THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ CXXIV ~ |
LITIGANTS
SHALL SWEAR AT THE BEGINNING OF AN ACTION THAT THEY HAVE NOT PROMISED
TO GIVE ANYTHING TO THE JUDGES AND THAT THEY WILL GIVE NOTHING HEREAFTER.
CONCERNING FEES. REFERENDARIES WILL DO WHAT THEY ARE ORDERED WITHOUT
INTERFERING WITH THE JUDGMENTS RENDERED, WHICH THEY THEMSELVES MUST
SEE ARE EXECUTED. |
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( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
The Emperor Justinian to Peter, Most Glorious Praetorian Prefect. |
PREFACE. |
We promulgate
the present law in order that the integrity of judges may be made apparent,
and that nothing contributed by litigants may effect evasion of the
laws. |
CHAPTER I. |
Therefore
We order that whenever actions or appeals are brought before any judges
or other magistrates, the principal parties, or those to whom the prosecution
of the suit has passed in the meantime, shall swear in the presence
of the Holy Gospels and the judges that they have neither given nor
promised anything to the latter or to anyone else, and that they will
not do so, either in person or by the agency of anyone whomsoever, in
order to obtain the favor of said judges; with the exception of the
ordinary fees advanced by litigants to advocates to represent them,
and to such other persons as Our laws authorize payment to be made.
We decree that these rules
shall be observed in Our Imperial Consistory, whenever consultations
are applied for there, and that the above-mentioned oath shall be administered
in the presence of the Senate. When (as sometimes happens) some of the
litigants cannot appear in court, We order that those who do appear
shall be sworn, and that some of the court officers shall then be dispatched
to the absent litigants along with the adverse parties, in order that
they may take the oath in their presence. But where one of them is a
woman, and she, on account of her natural timidity, is not accustomed
to appear before strange men, the officers sent by the magistrate shall
take her oath without the adverse party being present. Where both parties,
or either of them, happen to be in different places, We order that the
one who is absent shall be publicly sworn, in the manner in which We
have just mentioned, either before the judge of the province where he
resides, or in the presence of the public defender. We desire that this
present constitution shall be so strictly observed that, if one of the
litigants, when either absent or present, should refuse to take the
prescribed oath, and the judge is notified of the refusal, he shall
be deprived of his right of action, if he is the plaintiff; and that
judgment shall be rendered against him if he is the defendant. |
CHAPTER
II. WHERE A LITIGANT, REPENTING OF HIS ACT, MENTIONS THE NAME OF PERSONS TO WHOM HE GAVE SOMETHING. |
Where
one of the litigants states that he has given or promised something
to any person, and mentions his name, and proves what he alleges, he
will deserve to be pardoned after the case has been decided; and when
it is a pecuniary one, he who received the gift or accepted the promise
shall be compelled by the Count of Private Affairs to pay three times
the amount of what was given or agreed upon; and, in every instance,
the official shall lose the dignity or public employment with which
he is invested. Where the accusation is a criminal one, he who, by accepting
a bribe, hastened to take upon himself the crime of another, shall be
subjected to the confiscation of his own property, and be sent into
exile. When, however, the litigant is unable to prove that anything
was either given or promised, he who is said to have received the gift
or accepted the promise must swear that he did not do so, either in
person or by someone else, and this oath having been taken, he shall
be discharged; and the litigant who was unable to establish his allegations
shall, where the case involves the payment of money, be required by
the Count of Private Affairs to pay the value of the property in litigation,
after it has been appraised, and he must then abide the result of the
trial. In criminal cases, he who is not able to prove his statements
shall have his property confiscated, and the case shall be • decided
by competent judges in accordance with law. When a litigant swears that
he neither gave nor promised anything, and within ten months after the
decision has been rendered it is ascertained that he did give something,
the aforesaid penalty shall be imposed both upon the giver, and the
receiver of the gift. In cases prosecuted by guardians or curators,
they must be sworn; and where there is ground for the infliction of
any of the penalties above mentioned, growing out of the oath aforesaid,
the guardians or curators shall alone be liable to them, without the
rights of those subject to their guardianship or curatorship being prejudiced
in the slightest degree. |
CHAPTER
III. CONCERNING THE PROHIBITION OF ILLEGAL FEES. |
We
also order that throughout the entire extent of Our Empire, both military
and civil magistrates shall take measures to prevent the executive officers
of judges, prefects, and other magistrates from collecting,
under the pretext of fees, anything whatsoever in excess of what is
provided by Our laws; even though the said officers may rely upon an
Imperial mandate issued by Us; and wherever they detect any officer
in exacting more than he is entitled to, they are authorized to arrest
and imprison him, and exact from him fourfold the amount of the excess
which he received; so that when the simple loss is returned to the person
who suffered it, three times that shall be paid into Our Treasury. Where
a civil or military magistrate after having, in any instance, been applied
to neglects (as We have already stated) to redress the wrong of the
injured party, quadruple damages shall be collected from him in the
manner aforesaid; and We order that this penalty shall be exacted by
the Count of Our Private Affairs. And when competent judges fail to
punish their executive officers, who extort anything by way of fees,
in contravention of Our laws, after they have become aware of the fact,
We permit those on whom the demand is made to give no more than what
is prescribed by Our Constitution, and if the officers should attempt
to collect anything in excess of this, the former are hereby authorized
to resist them. |
CHAPTER
IV. A JUDGE SHALL NOT COMPEL PERSONS TO EFFECT A COMPROMISE. |
As
a law enacted by Our Father, of pious memory, as well as by Ourself,
forbade ordinary judges to insert in their decisions anything whatsoever
based on an Imperial order not committed to writing, and as this law
also provided that the eminent referendaries must publish Our mandates
in the proper manner, We hereby confirm it, and prohibit the said referendaries
and their associates, whenever they take cognizance of cases within
their jurisdiction, or when they submit any questions to Our Majesty,
from detaining a litigant, either in his own person, or when he is represented
by someone else, in order to make him agree to a contract to collect
nothing under a bond, and compel him to compromise, or come to terms
with his adversary; and, in conclusion, We forbid them to interfere
in lawsuits of any description; for We, in every proceeding whatsoever,
only authorize these officials to notify regular judges, or those who
have been specially appointed by Our commands issued either in writing
or verbally. If one
of them should presume to violate the present law, the litigant who
has sustained any loss, or who has been treated unjustly with reference
to his property, shall suffer no infringement of his rights. The guilty
official, however, shall be compelled by a competent judge to make good,
out of his own estate, the loss sustained by the injured person, and
he shall also be deprived of his office and his rank. We order that
these rules shall be applicable not only to future cases, but also to
such as have already been begun but have not yet been terminated. |
EPILOGUE. |
Therefore
Your Eminence will see that this law, which shall always be observed,
is brought to the knowledge of Our subjects by means of formal edicts
published in the Royal City, in order that all persons may be informed
of what We have decreed for their common benefit. |
Given under the Consulate of Basil. |
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