THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ LXXVI ~ |
THIS
CONSTITUTION INTERPRETS A PREVIOUS ONE WHICH TREATS OF THOSE WHO ENTER
MONASTERIES AND THEIR PROPERTY, AND FROM WHAT DATE THE AFORESAID CONSTITUTION
SHALL BECOME OPERATIVE. |
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( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ). |
The Same Emperor to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician. |
PREFACE. |
A
case has arisen which We think justifies Us in making a suitable interpretation
of a previous law, as well as an addition to its provisions; for We
have learned that a woman having had a child by a lawful marriage desired
to leave the world and retire to a monastery, and, by so doing, greatly
benefit the nuns who were resident therein. But as a constitution enacted
by Us states that persons of either sex, who betake themselves to monasteries,
can dispose of their property as they please before entering them, but
cannot do so afterwards, as they are no longer owners of said property,
and as We have also ordered that persons of this kind, when they enter
a monastic institution, shall devote their bodies, souls, and fortunes
to these establishments, and when they leave them their property shall
remain in the monastery,
and as Our preceding Constitution was promulgated a considerable time
after the entrance of the said women into the monastery, she, fearing
that opposition would be made to the transfer of her property to her
son, asked that the legislation on this subject should be interpreted,
and that this should be made clear by Our law, in order that, so far
as her succession was concerned, neither she nor her son should sustain
any injury on account of the enactment of the said constitution. |
CHAPTER I. |
Therefore
We order that if anyone of either sex has lived in a monastery before
the promulgation of Our preceding Constitution, or if he or she is living
there at present, and has any children, he or she shall not be compelled
to leave his or her fortune to the monastery, hence in this instance
the woman can transmit it either wholly or in part to her son or daughter,
or dispose of it otherwise as she pleases (for a subsequent law cannot
injuriously affect those who have entered a monastery before its promulgation,
or cause them to forfeit privileges which have previously been granted
them) ; this constitution, however, is only designed for the purpose
of interpreting the former one, without annulling any portion of it.
For it is not possible for anyone to be compelled to dispose of his
property before entering a monastery; for if the woman entered the monastery
before such a law was enacted, how could the legal order be inverted,
and it be required of those who had previously entered a religious house
to do things which were not yet known, and which have subsequently been
changed by the publication of Our Constitution? It
is then proper to consider everything at the proper time, and only to
examine whether what has been done after the law was passed is in accordance
with its provisions; for when anything occurs before a law is enacted,
it should neither be altered nor hypercritically examined, but should
be preserved in its original form. (1) Hence this law is promulgated for the useful interpretation of Our former Constitution, so that the latter may become operative after its adoption, and may only apply to such men and women as have entered the monastic life subsequent to its enactment. We do not captiously scrutinize what has taken place before its promulgation, as men and women who had previously entered monasteries, or were residing in them at the time, were permitted to dispose of their property in any way they chose, especially if they had living children. |
EPILOGUE. |
Your
Eminence will, by means of suitable proclamations, hasten to formally
communicate to all persons what We have pleased to enact by this Imperial
law. |
Given
on the Ides of October, during the twelfth year of Our Lord
the Emperor Justinian, and the Consulate of John. |
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