The Novels of Justinian : Novel 30 ( Scott )

THE ENACTMENTS OF JUSTINIAN.

THE NOVELS.

~ XXX ~

CONCERNING THE PROCONSUL OF CAPPADOCIA.

( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ).

The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.

PREFACE.

Persons who have studied history are aware that the people of Cappadocia bear distinguished names; that they had many transactions with the Romans before being subjected to their rule; and that their dominions formerly embraced all of Pontus, and gave birth to famous men who obtained a high reputation among the Romans. Cappadocia is of great extent and wonderfully fertile, and found such favor in the eyes of the Emperors that the latter were accustomed to appoint as Governor of those regions a special magistrate of higher rank than that of a civil official. This country is extremely populous, and contains a great city which bears the name of Caesar, one which is very dear to Us, being that of a ruler who began the acquisition of the empire of the world which We at present possess, a name held in great veneration by all the people of the earth, and which We exalt above all the attributes of Imperial Majesty.

CHAPTER I.

It seems to Us contrary to all propriety and dignity that Cappadocia hitherto should have been subject to the jurisdiction of an inferior magistrate, as We have learned that almost constant seditions have arisen against the government; that the city is divided into two factions, one of which is styled Tamiacal, or Fiscal, and relating to the Treasury; and the other Eleutherical, that is to say, free; and while there is but one community enclosed by the walls, there are two bodies of persons entertaining different opinions. This gives occasion for seditions and quarrels, and if the inhabitants experience any evils it is due to this cause (so We think) and, when it is removed, We shall restore authority and concord, than which nothing better or more desirable can exist among men.
(1) With this end in view, We have established a different form of government, with other magistrates, as We have already done in the case of the Pisidians, the Lycaonians, and the Thracians, by the union of both the civil and military jurisdiction; but, as We desire it to be superior to theirs, We have added a third. For, in addition to the fact that the magistrate entrusted with the government of Cappadocia shall supervise the execution of the laws by the civil officials, and shall have command of the soldiers stationed in his province, as well as all the other provinces of Pontus, where Tamiacal lands are to be found, he shall also be invested with authority over soldiers stationed in those places. For We grant him jurisdiction over the men attached to Tamiacal lands, as well as over those forming part of the Comitian Court, who shall all obey him, and in this manner he shall administer a government of a threefold nature, for he will have civil and military jurisdiction, as well as control of Tamiacal property. Thus he will have two courts, Comitian, whose officers will execute his orders without reference to the Civil Court and that of the illustrious Governor of the province; these two courts shall be styled Proconsular, and We desire that each one of them, that is to say, the one formerly known as Comitian and the one called Civil, although they will have but one appellation (that is Proconsular) shall each exercise distinct functions. In this way the Civil Court will have charge of tributary and civil matters which We are aware from the beginning have always belonged to it; and the court which formerly was called Comitian will be restricted to the administration of property belonging to the Empire, and shall make collections in the manner which We shall presently explain.

CHAPTER II.

Bearing in mind the example of former times, and the enormous injury inflicted by curators and stewards upon Our wretched subjects, We do not desire the names of these officials to longer exist. For this reason there shall be appointed for each separate house thirteen of the principal members of the Comitian Court, who shall be called first and second masters, and shall be personally liable, and thirteen others who shall be next in authority, and shall, like the first be assigned to each private house (as already stated) ; and the latter, under the supervision of the head masters, shall attend to the collection of the revenues, and preserve for the Treasury the property belonging to the same; it shall be their duty to correct the indolence of taxpayers, but they must be careful not to cause the latter any loss, for We warn them that they will be responsible for anything of this kind, and will give every public receipt at their own risk. The first and second masters and the thirteen others who come next in order must be careful not to divert the public revenues to any improper purpose; nor shall they be compelled to pay any personal contribution to the Proconsul in office at the time on account of their commissions, or to do this under any other pretext; but each one of the thirteen collectors shall pay fifty aurei to the thirteen head-masters.

CHAPTER III.

