THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ CXIII ~ |
IMPERIAL
PRAGMATIC SANCTIONS OR ORDERS SHALL NOT BE GIVEN CONSIDERATION IF INTRODUCED
DURING THE HEARING OF A CASE, BUT SUITS SHALL BE DECIDED IN CONFORMITY
WITH GENERAL ANCIENT LAWS. |
|
( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
The Emperor Justinian to Theodotus, Imperial Praetorian Prefect. |
PREFACE. |
We,
desiring that Our laws may be thoroughly executed, and taking proper
care to maintain their force, have deemed it proper to publish the present
decree, to insure compliance with these constitutions. For We have learned
that certain judges desiring to delay those who have cases
before them, and with a view to concealing the reasons for such delay,
frequently excuse themselves on the ground that they have received pragmatic
sanctions, Imperial orders, or notices from Our illustrious referendaries,
in accordance with which they are required to hear or determine the
case. |
CHAPTER I. |
Therefore,
We decree that when a case is tried, whether it relates to pecuniary,
criminal, or any other matters here or in the provinces, no pragmatic
sanction, Imperial order or notice, either written or verbal, issued
in this Capital by Our illustrious referendaries, or by any other magistrate
whomsoever, prescribing how judges must hear or decide an action which
has already been begun, shall be communicated to the magistrate; and
if this should be done, it shall be of no force or effect, as We desire
cases to be tried and decided in conformity with Our general laws, for
what is generally established has no need of regulation from other sources.
Where, however, any point
already brought to the attention of a judge, or which, even before this
was done, has been submitted to Us, and We Ourselves have decided it,
it will not require consideration by another tribunal. For (as has already
been stated) matters which have been disposed of by an Imperial decision
do not need the investigation of other magistrates, nor any revocation
whatsoever; and if We (to whom God has given authority to issue orders)
have rendered judgment in any case, We do not permit a judge, either
by virtue of a pragmatic sanction, or in pursuance of instructions given
by Our illustrious referendaries, or by any other magistrate, to hear
and determine it again, since what We have once decided cannot be corrected
by anyone, Our decisions being unalterable when they are embodied in
a written decree. But where a judge entertains any doubt with reference
to the law, he must notify Us of the fact, and wait until We send him
a written opinion or interpretation, and then decide the question in
accordance with it. (1) But if, when the case was heard, an Imperial Pragmatic Sanction or a notice emanating from Our illustrious referendaries or from any other magistrate whomsoever, or based upon any of the aforesaid ordinances, directing that a specified form of inquiry shall be conducted, or a certain decision rendered, is served upon a judge, We order him to pay no attention whatever to it. Such communications are void, and have absolutely no force whatever, but the judge shall examine the case in accordance with Our general laws, and terminate it in a proper manner. If, however, he should not do this, he shall be subjected to a fine of ten pounds of gold, and, in addition, will experience the effects of Our extreme indignation. Any magistrate who presumed to dictate any pragmatic sanction of this kind, together with his subordinates, and Our illustrious referendaries who may issue such documents, shall be liable to the same penalty. What We have provided shall be applicable whether the judge has been appointed by Our order, or under a judicial precept, or whether he hears the case as arbiter by virtue of a submission to arbitration, whether the proceedings are committed to writing or not. But when a judge, without having proper regard for his own safety, presumes to render a decision in accordance with orders which have been given him, We declare the said decision to be void, without there being any need to appeal from it, and without the penalty prescribed by the agreement for arbitration being incurred, for We wish all judges to hear cases, and render their decisions in conformity with Our general statutes. Nor can any doubt exist that no judicial order whatsoever will be effective against what is prescribed by Our present law. |
CHAPTER II. |
It
is necessary, however, for magistrates to know that they must determine,
in accordance with the general laws, questions which may now arise where
one of the parties litigant has obtained an order prescribing the manner
in which the case should be heard and decided, as We are not willing
for anyone who has already obtained such an order to enjoy the benefit
of it, where a final judgment has not yet been rendered. But when this
has been done, We decree that it shall be absolutely exempt from the
effect of the provisions of Our present law, even though an appeal may
have been taken from it, or some kind of reconsideration of it may have
occurred. We do not, however, prohibit such an order, whether written
or unwritten, from becoming operative where, instead of prescribing
how the judge shall decide or render judgment, it directs that the case
shall be disposed of; or the appearance of the defendants take place;
or the judge render a final decision; or some other magistrate be appointed
in conformity with law. |
CHAPTER III. |
In
order that all Our subjects, and especially those who have been ruined
by lawsuits, may be informed of Our solicitude for their welfare, and
that no one may violate Our present Imperial Law, or pretend ignorance
of the same, We decree that whenever an action is begun in court this
law shall be copied and made a part of the proceedings before a bond
has been furnished. For in this way, being conspicuous, any attempt
made against its observance will be prevented, or the solvency of the
sureties furnished by litigants being questioned, it will restrain the
efforts of those who are desirous of violating it by the severe penalties
which it denounces against them, and it will not permit the enforcement
of these penalties to be deferred. We
enact the present constitution for the purpose of excluding all inquiry
and injustice from matters of this kind, and by means of it We maintain
the other laws of the Empire in all their force, and free from the exercise
of every kind of fraud, for it is by virtue of these laws that We have
received from God the right of empire, and it is by means of them that
We have always desired to fortify and preserve Our government. |
EPILOGUE. |
Your
Highness will be careful to observe the provisions which it has pleased
Us to insert in this constitution; and you will communicate them by
means of notices published in this Most Fortunate City, and addressed
to the Governors of provinces, in order that all persons may be informed
of Our desire for their prosperity and happiness. |
Given
at Constantinople, on the tenth of the Kalends of December,
during the fifteenth year of the reign of Our Lord the Emperor Justinian,
and the Consulate of Basil. |
|