THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ CXXXIV ~ |
NO
JUDGE SHALL BE PERMITTED TO HAVE A DEPUTY IN HIS STEAD, UNLESS FOR CERTAIN
REASONS AN IMPERIAL ORDER IS ISSUED FOR THAT PURPOSE. |
|
( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
In
the Name of Our Lord Jesus Christ Our God, the Emperor Caesar, Flavius,
Justinian, Alemanicus, Gothicus, Francicus, Germanicus, Fortunate, Pious,
Glorious, Victor and Triumpher, Ever Augustus, to Musonius, Urban Prefect.
|
PREFACE. |
We, having constantly
in mind the welfare of Our subjects, and having ascertained that they
are subjected to annoyances at the hands of deputies sent into the provinces
by civil and military magistrates, have recently enacted a law for the
purpose of correcting such abuses. |
CHAPTER
I. NO MAGISTRATE SHALL BE PERMITTED TO APPOINT A DEPUTY. |
As
We are desirous of benefiting Our subjects to the greatest extent possible,
We hereby prohibit the Praetorian Prefects, both of the East and of
Illyria, the Count of the Imperial Largesses, and the Count of Private
Affairs, from sending deputies into the provinces; and We also forbid
Governors as well as judges stationed in the provinces, or in any city
whatsoever to do this. Only where necessity requires it do We permit
deputies to be sent from the prefecture into the provinces of Osdroena
and Mesopotamia, as well as other places, during expeditions, to secure
supplies for the army, and they shall not be appointed except by virtue
of an Imperial order, expressly issued for this purpose. We
also forbid military commanders and generals-in-chief, in the provinces
where they exert their authority, to employ any deputies, substitutes,
or officers charged with the pursuit of thieves. If, however, it should
become necessary for the military commanders or generals-in-chief to
be despatched to other places by an Imperial order, then We shall appoint
deputies to take their places while they are absent. But no military
or civil magistrate shall be allowed to run over a province when there
is no necessity for it; and where any reason exists for their doing
so, We order them to travel with their courts, and at their own expense.
We forbid them to oppress Our subjects by requisitions for posts, for
those services called epidemitices, or for any other expenses
whatsoever. And We also forbid them to exact the services of any of
the magistrates above mentioned, where they have unjustly established
a custom for their own benefit, for practices wrongfully instituted,
and dishonorable customs cannot be confirmed either by lapse of time
or long-continued usage. Civil and military magistrates are hereby notified
that if any of them should violate this law by the appointment of a
Deputy, he shall pay a fine of twenty pounds of gold, and the person
who accepts such an employment shall lose his property, and be sent
into exile. |
CHAPTER II. |
In
order the better to insure obedience to Our law, We order that the bishops
of the diocese, the Governors of provinces, and the inhabitants of towns
shall not, in contravention of its provisions, receive either a Deputy,
or officers charged with the pursuit of thieves; for We absolutely prohibit
every civil or military magistrate from employing officials of this
kind. We order especially the Governors of provinces to conduct themselves
and their administrations with so much wisdom that their acts will not
require investigation, and someone else be sent to replace them in the
provinces. Where, however, it becomes necessary to send any officers
there to collect taxes, or to suppress disturbances, they shall have
neither the rank nor the title of.deputies. Anyone who is assigned to
a province for such a purpose shall not subject Our subjects to any
expense, he shall discharge the duties entrusted to him, and the Governor,
together with his subordinates, shall give him all requisite assistance.
Where an official is despatched to a magistrate against whom a serious
accusation has been made, We order the provincial court to obey him.
