| THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
| ~ CXXXI ~ |
| CONCERNING
ECCLESIASTICAL TITLES AND PRIVILEGES, AND VARIOUS OTHER MATTERS. |
|
|
( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
| The
Emperor Justinian to Peter, Most Glorious Imperial Praetorian Prefect.
|
| PREFACE. |
|
We enact the
present law with reference to ecclesiastical rules and privileges and
other subjects in which holy churches and religious establishments are
intrusted. |
| CHAPTER
I. CONCERNING FOUR HOLY COUNCILS. |
|
Therefore We
order that the sacred, ecclesiastical rules which were adopted and confirmed
by the four Holy Councils, that is to say, that of the three hundred
and eighteen bishops held at Nicea, that of the one hundred and fifty
bishops held at Constantinople, the first one of Ephesus, where Nestorius
was condemned, and the one assembled at Chalcedon, where Eutyches and
Nestorius were anathematized, shall be considered as laws. We accept
the dogmas of these four Councils as sacred writings, and observe their
rules as legally effective. |
| CHAPTER
II. CONCERNING THE PRECEDENCE OF PATRIARCHS. |
|
Hence, in accordance
with the provisions of these Councils, We order that the Most Holy Pope
of ancient Rome shall hold the first rank of all the Pontiffs, but the
Most Blessed Archbishop of Constantinople, or New Rome, shall occupy
the second place after the Holy Apostolic See of ancient Rome, which
shall take precedence over all other sees. |
| CHAPTER
III. CONCERNING THE ARCHBISHOP OF THE FIRST JUSTINIANIAN. |
|
The
Most Blessed Archbishop of the First Justinianian shall continue to
retain under his jurisdiction and authority the bishops of the provinces
of Mediterranean Dacia, of Dacia Ripense, of Privalis, of Dardania,
of Upper Mysia, and of Pannonia. He shall himself be consecrated
by his Council, and shall replace the Apostolic See of Rome in the provinces
subject to his authority, in accordance with the regulations of the
most holy Pope Vigilius. |
| CHAPTER
IV. CONCERNING THE JUSTINIANIAN BISHOP OF CARTHAGE. |
|
In
like manner, We preserve the pontifical right which We have granted
to the Justinianian bishop of Carthage, a city of Africa, for the reason
that God has restored it to Us. Bishops of other cities situated in
different localities upon which the metropolitan privilege has been
conferred shall enjoy the same in perpetuity. All the rights or benefits
which have been conceded to churches, religious establishments or houses,
by Imperial munificence, or in any other way, shall be absolutely maintained. |
| CHAPTER
V. CONCERNING THE PRIVILEGES OF ECCLESIASTICAL POSSESSIONS. |
| We
forbid lands belonging to holy churches and religious establishments
in general to be subjected to degrading charges and extraordinary tributes.
Where, however, it becomes necessary to repair roads, bridges, or anything
else, the churches shall, along with other real property, contribute
to this whenever they have land dependent upon the city where work of
this kind is necessary. Where any possessions of decurions have been,
or may hereafter be acquired by a church or any other religious establishment,
We desire that the latter shall be released from liability for such
contributions as are designated "lucrative." |
| CHAPTER
VI. CONCERNING THE PRESCRIPTION OF FORTY YEARS CONCEDED TO RELIGIOUS ESTABLISHMENTS. |
| We
order that instead of temporary prescriptions of ten, twenty, and thirty
years, that of forty years can only be pleaded against the most holy
churches, and all other religious houses, and this rule shall apply
to the collection of legacies and estates bequeathed for pious uses. |
| CHAPTER
VII. CONCERNING THE CONSTRUCTION OF CHURCHES. |
| Where
anyone wishes to build a private chapel or monastery, We order that
nothing shall be done before the most holy bishop of the diocese has
offered a prayer upon the site where it is to be constructed, and has
planted there a holy cross. But where anyone has once begun the construction
of a church, or the repair of an old one, he shall be compelled by the
bishop of the diocese, by his stewards, and by the civil magistrates
of the district, to complete it; and if he should delay doing so and
die, his heirs must finish the work which he has commenced. |
| CHAPTER
VIII. THE SACRED RIGHTS OF THE CHURCH SHALL NOT BE CELEBRATED IN THE SUBURBS OF TOWNS, OR IN HOUSES, FIELDS, OR PRIVATE PLACES. |
| If
anyone should presume to conduct religious services in his own house,
or in a suburb, or should permit others to do so without the presence
of any members of the clergy who are subject to the authority of the
most holy bishop of the diocese, We order that the said house, suburban
place, or land, on which an offence of this kind was committed, shall
be claimed by the most holy bishop, or his steward, or the civil magistrate,
for the benefit of the church of that locality. Where,
however, the owner of the building in which the religious services were
conducted was ignorant of the fact, and his curators, lessees, or emphyteutas
were responsible, he shall suffer neither loss nor prejudice; but those
who conducted the services, or permitted this to be done, shall be expelled
from the province where the offence was perpetrated, and their property
shall be seized for the benefit of the most holy church of the neighborhood. |
| CHAPTER
IX. LEGACIES BEQUEATHED TO GOD SHALL PASS TO THE CHURCH OF THE DIOCESE IN WHICH THE TESTATOR HAD HIS DOMICILE. |
| If
anyone should bequeath an estate or a legacy in the name of Almighty
God and Our Saviour Jesus Christ, We order that the church of the place
in which the testator had his domicile shall be entitled to the bequest.
