THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ LXIX ~ |
ALL
PERSONS SHALL OBEY THE PROVINCIAL JUDGES IN BOTH CRIMINAL AND PECUNIARY
CASES, AND PROCEEDINGS SHALL BE CONDUCTED BEFORE THEM WITHOUT ANY EXCEPTION
BASED UPON PRIVILEGE, AND PROVINCIALS SHALL NOT BE SUED HERE UNLESS
THIS IS AUTHORIZED BY AN IMPERIAL PRAGMATIC SANCTION. |
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( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ). |
The Emperor Justinian to the People of Constantinople. |
PREFACE. |
One
of the most perfect of all human virtues is that which dispenses equity,
and is designated justice, for no other virtue, when accompanied with
this, is worthy of the name; therefore We do not praise fortitude, which
is not united with justice, and although the Roman language calls virtue
courage in battle, if justice is excluded from it, it becomes a vice,
and is productive of no good. As
we have ascertained that justice is treated with contempt in Our provinces,
We have deemed it necessary to reestablish it in a proper condition,
by means of a law which will be acceptable to God. For very many persons
availing themselves either of Imperial letters, special privileges,
pragmatic sanctions, or orders issued by magistrates, employ their time
causing annoyance, and while continuing to dwell in the provinces, make
a pretense of instituting litigation elsewhere. How can any man, no
matter where he may suffer damage or lose part of his property, conduct
a lawsuit involving boundaries, possession, hypothecation of his land,
or on any other right whatsoever, in a strange place, and produce evidence
to substantiate his allegations? Persons who do this only exert their
power; they think that they act without injustice; they believe that
they are invested with some kind of perpetual authority; and they do
not take into account the thousand or ten thousand examples in which
We see robust children born to feeble and impotent parents, and those
who are rich spring from others who are indigent; and, in almost all
ages, We have seen weak children born to powerful parents, and poor
ones derive their origin from those who are wealthy. The injustice of
parents is thus punished in their offspring, and those who commit crime
do not reflect that, in making use of their authority for this purpose,
they prejudice their posterity, for the power which they enjoy is not
always transmitted to their descendants. |
CHAPTER I. |
After
having considered all these matters, We have thought it necessary to
enact the present law; and We hereby order all magistrates subject to
Our authority in the provinces, and who are distributed throughout the
Empire, which looks upon both the rising and the setting sun, and extends
from north to south, to see that each person
is tried in the province where he has committed a crime, or is a defendant
in a civil or criminal action having reference to the boundaries or
the ownership of land, the possession or hypothecation of property,
or any other matter whatsoever (for provisions have •been made in an
inconsistent and irregular manner on this subject by preceding legislators,
which We have already taken into consideration) in order that no one
may attempt to conduct litigation outside of his province. (1) Whether the question at issue relates to a serious or a trifling offence, or involves merely the validity of a contract, the citations as well as the petition, when there is need of one, shall be issued and filed in the province, and the trial of the case shall also take place there, to render the production of evidence more easy, no matter whether the illegal act is of great or little moment; for when the defendant has no good ground for defence in cases of small importance, he tries to transfer the proceedings to another province, in order to answer the petition of the plaintiff there, and have the latter summoned, who, being absent, and perhaps out of the province, cannot conveniently appear, either on account of the power of his adversary, or because of his own infirmities. And, indeed, is there anything more oppressive than for a private individual who is injured by the theft of an ox, a horse, or some other beast of burden, or an animal forming part of a flock, or (to descend to small things) of a domestic fowl, to be compelled to plead, not in the place where the theft was perpetrated, but in another province where proof of his allegations will be required of him, and he must adopt the alternative either of being subjected to much greater expense than the value of the property which was taken from him amounts to, or be reduced to poverty ? A multitude of such persons complain to Us every day, and We are frequently annoyed in this manner on account of matters which are insignificant by crowds of unfortunates of both sexes who, called from their homes, come to this Most Fortunate City, many of whom are greatly afflicted and reduced to beggary, and some of whom die here. |
CHAPTER
II. CONCERNING DEFENDANTS WHO APPEAR. |
Therefore,
where both the plaintiff and defendant reside in the same province,
the case shall not be transferred to another nor to this Fortunate City
by virtue of any pragmatic sanction or order, but shall be decided in
the said province. Where one of the parties is present and the other
absent, and the one who is present has suffered damage from one of the
household of the former, he who has committed the injustice (whether
he be a curator, a lessee, or some other person representing the absent
party) shall, by all means, be sued; and shall be permitted to notify
the absent party, and be granted time to do so, in proportion to the
distance from the province, and in accordance with the general law formerly
enacted with reference to continuances. (1) Where, however, the absent party is in a neighboring province, distant only one or two days' journey, the term of four months shall be granted him, and six months if he is farther away; and if he is in Palestine, in Egypt, or in any other distant province, the term of eight months will be sufficient. When he is in one of the Western or Northern provinces, or in Lybia, he shall then be entitled to nine months, in accordance with the provisions of former legislators; so that if he has confidence in the person who notifies him, he can entrust him with the conduct of the defence. If, however, he should not have confidence in him, he can employ someone else to accept service, and execute any judgment which may be rendered, when the case is either of great or small importance, and no appeal is taken. Where the agent or lessee has given notice to the absent owner, and the latter permits the prescribed time to elapse without doing anything, then the said agent or lessee upon whom service was made will have the right to defend the case, as the representative of the absent party, and the judge shall compel him to appear before his tribunal, even involuntarily; he must hear the case in his presence, and render judgment against him if he seems to deserve it; and, if there is ground for doing so, he shall also condemn the absent party who, despite his notification, was not willing to attend to the matter in the province. If the said agent or lessee is wealthy, his property will be subject to execution; but if it is not sufficient to satisfy the judgment, the remainder shall be paid by taking the property of the absent person in execution at the instance of him who has obtained judgment in his favor. |