But, while We forbid the appointment of deputies, We desire Governors
of provinces and their courts to be responsible for their administrations,
to supervise public collections, to maintain tranquillity in their jurisdictions,
and to provide against all injustice and annoyance. If
any judges or collectors of taxes in the provinces should happen to
need aid, We order the Governors and their courts to give it to them,
in order that the levy of taxes may be made without hindrance. Competent
provincial judges shall hear and determine any civil or criminal cases
which may be brought before them, and they must decide them on their
own responsibility, and dispose of them according to law. We also order
that as soon as the Governors of provinces receive their appointments,
whether they are present or absent, they must give bond to the Praetorian
Prefect, as well as to the Count of the Imperial Largesses, and the
Count of Private Affairs, to insure the payment of the sums to which
each of said magistrates is entitled, and they should remain responsible
in accordance with the tenor of the bond, if they should divert the
money to improper purposes. In those cities and provinces where there
are no secretaries or magistrates charged with the collection of taxes
at their own risk, the Governors shall collect them on their own responsibility. |
CHAPTER III. |
It
has been brought to Our attention that certain provincial magistrates
act so unjustly for the purpose of obtaining dishonorable gains that
they do not permit wills to be made, or those which have been made to
be recorded; or marriages to be contracted; or nuptial agreements to
be executed, or the dead to be buried, or inventories to be drawn up;
or any similar acts to be performed, either by means of written instruments,
or in the presence of witnesses; hence We forbid all magistrates, both
civil and military, as well as their courts and every other official,
to presume to do anything of this kind. If, however, any of them should
venture to commit such a detestable act, or to protect anyone who has
had the audacity to do so, We decree that, after having been deprived
of their offices, they shall be sent into exile, and shall pay double
the expense which they have caused the injured person to incur; for
neither they themselves, nor anyone else, can diminish the benefit of
the laws. We grant full authority to the most holy bishops and the principal
citizens of the towns to prevent insolent acts of this description,
and see that the transactions which We have just mentioned are completed
in accordance with Our laws without hindrance or expense, and to inform
Us if any of these illegal acts are committed. We
desire judges, whether of superior or inferior rank, to receive appeals
legally taken; they shall hear them specially in conformity with Our
orders (for it is permissible to appeal even from ecclesiastical judges),
and to give, without delay, a written acceptance of their appeal to
the litigants so that the decision of the case may legally be pronounced.
But We decree that when an appeal has once been taken in accordance
with law, the execution of the judgment shall be suspended, and the
possession of the property in controversy shall not be transferred until
final judgment has been rendered. |
CHAPTER IV. |
But
as adultery, rape, homicide, and other offences are perpetrated in the
provinces, We order the magistrates to punish them in conformity to
law, and place those who are guilty under restraint, but We forbid them
to arrest some on account of others, for instance, in the place of true
offenders persons who were born in the same place; or to make their
towns bear the losses which they have caused. We also forbid them to
take pledges from criminals, or to punish a crime with a view to the
profits which may be derived from doing so, or
to appropriate the property of delinquents to their own use. For We
desire that the latter shall suffer the punishment prescribed by the
laws, but We strictly forbid that the imposition of a penalty shall
prejudice the rights of Our subjects, to enable judges and their families,
or officers, to be pecuniarily benefited, lest the desire to obtain
such advantages may induce them to inflict unjust penalties or to sell
pardons to those who are guilty. If any provincial judge should, himself,
violate this rule, he shall make good the entire loss which he has caused,
shall be subjected to punishment, and sent into exile, and his councillor
shall undergo a similar penalty, if he gives his consent in writing
to any illegal act committed by the magistrate. The members of his court,
and all other persons who assist him in obtaining gains of this kind,
shall not only be compelled to make restitution, but the most guilty
among them shall suffer the penalties prescribed by the laws, and be
sentenced to exile. |
CHAPTER
V. PERSONS GUILTY OF CRIME SHALL BE SUMMONED BY MEANS OF LAWFUL EDICTS. |
When
any one of the criminals whom We have just mentioned conceals himself,
or leaves the province in which he has committed the offence, We order
the judge to call him into court by the publication of lawful edicts,
and if he does not obey, the judge shall proceed in the manner prescribed
by the laws. If it should be ascertained that the guilty party is living
in some other province, We order the judge of the district in which
the offence was committed to notify the judge of the province in which
the delinquent resides, by means of a letter, to arrest him on his own
responsibility and that of his court, and to send the accused to him.