Collectors shall not take from peasants, or others from whom collections can be made by them, any more than has been prescribed by the Edict of Niceta, and they are forbidden to pretend that the taxpayers are indebted, and to oppress them under the pretext of compelling them to make payment to stewards, by way of greeting; or in the observance of some custom; or for any other annoying purpose; for We desire absolutely to deliver Our subjects from such exactions, as well as from the unlawful and onerous contributions that they formerly paid to stewards, and which prevented them from discharging the obligations which they owed to the public. We hereby annul every pragmatic sanction, or long-established usage, where any authorizing similar contributions exists; for by abolishing even the name of these officials, We destroy at the same time everything which has reference to them, and grant a special favor to Our subjects. If any collector should dare to take from tax-payers anything beyond what is authorized by the Edict of Niceta, and which alone We have permitted them to accept, he shall be deprived of his office, rank, and property.

CHAPTER IV.

As it may happen that among the thirteen collectors (We order that they shall be appointed to this office in regular gradation), one may be found who is not qualified for the collection of the revenue, We nevertheless allow him to be paid his entire salary. But We order that the thirteen principal masters, as well as those who come directly after them, shall, at their own risk, appoint an assistant who shall make collections in his stead; because in this way the collection of taxes may be promoted, and the Treasury will not suffer any loss through the imbecility of an incompetent official; who, however, shall not be deprived of his rank, or his time of service; but We repeat that the appointment of his assistant shall be made on the responsibility of the thirteen head-masters, and the thirteen other officials who are immediately subordinated to them. Collectors will have reason to thank Us for having released them from the excessive contributions that they were formerly obliged to make, not only to the head-masters, but also to the Count in office at the time, and his attendants. If, however, We have freed them from this species of imposition, it has been done to prevent them from being guilty of injustice toward Our tax-payers, and that they may not invent pretexts; for instance, that of their assuming office, or various others, by which the means of peasants are exhausted, and that they remain content with what was allotted to curators by the Edict of Niceta, of illustrious memory, and abstain from exacting anything beyond this amount.

CHAPTER V.

The Proconsul shall decide all matters within the jurisdiction of civil, military, or Tamiacal authority. For We desire to place over Cappadocia a magistrate invested with greater power than in the other provinces; and as it was customary among the ancient Romans for the provinces to be apportioned by lot among the Consuls, or those officials who replaced them and were called Proconsuls, We desire that the Cappadocians also should possess a Proconsular Magistracy, an office by which the Romans are conducting the administration of Africa. We place the government of Cappadocia in a class so superior to the others that We designate the official to whom it will be entrusted in the way that We do Our Glorious Praetorian Prefects. He shall be called in a paternal manner the Justinianian Proconsul of Cappadocia, and he shall also have- the special title of Archegetes, that is to say, Principal Magistrate. For it is not without reason that he should be invested with such extraordinary dignity, as his power extends to other localities by means of the Tamiacal possessions; he has civil jurisdiction over persons as well as property; and, as he, at the same time, commands the military forces, he will, in every respect, exercise great authority. He shall, however, be required to conform to custom in the administration of civil affairs, and shall properly direct the soldiers at his disposal.
(1) The Proconsul with the head-masters shall attend to the administration of such Tamiacal property as has been so deteriorated and exposed to the depredations of others that it is worth almost nothing, for We have been informed that such great abuses exist in that province that it is extremely difficult to apply proper remedies. Those who have charge of the estates of powerful persons (We almost blush to say it) conduct themselves on all occasions with intolerable insolence; they are accompanied by guards to prevent the multitude from following them, and they steal with the greatest impudence. We are surprised that the people of this province have been able to endure so many injuries. Again, every day, a vast number of Cappadocians who have been oppressed by injustice, among whom are to be found many ecclesiastics, and women, lay their complaints before Us, while We are occupied in conducting the government, because no one can be found in their province who is able to prevent acts of this kind from being committed. Tamiacal possessions are almost reduced to the condition of private property; they are ravaged and torn up; everything belonging to them is removed; and no one makes any remonstrance because the mouths of those who could do so are closed with gold.

CHAPTER VI.

