaction of the metatores and concerning the prohibition of plunder, and concerning the other matters contained in our sacred constitution, which has been issued concerning all of them—impose a suitable end. Given on the eighth day before the Kalends of July, at Chalcedon, in the consulship of Lampadius, 530.

LAW XXVII.

The same Augustus to Julianus, Praetorian Prefect.

Concerning the appointments of curators who are given to the insane of both sexes, it has seemed necessary to us to establish how these appointments ought to be carried out.

And if indeed a father has given a curator to a madman or a madwoman in his last will, when heirs have been instituted or disinherited, in which case also a surety must necessarily be dispensed with, the father's testimony being sufficient in place of his security, let the person who has been appointed to the curatorship come to it; yet in such a way that in the provinces, before their governors, in the presence of both the most religious bishop of the place and three primates, with the acts intervening, having touched the sacred Scriptures, he shall declare that he will administer all things rightly and for the benefit of the madman, and will not omit what he believes to be useful to the madman, nor admit what he considers not to be useful to the madman; and, with an inventory publicly drawn up with all thoroughness, let him take over the property and dispose of it according to his judgment, under the hypothec of the property belonging to him, in the likeness of tutors and curators of an adult. But if a parent has not made a will, and the law has summoned a curator, as being an agnate, or, when he fails, or perhaps is found unsuitable, it has become necessary to give him a curator by judicial election, then of course both in the provinces before the governors of whatever province, and the most religious bishop of the city, as well as three primates, let the appointment proceed; so that, if indeed the curator possesses suitable substance, and sufficient for the trust of administration, the appointment shall proceed without any security.

But if no such assessment of his estate is found, then a surety also is to be required from him, as far as possible; the appointment being in every case performed with the most sacred Scriptures set forth; the curator himself, of whatever substance or rank he may be, providing the aforesaid oath for the beneficial management of the affairs, and publicly writing out an inventory; and a hypothecation of the curator's property being applied in every way, so that the property of the madman may be usefully administered on all sides. Given on the Kalends of September at Constantinople, in the consulship of Lampadius and Orestes, most illustrious men, 530.

LEX XXVIII.

The same Augustus to Julianus, Praetorian Prefect.

Children who are demented as well as those who are mad, of whatever sex, can contract lawful marriages, with both dowry and ante-nuptial donation to be provided by their curator: with the valuation, however, in this royal city to be determined by the most excellent Prefect of the City, but in the provinces by the most illustrious governors of those provinces or the local bishops, with regard both to the standing of the person and the moderation of the dowry and the ante-nuptial donation; with the curators of the demented as well as of the mad present, and also those who are more noble of their family; in such a way, however, that no loss to the substance of the madman, demented, or insane person arises from this cause, either in this royal city or in the provinces, but that all things proceed without expense, lest such misfortune of men be burdened also by the loss of expenses.

LAW XXIX.

The same Augustus to Julianus, Praetorian Prefect.

We decree that no venerable cleric shall be accused from the outset before the most blessed Patriarch of the province by anyone, whether cleric or layman, but first according to the sacred institutions before the bishop of the city in which the cleric resides; then, if that bishop is suspect, he shall bring the matter before the metropolitan bishop; but if perhaps the accusation does not please even him, he shall bring the accused before the sacred synod of that region; and with the metropolitan, three most religious bishops who are preferred to the others by reason of ordination shall assemble, and the case shall be heard before the whole synod; and if indeed the judgments rendered are pleasing to him, he shall desist from accusing. But if he considers himself wronged, he shall appeal to the most blessed Patriarch of that province, and he shall altogether obey what the Patriarch himself has judged, just as if he had obtained him as judge from the beginning; for it has been established by our ancestors that there is no place for appeal against the sentences of these prelates. The same is to be observed if a bishop has been accused by any layman, or by any cleric, or by another most religious bishop. For we altogether forbid that the accusation be brought at once before the most holy Patriarchs, and that the accused be sent into another province, except where someone has brought an accusation for the reason that the case of that region has been committed to the most religious bishop, in which case it is permitted to bring the accusation even before the most holy Patriarchs themselves.

Letters shall nonetheless be drawn up to one of the bishops of those places, that he may hear the case, as has been said by us before. § 1. But he shall not be permitted to cause venerable clerics to descend into the provinces and to bring excessive fees while they are accused, in which matter we know that there has been wrongdoing up to now. For we do not concede that for each individual person of the accused there be given for fees more than a sixth part of a gold coin to those who are sent by the most holy patriarchs and metropolitans; or if a bishop is sent, only six gold coins, from whatever amount and for whatever cause, and no more shall be provided. Let this also hold in the case of metropolitans, when an accusation is brought before them against a bishop who is under them or a cleric of their province. For if in civil judgments we have taken care to moderate the measure of fees and expenses, and have willed that these be provided according to law, much more do we sanction that moderation be observed in ecclesiastical accusations. § 2. Indeed, if, the case having been remitted to the most holy patriarch, or to one of the most religious metropolitans, or to another bishop most beloved of God, a sentence has been pronounced which displeases one of the parties and appeal is made, let the appeal be referred to this archiepiscopal see, in which (as has been observed up to now) the dispute shall be heard.

