Bologna, Collegio di Spagna 285, Justinian's Authenticae
Marriage Novels
AUTHENTIC OR NEW CONSTITUTIONS OF OUR LORD
THE MOST HOLY EMPEROR JUSTINIAN
FIRST
COLLECTION. CONCERNING HEIRS AND THE FALCIDIAN PORTION.
TITLE I. FIRST
NEW CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Praetorian
Prefect of the East, twice Consul and Patrician.
PREFACE.
While We were
formerly occupied with the cares of the entire government and could think of
nothing of inferior importance, now that the Persians are quiet, the Vandals
and Moors obedient, the Carthaginians have recovered their former freedom,
and the Tzani have, for the first time, been subjected to Roman
domination (which is something that God has not permitted to take place up
to this time and until Our reign), numerous demands have been presented to
Us by Our subjects, to each of which We shall pay attention in the most
suitable manner. Many of these questions, it is true, must be determined in
accordance with existing enactments, and in order that they inure to the
common welfare of all (whenever this is necessary), We have deemed it proper
to establish these matters by law, and to communicate them to Our subjects,
in order that they may take effect of themselves, and not always require the
sanction of Imperial authority.
(1) For people
are constantly importuning Us, some having recourse to Us on account of
legacies which have been bequeathed and not been paid; others because of
grants of freedom; and still others on account of different matters; and,
where estates have been left, certain persons who have been charged either
to give or to do som'e-thing have impiously entered upon the property, and
taken it, but have not complied with what was ordered, although it was laid
down by the ancient legislators that the testamentary dispositions of
deceased persons, when they are not contrary to law, shall, by all means, be
carried out. But as We have found that the greater part of the ancient laws
have been neglected, We have considered it necessary that they should be
revived, and that, by means of them, protection should
be afforded to
the living, as well as respect shown to the dead in this manner.
(2) Therefore,
in the first place, it must be remembered that the law requires testators to
distribute a specified share of their estates among certain relatives as
being due to them in accordance with natural justice, for instance, sons,
grandsons, fathers and mothers, and sometimes even brothers, as well as any
other persons of this kind whom the laws have enumerated as being in the
same class with those from whom We are descended. No necessity, however, is
imposed upon other testators to give any portion of their own property, but
authority is granted them to leave it to anyone whom they may select.
CHAPTER I. WHERE
THE HEIR is UNWILLING TO PAY LEGACIES.
These matters
having been already decided by Us, We order that those who have been
appointed heirs by testators, or who have been charged with the execution of
trusts or the payment of legacies, whether in general terms, or
specifically, shall be obliged absolutely to carry out whatever dispositions
the testator may have made, provided these are in accordance with law, or
when no law prohibits them; and if he who was charged in this manner does
not do as he was directed, he must show clearly that he had a right to act
as he did.
(1) If the
appointed heir should not execute the dispositions of the testator, and the
legatee is entitled to receive the bequest, and, after he has been notified
by a decree of court, the heir fails to make payment for an entire year, or
does not do what he was ordered, and he is one of those who can legally
claim a certain share of the estate, but has been left more than he is
entitled to by law, he can only receive as much as the law grants him, that
is, one-fourth of the estate in case of intestacy; otherwise he will be
deprived of all of it. And if any other persons should be appointed heirs,
they will each be entitled to his or her proportionate share. But when there
is no other heir, or where some have been appointed but do not accept the
estate, then what has been refused by those above mentioned shall be added
to the remainder of the estate, and the legatees, the beneficiaries of
trusts, and the slaves upon whom liberty has been bestowed shall be
permitted to enter upon and acquire the property; so that whatever has been
ordered by the testator shall in every respect be carried out, and security
shall previously be furnished in proportion to their condition and the value
of the property, in order that having received the estate they comply with
the lawful intentions of the testator.
If, however,
none of those mentioned in the will (that is to say the co-heirs, legatees,
beneficiaries of trusts, or slaves to whom liberty has been granted), should
desire to enter upon the estate, then it shall pass to the others whom the
law calls in case of intestacy, after the appointed heir has been excluded
from his legitimate share by this law, and they, in like manner, shall give
security to carry
out what is
contained in the will. We do not, however, wish that there should be any
confusion with regard to this matter, but he who was called first in order
after the one who has been excluded by Our law shall be preferred, and then
the one who comes next after him, and the others in succession, until the
last one who has relinquished the estate shall be succeeded by any stranger
who may be willing to enter upon the estate and carry out the wishes of the
testator, and after these We place the Treasury, if it should be willing to
accept it. For We establish the following rule with reference to legatees
and beneficiaries of trusts, namely: that permission to accept an estate
should first be granted to the beneficiary entitled to all of it, or where
there are several of these to the one entitled to the largest share, since
he resembles the heir, this being especially the case with Us, Who, whenever
such beneficiaries of trusts are concerned, have solely adopted the
Trebellian rule, and, holding in contempt the Pegasian circumlocutions,
reject them. If, however, no one should be entitled to the entire estate,
or, being entitled to it, should be unwilling to do what the testator
directed, then the trust shall pass to those to whom has been left the
greater portion of the legacies or trusts; and time shall be granted to
slaves to whom freedom has been bequeathed to enter upon the estate, and,
with their children, give security, receive the property, and do what has
been ordered, the above-mentioned security, of course, having already been
furnished.
But when there
is no legatee or beneficiary entitled to the whole or a greater part of the
estate, by virtue of either a legacy or a trust, but all of them are to
share equally, then all the beneficiaries entitled to the whole of it,
according to the rule just laid down, shall be preferred, or any one of them
who is willing to carry out what was ordered by the testator; and the
remaining legatees or beneficiaries who have no advantage over the others,
so far as the remainder of the estate is concerned, shall be called to the
succession, if they are willing, or those who consent shall be called. If,
however, no legatee or beneficiary should be willing to do this, We grant
permission to the slaves upon whom freedom has been conferred, according to
the order in which they have been mentioned by their master, to take
precedence over one another.
(2) We also
adopt the rule where a necessary bequest is made to anyone to whom an
inheritance is due from the deceased testator according to the Law of
Nature. Where, however, no person of this kind appears among the appointed
heirs, but a spontaneous disposition of his estate has been made by the
testator, and the appointed heir does not comply with what has been directed
within the time hereinbefore established by Us, he shall be deprived of all
that was left to him, so that he cannot receive anything by virtue of the
Falcidian Law, or on any other ground; and if there should be any co-heirs,
We desire that they shall be called in his stead, and, in default of them,
the estate shall pass to the beneficiaries, legatees, slaves, and all those
entitled to it ab intestato, in the order which We have already
prescribed, and wherever a charge has been created, it must (as We
have stated
above) be executed in compliance with what the testator legally ordered.
(3) Where,
however, the appointment of the heir includes a substitution, it is certain
that the entire estate must first pass to the substitute, provided he
consents to accept it and carry out the provisions of the will in accordance
with law; and if he should not be willing, all he is deprived of shall pass
to the co-heirs, the legatees, the the slaves, those who are entitled to it
ab intestato, to strangers, and to the Treasury, in conformity to the
rule which We have established, on condition that all lawful dispositions
shall be executed; for We have taken into consideration all these different
successions in order that the estates of deceased persons may not remain
without acceptance.
(4) We do not
call to the succession, nor do We consider any children who may have been
disinherited (if they have been justly excluded by their father), and who
have received nothing under his will, no matter how many of them there may
be. For the object of the law is, "that the intentions of deceased persons
shall be carried into effect;" and, indeed, how would it be just for anyone
who has been excluded by the testator himself from sharing in his own
property to be called to succeed to what he himself expressly refused by
means of disinheritance? As We have, in the first place, granted to the
substitutes the share of which the heir was deprived because he did not
comply with the wishes of the deceased, and then granted it to the co-heirs,
and after these to the legatees and beneficiaries of trusts, and slaves, and
next to those who are called by the succession in case of intestacy, and
afterwards to strangers, and to the Treasury, this has not been done
absurdly or without reason, or to deprive anyone of his rights, but with
foresight and in accordance with law; so that all persons entitled under the
will having renounced their claims, We may have recourse to the heirs at law
and the others in their designated order.
In every case,
however, in which the appointed heirs do not comply with the wishes of the
testator, We call to the succession either persons mentioned in the will,
the heirs at law, strangers, and the Treasury, and We grant to all such
persons the right to act as heirs, become such and enter upon the estate
(for such are the words of the law), as well as to transact all business
which they may agree upon, just as regular heirs can do. Laws of great
antiquity have by their own authority established these rules, and have made
persons heirs who have not been appointed, or called to the succession ab
intestato.
All these things
having been observed, even though the testator may not have wished anything
to be given or done by the heir, the legatee, the beneficiary of the trust,
or the recipient of the estate mortis causa, if they should be
deprived of the property, the same order should be maintained, beginning
with the substituted legatees and ending with the Treasury. In order that no
one may consider this law to be harsh in case he should be deprived of what
has been left him, he should remember that for all men death is the end of
life, and
should not
selfishly think of only what he receives from others, but he should reflect
upon what he himself when dying may command others to do, and bear in mind
that if he does not deserve the aid of the present law, none of the
dispositions which he himself may carefully plan are liable to be carried
into effect. For it is not for those alone who are subject to Our authority,
but for all future time that We have established this law.
CHAPTER II.
CONCERNING THE FALCIDIAN LAW AND THE INVENTORY.
Hence We have
taken care to consider the Falcidian Law which, even when testators are
unwilling (where their estates are exhausted by legacies), authorizes heirs
to retain a fourth part of the property; for certain persons sometimes are
found to violate the wishes of the deceased, and rely upon the law which
permits this to be done. Therefore, as the wills of deceased persons must
everywhere be protected by Us, We decree that if the heirs desire to enjoy
this advantage, they must strictly observe the law, and not attempt to
introduce the Falcidian Rule with reference to property which they, perhaps,
may have appropriated through fraud or ill will, and to which, under other
circumstances, it would not be applicable.
