THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ XLVI ~ |
CONCERNING
THE ALIENATION OF ECCLESIASTICAL LANDS, AND THEIR RELEASE WHEN PLEDGED. |
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( 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. |
We
have devoted all Our attention to the laws, and We are daily exerting
Ourselves for the welfare of Our subjects, by removing whatever is redundant
and superfluous, and substituting therefor what is excellent and praiseworthy.
For We have formerly often corrected the diffuseness of the laws, and,
by restricting their application, introduced equity in subsequent times.
We have very recently published a constitution having reference to all
holy churches, monasteries, and other religious houses, forbidding them
to make alienations of any immovable property; for We have seen that
great confusion prevailed in consequence of this; that ecclesiastical
possessions were, little by little, being acquired by strangers, without
the payment of sufficient money, and without any urgent necessity existing
for the sale of such property; and yet ten thousand frauds were constantly
being committed against the laws already in force. Thus, by forbidding
alienations, We render the means of committing fraud impossible.
It was only after this that
the greater portion of the lands belonging to the Church became of any
benefit to the owners, for no one dared to acquire them. Still, a matter
difficult of solution has arisen, that is to say, ancient debts as well
as others recently contracted, and, above all, fiscal claims, have imposed
upon religious houses the necessity of selling their lands; they are
forced to take this step because they have no personal property, and
if their heads are unable to alienate their lands, they will have no
means of discharging their obligations. These conditions have already
induced Us to give permission to churches to surrender their possessions
in payment to their creditors, after observing the usual formalities.
But as this power was not expressly granted by Our former Constitution,
and when the creditor was not a private individual, but the Public Treasury
and the Church had no money, and it was impossible for the former to
accept real property in payment, We have deemed it advisable to make
some concessions, and to a certain extent relaxing the strictness of
the law, permit alienations of this kind to take place. |
CHAPTER I. |
Hence
We order that if any of the holy churches or other religious houses
should incur fiscal obligations, and not have the means to meet them,
all the clergy including the Bishop of the City and the Metropolitan
shall be assembled, and the matter shall be examined by them, and if
there should not appear to be any other way to pay the debt, except
by the alienation of immovable property, permission to do this may be
obtained by virtue of a decree issued by the Governor of the province
authorizing the disposal of real property sufficient to discharge the
indebtedness; and those who acquire said property shall, themselves,
become liable for the payment of the obligation, and shall satisfy the
Treasury, which must give them a receipt for the same. In this way,
they will have ample security, and need not entertain any apprehensions
on account of the preceding law; the receipts of payments made to the
Treasury shall be filed and recorded by the purchasers in the Bureau
of Registry, if they desire to be fully released from all liability
toward the holy churches for what they have paid in their behalf, in
order that the taxes may be settled, and everything be done in accordance
with Our law. No one
shall feign the existence of a fiscal debt for the purpose of obtaining
the alienation of real property belonging to the Church; and, with a
view to preventing all fraud of this kind, We desire that the decree
of the Governor, who intervenes in this matter to establish the existence
of such an obligation, shall state the time when it became due, the
reason for it not having previously been paid in money, and why the
necessity for such alienation exists; for in this way the truth will
be absolutely established. We desire all these formalities to take place
in the presence of the Holy Gospels, and that the bishops, clerks, and
all others concerned in the alienation shall remember that God will
know what is being done by them, and if they are guilty of any deceit
or fraud through desire of gain, they will, while living and dead, be
punished in their souls. |
CHAPTER II. |
Where, however,
a private individual is the creditor of the Church, he can receive immovable
property by way of payment, a decree must always be rendered under such
circumstances, and the property of the debtor shall be transferred to
the creditor for the amount of his claim. But where the debt is due
to the Treasury, and an alienation of immovable property is made, this
shall be done in accordance with the previous rules, and no formality,
nor any consideration for the public welfare shall be neglected. |
CHAPTER III. |
The
present regulations shall not, however, be applicable to the Most Holy
Principal Church of this Most Fortunate City, its territory, or the
chapels subject to its authority; but the law already formulated
with reference to ecclesiastical
alienations shall remain in full force, so far as they are concerned.
If, however, the Most Holy Principal Church has any monasteries under
its jurisdiction, We also release them from the provisions of the present
constitution, which We enact solely for the exterior provinces in which
a scarcity of money exists, which prevents the holy churches from paying
their debts in cash. |
EPILOGUE. |
As
soon as Your Highness becomes acquainted with what We have just decreed,
you will require these rules relating to the alienation of ecclesiastical
property to be scrupulously observed. |
Given
at Constantinople, on the fourteenth of the Kalends of September,
during the second year after the Consulate of Belisarius. |
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