§ 3. If anyone shall dare to attempt anything against these provisions, he shall indeed pay to the party who suffered the wrong all that he received, together with double that amount, and he shall become subject to an ecclesiastical penalty before the most holy patriarch, or the most religious metropolitan, who shall then be expelled from the number of the clergy.

§ 4. We command that these actions, insofar as they pertain to ecclesiastical matters, must be heard only by the most religious bishops or metropolitans, or by sacred synods, or by the most holy patriarchs; but if the dispute concerns civil matters, we shall allow those who wish to bring the question before the prelates, yet we shall not compel the unwilling, since the courts are civil, if they prefer to go to those courts, before which it is also permitted to hear cases concerning crimes.

§ 5. Since, however, there are certain most holy patriarchs who in the provinces in which they reside perform the office of metropolitans, and others throughout the whole diocese make ordinations of bishops, metropolitans, and others who are under them, we sanction that the rule which we previously established concerning metropolitans be observed in this matter; for by that law he is called metropolitan who by the sacred canons has that power over lesser bishops. Given the fifteenth day before the Kalends of November, at Constantinople, in the consulship of Lampadius, 530.

LAW XXX.

The same Augustus to John, Praetorian Prefect.

We ordain that in the curatorships of minors, whether they are of the first or the second age, or of certain others to whom the law gives curators, if indeed the property of the minors amounts to no more than five hundred gold pieces, they shall not await the appointment by the governors of the provinces, nor be subjected to the greatest expenses, since the governors are perhaps not staying in those cities in which provision for the curatorship happens to be needed; but the appointments of curators or tutors shall be made before the ecdicus [defensor] or the strategus [municipal magistrate] of that city, or in the city of Alexandria before its juridicus, together with its most religious bishop, or even other public persons, if the city has a supply of these; a surety having been given in proportion to the property, the second.

the judgment of the said persons; and with all other proceedings which are customary concerning the surety of tutors or curators and according to the measure of their means; with only the change of persons through whom these things are done, introduced by the present sanction for the benefit of minors; namely, with all these matters to be completed under the sole payment of two numismata [that is, solidi], especially since this constitution has been established chiefly for this reason, with a penalty impending if anyone should dare to accept more, or should delay constituting a tutelage or curatorship in the hope of greater profit; and he shall not only repay threefold whatever he has received, but shall also be removed from the solicitude and administration itself. But when the creations of tutors or curators have been made, with the most religious bishop of the city also present, we sanction that the acts be deposited in the archives of the most holy church itself, so that there may be perpetual memory of the matter, and the caution thence sought for the curatorship may not perish through fortuitous events. Those things which are done in this great city in tutelages or curatorships are to be done before the most illustrious praetor alone, as has already been sanctioned. Given five days before the Kalends of August, at Constantinople, after the consulship of Lampadius.

LAW XXXI.

The same Augustus to John, Praetorian Prefect.

We decree that if ever the person who holds property belonging to another or property liable to a creditor is absent, and the owner of the property or the creditor wishes to bring his claim, and he has no permission to do so while his adversary who holds the property is absent, or is suffering from infancy or madness and has no tutor or curator, or is established in the highest power [to usurp that same property by his own authority], permission shall be granted him to approach the governor of the province, to present a petition to him, to bring these matters forward as a complaint, and to effect an interruption within the established times; but if he can in no way approach the governor, let him at least go to the bishop of the place and hasten to make his will manifest in writing. Given at Constantinople on the Kalends of October, after the consulship of Lampadius and Orestes, most illustrious consuls, 531.

LAW XXXII.

The same Augustus.

On a master delaying to receive the emphyteusis.

the emphyteuta has license to consign it, and at Constantinople indeed, at the end of three years, to make attestation of this same matter before the hyparchs [or praetorian prefects] or before the prefect of the city, or the competent magistrate of those who refuse, or the patriarch, if the lord is a powerful man; but in the provinces, before the governor, or, if he is not staying there, before the defender, or the bishop of the city in which the one who refuses is; and to assume the testimony of one of them; and unless he has thus received the canon, the canon is paid, and the emphyteuta gains the canon of the following time as well, and up to the point that the lord sends a request through a messenger; for from then on, and not from past time, he shall receive, and after three years from attestation of this kind he will be able to expel the disloyal emphyteuta.

LAW XXXIII.