(1) Therefore an
inventory shall be made by the heir who is apprehensive that he will not
receive the Facidian portion after the debts and legacies have been paid,
and this shall be done according to the manner which We have already
prescribed when We prevented the heir from sustaining a loss of his own
property, and decreed that any burdens imposed upon him shall be in
proportion to the value of the estate which has been left. It has been added
that an heir of this kind, who fears not only the creditors but also the
legatees and beneficiaries of trusts, and is apprehensive that he will be
the loser, and will also obtain no advantage, can call together all the
beneficiaries and legatees who are residents of the same town, or any
persons acting in their behalf, if their personal condition, rank, quality,
age, or any other circumstance does not entitle them to be present when the
inventory is drawn up.
If, however, any
of them should be absent, not less than three credible witnesses who are
owners of property in the same town, and bear an excellent reputation, must
be present; for We do not rely upon notaries alone who are charged with
drawing up the inventory, but it should be made in the presence of the
legatees, so that in case any property forming part of the estate may have
been removed or is not forthcoming, they can make inquiry with reference to
it. They shall be permitted not only to question the slaves (for We permit
this to be done in accordance with what We have previously decreed
concerning the examination of slaves), but also to take the oath of the
heir, as well as that of the witnesses to the effect that "they were present
when the inventory was made and saw everything which took place at the time,
and know that no fraudulent act was committed by
the heir;" and
whatever was left by the testator shall not be considered to have been
established, unless all the legatees are present, or refuse to come and be
present when the inventory is drawn up, as authorized by the aforesaid
Constitution. In case the legatees should not be present, then the heir
shall be permitted to be satisfied with the presence of the witnesses alone,
and he can proceed with the inventory, and the legatees shall be deprived of
the right of having the heir sworn, and of examining the slaves, and all
heirs who observe these provisions shall be entitled to the benefit of the
Falcidian Law. Thus We shall not appear to diminish the force of the law as
observed up to this time, or to do injustice to the deceased; for if anyone
should wish absolutely to appoint heirs to his estate, and to derive some
consolation from his succession, and think that he had a sufficient amount
of property, when in fact this is not the case, it is certain that as the
deceased was not aware of the mistake, his sincerity will show the honesty
of his motives.
(2) If, however,
an inventory should not be made by the heir in the manner which We have
prescribed, he will not be entitled to retain the Falcidian portion, but he
must pay the legatees and beneficiaries of trusts, even though the amount of
the bequests prove to be greater than the value of the estate of the
deceased. We establish this rule without intending to diminish the effect of
the law which We have promulgated, in order that heirs may not cause
creditors any loss, but if guilty of fraud, that they may be punished; for
why should he violate the laws under which, if he acts properly, he can lose
nothing, but, on the other hand, will be benefited by the provisions of the
Lex Falcidia? We accord this privilege where a testator acts in this
manner, through being mistaken as to the value of his estate, or perhaps,
where he should have left a larger share to the heir, he leaves him less;
for this is the result of an erroneous opinion, and not of a deliberate and
intentional design. Where, however, he expressly states that, "he does not
desire his heir to retain the Falcidian portion," the wish of the deceased
must be complied with, and the heir who is willing to obey the testator who
has perhaps done nothing but what is just and proper will be benefited not
by receiving any property, but merely through having acted in a dutiful
manner; or if he is unwilling to obey, he can refuse to accept the
appointment, and give place (as We have already provided) to the
substitutes, co-heirs, beneficiaries of trusts, legatees, slaves, heirs at
law, and the other successors, in the order which We have previously
established.
CHAPTER III.
CONCERNING THE EQUALIZATION OF LEGACIES.
• We do not
grant permission to an heir who is perfectly acquainted with the value of
the estate to pay certain legatees in full in the beginning, carry out the
entire wishes of the testator (which also has been stated in certain
constitutions of Our predecessors), and afterwards reserve the Falcidian
fourth out of the shares of others; nor indeed to
partially comply with the wishes of the testator and only diminish the
legacies to a certain extent; but the value of the estate must be
ascertained, and the will of the testator afterwards be carried out, so that
there may be no cause for dissatisfaction; otherwise the heir will not
discharge his duty. Nor do We permit those who, in the beginning, have
knowingly and carelessly paid legacies, afterwards to bring suit against the
persons who received them in order to recover from them what they have been
paid. For it is necessary to deliberate before acting, and not bring suit
without proper reflection, after having wrongfully transferred the property,
unless there should be some good cause, for instance, the discovery of an
unexpected debt which may diminish the assets of the estate, and afford a
good reason for taking this course.
CHAPTER IV.
LEGACIES MUST BY ALL MEANS BE PAID WITHIN A YEAR.
We have also
provided that a long time shall not elapse in disposing of such matters. For
We direct that no more than a year shall be allowed for the decision of
questions or litigation of this kind, rendering it necessary, within twelve
months after the acceptance of the estate, for the legacies to be paid and
the wishes of the testator complied with, in accordance with their
character, and for everything which We have previously ordered to be done.
We direct that the year shall begin, as We have already stated, from the
date of the notice of the judicial decree. If, through the negligence of the
heir, the period of a year has elapsed, he shall then lose his right to
whatever has been bequeathed, and the others whom We have previously called
to the succession will be entitled to it.
(1) This law of
Ours does not, in any respect, prejudice the rights of wards and minors, for
in case they should be injured in any of the ways which are mentioned by Us,
they will be entitled to relief from two sources; that is to say, by means
of restitution, and by the recourse of which they can avail themselves
against negligent guardians or curators. We do not, however, by" the
provisions of this law except the successions of patrons, for the lawful
share which We have established shall be preserved for them; and where
anything beyond this has been bequeathed, and some charge has been imposed
upon them by their freedmen and they refuse to execute it, We direct that
the order which We stated in this Our Imperial Constitution in the beginning
shall be preserved, so that the simple legal share may be acquired by them,
and the remainder be divided among the other coheirs, as We have already
directed; for in the constitution promulgated by Us with reference to the
right of patronage We have conceded to freedmen almost the same privileges
as freeborn persons are entitled to.
(2) But for the
reason that there are two kinds of wills, one written and the other
nuncupative, We desire that all these things shall be observed in the same
manner in every instance, and We order that this
shall be done in the case of nuncupative wills as in all others, no matter
who the person may be, whether he is a private individual, a soldier, a
priest, an officer of the Empire, or anyone else whosoever, for We make this
law applicable to all men.
EPILOGUE.
We have
mentioned these things in order that they may be to the advantage of all
persons alike, that the living may obtain what has been left to them, and
the dying may pass from life in security, knowing that the law will
administer their affairs even after they are buried; and that whatever
testamentary dispositions they have made will be carried into effect.
(1) For the
reason that this law is generally useful, Your Excellency will cause all
persons to become acquainted with it; and it shall be proclaimed through the
provinces to all the nations which are already subject to Roman domination,
as well as to those which have, with the aid of God, recently been added by
Us to the Empire. As soon as the judges of the principal cities receive this
law they shall (as has already been decreed by Us) publish it in every town
in their jurisdiction, and no one shall remain in ignorance of the law,
"which does not permit a man to live in poverty, or to die in anxiety."
Given at
Constantinople, on the Kalends of January, during the Consulate of
Flavius Belisarius.
TITLE II.
CONCERNING THE
RULE PROHIBITING WOMEN, WHO HAVE MARRIED A SECOND TIME, FROM MAKING A
SELECTION AMONG THEIR CHILDREN : AND CONCERNING THE ALIENATION AND PROFIT OF
ANTE-NUPTIAL DONATIONS; AND CONCERNING THE SUCCESSIONS OF THEMSELVES AND
THEIR CHILDREN.
SECOND NEW
CONSTITUTION.
The Emperor
Justinian to the Glorious Hermogenes, Master of the Imperial Offices,
Ex-Consul and Patrician.
PREFACE.
Before Our
reign, the great variety of lawsuits gave to the Roman legislators constant
occasion for new enactments, but We have regulated every part of the
legislation of the Empire, and have almost entirely amended it, in some
instances by refusing the demands of applicants, and in others by judicial
decisions; and We have drawn up many laws for Our subjects. An emergency has
induced us to publish this one.
(1) Gregoria
presented a petition to Us setting forth that she had formerly had a husband
who died and left her two children, a boy and
a girl; and as
the boy was particularly attached to her, she thought that it was proper not
to leave him without some recompense, but in doing so she did not wish to
exceed the bounds of moderation. Therefore as she had not yet been married a
second time, she gave him her ante-nuptial donation, but he did not survive
her, and died before his mother married again; so that the ancient law, as
well as Ours, called both the daughter and the mother to the succession of
the deceased minor. No question would have arisen had the mother remained a
widow, but she married a second husband who was entitled to the entire
usufruct of the ante-nuptial donation, while she had given it in such a way
that she could enjoy the use of the same, and that the ownership would vest
in her son. The daughter, however, demanded the entire ownership of the
donation, not merely as the heir of her brother, but by virtue of what her
father had given her mother, alleging that, as the latter had contracted a
second marriage, she was not worthy of any confidence, and that on no ground
whatever was she entitled to the ownership of the donation. Her mother, on
the other hand, declared that the ante-nuptial donation was not at all in
dispute, for the property of which it was composed had already been united
with that of her son, and, as it were, formed a part of his estate, and not
of the donation which no longer existed, and that she was entitled to
six-twelfths of the ownership and the usufruct. Nor was this the only
question involved in this matter, for the daughter claimed the estate of her
brother as against her mother, although the latter demanded half of it, a
share to which, where there is only one surviving sister, We have called the
daughter along with her mother. The daughter, however, in order to obtain
the entire estate of her brother, and strongly relying upon former
constitutions asserted: "That if my mother had not married a second time,
she could justly claim the estate of her son, but as she had married another
husband, she was entirely deprived of the property which her son had
obtained from his father's estate, for the reason that if her son had died
after the second marriage his estate, no matter from what source it was
obtained, would have passed to me, and I would have become the owner of the
same by virtue of the two constitutions which have laid down a rule of this
kind."