When the judge who has received a public letter of this kind fails to
do what We have stated, and his court does not surrender the criminal,
or if it does not execute the orders given it, We decree that the said
magistrate shall pay a fine of three pounds of gold, and his court an
equal amount. If, induced by a desire for gain, a judge, or any officer
of his court, does not arrest a person of this description, or if, after
having arrested him, he does not deliver him up, he shall, after conviction,
be deprived of his office, and sent into exile. |
CHAPTER
VI. A JUDGE SHALL CARRY INTO EFFECT WHAT HAS BEEN ORDERED BY HIS PREDECESSOR. |
When
We give a written order to any magistrate, and, in the meantime, the
said magistrate relinquishes his office, his successor shall receive
the order, shall record it if it relates to a private matter, and shall
execute it, just as if it had been addressed to himself. If the said
written order has reference to the interests of the public, he
shall examine it, and if the Treasury is not in any way prejudiced thereby,
shall cause it to be executed. When, however, it affects the rights
of the Treasury injuriously, it shall remain inoperative, and the magistrate
shall notify Us of the fact, in order that We may issue a second order
for the same purpose. When instructions are given by any magistrate
whatsoever, and the latter, or the person to whom the instructions are
addressed, is deprived of his office before they have been recorded,
his successor shall receive them, and cause them to be executed, if
they are legal; but if they are contrary to law or to the public welfare,
We order that they shall be considered as not having been written. |
CHAPTER
VII. NO CREDITOR SHALL PRESUME TO RETAIN THE CHILD OF HIS DEBTOR AS SECURITY FOR THE DEBT. |
For
the reason that We have ascertained that in many places in Our Empire
a great injustice is frequently committed, namely, that creditors presume
to detain the children of their debtors by way of pledge, and employ
them in servile occupations, or hold them under a lease, We forbid this
practice, and order that when a creditor commits such an act, he shall
not only lose his claim, but shall also pay an amount equal to it to
him whom he detains, or to the parents of the latter; and he shall afterwards
be subjected to corporeal punishment by the magistrates of the district,
for the reason that he had the audacity to retain possession of a free
person as security for a debt, or to lease him, or to take him in pledge. |
CHAPTER
VIII. CONCERNING WOMEN WHO ACT AS SURETIES. |
We
make the following provision for the welfare of Our subjects. Where
a woman consents to bind herself as surety for a loan, and stipulates
in favor of her husband, thereby encumbering either her person or her
property, We order that such an obligation shall be void, and of no
effect, even though she may have done this repeatedly; and it will make
no difference whether the obligation was private or public, for it shall,
in every instance, be regarded as not having been incurred, unless it
is clearly established that the sums lent have been used for the benefit
of the woman. |
CHAPTER
IX. WOMEN SHALL NOT BE CONFINED IN PRISON. |
We
think that it is necessary to forbid a woman to be deprived of her liberty
or imprisoned for any reason whatsoever; but We order that where a woman
is sued for fiscal or private debts, she shall answer, and attend to
the matter either herself or through the agency of
someone whom she may select. When the woman in question is a widow,
or she was not married in the first place, she shall also, in her proper
person, be permitted to protect her rights in conformity to law, or
to do so by means of an attorney. If a magistrate of superior rank should
presume to violate what We have prescribed, he shall be compelled to
pay a fine of twenty pounds of gold; if a superior judge should do this,
he shall be liable to a fine of ten pounds of gold, and the officers
subject to his authority shall be deprived of their places, subjected
to punishment, and sent into exile. But where a woman, after having
been legally notified, is unwilling to appoint anyone to represent her,
or where she is brought into court to answer, We forbid her to be placed
under restraint, or confined in prison; and We desire that she shall
be permitted to assert her legal rights. When a woman is accused of
a crime which renders it necessary for her to be kept under guard, and
she can furnish a surety who will be responsible for her appearance,
We order that this shall be done; but when a woman swears that she cannot
