THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  XLVI  ~
CONCERNING THE ALIENATION OF ECCLESIASTICAL LANDS, AND THEIR RELEASE WHEN PLEDGED.



 
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.