But if anyone should appoint a saint his heir, or leave him a legacy,
and does not specially designate the place where the religious house
dedicated to him is situated, and there are several oratories dedicated
to this saint in the same place or city, then the legacy bequeathed
by the testator shall go to the poorest one. When there is no church
dedicated to the saint, who was appointed heir, in the same city, but
there is one in the territory embraced by its jurisdiction, the legacy
shall be given to the latter. But where there is no church at all, even
in the said territory, then the legacy shall go to the church of the
town in which the testator had his domicile. |
| CHAPTER
X. WHERE ANYONE ORDERS AN ORATORY TO BE BUILT. |
| Where
anyone, in his will, provides for the construction of an oratory, a
house for the entertainment of strangers, a place of refuge for the
poor and infirm, an orphan asylum, a hospital, or any other religious
establishment, We order that it shall be completed under the supervision
of the bishop of the diocese and the civil magistrate, within five years
if it is an oratory, and within a year if it is a house for the
entertainment of strangers,
an asylum for the poor and infirm, or any other religious establishment
whatsoever. If the heirs of the deceased should not, within a year,
erect the said house for the entertainment of strangers, or other religious
establishment whose construction was ordered by him, We decree that
they shall buy or lease a building in which they can carry out the directions
of the testator, until the religious establishment aforesaid is completed.
Where the testator named the persons to be appointed superintendents
of houses for the entertainment of strangers, asylums for the poor and
infirm, and other religious establishments, or where he left their selection
to his heirs, We order the latter absolutely to comply with his wishes,
but the holy bishops of the diocese shall see that the superintendents
faithfully discharge their duties, and if they should ascertain that
they do not make themselves useful, they shall be authorized to appoint
others who are better qualified. |
| CHAPTER
XI. LEGACIES BEQUEATHED FOR THE RANSOM OF CAPTIVES SHALL BE EMPLOYED BY BISHOPS, ETC. |
| When
anyone leaves an estate or a legacy consisting of either movable or
immovable property, to be employed either for the redemption of captives,
or for the support of the poor, whether it is all to be delivered at
once, or in annual installments, his wishes must be faithfully complied
with by those whom he charged with this duty. Where the testator specially
stated that he left the property to the poor, We order that the most
holy bishop of the city in which the testator had his domicile shall
receive the articles bequeathed, and distribute them among indigent
persons of the same city. But where he left something to be used for
the ransom of captives, without expressly stating by whom the ransom
should be paid, We also order that the bishop of the diocese, and his
stewards, shall receive the property bequeathed, and perform this act
of piety; for We desire that the most holy bishops shall see that all
such testamentary dispositions are observed in accordance with the intention
of the deceased, even though the testator or donor may have specifically
forbidden them to do so. When
those whom a testator directed to carry out the provisions of his will
defer doing so, after having once or twice been notified by the bishop
of the diocese, by his stewards, or by other persons in authority, We
decree that they shall be deprived of what was left to them by the testator,
and that the bishops of the diocese (as previously stated) shall be
entitled to claim not only everything intended for the relief of the
poor, and any income of the property which may have been collected and
its increase in value, but also whatever the testator left to his heirs
to enable them to do what he directed; and the said prelates are hereby
notified that if they, themselves, should neglect to comply with the
wishes of the testator, they will be accountable to God. If the most
holy bishop of the diocese should fail to obey any of the rules which
We have formulated, his most holy metropolitan shall be permitted to
claim the legacies, and execute the testamentary dispositions of the
deceased, and all other persons are authorized to give information of
the failure to perform the pious duties prescribed, and to see that
they are accomplished. |
| CHAPTER
XII. THE FALCIDIAN LAW DOES NOT APPLY TO LEGACIES LEFT FOR PIOUS USES. |
| If
an heir, to whom property has been left for pious uses, should not use
it for that purpose, under the pretext that the amount is insufficient,
We order it to be entirely employed for the purpose for which it was
left, the Falcidian Law not being applicable under such circumstances,
and that this be done under the superintendence of the most holy bishop
of the diocese. We desire legacies left for pious uses to be entirely
delivered to those to whom they were bequeathed, within six months after
the record of the will. If the persons charged with paying the legacies
should delay to do so, the crops, the interest, and all lawful increase
in the value of the property from the date of the death of the testator
shall be collected from them. Where
an annual legacy is left to a religious house, and those who are ordered
to pay it, or he who is directed to give possession is in the same province,
or in an adjacent one, We absolutely forbid the legacy to be alienated.