The mother,
however, replied: "That these constitutions were cruel, and unworthy of the
clemency of Our age." However, availing herself of the Constitution
promulgated by Us, she alleged that: "This Constitution could not be
subordinated to the former ones, and that mothers who have not yet
contracted a second marriage are called to the succession along with their
surviving children, and are by no means excluded where they have married
again," and also, "that this case was an unusual one, in that she had
bestowed a gift upon her son by means of exercising her choice, and should
be considered rather to have acquired the donation a second time than by
this means merely to have made an unreasonable profit." We, after having
examined the matter thoroughly, and having taken into consideration the
question of selections and inheritances of this kind, have considered it
necessary to
enact a special law with reference to these matters, by means of which this
controversy may be terminated.
CHAPTER I.
CONCERNING THE ABOLITION OF THE RIGHT OF CHOICE.
Therefore, in
order not to leave the question of choice confused and undetermined, We have
seen fit to establish the following order, namely: "Whenever a mother is
married a second time, the ownership of the ante-nuptial donation shall be
vested in all the children, and the mother shall not be permitted to select
any of them, and exclude the others, as she injures all of them at once by
her second marriage. Wherefore, in the present case, the entire ownership of
the antenuptial donation shall pass to the daughter, and the mother shall
retain the use of the same for her lifetime; and, in accordance with Our
Constitution (if the mother should die first), the entire ante-nuptial
donation shall belong to the daughter; but if the daughter should die first,
the mother shall be entitled to the benefit of it by virtue of the agreement
relating to children who are not living; the remainder of the estate shall
pass to the daughter; and when she dies, it will be transmitted to her heirs
who are called to the succession by law.
CHAPTER II.
CONCERNING THE
ALIENATION OF A DOWRY OR OF A DONATION MADE TO A STRANGER ON ACCOUNT OF
MARRIAGE.
There is a
question which often arises, and has not yet legally been decided, and we
dispose of it by the present law, in order that the greatest advantage may
be obtained. Where a mother who has not yet contracted a second marriage
gives, or alienates in any other way, a portion of an ante-nuptial donation,
or any article included in it, or all of it, not to her son, but to some
stranger, and then marries a second husband, it is clear that the alienation
remains in abeyance on account of the second marriage; for if there are any
surviving children, what has been done will be absolutely void, as the law
bestows the ownership of the ante-nuptial donation upon the children,
without taking into account anything which their mother may have done to
their injury. If, however, all the children of the mother should die, the
transaction will stand, not in its entirety, but so far as the share of the
ante-nuptial donation is concerned, according to the agreement entered into,
where the children did not survive; and this We have been the first to
introduce, and have recently inserted it into the laws.
Hence the
contract will be valid in some respects and void in others; that is to say,
it will be valid so far as the share which belongs to the mother by virtue
of the agreement made with reference to the death of the children is
concerned, but it will be void with reference to what is transmitted to the
heirs of the son, so that if the mother alone should succeed her son, then
the entire contract will stand.
(1) For the
reason that the disabilities of second marriage are common to both the man
and the woman, the man who marries a second time will run the risk of losing
the dowry, just as the woman will forfeit the ante-nuptial donation in case
she marries a second time. This law which treats of choice, alienation, and
pecuniary profit shall be applicable to persons of both sexes.
CHAPTER III.
CONCERNING THE
SUCCESSION WHERE A SON DIES INTESTATE, AND IN WHAT WAY PARENTS MARRYING A
SECOND TIME CAN BE CALLED TO SUCCEED TO THE ESTATES OF THEIR CHILDREN.
Therefore, as
the subject of the estates of children, concerning which doubts have been
raised, remains to be discussed, We have thought it necessary to dispose of
and decide the present question by means of a general law, and for the
future, to put an end to all disputes which may arise. And We order that,
where any male or female child has made a will, his or her property,
exclusive of that composing the ante-nuptial donation, shall go to the
appointed heirs in accordance with law, and that in this instance the mother
shall not be disqualified from being appointed an heir by her son; but, on
the other hand, she is conceded the right to contest the will, if her son
should have passed her over or disinherited her without a cause.
If, however, he
should die intestate, and should have children of his own, his estate shall
go to them with the exception of the share to which his mother is entitled;
but if he should have no children, his mother shall be called to the
succession along with his brothers (in accordance with what has already been
decreed by Us), and she shall obtain her share of the estate, whether she
intends to marry a second time or not.
We do not
prescribe severe penalties against women who marry a second time, nor do We
reduce them to bitter necessity—which is Unworthy of Our reign—through the
fear of lawful nuptials (even though they may be contracted a second time)
of abstaining from such a marriage, and descending to forbidden unions, and
perhaps even to the corruption of slaves, and, as they are not permitted to
live chastely, to illegally indulge in debauchery. Hence We hereby declare
invalid the Constitution that We inserted in the Fifth Book of the Code,
which treats of the estates of children whom mothers, before contracting
second marriages, have seen die; nor the one in the Sixth Book of the same
work which appears under the title "Tertullian," and treats of women who
have lost their children before contracting a second marriage; but the
mother, along with the brothers of the deceased child, shall, by all means,
be called to the succession, and shall unquestionably be entitled to her
share; nor shall her claims be affected in the slightest degree by reason of
her second marriage, and she shall obtain whatever, through consideration of
the present case, has caused the enactment of this law, and shall succeed
to the estate
along with her daughter, and, thus succeeding, shall incontrovertibly be
entitled to her share, without any prejudice to her rights due to the
expectation of a second marriage, but she shall, with her daughter, be the
absolute owner of the estate. Hence the opinion which is best, as well as
most praiseworthy and deserving of citation, is that wives should conduct
themselves in such an honorable manner that, having once been married, they
will preserve inviolate the pledge made to their dying husbands, so that We
may consider a woman of this kind worthy of Our respect and not differing
greatly from a virgin. But where a woman does not consent to this (when
perhaps she is young and cannot restrain herself), or resist the passions of
nature, she should not be molested on this account, nor should she be
forbidden the benefits of the common laws; but she can honorably contract a
second marriage, and abstain from every kind of licentiousness, and she
shall enjoy the succession of her children. For just as We do not deprive
fathers who marry a second time of the estates of their children—nor is
there any law whatever which makes such a provision—so We do not deprive
mothers of the estates of their children when they marry a second time, even
though their children may die either before or after the second marriage.
Otherwise, by the absurdity of the law, even though all the children should
die first, without leaving either children or grandchildren of their own,
the restriction will continue to exist, and their mother will not succeed
them, even if they die without issue; but she will be inhumanly excluded
from the succession, and she will have suffered in vain in having brought
them forth and reared them, as well as be subjected to punishment because of
the contraction of a lawful marriage; and heirs in a distant degree of
cognation may succeed to their estates while their mother will be
unreasonably excluded. Thus she herself will be entitled to inherit from her
children, and so this indulgent and merciful law joins the mothers with
their offspring.
Therefore,
combining the different sections of this law We order that it shall be
obeyed, as We class the mother (according to what We have previously stated)
with the father, so far as the ante-nuptial donation is concerned; and We
hereby order that she shall be subjected to the same penalties in this
respect as the father is with reference to the dowry, and that both the
father and mother shall, without any hesitation, be entitled to the estates
of their children in accordance with their respective claims. Hence mothers
shall be entitled to whatever the fathers have, whether they contract a
second marriage or not; and a mother shall be called to the succession of
her son whether she has already contracted a second marriage, or does so
afterwards.
(1) A woman who
marries a second time shall enjoy an antenuptial donation, not as the heir
of her son, but on the ground that the donation is only a profit bestowed by
the law, and not a part of the estate of her child; but it shall still
retain the nature of an ante-nuptial donation.
This rule shall
also apply to women who now, being widows, have succeeded to the estates of
their own children, and have not yet con-
tracted a second
marriage, although they may afterwards do so. What has been decreed in this
instance shall prevail for all time.
CHAPTER IV.
CONCERNING THE
ADMINISTRATION OF DONATIONS GIVEN
IN CONSIDERATION
OF MARRIAGE WHEN THE WOMAN
MARRIES A SECOND
TIME.
We think that it
is proper to make an addition to the former provisions relating to
ante-nuptial donations, where the woman marries a second time. For these
laws give a woman who contracts a second marriage the choice of accepting
the ante-nuptial donation in accordance with the marriage contract, provided
she gives security to her children; or if she is unwilling, or refuses to
give such security, the property composing the ante-nuptial donation shall
remain in the hands of her children, who shall pay interest on the same to
their mother at the rate of four per cent.
We, being
induced by the number of questions which have arisen on this point, and
having found minors subject to risk when the antenuptial donation consists
of money, some of them, having no resources, being compelled to sell the
entire estates of their fathers in order to discharge the debt of the
ante-nuptial donation; and, as this donation should certainly go to them in
conformity with law, We have deemed it necessary to provide that, when
anyone bestows movable property as an ante-nuptial donation, the mother
shall have the use of the same, and shall accept and not reject it; but she
cannot collect interest from her children at the above-mentioned rate, and
she must take good care of the property, as the law directs, just as the
owners themselves would do, and she can retain it in accordance with the
ancient laws, during the lifetime of her children, or, if all of them should
die, she must observe this present law, and the remainder of the donation
shall be preserved for the benefit of her children's heirs.