Therefore, being fully informed of these matters, We have decided to commit the government of Cappadocia to an official who, possessing triple jurisdiction, will unite in himself all administrative functions; who shall be invested with the insignia of civil office; be entitled to use a silver chariot, the axe, the fasces, and every other mark of Proconsular authority; and shall also command the soldiers, and collect the income of Tamiacal lands; shall see that the officials appointed for these collections are not guilty of fraud or negligence, and compel them to deliver to Us everything derived from this source to which We are entitled, and which should be given either to Us or to Our August Consort, whether it consists of gold or cloths, for We wish nothing of this kind to be retained.
(1) These articles, however, shall not be obtained — as has been the case up to the present time — from Our subjects by extortion (for We regard all such measures as abominable, and wish them to be excluded from Our government) ; but We order that they shall be acquired by the just and legal means which We have prescribed in this Our law. The Proconsul shall obey these rules, and shall give to Our August Consort fifty pounds of gold, as has been stated; for We appoint him gratuitously, and give him his commissions without requiring him to pay for them, nor do We desire that anyone shall collect anything from him on this account.
(2) We grant the Proconsul a salary of twenty pounds of gold and his assessor two pounds; and each body of attendants shall, without any diminution, receive the same allowance which has, up to the present time, been furnished it by the public. We decree that the connection which the magistracy of Cappadocia has had with the Most Glorious Imperial Chamberlain shall be preserved; and We desire that the latter, as well as the entire corps of Palatines subject to his orders shall retain their former authority and rank in this province. But We forbid the Proconsul then in office, and his court, to exact anything whatsoever, whether it be gold, cloth, or other things, under the pretext of custom or subsistence; and if the Proconsul should violate this order, he will not conduct his administration honorably, and will not prevent the ruin of his province, for which very reason We have placed it under his exclusive jurisdiction.

CHAPTER VII.

The official whom We shall dispatch into Cappadocia to discharge the duties of the Proconsulate will have general supervision of Tamiacal lands. He must ascertain whether they consist of meadows, fields capable of tillage, vineyards, or other property or houses, and if held by private individuals, he shall recover them without the latter being permitted to plead any prescription of time, for to adopt such a measure against the Treasury is not allowed, and anyone who has taken possession of Tamiacal land cannot add it to his own estate; hence, where some person is ascertained to have been induced by avarice to appropriate property of this kind, he will be much nearer poverty than wealth, because he will be compelled to return it, and will also be subject to reproach and disgrace.
(1) The Proconsul shall maintain peace in all the cities, and not permit any sedition to disturb his administration; he shall diligently and justly collect the public taxes, and give this matter his entire attention, without allowing either the Treasury or private persons to sustain any loss. He shall have the same authority over all men, whether they be soldiers, secretaries of the Most Glorious Prefect, generals of the army, members of the Civil Court; whether they are discharging the duties of a Tamiacal office, or are invested with great or little authority; or, finally, whether they are included in the body of ecclesiastics. This magistrate shall have jurisdiction over all persons, and shall make it his special duty to preserve his reputation unblemished ; he must obey the laws, and, above all things, render himself acceptable to God; he shall see that the collection of public taxes is made without loss or delay by the Proconsular officers; he shall cause the revenues from Tamiacal lands to be paid into his Treasury by the said officers, and in this respect he will observe the rules ordinarily laid down by Our Most Glorious Imperial Chamberlain. The collectors themselves must not accept a single obolus beyond the amount given them by the Most Glorious Imperial Chamberlain, nor can they take anything on the ground of its being authorized by custom, or under any other pretext, either from the Praetor in office at the time, from those who draw up the public receipts, from the Proconsul himself, from the members of his court, from the officials styled Katascevastse, or instructors, from stewards, or from any other person attached to the service of the Imperial domain. The Proconsul shall have charge of both armies; he shall restrain the satellites of powerful men; he shall prevent the province from being depopulated and infested with brigands; and, finally, he shall not, in person, travel over it as formerly the Counts were accustomed to do. He shall not appoint any deputies in his stead, but shall be represented by the defenders of the different places and his own subordinates.
(2) When any part of the province has need of soldiers, the Proconsul shall direct those stationed therein to render assistance wherever it may be required; and they must travel at their own expense, without causing any loss or damage to Our subjects. The Proconsul shall also travel at his own expense, no matter where he goes, even when We direct him to repair to some other province; and the same rule shall apply to his assessor and his escort composed of Proconsular officers, even though they may have with them slaves or horses. But as We have previously stated, all the soldiers and persons residing in the province, as well as those composing the household of the Proconsul, shall be required to obey his orders, under the penalty of losing their places and their property, for the Proconsul can deprive them of both, if they refuse to obey him; and We confer authority upon him to do this in order to render him more formidable to Our subjects, and increase the respect with which he should be regarded. For if a soldier, an official of the Court of the Proconsul, or a member of his household should, while executing the orders which he has received, cause Our subjects any loss — provided he is performing his duties on his own responsibility — the Proconsul shall deduct enough from his salary to indemnify the person who has been injured. In conclusion, the Proconsul shall not permit any officials, sent from this city, to molest Our subjects.
(3) He shall also see that the public race-course is kept in good condition, for We except nothing from his jurisdiction, and if anyone despatched from a court into the province should be guilty of oppression, or exact anything more than he is entitled to, he must prosecute him.

