~  CXXXIV  ~

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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.
  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.