If, however, the
entire ante-nuptial donation should consist of money or other personal
property, the mother will be entitled to interest at the rate of four per
cent, if she furnishes the security already provided for; but she cannot
collect the money itself from her children unless the estate of her husband
is ample and includes gold, silver, clothing, or anything else which has
been allotted to the mother. For, in this instance, We give the mother the
choice of either taking the property and furnishing security, or of
receiving what We have declared to be a reasonable rate of interest in
accordance with former laws as well as the present one.
Where the estate
consists of both real and personal property, and the ante-nuptial donation
is composed partly of money and partly of land, the land shall, by all
means, remain under the control of the mother, in order that she may obtain
support therefrom; but the personal property shall be disposed of, as We
have previously prescribed where the entire ante-nuptial donation consists
of chattels.
CHAPTER V.
CONCERNING A
DOWRY WHICH HAS BEEN PROMISED IN WRITING AND HAS NOT BEEN COUNTED OUT OR
DELIVERED.
We think that it
is necessary to plainly establish by law a point which has perhaps already
been too harshly decided, and which rarely comes into court for
determination; so that the rule may commonly be observed in practice and
judgments, in accordance with the public welfare. Where persons are married,
and written provision is made for dowries and ante-nuptial donations, and
the husband bestows the ante-nuptial donation, and the wife agrees in
writing to give a dowry, either to be furnished by herself, by her father,
or by some stranger, and it afterwards appears that the dowry was not given
to the husband at the time of the marriage, but that he paid all the
expenses of the same, and that the marriage was dissolved by his death, it
is absolutely unjust—where the dowry was not given to the husband for the
wife—that she should receive the ante-nuptial donation. If, however, she did
not give the entire dowry, she can take a proportionate share of the
donation, after having furnished a corresponding amount of the dowry. As We
love equity and justice, and desire them to be observed in all things, and
especially in those relating to marriage, for which reason, where a woman
has given nothing at all as dowry, she shall receive nothing; and she who
has given less than she promised, shall only receive a share proportionate
to what she gave.
The advantage of
the present law is that it decides many cases which are frequently in doubt,
and which are now determined in a way appropriate to legislation. We desire
it to be observed in the case to which it has given rise, as well as in all
pending litigation and any which may hereafter take place.
EPILOGUE.
Hence Your
Highness must hasten to carry into effect what We have decreed, and publish
everywhere by proclamation, in every city, the contents of this Our
ordinance, so that all persons may be informed of what We have prescribed.
TITLE III.
CONCERNING THE
NUMBER OF ECCLESIASTICS ATTACHED
TO THE PRINCIPAL
CHURCH AND THE OTHER CHURCHES
OF
CONSTANTINOPLE.
THIRD NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Most Reverend and Blessed Archbishop of this
Imperial City, and Universal Patriarch.
PREFACE.
Some time ago We
addressed to Your Reverence and the other Most Holy Patriarchs a general law
with reference to the ordination of the venerable bishops and most reverend
clergy, as well as deaconesses, by means of which We reduced the number of
those formerly ordained, a step which seems to Us to be just and proper, and
worthy of ecclesiastical discipline. We address the present law, which
establishes the number of ecclesiastics in this city, to Your Holiness. For
the reason that what is very large is rarely very good, it is proper that
the ordinations of the reverend clergy and deaconesses should not be so
numerous that the Church will be subjected to too much expense, and by
degrees be reduced to poverty. We have ascertained that on this account the
principal church of this Imperial City, the Mother of Our Empire, is
oppressed with indebtedness, and cannot pay the clergy without borrowing
large sums of money, to obtain which the best of its real property both in
the country and in the suburbs must be hypothecated and pledged. We have
taken measures to ascertain the cause of this condition of affairs, as well
as the unfortunate results which its long duration have brought about.
Therefore,
having thoroughly investigated the matter, We have learned that persons who
have founded churches in this Most Fortunate City have not only made
provision for the construction of the buildings, but have also set apart
sufficient sums to pay the expenses of a certain number of priests, deacons,
deaconesses, sub-deacons, choristers, readers and porters to be attached to
each church, and, in addition to this, have made arrangements for the
expenses of the service; and finally, that they have provided sufficient
income to meet the expenses of their foundation, and have directed that any
subsequent increase in the number of ecclesiastics should by no means be
considered valid.
These
regulations remained in force for a long time, and, while this was the case,
sufficient provision remained for the support of the churches. But when the
bishops, beloved of God, and always attentive to the requests of certain
persons, increased the number of ordinations, the expenses likewise
increased immensely, as well as the creditors and the interest; and recently
no creditors are to be found on account of their lack of confidence, but
alienations of property caused by necessity, contrary to law and for
improper causes, as well as inconsistent with the dignity of the Church,
have taken place; and the real property either in the country or the city,
not being sufficient for hypothecation and pledge, for this reason creditors
could not be found, and the said property became worthless and insufficient
even to pay the salaries of the ministers, which was productive of such
great misfortune that all the property had to be transferred to the
creditors, which is a matter which We dislike to mention, and must provide
means to correct; for where anyone cannot easily support a person who lives
beyond his means, how can We fail to deliberate concerning this matter? It
is not necessary to attempt to make further acquisi-
tions with a
view to defraying the expenses (as this would lead at once to both avarice
and impiety), but the expenditures must be regulated in proportion to the
revenues of the remaining property. Wherefore We must take measures to
reduce the number of ecclesiastics, and thereby provide a remedy for the
evil.
CHAPTER I.
THE NUMBER OF
ECCLESIASTICS SHALL REMAIN AS IT is AT PRESENT, AND THE NUMBER OF THE CLERGY
ATTACHED TO THE PRINCIPAL CHURCH OF CONSTANTINOPLE SHALL BE DETERMINED FOR
THE FUTURE.
Therefore We
order that the most reverend ecclesiastics who are now attached to the
principal church, and all other religious houses, as well as the deaconesses
and porters shall remain as they are at present (for We do not diminish the
existing number, but order this by way of providing for the future), and We
direct that hereafter no ordination shall be made until the number of
reverend ecclesiastics shall be reduced to that established by those who
founded the holy churches. And as the number of the most reverend clergy of
the Principal Church of Our Imperial City was fixed, and at first was very
small because there was only one holy church at the time, but afterwards
that of the Holy and Glorious Virgin Mary, Mother of God, was founded, and
erected adjacent to the Most Holy Principal Church by Verina of pious
memory, and the Church of the Holy Martyr Theodore was dedicated to him by
Speratus of glorious memory, and the Church of St: Helen was also joined to
the Principal Church of the City, it would be for this reason impossible to
limit the number of ecclesiastics to that originally established. For if
there was not a sufficient number of them to conduct the service of so many
houses of worship—for each of these three churches does not possess its own
priest, but they are common to all—that is, not only to the Principal Church
but to the others, and all of them going from one to another conduct the
services of each in turn, and as a great number of persons, through the
favor of God and Our Saviour Jesus Christ, have, by Our labors and
exertions, been induced to abandon their ancient heresies, and been brought
into the Most Holy Principal Church, it is necessary to set apart for the
present service a greater number of ecclesiastics than was provided for in
the first place.
(1) Wherefore We
order that not more than sixty priests, a hundred deacons, forty
deaconesses, ninety sub-deacons, a hundred and ten readers, or twenty-five
choristers, shall be attached to the Most Holy Principal Church, so that the
entire number of most reverend ecclesiastics belonging thereto shall not
exceed four hundred and twenty in all, without including the hundred other
members of the clergy who are called porters. Although there is such a large
number of ecclesiastics attached to the Most Holy Principal Church of this
Most Fortunate City, and the three other churches united with the
same, none of
those who are now there shall be excluded, although their number is much
greater than that which has been established by Us, but no others shall be
added to any order of the priesthood whatsoever until the number has been
reduced, in compliance with the present law.
CHAPTER II.
ECCLESIASTICS
SHALL NOT BE PERMITTED TO PASS FROM
AN INFERIOR
CHURCH TO THE PRINCIPAL ONE THROUGH
PATRONAGE, AND
CONCERNING THE INCREASE OF THE
NUMBER OF
ECCLESIASTICS OF INFERIOR CHURCHES.
It should also
be added that whatever has, up to this time, been improperly done, shall not
in the future be repeated, that is to say, as many of the most reverend
ecclesiastics, both here and in the provinces, have disdained to serve
zealously the churches in which they were ordained, but have resorted to the
Most Holy Principal Church, and have become attached thereto by means of
patronage, We by all means forbid this to take place hereafter. For if, so
far as monasteries are concerned, We forbid their inmates to go from one to
another, We should be still more unwilling to permit the reverend
ecclesiastics to do this, for We are of the opinion that this is
attributable to the desire for gain, and that such persons are actuated by
pecuniary and commercial motives. If, however, Your Holiness should
hereafter think that such a transfer would be advantageous, it can take
place; but not until the number of ecclesiastics has been reduced to that
established by Us, so that the change may be made to fill a vacant position
without exceeding the prescribed number. We permit this to be done without
any intrigue, and for no other motive than that above mentioned. At present
We are only concerned with the Most Holy Principal Church.