The same Augustus to the bishops established throughout all lands.

We have made a sacred constitution, permitting no one to drag an unwilling woman, whether slave or free, onto the stage or into the orchestra; nor, when she wishes to convert, to hinder her by demanding from her sureties, as though on this very matter, a fixed sum promised by way of legal obligation; but if any such thing has been done, we have established that these acts are to be prohibited both by the most illustrious governors of the provinces and by the most religious bishops of the cities, granting permission to the most religious bishops, together with the most illustrious governor of the province, even against their will to drag before them those who compelled her, or who prohibited her from being changed or converted from that course of action; and that their property indeed be made public, but that they themselves be expelled from the city.

But if the governor of the province himself is the one who compelled them, or prohibited the said action of conversion or repentance, we grant permission for the woman who suffers such things, or her surety, to approach the most religious bishops alone; and for this bishop to oppose the magistrate who does such things and not permit him to act unjustly; or, if they are not powerful enough to carry this out, to report it to our empire, so that punishment may be exercised against the offenders by us, with the sureties at the same time being released and the sureties kept indemnified; granting permission to women of this kind who have converted, being free and freeborn, to pass into lawful marriage, even if those who have taken them happen to be adorned with the most honorable dignities, no longer needing imperial rescripts, but celebrating the marriage by their own authority, with the nuptial instruments in any case having been made between them. And we establish the same also concerning the daughters of stage performers. — § 1. Moreover, we have placed this said constitution also in the fifth book of all the constitutions, that is, of the book named after our own Piety, written in reply to the civil magistrates.

For since it was fitting that through the present sanction these things be made manifest also to you, the most religious bishops established throughout all lands, therefore, gathering together the matters pertaining to this very matter and sanctioning them in a fuller exposition, we have also sent that same divine constitution to you, so that, preserving priestly reverence and being zealous for continence, you may keep these things, considering both the fear of the great God and imperial indignation, if you should pass over any of these things. Given on the Kalends of No[vember?], at Constantinople, in the consulship of Justin IV and Paulinus, 534.

LAW XXXIV.

The same Augustus to Epiphanius, most holy archbishop of this most blessed city and universal patriarch.

We most certainly believe that the purity and dignity of priests, and their fervor toward the Lord God and our Savior Jesus Christ, and the perpetual prayers offered by them, provide much favor and increase for our commonwealth, through which it is granted to us both to subjugate barbarians and to bring under our dominion those things which we did not previously obtain; and the more honor and dignity is added to their affairs, the more we believe our commonwealth also is increased. For if they set before themselves an honorable life and one in every way blameless, and instruct the rest of the people so that, looking to their honorableness, it abstains from many sins, it is clear that from this all will be better in soul, and the mercy befitting us will easily be granted to us by the greatest God and our Savior Jesus Christ.

§ i. While we were considering these matters, it was reported to us, beyond the common belief of things, that certain of the most reverend deacons, and likewise of the presbyters (for we blush to say even more than this—those most beloved of God, namely bishops)—certain, I say, of these do not scruple: some indeed by themselves to handle dice or gaming tokens, and even to take part in a spectacle so shameful and so often forbidden by us even to the uneducated; others truly do not condemn such a game, but either communicate with those who do it, or sit as spectators of indecorous conduct; and they watch with every kind of eagerness the most importunate of all things, and hear blasphemous conversations, which in such circumstances must necessarily occur; they defile even their hands, and eyes, and ears with such condemned and prohibited games; others truly, neither obscurely nor secretly, either involve themselves in horse races, or even invite certain persons concerning the running or victory of horses, either through themselves or through certain others, so that—since such things are not played in a becoming manner—they become spectators of stage plays or of thymelic contests, or of those fights of beasts contending in the theaters; nor do they consider how they themselves, or those who have just recently been initiated and deemed worthy of the adorable mysteries, themselves proclaim: that they renounce the worship of the adversary demon, and all his pomps, of which such spectacles are no small part.

§ i. We have often preached that they themselves ought to guard against such things; but seeing that a report has been made to us concerning these matters, we have fallen into the necessity of coming to the present law, both on account of our zeal for religion and also on account of the utility both of the priesthood itself and of the commonwealth. — § 3. And we sanction that no one, neither deacon nor presbyter, and much more neither bishop (which indeed might perhaps seem incredible, that those on whose heads in their ordinations prayers are sent to the Lord Christ our God, and the invocation of the holy and adorable Spirit is made, and the most holy of the mysteries among us are imposed, so that all the sensory instruments themselves may be made pure and consecrated to God), no one, therefore, of these shall dare hereafter, even after our divine law, either to keep a gaming-table [that is, to play at dice or lots] with any kind of dice, or by any game, or to communicate with those so playing, or to associate with them, or to be recreated together, or to act together with them, or to bear witness for them, or to be present at such plebeian spectacles as we have previously mentioned, or to do any of the things which are forbidden in these matters, but that all shall abstain from participation in them hereafter. For what has already passed, although it ought even to have been inquired into, and it was not fitting to participate indecently, nevertheless on account of humanity we pardon, imposing upon all the observance of the present law for the time hereafter.

