THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  LXXXII  ~
CONCERNING JUDGES, AND THE FACT THAT NO ONE CAN BE SELECTED A JUDGE WHEN AN OATH IS TAKEN TO ABIDE BY HIS DECISION. JUDGES SHALL RECEIVE ALL APPEALS AND THEY SHALL NOT STOP IN THE MIDST OF THE TRIAL OF A CASE IN OBEDIENCE TO A PRAGMATIC SANCTION DIRECTING THEM HOW TO DECIDE.


 
( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ).
 
 
  The Same Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, Twice Consul and Patrician.
PREFACE.
  A law was enacted by Zeno, of pious memory, with reference to magistrates, which introduced many alterations in subsequent times; but this law has almost entirely fallen into disuse, for those who were appointed ordinary judges are all dead, and most of the decisions rendered by them on points of law are no longer cited, as they have not sufficient merit to deserve preservation, and this having been ascertained, practice has produced other rules. Therefore We, being aware that the entire order of judges is in confusion, have deemed it necessary, by means of this law, to determine how proper procedure may be restored. For We have not considered it necessary to preserve the names of certain judges, and especially of those who are ignorant of law, and without any experience in the trial of cases. Assessors are present with Our magistrates for the purpose of explaining the laws, and assisting them in their duties, for the reason that many of these magistrates are often absent on account of their being required to preside in Our court, and their presence is supplied by the assessors. But when judges do not hold other offices, and have no duties to discharge in Our court, and are unable to distinguish what is equitable, they dishonor the judicial office; and would it not be extremely injurious to the government not to entrust the disposal of litigation to those who themselves ought to know what to do, but permit them to seek for others from whom they may be able to learn what they themselves should be familiar with in rendering judgment? These things have, with good reason, induced Us to enact the present law, as We consider the interests of Our subjects, and desire that legal controversies in which they are interested should readily be heard, and ended without delay.
CHAPTER I.
   
CONCERNING JUDGES SELECTED BY JUSTINIAN.
  Hence We have absolutely done away with the ancient order established by the Constitution of Zeno, of pious memory, which was applicable to certain judges in every Praetorian jurisdiction. We have determined to choose for the judicial office persons of good repute, who shall have jurisdiction of all cases, and, with this end in view, We hereby appoint as judges Anatolius, a distinguished man, who for a long time has practiced as an advocate, and who is now one of the Advocates of the Treasury; Flavianus, who is also an advocate of the Treasury; Alexander, Stephen, and Menna, most eloquent advocates and ordinary judges of your tribunal; and another Alexander, whom We have known as an ordinary judge attached to the court of the Most Glorious Praetor and Master of the Imperial Offices, and two other advocates of your bar, Victor and Theodore of Quizicum. These are the judges whom We have selected from among the advocates.
  (1) But as it is proper that the Superior Judges should be exalted in rank through their experience in numerous cases, and by long exercise of important magisterial duties, We have noted among the Most Glorious Patricians, Plato, who long occupied the office of Urban Prefect, and has been appointed to this prefecture for a second term; and also the Most Glorious Victor, who has been Governor of Great Greece, as well as of the noble city of Alexandria, has discharged the duties of the Urban Prefecture of the city, and is thoroughly learned in the law; and Foca, already numbered among Our judges, a man worthy of all praise, who knows how to control himself, and, in addition to this, is well versed in the law. With these We also include the Most Magnificent Marcellus, whose observation of the rules of justice and attachment to Us has excited Our admiration; for We know that these are the qualities of a magistrate which are demanded by almost all who apply to Us, and that he makes use of the services of a counsellor of renown to enable him to decide cases in conformity with the laws; that is, the eminent Appio, Advocate of the Treasury, who bears an excellent reputation not only among others, but also with Us.
CHAPTER II.
   
ONLY JUDGES APPOINTED BY THIS LAW SHALL BE PERMITTED TO DELEGATE CASES.
  We desire judges appointed by Us to take rank after Our own magistrates, and We shall delegate to them such matters as We may think proper. If, however, one of Our judges should desire to delegate cases, he must assign them to the ordinary judges, but to no one else; unless he has submitted certain special points to his councillors for consideration, and then he shall render a decision with reference to the entire matter.
CHAPTER III.
   
CONCERNING THE ORDER AND THE TIME IN WHICH JUDGES SHALL SIT.
  Ordinary judges shall sit continually, they shall hold court in the Royal Basilica and in the various halls where they at present preside, they shall hear cases in the morning, in the middle of the day, and in the evening, and shall take cognizance not only of matters which may be brought before them subsequent to the enactment of this law, but also of any other proceedings instituted under former rules, before other magistrates, and with which We have now entrusted them with jurisdiction.
CHAPTER IV.
   