(1) With
reference to all the other churches whose expenses are paid by the Most Holy
Principal Church, We order that the ecclesiastics shall remain as they are
at present, and likewise that others shall not be ordained until their
number corresponds with the one originally established' by the founders of
said churches. This applies to priests, deacons, deaconesses, sub-deacons,
readers, choristers, and porters, nor shall the number of these in the
meantime be increased. We shall take measures to see that this rule is
enforced, and shall send priests for ordination, and none of Our judges who
fear Our law shall do anything to violate it. The Most Blessed Archbishop
and Patriarch of this Imperial City is hereby authorized to refuse
ordination under such circumstances, even though the order may proceed from
Our palace; for he who issues it and he who receives it shall both be liable
to a fine under ecclesiastical law if it is executed.
So far as other
churches whose expenses are not borne by the principal church are concerned,
care must be taken that the number of ordained ecclesiastics does not
hereafter exceed that established in the first place; lest, where an immense
number are created and
divided, and the
revenues provided by pious donors, these may not be sufficient for their
support, and they may be reduced to the greatest penury.
If, however,
ordinations in excess of the prescribed number should be "made, either in
the Most Holy Principal Church or in the other churches, the bishop in
charge of the Most Holy Church and the venerable stewards of the same, who
have paid out sums from the revenues, shall themselves, along with the Most
Blessed Patriarch who allowed these expenditures to be made, be compelled to
make them good out of their own property. For they are hereby notified that,
when anyone acts in this manner, We give permission to the Most Holy
Patriarch who may subsequently be in authority, as well as the stewards and
other reverend ecclesiastics who may succeed, to make a thorough
investigation of these matters, to prohibit them, and give information
thereof to the government, so that the latter, being informed of the facts,
may order the Holy Church to be reimbursed the sums permitted to be expended
by the archbishop, out of the property of the latter and that of the
stewards.
In order that no
confusion may afterwards result on account of the reduction of the number of
ecclesiastics to the figure originally established, as soon as this
reduction has taken place, it shall not be lawful to exceed that number, or
for any deception to be practiced with reference to this matter. For We by
no means permit anything to take place by means of which someone may have
the right to confer ordinations without providing funds for the support of
the incumbents. For this will again be productive of confusion, as a great
increase of ecclesiastics and the foundation of new associations will
result, and numerous fraudulent schemes will open other ways for the
indulgence of avarice, in order to provide for the expenses of maintenance.
We also, under ecclesiastical penalties, forbid ordinations to be made
beyond the prescribed number, being of the opinion that it is highly
desirable that the Most Holy Principal Church should neither be involved in
debt, reduced to poverty, nor remain constantly without resources, but
should always enjoy abundance.
who are
suffering for the necessaries of life. Stewards, beloved by God, are
notified, both now and for the future, that if they do not comply with what
We have ordered, they will be subjected to Divine punishment, as well as be
compelled to indemnify the Holy Church out of their own property.
EPILOGUE.
We direct Your
Holiness who, in the beginning and at a very early age, has been admitted to
all the clerical orders, who is in charge of the Most Holy Church, and who
is descended from a pious race, to continue to observe this law, as you are
aware that Our solicitude is not less concerned with those things which are
profitable to the most holy churches than for the welfare of Our own soul.
Given on the
seventeenth of the Kalends of April, during the Consulate of
Belisarius.
TITLE IV.
CONCERNING
SURETIES, MANDATORS, BONDSMEN AND PAYMENTS.
FOURTH NEW
CONSTITUTION.
The Emperor
Justinian to John, Most Glorious Prefect of the Imperial Praetors.
PREFACE.
We deem it
advisable to revive an ancient law long since established, and, for some
reason with which We are not acquainted, fallen into disuse; which has
reference to matters that are always delicate and necessary, and render it
applicable to the present age. We do not, however, restore it as it was
originally (for a portion of this law was not sufficiently clear), but We,
with the assistance of God, have added to it what is suitable under the
circumstances.
CHAPTER III.
OTHER
ECCLESIASTICAL REVENUES SHOULD BE EXPENDED
BY THE
PATRIARCHS AND STEWARDS FOR Pious USES AND
FOR THE RELIEF
OF PERSONS IN WANT.
Having in this
manner provided for the expenses of churches, it is now proper to direct
that the Most Holy Patriarch and reverend stewards shall see that other
expenses for pious uses, agreeable to God, are paid out of the
ecclesiastical revenues, and bestowed upon persons who are really in need,
and have no other means of subsistence. For it is pleasing to Our Lord God
that the expenditures of the Church should not be made for the protection
of, and in accordance with the desires of men, and lavished upon the rich to
the exclusion of the poor
CHAPTER I.
CREDITORS
SHOULD, IN THE FIRST PLACE, SUE THE PRINCIPAL DEBTOR.
When anyone
loans money and accepts a surety, a mandator, or a bondsman, he should not
first proceed against the said mandator, surety, or bondsman, nor should he
negligently annoy those who are responsible for the debtor, but he should in
the first place have recourse to him who received the money and contracted
the debt; and if he collects what is due to him, he must refrain from suing
the others, for what can he obtain from them after the indebtedness has been
discharged by the debtor? If, however, he should not succeed in collecting
part or the whole of the claim from the debtor, he can then have
recourse to the
surety, the bondsman, or the mandator, for the amount that he has not been
able to collect, and can obtain from him the balance due; and this rule will
apply when both the principal and surety, mandator, or bondsman are present.
But where the surety, the mandator, or the person who rendered himself
liable by a promise is present, but the principal debtor is absent, in this
instance, it would be hard to send the creditor to collect his money
elsewhere when he can at once recover it from the surety, mandator, or
bondsman. It is necessary for Us to provide for this matter, as no remedy
was afforded by the ancient law, although the eminent Papinianus was the
first to suggest one. Therefore, the creditor can have recourse to either
the surety, the bondsman, or the mandator, but the judge having jurisdiction
of the case shall grant time to the surety, the bondsman, or the mandator if
he wishes to make the principal debtor a party to the suit so as to force
him to comply with his agreement and recourse be had to himself in the end,
and the judge must assist the surety, the bondsman, or the mandator under
these circumstances; for it has been decided that other persons of this kind
can be released from liability in the meantime, and the principal debtor can
be produced in court, when they have been subjected to annoyance on his
account. If, however, the time granted the surety (the duration of which
should be fixed by the judge) should have elapsed, then the surety, mandator,
or bondsman shall be discharged; and the debt shall be collected from him in
whose behalf he became responsible either as surety, mandator, or bondsman,
and he will be subrogated to the creditors whose claims have been settled.
CHAPTER II.
CONTINUATION OP
THE PRECEDING CHAPTER. PROPERTY WHICH HAS BEEN TRANSFERRED TO A THIRD PARTY
CANNOT BE RECOVERED BEFORE A PERSONAL ACTION HAS BEEN BROUGHT AGAINST THOSE
WHO ARE LIABLE.
A creditor
cannot bring suit to recover the property of debtors which is in the hands
of other persons, before bringing a personal action against the mandators,
sureties, or bondsmen, having first brought suit against the principal
debtor, or those in possession of the property; and if his claim should not
be satisfied by this means, then he can have recourse to the property of the
sureties, mandators, or bondsmen, or, where they themselves have anyone
indebted to them, or who are liable to hypothecary actions, these may be
held liable.
We grant the
creditor permission to proceed against the principals and their property
(whether he prefers to make use of personal or hypothecary actions or both),
which permission has already been given by Us, and We direct that he can
avail himself of this right against the other persons who are liable under
all circumstances. And We not only establish this rule with reference to
creditors, but also if anyone should purchase property from another and take
a surety (who is called a confirmator), and suit is afterwards brought
against
the vendor for
the purpose of contesting the sale, the purchaser cannot proceed at once
against the confirmator, nor, on the other hand, against whoever holds any
property of the vendor; but he must first sue the vendor, and then have
recourse to the bondsmen, and, in the third place, proceed against the party
in possession. We order that, under the same circumstances, the rule which
We have previously established in the case of sureties, mandators, and
bondsmen shall, in case of either the presence or absence of debtors, also
be observed by creditors in the collection of their claims. In like manner,
this same rule shall apply to other contracts in which sureties, mandators,
or bondsmen have been accepted, as well as to the principals on both sides
and their heirs and successors, and shall benefit Our subjects because of
the justice and order for which it provides.
CHAPTER III.
CONCERNING
PAYMENTS. WHEN THE DEBTOR HAS NOT THE MONEY WITH WHICH TO MAKE PAYMENT His
PROPERTY SHALL BE ADJUDGED TO THE CREDITOR.
Even though what
follows may, perhaps, not be agreeable to some creditors, still, for the
sake of clemency, We decree that relief shall be granted to persons in
financial distress. If anyone should lend money, believing that the borrower
is solvent, and the latter has not the means to pay the debt in money, but
has real estate, and his creditor insists upon payment in cash, it will not
be easy for the debtor to discharge the obligation where he has no personal
property, for We grant the creditor permission to accept land instead of
money if he is willing to do so; but if no purchaser of the land can be
found and the creditor prevents the purchase of the property and keeps
buyers from being present by spreading it abroad that the property of the
debtor is encumbered to him, then the judges in this Most Fortunate City of
Our Glorious Empire, according to the extent of the jurisdiction which has
been granted to them by the law and by Us, and in the provinces, the
Governors, shall see that a correct appraisement of the property of the
debtor is made, and afterwards possession of the land shall be given to the
creditors in accordance with the amount of their claims, with such security
as the debtor can furnish. When a transfer of the property is made in this
way, the best part of it, whatever that may be, shall be given to the
creditor, and what is of inferior value shall remain in the hands of the
debtor, after the indebtedness has been discharged; for it would not be just
for anyone to lend money and afterwards receive property that is not worth
the amount of the loan; and where a creditor who is compelled to take
possession of real property does not obtain the best of what belongs to the
debtor, he is still indemnified, because, while he does not receive money or
other personal property, he acquires possession of something which is not
useless to him, for this is an example of the indulgence of the law.