For it is fitting that they themselves devote themselves to fasts and vigils and meditations, or exercises in the divine oracles, and to prayers poured out for the salvation of all; but those who have not abandoned such things, nor ceased altogether to handle things polluted and forbidden.

We likewise decree the same also concerning the remaining clergy (namely subdeacons and readers), since they too have been appointed ministers and workers at the sacred table and for all the adornment around the most holy churches, and handle the sacred utterances: while some of them read to us the sacred scriptures from our sacred Bibles, others sing hymns and odes. — § i. But if anyone among the rest has been caught doing any such thing, and has been denounced, whether in this happy city to your Holiness, or in the provinces subject to it, to the most God-loving metropolitans and the other bishops, whose ordination the throne of your Blessedness performs, and such an accusation has come forward, whether against a deacon or a presbyter, and much more against one of the God-beloved bishops, your Blessedness here, and the most God-loving metropolitans placed in the provinces under you, and the bishops who are under them, must with all diligence, according to the order of ordination, seek out and scrutinize these matters, and not make a perfunctory inquiry, but also hear witnesses worthy of faith, and proceed by every way to elicit the truth.

For just as we forbid such things to them, so too we forbid that a calumny be sought by certain persons; and if, after a thorough examination has been made of the divine words set forth, the accusation is shown to be true, and a deacon or presbyter is convicted of being a gambler, or a participant with gamblers, or of attending such vanities, or of being present at the aforesaid spectacles, or even, perchance, if one of the God-beloved bishops (which we trust will not happen) should altogether attempt to be a participant in some such spectacle, or to sit together with gamblers and arrange and settle and make bets for the future, then he shall at once be separated from the sacred liturgy by your blessedness, or by the metropolitan, or by the most God-loving bishop under whom he was ordained, if indeed he is one of the aforesaid clerics; and the canonical penalty shall be imposed upon him, and a time shall be defined within which it is fitting that he, employing fasts and supplications, propitiate the great God for such a transgression. And if throughout the defined time he who has received such a penalty remains in tears and penitence and fasting, and in prayer to the Lord God, entreating remission of his offense, let him be restored to him under whom

When this has been carefully investigated and diligently inquired into, he shall take care that a common prayer be offered on his behalf, and with all diligence he shall enjoin him to abstain thereafter from such a disgrace of the priesthood; and if he judges that he has come to repentance sufficiently, then he shall deign in his clemency to restore him to the priesthood; but if even after excommunication he is found neither to have used true repentance nor otherwise to have rejected that matter, and manifestly to have been seduced in mind by the adversary [the devil], the priest under whom he lives shall remove him from the sacred registers, deposing him altogether. But he shall no longer have license in any way to come to the priestly grade; but if indeed he has property, the council of that city in which he was first consecrated shall receive him for the future, to serve the council with his property; or if that city has no council, another council of the province which most needs a curialis shall receive him. But if he has no property, he shall become thereafter an official of the provincial office, in place of what he was before consecrated, and for the reason that he abandoned the service of God, he shall be an official of the province, imposing this disgrace upon himself in place of his former honor.

§ 5.

§ 5. We therefore sanction all these things: in this happy city your Holiness is to keep watch over them, together with the defenders and stewards of the individual churches, whose care it shall be to investigate and denounce these matters, and to deprive those convicted of the distribution of grain granted to them by the holy churches. In the provinces, however, those who are ordained under your blessedness, the most God-loving metropolitans, and furthermore the most religious bishops subject to them, and their church advocates and stewards, themselves likewise making use of the same procedure as was stated above, and keeping the sacred veneration everywhere blameless and irreproachable, shall preserve these things: so that both the most glorious prefects of our sacred praetorian courts (we mean the prefect of the East with the peoples subject to their jurisdiction, likewise of Illyricum, and also those presiding over the diocese of the Africans) and the offices obedient to them, and the most illustrious governors of the provinces and defenders of the cities—those indeed who hold the greatest magistracies, averting our indignation; but the non-compliance of their office, they shall undergo the penalty of ten pounds of gold; while the provincial governors, both greater and lesser alike, and the offices obedient to them, and besides the defenders of the cities, fearing the penalty of five pounds of gold, if knowing these things they do not denounce them to the priests themselves (that is, either to the God-beloved bishops, or to the most holy metropolitans, or to the most holy patriarchs of each diocese, according to each one's own region,