But when the possessors, or other persons whose duty it is to pay it,
are at a distance, then the religious houses, that are the legatees,
are hereby authorized to exchange the property bequeathed, with the
consent of the trustee, and receive in return suitable revenues from
land not burdened with excessive taxes, and which is greater in value
by at least a fourth than that devised; or the said religious houses
can, if they so desire, sell the legacy, and accept a price which must
not be less than the entire amount of the income collected in twenty-five
years; provided, however, that the purchase-money is employed for the
benefit of the religious house to which the legacy was bequeathed. |
| CHAPTER
XIII. BISHOPS SHALL NOT, BY WILL, DISPOSE OF ANY PROPERTY WHICH THEY MAY HAVE ACQUIRED DURING THEIR EPISCOPATE. |
| Again,
We forbid the most holy bishops to transfer to their own relatives,
or otherwise alienate property either movable, immovable, or which is
capable of moving itself, which came into their hands in any way, after
they obtained the episcopate. They shall, however, be permitted to use
it for the ransom of captives, the support of the poor, and other pious
works, or for the benefit of their own church; and We order that the
ownership of all property, no matter what it may be, which
they acquire by the death of their parents, shall belong to the church
in which they perform their sacerdotal duties. We only grant them permission
to alienate or bequeath to whomever they please what is proved to have
belonged to them before they were raised to the episcopate, and that
which, during the episcopate, came into their hands from their ascendants,
or from other relatives to whom they could succeed ab intestato,
as far as the fourth degree. We order that all that We have prescribed
relative to property acquired by the most holy bishop during his episcopate
shall also apply to the most reverend superintendents of orphan asylums,
institutions for the poor and infirm, hospitals, houses for the entertainment
of strangers, and asylums for old men, as well as to the managers of
other religious establishments, so far as any property which may come
into their hands in the manner above mentioned, during the time of their
administration, is concerned. But if a bishop, a clerk, an ecclesiastic
of any rank whatsoever, or a deaconess, should die without making a
will, and without leaving any legal successor, his or her estate shall
belong to the church to which he or she was attached. |
| CHAPTER
XIV. HERETICS SHALL NOT ACQUIRE IMMOVABLE PROPERTY, UNDER ANY CIRCUMSTANCES, FROM CHURCHES OR PRIVATE INDIVIDUALS, NOR ERECT BUILDINGS FOR THE CELEBRATION OF THE RITES OF THEIR FAITH. |
| We
order that no heretic shall acquire any immovable property from a church
or any other religious establishment whatsoever, either by lease, emphyteusis,
purchase, or in any other way; and when a heretic is paid anything in
a contract of this kind, he shall lose it, and the immovable property
that he received shall be recovered by the religious establishment which
transferred it; and the superintendent of said establishment shall be
deprived of his office, confined in a monastery, and excluded from the
holy communion for an entire year, by way of punishing him for having
betrayed Christians to heretics. Where an orthodox person is in possession
of property on which a church is situated, and alienates, bequeaths,
leases it under emphyteusis or in any other way, or entrusts the management
of the same to a Jew, a Samaritan, an Arian, or any other heretic, the
said property shall be claimed by the church of the neighborhood, and
where a heretic (and among heretics We include Nestorians, Acephali,
and Eutychians) builds a house for the celebration of his worship, or
a new Jewish synagogue, the most holy church of the diocese shall seize
the building. If anyone
should transfer land to a heretic under emphyteusis or any other form
of lease, or entrust the management of the same to him in any other
way, he being well aware that the person to whom he delivers it is a
heretic, all the income collected therefrom under the contract shall
be claimed for the benefit of the church of the city within whose territory
the land in question is situated; but when the owner of the same is
ignorant that he to whom he gave possession is a heretic, he shall not
be deprived of it on account of his ignorance; but in either event the
heretic must be driven from the land, and his property confiscated for
the Treasury. |
| CHAPTER
XV. SUPERINTENDENTS OF ORPHAN ASYLUMS RESEMBLE GUARDIANS, AND MUST DRAW UP INVENTORIES JUST AS THEY DO. |
| The
superintendents of orphan asylums discharge the duties of guardians
and curators to the extent that they can sue and be sued with reference
to the property belonging to their establishments, or to the orphans
as individuals, without being obliged to furnish security. They shall
receive property belonging to said orphans, or the establishments to
which they are attached, in the presence of the public registrars, or
by means of documents drawn up in this Royal City before the Master
of the Census, and in the provinces before their Governors, or the defenders
of the districts; and if the superintendents should deem it necessary
to alienate such property, they must keep the purchase-money for the
orphans, or employ it for their benefit in the purchase of other things;
and they shall not be obliged to render any accounts of guardianship
or curatorship. We order that all the general privileges enjoyed by
the Most Holy Principal Church of Constantinople shall be preserved
for the orphan asylum of this Royal City, as well as for the house of
public entertainment called Samson of Holy Mary, and for all the oratories,
hospitals, or religious establishments which are under its jurisdiction. |
| EPILOGUE. |
|
Therefore
Your Highness will see that the provisions which we have enacted in
the present law are brought to the knowledge of all Our subjects, by
means of edicts formally promulgated in this Royal City; for We shall
provide for this publication in the provinces without any expense to
Our taxpayers. |
Given
at Constantinople, on the fifteenth of the Kalends of April,
during the reign of Our Lord the Emperor Justinian, and the Consulate
of Basil. |
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