Creditors will
recognize the fact that if We did not promulgate this law, necessity would
compel the same thing to be done, for if the debtor does not have the money
with which to pay the debt, and no purchaser of his real estate can be
found, he can do nothing else than surrender it, and it will be transferred
to the creditor, who would not otherwise receive what he was entitled to.
Thus, having settled a question which might be productive of recrimination
and bitter feeling to both creditor and debtor, and having decided at the
same time mercifully and legally, thereby affording relief to unfortunate
debtors, We shall not appear harsh to exacting creditors by permitting them
to have recourse to a measure which, even if they did not consent, they
would, nevertheless, finally be compelled to adopt. Hence, if a creditor is
ready to provide a purchaser, the debtor will be obliged to sell the
property, after furnishing such security as the judge may determine, and
which it is possible for him to give; as provision must by all means be made
for the indemnification of the creditors in such a way that debtors may not
be oppressed.
(1) In
compliance with the ancient laws, We consider as a creditor everyone who has
a right of action against another, even though their right may not be
founded on a loan, but on some other contract, thus in the usual course of
business sustaining the obligations of bankers for the benefit of
contractors.
EPILOGUE.
Your Highness
having been informed of what has been decreed by Us, with reference to the
protection of Our subjects, will cause this law to be published by formal
proclamation here as well as in all places subject to Our authority, so that
Our subjects everywhere may ascertain how great has been Our solicitude for
their welfare.
Given on the
seventeenth of the Kalends of April, during the Consulate of Flavius
Belisarius.
TITLE V.
CONCERNING
MONKS.
FIFTH NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Most Holy and Blessed Archbishop of this Royal
City, and Universal Patriarch.
PREFACE.
Monastic life is
so honorable and can render the man who embraces it so acceptable to God
that it can remove from him all human blemishes, declare him to be pure and
submissive to natural reason, enriched in knowledge, and superior to others
by reason of his thoughts. Hence, where anyone who intends to become a monk
is lacking in theological erudition and soundness of discourse, he becomes
worthy of obtaining both by his change of condition. Therefore, We think
that We should
explain what should be done by such persons, and lay down rules which they
must follow in order to pursue a holy life; and it is Our intention after
having treated of the most holy bishops and reverend ecclesiastics in this
law to omit nothing which concerns monks.
CHAPTER I.
CONCERNING
MONASTERIES AND THEIR CONSTRUCTION.
It must be
stated before anything else that, where someone wishes to build a sacred
monastery at any time or anywhere, he shall not have permission to do so
before having applied to the bishop of the diocese, who shall extend his
hands to Heaven and consecrate the place to God by prayer, placing upon it
the sign of Our salvation (We mean the adorable and venerated sign of the
cross), and then the building shall be erected, for this constitutes, as it
were, a good and suitable foundation for the same. The construction of
venerable monasteries should begin in this way.
CHAPTER II.
CONCERNING NOVICES.
The condition of
individual monks must now be considered by Us, and what must be done to
enable slaves as well as freemen to be admitted to the order. Divine grace
considers all men equal, declaring openly that, so far as the worship of God
is concerned, no difference exists between male and female, freeman or
slave, for all of them receive the same reward in Christ. Hence We decree
that those who, following the sacred rules, desire to embrace a religious
life, shall not immediately receive the monastic habit at the hands of the
most reverend superior of the monastery; but, whether freemen or slaves,
they must wait for the term of three years before assuming the monastic
habit, but they shall, while studying theology, wear the tonsure and dress
of those who are called the laity, and the most reverend abbots shall
require them to state whether they are freemen or slaves, and for what
reason they desire to embrace the monastic life, and, after having learned
from them that no unworthy motive has induced them to take this step, they
shall be received among those who are still taught and admonished of their
duties; and their patience and sincerity shall be ascertained by experiment,
for such a change of life is not easy, but is undergone at the expense of
great mental exertion. (1) After the novices have been subjected to
probation for the term of three years, and have convinced the superiors and
other monks of their excellent dispositions and patience, they can assume
the monastic habit and tonsure; and if they are free, can remain without
molestation, and if they are slaves, they can by no means be subjected to
annoyance, as they are consecrated to the common Master of all men (that is
to say the One in Heaven), and become free. For, as in many instances, this
takes place by operation of law and liberty is granted them, why should not
Divine grace also avail to release them from their bonds ?
If, however,
within the aforesaid term of three years, anyone should appear and attempt
to remove any one of the said novices, on the ground that he is a slave, the
same decision should be rendered as in a case which Zosimus of Lycia—a man
most renowned in his order and who had almost reached his one hundred and
twentieth year, but still enjoyed the use of all his mental and physical
faculties (to such an extent was he honored by the favor of God) referred to
Us. If then, as We have stated, anyone should, during the said term of three
years, attempt to reduce a novice to servitude, who still desires to become
a monk, and should declare that the latter took refuge in a monastery
because he had stolen certain property, We order that he shall not be
immediately surrendered, but let it first be established that he is a slave,
and afterwards that he has committed theft, or has led a wicked life, or is
given to the practice of the worst vices, and that, on this account, he has
been induced to conceal himself in a monastery. If it should be established
that the accuser told the truth, and it appears that the novice has embraced
the monastic life for any reason of this kind, or that he has done so
because of the baseness of his former life, and that he intended to assume
the monastic habit without sincerity, he shall be restored to his master
along with anything which he may have stolen, provided the property is in
the monastery, and he who has been proved to be his master swears that he
will receive him and take him home, and do him no harm.
(2) Where,
however, he who alleges that he is his master does not prove this, and he
who is accused under such circumstances shows by his conduct that he is
honest and kind, and can establish by the testimony of others that while he
was with his master he was obedient and a lover of virtue, even if the term
of three years has not elapsed, he shall, nevertheless, remain in the
monastery and be released from the control of those who wish to remove him.
But when the term of three years has once expired, as he is then judged to
be worthy of monastic life, he shall remain in the monastery. Nor do We,
under any circumstances, permit his former life to be investigated, but
whether he is a freeman or a slave We desire that he shall continue to be a
member of the order; for even though formerly his life may have been stained
with vices (for human nature is, to a certain extent, inclined to the
practice of evil), still three years probation is sufficient for the
increase of his virtues and the expiation of his sins. Any property which he
may have stolen, no matter in whose hands it may be found, shall, by all
means, be returned to its former owner.
(3) Where,
however, having escaped the danger of servitude, the novice attempts to
leave the monastery in order to adopt another mode of life, We permit his
master to remove him and include him among his slaves, if he can prove that
this was his original condition; for, having again been reduced to slavery,
he will not suffer as great an injury as he would have inflicted by
abandoning the worship of God.
These are the
rules which We establish with reference to those who wish to embrace a
monastic life.
CHAPTER III.
MONKS SHALL LIVE AND SLEEP TOGETHER.
We must now
consider and show in what way these exponents of monastic philosophy should
live and employ their time. In no monastery established under Our rule,
whether it be composed of many or few members, do We wish the monks who
reside therein to be separated from one another and have their own private
rooms; but We direct that they shall all eat together, and that they shall
all sleep together in the same place, each one, however, occupying his own
pallet, in the same house; or if a single building should not be sufficient
to accommodate the number of monks, they shall be apportioned among two or
more, not separately and by themselves, but in common, in order that they
may be witnesses of one another's honor and chastity, and that they may not
sleep too long, and may only reflect upon what is good; for fear of
incurring the blame of those who see them, unless indeed some individuals
desiring to live in contemplation and perfection may lead solitary lives
apart (these are called anchorites, that is to say, persons who seclude
themselves, and Hesychastes, or those who live in peace, holding themselves
aloof from society in order to improve their morals) ; otherwise, We wish
all other monks who are assembled together to reside in convents, that is to
say, places devoted to life in common; for in this way their zeal will
increase their virtue, and especially will this be the case with those who
are young when they are associated with their elders; for intercourse with
the latter will materially contribute to the perfection of the education of
youth. Monks living together in this way shall be obedient to their own
abbot, and must strictly observe the rules of their order.
CHAPTER IV.
CONCERNING MONKS WHO ABANDON THEIR MONASTERY.
Where anyone has
once professed himself a monk and has assumed the monastic habit, and
afterwards wishes to leave the monastery and lead a private life, he
is-notified that he must satisfy God for so doing, and that any property
which he may have had when he entered the monastery will belong to the
latter, and that he can claim none of the same.
CHAPTER V.
CONCERNING A MAN
OR WOMAN WHO DESIRES TO EMBRACE A SOLITARY LIFE.
We also decree
that any person who desires to enter a monastery shall, before he does so,
have permission to dispose of his property in any way that he may desire;
but the property of one who enters the Monastery shall by all means
accompany him, even though he who brought it there may not expressly state
that this was his intention; and he shall not afterwards be considered the
owner of said property.
When, however,
he has any children, and he has already given them anything either as an
ante-nuptial donation, or by way of dowry, and what was given would amount
to the fourth of his estate if he had died without making a will, his
children shall have no right to the remainder; but where he has either given
them nothing or less than a fourth, and, after having renounced the world,
he should be admitted among the monks, the fourth of his property shall be
due to his children, or enough to make up that amount if they should already
have received something from him. When he has a wife and leaves her to enter
the monastery, she shall be entitled to the dowry and whatever has been
agreed upon in case of her husband's death (which We have prescribed in
another of Our constitutions).
All these rules
which We have laid down regarding monks shall be applicable to women who
enter monasteries.
CHAPTER VI.
CONCERNING MONKS WHO ABANDON THE MONASTERY.