so that they, understanding these things, according to what has been defined above, oppose and resist them all; and after the one who has been convicted of these matters has been deposed by them, he shall not take care to be handed over to the city curia or to the office of the governor; and the most glorious prefect of this happy city shall guard these things, if indeed offense is committed in this our royal city, together with the office obedient to him, he himself indeed fearing our indignation, while his office fears the penalty of ten pounds of gold. — § 6. But these things indeed we have accomplished by way of legislation. That, however, is confessed, that they have been consecrated to God by us for the honor of His priests. If, however, they themselves have transgressed the things that have been ordained, and dissemble, and do not avenge, but have been captivated by a certain surely unlaudable humanity, besides the heavenly punishments they shall have condemnation also from there, which shall be presented to them at the very tribunal of God, which shall accuse and avenge the indecent dissimulation. If, however, also any one of the civil magistrates, greater or lesser, of the officials, or of the defenders, either when he has learned these things has not judged, or when it was permitted to avenge has neglected, or has betrayed the matter for a bribe, let him know that, besides the penalties threatened by us, he shall have also from our greatest God the following penalty, and shall be liable to all the execrations which are contained in the sacred books. — § 7.

But just as these things have been established by us for no other reason than for the Lord's sake, so we also add this, that the inquiries be conducted with the utmost diligence, and that no calumniator rise up against anyone either to accuse falsely or to bring false testimony in these matters; for just as we have imposed such penalties on priests, if they have done any such thing, so also we wish that penalties from heaven and from our laws hang over those who attempt to calumniate them, if, once an accusation has been begun, whether by denunciation, they either refuse to prosecute or do not cease to persist in accusations of this kind. Given on the day before the Nones of November, at Constantinople, in the consulship of Justinian, Father of the Fatherland, Augustus for the fourth time, and of Paulinus, most illustrious, for the fifth time. 543.

BOOK I, TITLE V.

Concerning heretics and monophysites and Samaritans.

LAW XI.

The Greek constitution of Anastasius, or of Justinian. Its epitome.

Wherever the Manichaeans are found, they are to be condemned to death.

Another epitome from the Ecloga, Book I, Title, Chapter 25.

If a Manichaean is found dwelling in a Roman place, let his head be cut off.

LEX XII.

A Greek constitution of Justinian. Its epitome from the Greek collection of ecclesiastical constitutions.

Let the Manichaeans be expelled from everywhere, let them be punished with capital punishment. But the remaining heretics (and every non-orthodox person is a heretic) and the Greeks [that is, pagans, and Jews, and Samaritans] are prohibited from holding magistracy, and from having dignity, or from administering justice, or from becoming defenders, or fathers of the city (lest they have license to vex or judge Christians or bishops). Likewise they are also prohibited from military service, except if they are of the class of the cohortalini; for these remain, indeed bearing the burdens, but not offending, nor executing anything against the orthodox in public or private cases. But whoever has attempted to do any of these things, besides the fact that the deed will be treated as not done, he will also give twenty pounds, and those who have attempted to insert them into the public registers, also twenty, and the governors I., and all these are brought into private affairs. The Goths are excepted, who become federates, and are otherwise honored, as it shall have seemed to the emperor.

Another part of the same, from Theodore of Hermopolis.

§ i. When parents are of different faiths and religions, the judgment of that one shall prevail who has chosen to lead them to the orthodox faith; and even if it is the father who opposes, they shall not, seizing a pretext for anger from this, deprive them of necessary sustenance or other necessary expenses.

LEX XIII.

A Greek constitution of Justin, or of Justinian. Its epitome.

Heretical fathers, having nothing legitimate with which to accuse their orthodox children, are compelled, beyond their own means, to pay out sustenance to them and the other necessities, and to join them in marriage to orthodox spouses, and to give dowries and prenuptial donations, under the oversight of the governors and bishops. — § i. Orthodox children of heretics who have committed no offense against their parents receive intact and undiminished what is due to them by intestate succession, and a last will made contrary to these provisions is invalidated: their liberties being preserved, unless they are prohibited by some law. But if they have committed any offense against their parents, they are accused and punished. They have, even if they have committed an offense, a fourth part of their property by making a will. — § 2. The same right of inheritance obtains also among Jews and Samaritans.

LAW XIV.

A Greek constitution of the same emperor. An epitome from the Greek collection of ecclesiastical constitutions and the Nomocanon, title 12, chapter 2. Heretics cannot hold synaxes, that is, gatherings, or parasynaxes, or synods, or ordinations, or baptisms, or have exarchs, or establish paternities or abbeys, or defenses, or care for or administer villas by themselves, or through interposed persons, or do any of the prohibited things. Whoever transgresses these shall pay the ultimate penalty.

LAW XV.

A Greek constitution. An epitome from the index of the Basilica.