CONCERNING APPEALS.
  It must be observed that where appeals are taken from decisions rendered by ordinary judges, or by the Most Eminent Magistrates, and the hearing of said appeals is delegated by Us in accordance with the value of the property involved, or in conformity to the usual practice, this assignment shall be to other magistrates, under the rules laid down by the Imperial Constitution. But where any of Our Most Glorious Magistrates delegate cases for decision to the judges whom We have just mentioned, appeals from said cases shall be returned to them, and be disposed of by them in their prescribed order.
CHAPTER V.
   
CONCERNING THE JURISDICTION OF ORDINARY JUDGES.
  All ordinary judges shall hear and determine cases by annotation, where the value of the property involved does not exceed three hundred solidi. Thus actions will be more promptly decided, and litigants will be freed from circuitous jurisdiction and protracted delay. It is, however, evident that although these judges may hear cases by annotation, they must still render written decisions which will set forth their opinions, appeals from which will be forbidden to no one, unless a party may desire to appeal for the third time in succession, or has been judged contumacious; for under these circumstances he cannot proceed.
CHAPTER VI.
   
PARTIES SHALL BE ENTITLED TO THE TERM OF TWO MONTHS
IN WHICH TO FILE AN APPEAL, BUT AFTER THE LAPSE OF THAT TIME
NO CORRECTION OF A DECISION CAN BE MADE.
  We desire that in this great city, appeals from ordinary judges shall be taken within two months, which term is final, and after it has expired, what the laws call the correction of a decision can no longer be made.
CHAPTER VII.
   
THE SCHEDULE OF FEES INTRODUCED BY THE LAW OF JUSTINIAN SHALL BE PRESERVED.
  No one shall venture to disobey what We have decreed with reference to the fees and costs of litigation, but all magistrates must remain content with what is given them; and in case they violate the law, they will have reason to apprehend the punishment prescribed by Our Imperial Constitutions.
  (1) There are certain officers whose number, dependent upon the nature of their employment, has remained fixed up to the present time. Thus, each judge is entitled to two clerks, and two bailiffs, and no larger number can be assigned to him. These officers should be wealthy and persons of good reputation, in order that they may not be tempted to commit crime, or act dishonorably for the purpose of gain. In the selection of executive officers attendants, and clerks employed by judges, the latter shall be held strictly responsible, and if they commit any offence the magistrate will be liable, and must indemnify persons who have been subjected to any injury on their part. When a judge ascertains that some illicit act has been committed by one of his officers, he shall expel him from his court, and appoint another for whom he will be equally responsible, as We have previously stated.
CHAPTER VIII.
   
ANOTHER JUDGE SHALL BE APPOINTED BY THE EMPEROR
TO TAKE THE PLACE OF ONE WHO HAS BEEN REMOVED.
  Where any one of the most glorious or most eloquent judges has been removed from office for any cause or reason whatsoever, his place shall not be supplied by anyone but the Emperor, by whom he will be charged with the hearing of cases.
CHAPTER IX.
   
ORDINARY JUDGES SHALL BE ENTITLED TO TWO AUREI
AT THE BEGINNING OF A CASE AND TWO AT THE END.
  On account of the work performed without compensation by Our ordinary judges, We decree that in every case tried before them — even if they have been appointed to hear it by the Emperor — they shall receive two aurei from each party to the suit at its beginning, and also two at its end. We, however, desire (as Our predecessors also provided) that they shall be satisfied with this amount, and We preserve in their entirety the rights granted to certain persons concerning the diminution of the expense of litigation; for what We now decree only applies to cases where the amount involved exceeds the value of a hundred aurei. For We do not intend that judges shall collect anything in cases where the amount is less than this; for if they should receive compensation in actions where very little is at stake, success would result in considerable loss to the victorious party. We do not, however, limit Ourselves to this, but We also provide for these magistrates out of Our own Treasury, hence We assign to each ordinary judge two pounds of gold, which he shall receive from the office of Your Highness; and We wish him to remain satisfied with this sum and not allow justice to be purchased, but absolutely to despise money. On this account We have preferred to remunerate them out of the Treasury, so that each judge, being content with Our liberality towards him, and with the four aurei which he will receive for every case, may keep his hands pure towards God, Ourself, and the Law, always bearing in mind the rules prescribed by former legislators on this subject.
CHAPTER X.
   