furnish a surety, she shall furnish juratory security for the satisfaction
of the judgment. Where, however, the crime of which the woman is accused
is of an exceedingly serious nature, she shall be placed in a convent
or a hermitage, the reverend inmates thereof shall guard her publicly
and carefully until her case has been heard, and then the sentence pronounced
shall be executed in accordance with law. We do not permit a woman to
be placed in prison, or guarded by men on account of a fiscal obligation,
in any private proceeding, or for any criminal offence, lest her chastity
may suffer violation. Nor do We permit a nun or a female ascetic to
be taken from her convent or hermitage on account of any litigation
in which she may be involved. |
CHAPTER
X. WHAT PENALTY IS INCURRED BY AN ADULTERESS. |
When
the crime of adultery has been established, We order that the penalties
prescribed by Constantine, of Divine memory, shall be inflicted upon
those who are guilty; and all who have acted as agents or intermediaries
in the commission of this impious crime shall be subjected to the same
punishment. But so far as the property of the adulterer is concerned,
if he has a wife, We order that the dowry and ante-nuptial donation
shall be given to her, and that he shall receive the portion granted
by Our law; and if no dotal contract was drawn up, and there are any
ascendants or descendants as far as the third degree, they shall in
their regular order obtain the residue of his estate; and when there
are no heirs of this kind, We direct that it shall go to the Treasury.
The adulteress shall suffer corporeal punishment, and be confined in
a monastery, and if her husband desires to take her back within two
years, We permit him to do so; he can cohabit with her without subjecting
himself to any risk on this account; and the marriage shall not be prejudiced
on account of what
occurred in the meantime. If, however, the aforesaid term should elapse,
or the husband, before he takes his wife back, should die, We order
that she shall receive the tonsure, assume the monastic habit, and reside
in the monastery for her entire life; and if she has any descendants,
they shall receive two-thirds of her estate, to be legally divided,
and the remaining third shall be given to the monastery in which she
is placed. But when there are no descendants, and she has ascendants
who did not consent to such wickedness, they will be entitled to one-third
of her property, to be distributed according to law, and two-thirds
of it shall be given to the monastery in which the said woman is confined.
But where she has neither descendants or ascendants, or her ascendants
have not disapproved of her wicked conduct, the monastery will be entitled
to her entire estate, and, in every instance, the benefits conferred
by the dotal agreements shall be enjoyed by her husband. |
CHAPTER
XI. PENALTIES FOR UNJUST REPUDIATION. |
As
some persons deliberately violate Our law, in which We plainly enumerated
the only causes for which a husband or a wife can serve notice of repudiation,
We order that no repudiation shall take place unless for the causes
aforesaid, and We prohibit them from dissolving their marriage by common
consent, and mutually committing such offences. But where both parties
presume to dissolve the marriage without alleging the reasons which
We have set forth, We order that, if they have any descendants who are
the issue of this marriage or of a former one, their estates shall be
given to the latter as legally prescribed; that both the husband and
the wife shall be confined in a monastery for the remainder of their
lives; and that one-third of their property shall be set aside to be
delivered to the monasteries in which they are placed; but the husband
shall not be entitled to the usufruct of the share transferred to his
children, because, even though he may have them under his control, he
cannot enjoy the income of their property. When,
however, the parties have no descendants but have ascendants, they shall
be entitled to a third of their estates, in case they did not consent
to the impious dissolution of the marriage; and the other two-thirds
of the same shall be given to the monasteries in which the husband and
wife are confined. Where they have neither descendants nor ascendants,
or the latter have acquiesced in the dissolution of the marriage, We
decree that all their property shall be transferred to the monasteries
in which they are placed, in order that Our law may not be violated,
and the judgment of God treated with contempt by reason of such conduct.