The Manichaeans who have orthodox children may transmit [their property] intestate to them and to them alone; but they may not alienate it to any others, whether living or dying, whether by institution, by legacy, or by donation, since their faculties are in every way to be rendered to the fiscal account.

LAW XVI.

An epitome of a Greek constitution, from the Greek collection of ecclesiastical constitutions.

One who has become orthodox from being a Manichaean, if he is found doing the things that belonged to his former error, or even merely living and associating with Manichaeans, and does not immediately report those things to the competent judge, is punished with the ultimate penalty. — § 1. Likewise, those who hold offices and military posts are to inquire diligently after such persons as are in their company and report them; for if a Manichaean who has been arrested says that he is known and recognized as such by certain persons, those persons are rightly punished, as having committed the same offenses, even though they are not such themselves; for they appear to commit the same offenses, knowing indeed that the offender is offending, yet not making him manifest. — § 2. One who has Manichaean books and does not make them manifest so that they may be burned is punished.

LAW XVII.

An epitome of a Greek constitution of Justinian from the same collection.

The synagogues of the Samaritans are destroyed; and if they attempt to make others, they are punished. — § 1. They cannot have successors by testament or by intestacy, except orthodox persons; nor do those who are not orthodox give or otherwise alienate, but the fisc itself claims these things, by the providence of the bishops and governors.

LEX XVIII.

Epitome of a Greek constitution of the same Justinian, from the same collection.

The provisions established by the law concerning the Samaritans with respect to synagogues and successions obtain also in the case of the Montanists, the Ascodrogitae, and the Ophites. For only the orthodox succeed to them by testament and by intestacy, and take legacies; but the other heretics, that is, those who are not orthodox, and the Greeks, or pagans, and the Samaritans, do not serve in the military, nor are adorned with any dignity, nor obtain public office, nor teach, nor perform the duties of advocacy. If, however, anyone to obtain these things pretends to be orthodox, and is shown to have a wife or children who are heretics, and does not bring them to orthodoxy, he is expelled. If indeed he even lies hidden, he cannot give any of his property, or otherwise alienate it, to a heretic, but the fisc claims both this and the succession of his that has been deferred to a heretic. For in general, those who are participants in military service, or dignity, or advocacy, or public largess, or applause, have only the orthodox as their successors, and the fisc claims their property when it has in any way been deferred to a heretic. — § 1. If one of the spouses is orthodox and the other a heretic, their children must be made orthodox. But if some of them become orthodox and others remain heretics, only the orthodox succeed to both parents. If, however, all are heretics, the orthodox kindred succeed, or, if these do not exist, the fisc. — § 2.

It has various penalties against those who neglect this, and against presiding officials and civil or military staffs who do not pursue or report them, and against the bishops, who indeed report the negligent presiding officials to the emperor; the penalties are applied to the fisc.

LEX XIX.

The same Augustus to Julianus, Praetorian Prefect.

We have learned that there are many orthodox children whose father and mother are not of the orthodox religion. And therefore we decree that not only in the case where one is of non-orthodox religion, but also in those cases in which both parents are of an alien sect, that is, father and mother, only those children shall be called to their succession, whether by will or intestate, and only they may receive donations or other grants, who are distinguished by the venerable name of the orthodox; all their other children, who have followed not the love of God Almighty but an impious affection for their father or mother, are to be repelled from every benefit. But when there are no orthodox children, those same things or successions are to pass to their agnates or cognates (provided they are orthodox).

But if no blood relationship or direct kinship is found, then let the same property be claimed for the rights of our treasury. § 1. But lest we seem to make provision for children only when their parents are dying, yet bring no provision to them while the parents are living (which has also been made known to us from actual fact), we impose a necessity on such parents to support their orthodox children according to the means of their patrimony, and to furnish them with everything that suffices for the maintenance of daily life; but also to give dowries for their daughters and granddaughters, and to write out ante-nuptial donations for their sons or grandsons, in every case these liberalities being assessed according to the strength of the patrimony, lest on account of the choice of divine love the children be defrauded of paternal or maternal provision.

Namely, all things which our constitutions have already established concerning the penalties of the pagans, and of the Manichaeans, and of the Borborites, and of the Samaritans, of the Montanists, and of the Tascodrogites, and of the Ophites, and of the other heretics, are to be confirmed by this our law, and to be valid forever. Given at Constantinople on the tenth day before the Kalends of December, in the consulship of Lampadius and Orestes, most illustrious men, 530.

LAW XX.

Epitome of a Greek constitution from the same collection.

Heretics who hold communion, or convene assemblies, or perform baptisms, are punished as those who transgress the laws, and those who provide houses for them for this purpose are subjected to the penalties already established. § 1. Only the orthodox, having workshops within the sacred precincts, enjoy the privileges, but not so the heretics, who may not even conduct business within the sacred precincts, lest they hear the divine mysteries. § 2. But the Montanists may not even dwell with those who have become orthodox from among them; and those who are called their bishops or clerics are expelled from the city of Constantinople.