THE JUDGE MUST EXAMINE THE BILLS OF COSTS.
  Judges must, by all means, examine the bills of costs. And, for the reason that this regulation has been very properly established by Zeno, of pious memory, We have not disdained to include it in this Our present law. Hence, what has been decreed by this Emperor shall remain in full force, and We only add that if the judge should tender to the successful party the oath having reference to the costs, that is to say the amount that he has expended on account of the lawsuit (which the laws call taxatio), he to whom the oath is tendered shall take it, and the judge shall not be authorized to fix a smaller sum than that which was sworn to, or to exhibit more indulgence than the law prescribes under such circumstances. If, however, a judge should conclude that the costs ought to be taxed in accordance with the nature of the suit, he must state this in his decision. All other matters relating to appeals, as well as to the rejection of judges, where the contents of appeals have not been filed promptly and as required, but this has taken place after twenty days have elapsed, and anything else that We have decreed with reference to this subject shall, as We have previously stated, remain in full force.
CHAPTER XI.
   
ARBITERS SHALL BE CHOSEN BY COMMON CONSENT AND NOT UNDER OATH.
  Numerous questions are addressed to Us by persons who have selected judges absolutely ignorant of the law, and wholly destitute of experience, and the said persons swear without the slightest hesitation that they are content with the arbiters whom they have agreed upon, while no one else has the slightest confidence in them, and they finally take the oath to abide by their decision, although the arbiters whom they have chosen are neither acquainted with what is just, nor understand how to decide it. And as such persons, after they find that they have been injured, desire their cases to be heard a second time, thereby being unmindful of what they swore to, this matter seems to Us worthy of correction.
  (1) And because that We have learned from experience that this is not an advisable course to pursue, We decree that hereafter no arbiter shall be appointed and decide any case, by virtue of the oath taken by the parties to the action to abide by his decision, in order to prevent men from being compelled to perjure themselves on account of the ignorance of their judges; but those who choose an arbiter or arbiters shall do so with a penalty, so that the parties may be responsible to one another, and be obliged either to accept the award, or pay a fine, if one of them should wish to appeal; for then the one who is dissatisfied with the judgment will be authorized to appear before another court. Those of Our judges to whom an appeal is taken under such circumstances shall begin proceedings by exacting the penalty, which they shall collect from those who have rendered themselves liable, and pay it over to the persons entitled to it. If the litigants who chose arbiters should not observe this rule, do not stipulate for the payment of any penaty, and consider the surety of the oath as sufficient, they are notified that as they have designedly acted in this way, the penalty of perjury shall be inflicted upon them by God. Where, however, they suffer from the ignorance of their arbiter, their oath will in no wise prejudice them, for, in this instance, We do not wish the penalty for perjury to be inflicted upon anyone, nor do We permit litigants to be any longer injured by the ignorance of arbiters through the respect due to an oath. Everything which has been provided by ancient legislation, and all that We Ourselves have enacted concerning judges appointed by common consent, or with reference to arbiters, without the oath of the parties being necessary, shall remain in full force, and shall by no means be repealed by this Our law.
CHAPTER XII.
   
CONCERNING APPEALS AND THE REQUIREMENT IMPOSED UPON MAGISTRATES
TO RECEIVE THEM.
  We order Our judges, by all means, to receive appeals. No one shall be authorized to reject an appeal, with the exception of Your Eminence, to whom from the beginning this privilege is conceded, Your tribunal being a court of last resort.
CHAPTER XIII.
   
CONCERNING DIFFERENT LETTERS ADDRESSED TO JUDGES.
  Every judge or magistrate invested with judicial authority shall observe the laws, and render judgment in conformity to them; even if, in the meantime, he should have received an order, an Imperial notice, or a pragmatic sanction from Us directing him to decide in a different manner, for We desire that what Our laws prescribe shall be observed. Where a case is taken up on appeal, the judge shall receive it and shall, by all means, entertain the appeal, and shall not be excused from deciding it in any instance where the parties have the right to appeal, but he must come to the relief of all. In this way he who finds himself injured by a decision can have it corrected either by the appellate judges, or by Ourselves, if the appeal is referred to Us.
CHAPTER XIV.
   
CONCERNING REFERENCES.
  If the judges who hear a case should think any point to be ambiguous, We grant them permission to communicate it to Us, and consult Us and in this way be informed of whatever is necessary, and be enabled to explain what should be done, so that just and reasonable decisions may be rendered by them.
EPILOGUE.
  Therefore Your Eminence will publish here in the Imperial Basilica, and in the other parts of Our Royal City, the provisions which it has pleased Us to enact for the welfare of Our subjects, in order that they may become known to all persons, and that they may learn that We are using every effort to be useful to them, as well as to treat them with equity.
Given during the Consulate of Ario.