CHAPTER
III. CONCERNING DEFENDANTS WHO ARE ABSENT. |
When,
however, he who is directed to represent the principal party in the
action, or who is compelled to appear for him, does not do so, he shall
be duly called, and if he fails to answer, the absent party shall be
condemned under the rule styled peremptory, that is to say, applicable
to one who has abandoned the case, for he who is contumacious is considered
to be absent. If, on the other hand, the defendant should appear, or
should send anyone to represent him, and the plaintiff does not come,
then the defendant shall be discharged, and the court shall compel the
false accuser to pay all the expenses incurred. In this way men will
become more reasonable, they will cease to commit crime, and they will
no longer think that the power of wealth can prevail over justice. (1) We are well aware that what We decree may perhaps be insufficient perfectly to remedy the abuse which We have endeavored to correct, as judges are accustomed to favor powerful persons rather than those who come from the provinces to have their cases heard. Still, We know that many instances of injustice can be prevented by similar legislation, and that it will provide remedies for much that We are not able to effect. For We do not appoint magistrates to office without compelling them to take oath to judge all men with equity, and to keep themselves pure from corruption. And I do not think that after this constitution any further legislation will be necessary, if magistrates decide with justice and with due regard to the law and their oath. |
CHAPTER
IV. CONCERNING THE ABOLITION OF THE PRESCRIPTION OF THE PLACE. |
No
person who avails himself of any special privilege, of his power, or
of a pragmatic sanction, shall be authorized to remove anyone who has
committed violence from the jurisdiction of the judges of his province,
unless he has previously obtained from Us an Imperial pragmatic sanction
based on the public welfare, and which states that the defendant shall
be notified to appear here, or, at least, that the plaintiff shall not
notify him under the law, as when an appeal is involved; although We
have, to a great extent, made provision for such matters by appointing
many superior judges in the provinces, in order that when cases are
not of much importance, appeals may be brought before them rather than
in this great city. (1) In enacting this law, We shall render it still more just by not permitting anyone to avail himself of any privilege against it, even though the privilege may have been granted to one of the most holy churches, to a sacred hospital, or other religious establishments, or even to one of the Imperial houses, to the Imperial domain, or to special sacred rites, which deservedly occupy the first place after the honor due to what belongs to the Most High; or to a judge, or other person in authority, or to anyone subject to Our orders. Everyone must obey this law and subject himself to the approval of justice; he shall honor and observe it in every respect, and not only consider it individually, but also with reference to his posterity; remembering that almost nothing remains stable in Nature, which is always inconstant, and introduces many changes which are neither easy to foresee, nor possible to provide for; and that only God, and after him the Emperor, is able to exercise control over these things. (2) If, however, anyone should make use of any Imperial authority, whether contained in pragmatic sanctions or communicated in other ways, permitting him to take his case before another magistrate, it shall be entirely void; judges will render themselves liable to a severe penalty if they receive it, and do not only think of what has been done but also of what ought to be done; for if, after the enactment of this law, a pragmatic sanction authorizing the transfer of a case should be obtained by one of Our subjects, or be employed by any person to whom We may have previously granted it, and among whom We include (as has already been stated) churches, holy monasteries, religious houses, the sacred rites of private persons, and the Imperial Patrimony, it shall be absolutely void. This law shall be applicable everywhere, and provides expressly for the future as well as for the past. (3) Therefore you, Our subjects, the government of whom God has entrusted to Our ancestors and to Us, are hereby informed that We are enacting this legislation in order to render you secure in every respect, and that you may hereafter not longer be fatigued by long journeys, or weep on account of the oppression of the great, or apply to Us to correct abuses; but that each of you, seeing that a penalty is immediately imposed for any loss or injury which you may sustain, may praise the Great and Good God who has induced Us to enact such a just and beneficial law. This penalty shall be imposed upon those who violate it, and judges who suffer this to be done shall lose their offices, and be fined ten pounds of gold. |
EPILOGUE. |
Therefore,
as soon as Our Most Glorious Imperial Praetorian Prefects appointed
throughout the extent of the entire Roman Empire receive notice of this
law, they will publish it in all the departments of their government,
that is in Italy, Libya, the Islands, the East, and Illyria; in order
that all persons may know how greatly We have their interests at heart.
We dedicate this law to God who has inspired Us to accomplish such great
things, and who will recompense Us for having enacted this constitution
for the security of Our subjects. It shall also be communicated to Our
citizens of Constantinople. |
Given
at Constantinople, on the Kalends of June, during the twelfth
year of the reign of Justinian, and the Consulate of John. |
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