If a monk should
leave a monastery for the purpose of entering the army, or to adopt some
other mode of life, his property shall remain in the monastery (in
accordance with what We have previously stated), and he himself shall be
attached to the service of the illustrious Governor of the province; and the
result of the change will be that he shall serve an earthly tribunal, as
being one who has evinced contempt for the sacred ministry of the Church.
CHAPTER VII.
CONCERNING MONKS
WHO PASS FROM ONE MONASTERY TO ANOTHER.
When a monk,
having left the monastery where he lived in common with his companions,
betakes himself to another, his property shall remain in the hands of and be
claimed by the first monastery to which he took it after having renounced
the world. Anyone who commits an act of this kind should not be received by
the most reverend abbot, for a monastic life of this kind is improper, and
should not be tolerated, as it does not indicate a constant and determined
state of mind, but shows an irresolute disposition, which constantly seeks
change. Bishops, and those ecclesiastics called archimandrites, shall
prevent this, in order to preserve monastic honor in accordance with the
sacred canons.
CHAPTER Vill.
MONKS SHALL NOT MARRY OR KEEP CONCUBINES.
Where anyone
leading a monastic life proves worthy of being ordained a priest, he shall
continue to observe the rule of his order
absolutely. If,
however, having become a priest, he should abuse the confidence reposed in
him, and presume to marry, although there are certain ranks of the clergy
who are allowed to do this and to enter the matrimonial state (We refer to
the orders of choristers and readers, but have forbidden the marriage of all
others in accordance with the rules of the Church, as well as the
entertainment of concubines, or the passage of their lives in debauchery),
he shall, by all means, be dismissed from the priesthood by reason of his
having mingled his former solitary life with that of the world, and shall
hereafter become a private person; nor shall he be eligible to service in
the army, or to any other employment, unless he wishes to render himself
liable to the penalties already prescribed by Us. He himself, then being
abandoned to his own resources, will become aware of the satisfaction that
he owes to God for what he has done.
CHAPTER IX.
CONCERNING THE
ELECTION AND CREATION OF ABBOTS. THIS CONSTITUTION is APPLICABLE TO MONKS AS
WELL
AS NUNS.
We do not wish
the ordination of abbots (where at any time a monastery happens to be
without an abbot) to be made in accordance with the seniority of the most
reverend monks, and that the one who comes directly after the abbot in rank
should be selected; or that the second or the third should be chosen (which
is also provided by another of Our laws), but the bishop of the diocese
shall go over the names of all of them in succession; and he must not limit
himself to their priority of ordination by which their rank is determined,
but must choose the one among all the monks who appears to be the best
fitted for the place, and worthy of becoming the head of the monastery. The
reason for this is that human nature is such that abbots cannot all be taken
from among the oldest or most recent monks, but the examination must be
conducted by the bishop according to rank, and he who appears to be best
qualified of those successively examined shall be created abbot, as
possessing the dignity and virtues requisite for the position. For it is
necessary to choose those who can distinguish what is best from what is
worst, since it is one thing to be unfitted for administration, and another
to have the inclination to become competent, and, through proper
instruction, to acquire, little by little, the faculty of presiding over a
monastery.
(1) The rules
formulated by Us in the preceding laws, as well as in the present one, with
reference to priests, monks, and monasteries, We hereby declare to be
applicable to both males and females, as well as to convents and hermitages;
for We do not distinguish between men and women for the reason that, as We
have already stated, they compose but one in Christ.
The Most Holy
Patriarchs will communicate these matters to the metropolitans under their
jurisdiction, and the latter will bring them to the attention of the
bishops, and the bishops will communicate them to the different monasteries
under their control, to the end that the worship of God may everywhere
remain pure. The most severe punishment shall be inflicted upon those who
disobey the present law (We refer to celestial penalties which it is
necessary to impose upon those who show contempt for the rules of their
spiritual guides). When the judges of Our Empire are informed of any breach
of this law, they should use every effort enjoined by the rules of the
Church to cause it to be observed and carried into effect; for if they
should be guilty of negligence, they shall not escape punishment. Wherefore
it is proper for Your Holiness to conform to the preceding regulations, and
communicate them to the Holy Metropolitans under your jurisdiction.
Given at
Constantinople, on the fourteenth of the Kalends of April, during the
Consulate of the Illustrious Belisarius.
TITLE VI.
How BISHOPS AND
OTHER ECCLESIASTICS SHALL BE ORDAINED, AND CONCERNING THE EXPENSES OF
CHURCHES.
SIXTH NEW
CONSTITUTION.
The Emperor
Justinian to Epiphanius, Archbishop and Patriarch of Constantinople.
PREFACE.
The priesthood
and the Empire are the two greatest gifts which God, in His infinite
clemency, has bestowed upon mortals; the former has reference to Divine
matters, the latter presides over and directs human affairs, and both,
proceeding from the same principle, adorn the life of mankind; hence nothing
should be such a source of care to the emperors as the honor of the priests
who constantly pray to God for their salvation. For if the priesthood is,
everywhere free from blame, and the Empire full of confidence in God is
administered equitably and judiciously, general good will result, and
whatever is beneficial will be bestowed upon the human race. Therefore We
have the greatest solicitude for the observance of the divine rules and the
preservation of the honor of the priesthood, which, if they are maintained,
will result in the greatest advantages that can be conferred upon us by God,
as well as in the confirmation of those which We already enjoy, and whatever
We have not yet obtained We shall hereafter acquire. For all things
terminate happily where the beginning is proper and agreeable to God. We
think that this will take place if the sacred rules of the Church which the
just, praiseworthy, and adorable Apostles, the inspectors and ministers of
the Word of God, and the Holy Fathers have explained and preserved for Us,
are obeyed.
CHAPTER I.
CONCERNING THE
MORALS, THE LIFE, THE HONOR, AND THE STATUS OF ONE WHO is TO BE CONSECRATED
A
BISHOP.
Therefore, We
order that the sacred canons shall be observed hereafter when anyone is
presented to be consecrated a bishop, and that his life shall first
be investigated as prescribed by the Holy Apostle, to ascertain if it is
honorable, without blame, and irreproachable in every respect, and what his
standing is among good citizens, and whether he performs his sacerdotal
functions with propriety.
(1) No one shall
(in accordance with the rule already established) be ordained who has left
an office or other civil employment, unless he is still young; or, where he
has changed his condition by withdrawing from the monastery, he shall first
be required to give the fourth of his property to his curia.
(2) An
uneducated person belonging to the laity cannot immediately be promoted to a
bishopric, nor can he receive a fictitious ordination, where, for example,
being illiterate, he is at first created a priest, and then, after a short
time has elapsed, becomes a bishop.
(3) Nor can. one
who has married a wife, who in the beginning was not a virgin, be a
candidate for a bishopric; but he should have as his consort a woman who was
a virgin when he married her, and not a widow, or separated from her
husband, or who had been the concubine of someone else.
(4) Nor should
he have either children or grandchildren, whether they were legitimate or
odious in the sight of the law; for if anyone should act otherwise, he shall
be expelled from the priesthood, and he who ordained him and violated this
law shall lose his episcopate.
(5) We do not
permit the purchase of an office in the priesthood to be made with money,
for We wish the right to conduct divine service to be obtained from the
Lord, and not to be acquired by human agency.
(6) He shall not
attain to a bishopric who is unfamiliar with the dogmas of the Church.
(7) He who
aspires to be a bishop, and has previously embraced a monastic life, or has
been a member of the priesthood for not less than six months, shall have
neither wife, children, nor grandchildren. We absolutely require this of
bishops, as We have already prescribed in the two preceding constitutions,
without investigating whether they still have wives or have renounced them;
but We, for the future, do not permit anyone who has a legal wife to be
ordained; and this law We now renew, and if it should be violated, the
person guilty of doing so shall be expelled from the priesthood, and at the
same time the bishop who ordained him shall be dismissed.
Therefore he who
is to be consecrated a bishop, whether he belongs to the order of monks or
is a member of the other clergy, must be able to produce proof of a good and
honorable life, and enjoy an unblemished reputation; for this is the very
foundation of the pontificate.
(8) When the
candidate has been selected and prepared for the episcopate, he must, before
his consecration, be familiar with the ancient and accepted canons which Our
faith acknowledges as just and inviolate, and the Catholic and Apostolic
Church has established and transmitted to Us. When, after having frequently
read them previous to his ordination, the official in charge of the same
must interrogate him, and ascertain if he is capable of complying with the
said rules and of doing what they prescribe. If he' should state that he
cannot observe these sacred precepts he shall, by no means, be consecrated,
but if he promises that he will obey them as thoroughly as a man can do,
then he shall be admonished and told that, if he does not do so he will be
alienated from God, and will lose the honor conferred upon him, and that the
civil laws do not leave any offence unpunished, for the reason that Our
predecessors and Ourselves have, very properly, rendered the sacred canons
valid as laws; and if he still adheres to his declaration, he shall then, in
compliance with his professions, be consecrated a bishop.
(9) We decree
that a candidate shall not purchase his consecration with money, or by the
donation of any other property, but shall obtain it gratuitously and without
remuneration, and, as it were, bestowed by God. For if he should employ the
means previously mentioned by Us, he shall be considered to have purchased
the episcopate either with money or with other property; and he is hereby
notified that he will not be permitted to receive it, and he who consecrated
him shall be deprived of his office, forfeit his episcopate, and be expelled
from the priesthood, and thus both parties will be punished, for one will
not obtain what he expected, and the other will lose what he already has.
The money or other property which has been paid in for the consecration
shall be given to the church, whether the bishop received it, and for this
reason was removed from office, or whether someone else belonging to the
clergy did so; for We impose the same penalty upon each, namely, We dismiss
him from the priesthood, and transfer the money or other property given to
obtain the consecration to the church which sustained the injury.