§ 3. They are forbidden to trade in slaves, nor do those among them who are in need receive the distributions which are called honorary, from the courts or the churches; and he who assigns to them an unreasonable prefecture is fined ten pounds. And the governors are also fined ten pounds for negligence, as are the count of the private estates and their staff.

LAW XXI.

The same Augustus to John, Praetorian Prefect.

Since many judges, in settling disputes, have petitioned us, needing our oracle, so that it might be revealed to them what should be decided concerning heretical witnesses, whether their testimonies are to be accepted or rejected, we sanction that no heretic, nor even those who cultivate Jewish superstition, has any communion in giving testimony against orthodox litigants, whether both parties are orthodox or one of them. But among heretics themselves, or Jews, where they think they must litigate, we concede a mixed compact, and that they may introduce even witnesses worthy of the litigants: except, of course, those whom either the Manichaean frenzy (of which it is manifest that the Borborites are a part) or pagan superstition holds; and nonetheless the Samaritans, and those not unlike them, the Montanists, and the Tascodrogites, and the Ophites: to whom, by reason of the similarity of their guilt, every lawful act is forbidden. But to these indeed, that is, the Manichaeans, Borborites, and pagans, and also the Samaritans, and Montanists, and Tascodrogites, and Ophites, we sanction that all testimony, just as also other lawful dealings, is forbidden. But to other heretics we wish only judicial testimonies against the orthodox to be prohibited, according to what has been constituted.

But their testamentary testimonies, and those which consist in final declarations or in contracts, we permit to them without any distinction, on account of the utility of necessary use, lest the faculty of proofs be narrowed. Given the fifth day before the Kalends of August, at Constantinople, after the consulship of Lampadius and Orestes, most illustrious men, 532.

LAW XXII.

The same Augustus to John, Praetorian Prefect.

We ordain that our divine sanction, through which we ordered that no one bound by the error of heretics may receive an inheritance, or a legacy, or a trust, shall have place also in the final wills of soldiers, whether they make their testament under common law or under military law. Given the Kalends of September, after the consulship of Lampadius and Orestes, most illustrious men, in the second year [of the reign of Justinian], 532.

BOOK I, TITLE XVII.

On elucidating the ancient law, and on the authority of the jurists who are cited in the Digest.

LAW I.

The Emperor Justinian Augustus to Tribonian, most eminent man, quaestor of the sacred palace.

With God as author and guiding our empire, which has been handed down to us by heavenly Majesty, we both bring wars to a successful conclusion, and adorn peace, and sustain the condition of the state; and we so raise our minds to the aid of God Almighty that we trust neither in arms, nor in our soldiers, nor in the leaders of wars, nor in our own genius, but we refer all hope to the sole providence of the supreme Trinity, from which both the elements of the whole world proceeded, and the ordering of things was brought forth throughout the circle of the lands. § 1. Since, therefore, nothing is found so zealous in all things as the authority of the laws, which disposes both divine and human matters well, and expels all iniquity, but we have found that the whole path of the laws, which descends from the founding of the city of Rome and from the times of Romulus, is so confused that it is extended to infinity, and is contained by the capacity of no human nature, it was first our zeal to begin from the most sacred emperors of the past, and to amend their constitutions, and to hand them over in a clear way, so that, gathered into one Code and freed from all superfluous similarity and most unjust discord, they may offer to all men the ready protection of their sincerity. — § 2.

When this work was completed, gathered into one volume with our name shining forth upon it, since we were eager, relieved from a few slight matters, to hasten to the highest and most complete correction of the law, and to collect and correct every Roman enactment, and to display the scattered volumes of so many authors brought together into one Code—a thing that no one else dared either to hope for or to wish—the matter indeed seemed to us most difficult, nay rather more impossible; but with our hands raised to heaven and eternal aid invoked, we laid this care too upon our minds, trusting in God, who can both grant things utterly despaired of and accomplish them by the greatness of his power. — § And since we looked to the excellent service of your sincerity, we entrusted this work first and foremost to you, having received the proofs of your ability from the arrangement of our Code; and we ordered you to choose those whom you approved, both from the most eloquent antecessors and from the most learned men in the toga of the forum of the most ample court, to share the labor. When these had been gathered and brought into our palace, and approved by us on your testimony, we permitted the whole matter to be carried out: yet in such a way that everything be accomplished under the guidance of your most vigilant mind. — § 4.