We order that any officials who have assisted in such a dissolution
of marriage, or who have drawn up any abominable instruments for this
purpose, shall be subjected to corporeal punishment, and sent into exile.
If those who have been so bold as to dissolve their marriage should
desire to be reunited before being placed in a monastery, We grant them
permission to do so; and the penalty shall then be imposed upon them,
and they shall be entitled to their property, and shall live together
just as if no offence had been committed. But where only one of the
parties is willing to do this, and the other does not consent, the penalty
shall be inflicted upon the one who refuses to return. We order that
all these provisions shall be observed in this Royal City, as well as
in the provinces, and that they shall be enforced, not only by the Count
of Private Affairs but also by the Association of Palatines, as well
as by provincial judges and their subordinates ; all of whom are hereby
warned that if they neglect to punish any crime of this kind, or do
not observe all these rules, they shall be condemned to exile and the
confiscation of their property. We order the most holy bishops of the
several dioceses to enforce this law; and decree that the said persons
shall be placed in the monasteries under their supervision; and that
the portion of their property which has been mentioned by Us shall be
claimed by the monastery. |
CHAPTER XII. |
Where,
however, anyone is accused of adultery, and through the baseness of
the magistrates, or for any other reason, escapes the penalty provided
by law, and is afterwards found to be living shamefully with the same
woman, and he marries her during the lifetime of her husband, or after
his death, We decree that the marriage shall be void, and if he who
was audacious enough to commit this offence should have taken to flight,
We grant permission to every judge to arrest him, and, after having
tortured him, put him to death without allowing him to give any excuse,
or offer any evidence. We also order that the woman shall be punished
and placed in a monastery to remain there as long as she lives; that
the property of both parties shall be divided in accordance with the
rules already stated; and that this shall be done (as We have prescribed)
under the direction of the Count of Private Affairs and the judge of
the district. |
CHAPTER
XIII. CONCERNING THE MITIGATION OF ALL PENALTIES. |
As
it is necessary for Us to make allowance for human weakness, We abolish
the amputation of both hands, as well as that of both feet, and the
imposition of the punishment by which the joints are separated, which
is a much more serious penalty than the amputation of the hands. Hence
We order that, if anyone commits a crime for which the laws inflict
the death penalty, those who are guilty shall undergo it, and if the
crime is one for which the culprit does not deserve to be put to death,
he shall be scourged, or sent into exile. Where the offence is such
as demands the amputation of a limb, one hand only shall be cut off.
We forbid the amputation of a limb because of an ordinary theft, or
the culprit to be put to death for this reason,
but we desire him to be punished in some other way. We call those persons
thieves who, without being armed, secretly remove property; but when
anyone openly makes an attack by force, either with or without weapons,
in houses, on the highways, or on the sea, We decree that he shall be
subjected to the punishment established by law. In order that not only
corporeal penalties, but also slight pecuniary ones may be imposed,
We order that those who are accused of crimes for which the laws prescribe
either death or proscription, where the delinquents are convicted or
condemned, their property shall not be acquired by the judges and their
officers, nor shall it be transferred to the Treasury, in accordance
with ancient legislation; but their descendants and ascendants, up to
the third degree, when there are any, shall be entitled to it. Where,
however, those who are condemned have wives, We order that the latter
shall, by all means, receive the dowry and ante-nuptial donation. But
in case the women were married to such persons, without any dowry, they
shall be entitled to the share of the estates of those who have been
condemned which is authorized by law, whether they have any children
or not. If the criminal should leave none of the heirs above mentioned,
then his estate shall go to the Treasury. We order that the ancient
laws which have reference to persons convicted of the crime of treason
shall be observed. |
EPILOGUE. |
Therefore
Your Glory will see that Our present law is published in this city and
sent to the provinces, and notice thereof given to their Governors,
in order that all Our subjects may learn how great is Our solicitude
for their welfare. |
Given
at Constantinople on the Kalends of May, during the reign of
Our Lord the Emperor Justinian, and the Consulate of Basil. |
|