CHAPTER VIII.

The Proconsul shall also take care of the city and of all matters relating to the public distribution of grain, as well as of the public works; take measures to have accounts rendered in accordance with Our law; and see that all revenues, Tamiacal as well as civil, are collected. He shall expel from the province any persons who are ordinarily charged with the repair of aqueducts, walls, bridges, highways, and other public works of this kind, who formerly attended to these matters in accordance with an evil custom. He shall not permit such persons to execute orders of this description, or to obtain any profit under this pretext; and when We are convinced that an inspection of works should be made, and that it is advisable to send to the Proconsul a pragmatic sanction on this subject, We shall do so, after having notified Your Highness, in order that the entry into the province to collect money there may not appear to be easy to anyone. The official who discharges the duties of this office shall prohibit everything in his jurisdiction which he finds to be dishonorable. If, in order to do this, it is necessary to adopt more severe measures, he will communicate the fact to Your Excellency, as well as to the Most Glorious Imperial Chamberlain and the other eminent magistrates who have power to act in the matter; and finally he must have recourse to Us, and We will instruct him in what he has to do.
(1) The Proconsul shall not, in the province subject to his jurisdiction, affix to the real property of private individuals any other notices of claims than those of the Emperor, or of the Imperial domain, that is to say, the Treasury; he shall confiscate the property of persons who are guilty of this offence, and cut off their hands in case they are present; but where their agents have committed this violation of law in the absence of their principals, he shall punish the former. In addition to this, he shall break the inscriptions over the heads of those who have either themselves placed them upon the land, or have done so by their agents. He is hereby notified that, if he neglects to punish a crime of this kind when it is brought to his knowledge, he will render himself liable to the confiscation of his own property.

CHAPTER IX.

This magistrate must devote all his care and attention to the administration of justice, and must not (as was formerly the case) suffer rustics to be oppressed. Nor should the Cappadocians annoy Us any longer by their supplications and lamentations, for the Proconsul himself will act as their judge and decide their disputes. For if anyone should come here without previously stating his grievances at home, We shall send him back with a reprimand for having besought Our clemency before having applied to the magistrate of his province. But where injured persons have gone before the Proconsul, and the latter, steeped in debauchery and abandoned to pleasure, did not listen to their complaints, permitted them to make their applications in vain, and obliged them to have recourse to Us, especially if such persons are women, We, having ascertained the fact that they applied to him and he did not redress their wrongs, shall then regard his conduct as suspicious, and think that he has been influenced by the expectation of gain, or has acted through favor or consideration for certain persons, and shall interpose Our authority; for as he is invested with the functions of a threefold magistracy, he shall be punished in a threefold manner, by justice, by Us, and by the laws.
(1) It is proper for this official, who is entitled to public respect, to constantly bear in mind the instructions which We have given him (Our ancestors called these instructions Imperial Mandates), and always act in conformity to Our law, displaying equity in his judgments, honesty in his administration of affairs, and everywhere cultivating justice, than which there is nothing more powerful or admirable in men, or better adapted to secure the approbation of God and the Emperor. A magistrate of this kind must act in such a way as to merit Our commendation, and We wish him alone to attend to all the business of his province, and no one else to take cognizance of cases; for, under these circumstances, it is not easy for Us to interfere with his decisions and appoint others to act in Our stead, or to dispatch officials into his province for the purpose of suppressing violence, or for any other reason whatsoever. For although, up to this time, officers of this kind have, by virtue of Our orders and the decrees of magistrates, been commissioned for this purpose, this shall not be done hereafter, and the Proconsul after receiving the administration of his entire province must not permit anyone else to have access thereto.