We therefore command you to read and refine the books pertaining to Roman law by the ancient jurists, to whom the most sacred emperors granted the authority of writing and interpreting laws, so that from them all material may be gathered, with nothing (so far as is possible) left out, whether of similarity or of discord; but that from them there be gathered what may suffice as one for all. But since others also have written books pertaining to law, whose writings have been received by no authorities and are not in use, we do not deign to disturb our sanction with their volumes. — § 5. And since this material has been collected by the supreme liberality of our divinity, it is fitting to build it up into a most beautiful work, and to consecrate it as a kind of proper and most sacred temple of Justice, and to arrange the whole [law] into fifty books and certain titles, both according to the constitution of our Code and in imitation of the perpetual edict, as shall appear advantageous to you, so that nothing can be left outside the aforesaid completion; but these fifty books shall contain the whole ancient law, confused for nearly one thousand four hundred years and purified by us, as if walled about by a kind of wall, having nothing outside themselves: all authors of law possessing equal dignity, and no prerogative being reserved to anyone, because not all are found to be superior or inferior in all things, but certain ones in certain things.

But do not judge by the multitude of authors what is better and more equitable, since the opinion of one man, perhaps even an inferior one, may in some part surpass both many and greater ones. And therefore those things which were previously written in the notes of Aemilius Papinian from Ulpian, Paulus, and also Marcianus, which previously had no force by reason of the honor of the most splendid Papinian, do not immediately reject; but if you perceive that anything from these is necessary for the completion of the labors of the supreme genius of Papinian, or for interpretation, do not hesitate to place it here also, obtaining the force of law; so that all the most prudent men who have been included in this Code may have authority, as if their studies had proceeded from imperial constitutions and had been poured forth from our divine mouth: for we rightly make all things our own, because all authority is imparted to them from us; for he who corrects what has not been done subtly is more praiseworthy than he who first invented it. — § 7. But we wish this also to be your care, that if you find anything in the old books not well stated, or anything superfluous, or less than perfect, with superfluous length removed, you supply what is imperfect, and present the whole work moderate and as beautiful as possible.

Observing this also nonetheless, that if you find anything incorrectly written in the old laws or constitutions which the ancients placed in their books, you should also reform it and hand it down in orderly moderation, so that what has been chosen by you and placed there may seem to be true and best, and as if written from the beginning. And let no one dare to argue that the writing is faulty by comparison with the old volume. For since by the ancient law, which was called Regia, all right and all power of the Roman people were transferred to the imperial power, and we do not divide our new sanction into different parts of different founders, but wish it all to be ours, what can antiquity abrogate from our laws? And all these things are to obtain to such an extent, when they have been set in place, that even if they were written otherwise among the ancients, but are found in the arrangement to the contrary, no blame of the writing is to be imputed, but this is to be ascribed to our choice. — § 8. Therefore let no antinomy (for so it is named by the ancients with a Greek word) claim any place for itself in all the members of the aforesaid Code, but let there be one concord, one consequence, with no adversary constitution. — § 9.

But we also wish that similarity (according to what has been said) to be banished from this kind of consummation, and those things which have been provided for by the most sacred constitutions which we have brought together into our Code; we do not permit them to be set forth again from the old law, since the sanction of the imperial constitutions suffices for their authority, unless perhaps it should happen either on account of division, or on account of completion, or on account of fuller investigation; and this, however, very rarely, lest from the continuation of such a lapse something thorny arise in such a meadow. § 10. But also if any laws placed in the old books have already fallen into disuse, we in no way permit you to set them forth, since we wish only those things to prevail which either the most frequent order of judgments has exercised, or long custom of this nurturing city has approved, according to the writing of Salvius Julianus, which indicates that all cities ought to follow the custom of Rome; and the laws which are the head of the world, not the other cities themselves. But we understand Rome not only the old, but also our royal city, which by God's favor has been founded with better auspices.

Therefore we command that all things be governed by these two Codices: one of constitutions, the other of the law made clear and to be composed into a future Code, or if anything else has been promulgated by us obtaining the place of Institutes; so that the untrained mind of the student, having been brought forth by simple means, may be led more easily to the knowledge of higher wisdom. § 12. But our consummation, which will be composed by us with God's favor, we sanction to have the name of the Digest or Pandects, with no legal experts hereafter daring to apply commentaries to it and to confound the compendium of the aforesaid Code by their wordiness, as was done in older times, when nearly all the law was thrown into confusion through the opposing opinions of interpreters; but let it suffice to make certain admonitory notes on it only through indexes and the subtlety of titles, with no fault arising from their interpretation. § 13. But lest any doubt be created hereafter through the writing, we command that the text of the same Code be not written out through the captious devices of simpletons and abbreviated riddles, which have introduced many contradictions both by themselves and through their own fault, even if the number of books is indicated, or anything else; for we do not concede that numbers be made manifest through special signs, but that they be explained through the sequence of letters. § 14.