CHAPTER X.

Moreover, We confer upon this magistrate the rank of spectabile, which is enjoyed by all Proconsuls; appeals from his decisions shall be heard by Your Excellency along with the Most Glorious Quaestor of Our Imperial Palace, in the form and according to the procedure of consultations. But when, in Cappadocia, any case where property to the value of five hundred aurei is involved is suspended by appeal, even though it may have been determined by a judge appointed by Us, or by some other magistrate, who, however, is not of spectabile rank, the Proconsul himself must hear and decide it, according to the practice of the Imperial Consistory instead of the Imperial Audience-Chamber. We grant him this privilege, and thereby invest his magistracy with greater dignity than any which an official of this kind has hitherto obtained in Cappadocia. The Proconsul must be just, a man of high principles, and have nothing before his eyes but Our service and compliance with the law, being aware that if he observes strictly what We enjoin upon him, he will hold his office for a long time, and afterwards deserve promotion to a more important one. But if he should neglect Our orders, and not treat Ourself and the law with proper respect, or permit himself to be influenced by powerful persons, he shall immediately lose the authority with which We have invested him, and be considered as guilty, and unworthy of Our esteem.

CHAPTER XI.

This magistrate must punish with severity the crimes of adultery, the rape of virgins, fraud committed with the expectation of gain, and homicide, in such a way as to restrain the majority of persons by the punishment of a few. The law confers upon him the right to search for criminals with this end in view; for this is not ordinary humanity, but the highest degree of that virtue, where many are rendered safe by the castigation of a small number. If this official should favor anyone accused of crime on account of some office which he holds, or his civil or sacerdotal rank, or should endeavor to release him from liability under any other pretext, he is hereby notified that he will incur Our indignation. For no one can rely upon his own influence, and set up a defence which has no connection with the crime of which another is accused, in order to enable the latter to escape the severity of the law. And where anyone makes a defence of this kind, and the Proconsul admits it, there is every reason that he should incur the same penalty as the guilty party, since there is no distinction between the commission of an offence and a desire to release the offender from the hands of the law.
(1) A notice is appended to the present law fixing the emoluments that the Proconsul and his subordinates shall receive from the public, as well as what he will be obliged to pay for his commissions, and what will be due to the household of Our August and Pious Consort. He shall pay the latter, in consideration of the three jurisdictions entrusted to him, fifty pounds of gold, the same amount which has been customary up to the present time.
(2) And (as We have frequently stated) the Proconsul must govern Our subjects uprightly, as it is for this reason that We have taken so much pains, performed so much labor, incurred so much expense, and undertaken such great wars, in consequence of which God has not only granted Us the enjoyment of peace and the subjugation of the Vandals, the Alani, and the Moors, as well as enabled Us to recover all Africa and Sicily, but has also inspired Us with the hope of again uniting to Our dominions the other countries which the Romans lost by their negligence, after they had extended the boundaries of their Empire to the shores of both oceans, which countries We shall now, with Divine aid, hasten to restore to a better condition. Nor do We hesitate to encounter any difficulties, no matter how great they may be, in the pursuance of this object; and We shall undergo vigils, abstinence, and other privations, even beyond what can be endured by human nature, in order to promote the welfare of Our subjects. The Proconsul must constantly peruse Our instructions, which We shall give him with the commissions of his office, as We have previously stated; and if he complies with them scrupulously, he will show himself to be entitled to admiration and in every respect worthy of Our Empire.

EPILOGUE.

When the provisions of this law have been communicated to Your Excellency, you will deliver to the Proconsul the emoluments which We have allotted to him. His authority will be so great that many persons aspiring to the honor and distinction which We bestow upon him will be anxious to obtain his office.