Where anyone who
is a stranger, and not an ecclesiastic, receives money or any other
property, to procure consecration, and especially if he holds any civil
employment, he shall be punished by God Himself, for divine penalties will
be imposed upon him; and he shall also be compelled to give to the church
double the amount of all that he received, and, in addition, he shall lose
his office, and be condemned to perpetual exile. He, also, who purchased the
bishopric with money or other property, is hereby notified that if having
previously been a deacon or a priest, he has been elevated to the priesthood
by favor, he shall not only forfeit the episcopate, but shall be deprived of
the office of priest or deacon. He shall also be excluded from every other
ecclesiastical order for the re*ason that his desires exceeded the bounds of
decency. He who officiates at the consecration must, at the time of the
ceremony, and in the presence of the faithful people, acquaint the candidate
with what has already been stated, and, after
having done so,
shall consecrate him, so that he, having heard these things in public, may
not only experience the fear of God, but also anticipate a criminal
accusation if he should prove unworthy.
(10) Where
anyone who is considered eligible to the episcopate is about to be
consecrated, and it is alleged that he knows that he has committed some
unlawful act, he shall not receive consecration before the charge is
investigated and it is apparent that it is entirely unfounded. If, after an
accusation of this kind, he who is to perform the ceremony does not
institute a judicial inquiry but proceeds without it, he is hereby notified
that whatever he does will be void, and that he who thus acts unlawfully
will forfeit his priestly office; and anyone who confers consecration
without proof shall be deposed from the office of bishop, for he is an
offender against God, who seeks by all means to preserve the purity of his
ministering priests. If, however, he who opposes the consecration is
ascertained to be a slanderer, either before or after the examination, or if
he does not proceed with it, he shall be forever excluded from holy
communion by the bishop, in order that his deceit may not go unpunished. For
as We require him who is to be consecrated to have a good reputation, so We
punish a false accusation when someone brings it without reason. Where,
however, no one makes an accusation, or having done so, does not produce
satisfactory evidence, and after the examination has taken place the
accusation is shown not to be true (as We have previously stated), then he
who appears to be in every respect irreproachable shall be admitted to
consecration.
He who is
consecrated in this manner and is familiar with all the principal sacred
precepts, as well as exemplary in thought, in speech, in bodily conduct, and
in wisdom, cannot fail to lead a proper life.
CHAPTER II.
A BISHOP CANNOT
BE ABSENT FROM His CHURCH FOR A LONGER PERIOD THAN A YEAR.
We also decree
that no bishop shall presume to be absent from his church for a longer time
than a year, unless by order of the Emperor, for in this case he would be
blameless. We direct the Most Holy Patriarch to compel the bishops in their
jurisdiction to remain attached to their churches and not separate
themselves from them by making long journeys, nor dwell in foreign
countries, nor neglect their congregation by being away for a longer term
than a year, which We grant them by way of favor.
When any of them
remains absent from his own bishopric for more than a year, without the
authority of an Imperial order (as We have previously stated), then if he
who has left his church is a metropolitan, the patriarch shall notify him to
return by means of a proper summons, always observing the rules of the Canon
Law.
If, however, he
should continue to be disobedient, he shall be expelled from the holy order
of bishops, and another shall be intro-
duced in his
place who is worthy of the reverence, veneration, and honor of the office.
Where the offender is not a metropolitan, but some other bishop who has
violated the law, this duty shall be performed by the metropolitan; and none
of such persons shall advance the pretext that he has been absent on account
of some litigation or any other private matter; or that he has wandered
about here and there on business connected with the church, or has remained
in one place, or has visited several on this account.
In the eyes of
the multitude, to whom the presence of a bishop is necessary, no valid
reason exists to authorize ministers to travel; nor does any benefit result
to their churches; nor is any assistance afforded to them; nor, under the
circumstances, do they reflect any credit upon their sacred calling by being
absent. For when it becomes necessary, and any litigation gives causes for
any step of this kind to be taken, this can be done by the ecclesiastics of
inferior rank or the stewards, and petitions can be presented to the
government for the purpose of obtaining what is desired.
Hence We order
that if any necessity should arise in a matter in which the interests of the
Church are involved, those persons charged with the conduct of
ecclesiastical affairs (who are called apocrisiarii) or others of the
clergy appointed for that purpose, or the stewards themselves, can notify Us
or Our ministers, and receive proper attention ; and hence there will be no
occasion for bishops to absent themselves, for they will injure their
churches by their absence, and through the great expense incurred by them as
well as by their sojourn in foreign countries, thus not only good will not
result, but the holy churches will sustain great loss.
CHAPTER III.
BISHOPS SHALL
NOT VISIT THE IMPERIAL COURT WITHOUT FIRST OBTAINING LETTERS AUTHORIZING
THEM TO DO so.
A bishop cannot
visit this Most Fortunate City without first receiving letters addressed by
the archbishop to the government, and which, according to the canons of the
Church, disclose a good reason for his presence. If an archbishop wishes to
travel, he must obtain letters from the patriarch, stating that his absence
is necessary, and the Emperor should order him to be presented, for an
ecclesiastic must not rashly, and without the knowledge of the archbishops
or patriarchs go upon journeys, as this is prohibited by the divine rule;
and having arrived, he shall not, at his own instance, presume to present
himself to the government, but must first apply to the patriarch, or to
those charged with the administration of the diocese, and explain to them
the reasons which have induced him to come, and, after having done this, he
can enjoy the sight of the Emperor.
After he has
been presented, the said bishop can either by means of those who were styled
referendarii of the Most Holy Principal Church, or by the agency of
the apocrisiarii in charge of the holy pa-
triarchate, make
application to the government and be insured a speedy reply; so that if his
demands are just, they will be complied with, or if they are not, he may
return quickly to the place from whence he came.
SECOND PART
OF THE LAW.
CHAPTER IV.
CONCERNING THE SELECTION OF ECCLESIASTICS.
After having, in
conformity with the sacred canons, disposed of the preceding matters
relating to bishops, We now decree, in compliance with the same canons, that
no one can be ordained an ecclesiastic until after a careful examination,
and that the candidate must be of good character, and by all means
conversant with letters, and proficient in the doctrines of the Church. For
We are unwilling for persons who are ignorant of letters to be ordained
under any circumstances, that is to say, as clerks, priests, deacons,
readers of the service, or of ecclesiastical or canonical books. Anyone,
however, who is meritorious and blameless, and against whom no complaint or
opposition has arisen, and who has given neither money nor other property,
shall be eligible.
We are unwilling
that any officials charged with the administration of the affairs of a
curia should be ordained, unless in accordance with the laws which We
have already promulgated with reference to this matter, and which We now
confirm. Persons who are ordained shall be instructed in the sacred precepts
in the presence of the entire people, for the same reasons for which We have
directed this to be done in the case of bishops.
CHAPTER V.
We do not permit
anyone to be ordained who is either a deacon or a priest who has either had
a second wife or has one now, or is married to a woman who has left her
husband, or is living with a concubine, but only where he married a wife who
was chaste and a virgin. For, when ordinations take place, We delight in
nothing so much as to know that the candidates are living a chaste life; and
that they are not living with their wives, and have not been married :
more than once to a woman who is chaste, which, according to the sacred
canons, is considered as the principal and true foundation of durable
virtue. But if any priest, deacon, or sub-deacon should afterwards marry, or
keep a concubine either openly or secretly, he shall immediately be expelled
from his order and become a layman. If a reader should, for any reason,
marry a second time, and this was caused by inexorable necessity, he can
never attain to a higher rank in the clergy, nor enjoy a position of greater
dignity, but he shall always remain in the same rank, and shall not contract
a third marriage, for two are sufficient. If, however, anyone should do
this, and after having
contracted a
second marriage, be promoted, he shall thereafter become a private person
and a layman, and be absolutely deprived of his sacred office. For it is
proper, above all things, for Us to live chastely, and if those who become
members of the priesthood are such when they are ordained, it will be easy
for them to attain to the episcopate, and many of their number will be found
eligible to the highest rank of the priesthood.
CHAPTER VI.
CANDIDATES FOR
DEACONESSES WHO ARE UNDER FIFTY YEARS OF AGE SHALL NOT BE ORDAINED.
We desire that
everything which We have decreed concerning ecclesiastics shall be observed
with reference to deaconesses, and they shall not violate these provisions.
In order for them to be ordained, they must be neither too old nor too
young, and not liable to temptation, but they should be of middle age, and,
in accordance with the sacred canons, about fifty years old, and, having
arrived at that age, they shall be eligible to ordination, whether they are
virgins, or have previously been married to one man; for We do not permit
women who have contracted a second marriage, or who (as We have already
stated), have led a vicious life, to be ordained, but they must be free from
all suspicion in order to be admitted into the holy service of the Church,
to be present in baptism, and assist in the celebration of the mysterious
and sacred rites which form part of their duties.
When, however,
it is necessary for a woman under the age of fifty to be ordained a
deaconess, ordination can be conferred upon her in some convent where she
must reside; for she can by no means be permitted to mingle with men, or to
live where she chooses, but by her withdrawal from society she must give
evidence of her retirement and the simplicity of her life. Moreover, We are
not willing that deaconesses who have once been ordained—whether they be
either widows or virgins—to live with any of their relatives, or with such
persons as they may select, for, under such circumstances, they will be
liable to criticism, but they can either reside alone or with their fathers
and mothers, children, or brothers, who are persons that if anyone should
suspect them of criminality, he will be regarded as either foolish or
impious.
If any
disparaging statement should be made with reference to any woman who desires
to be admitted to the order of deaconesses, to the effect that she has lived
with someone under an assumed name, and this should give rise to evil
suspicions, the woman shall, by no means, be ordained a deaconess. And if
she should be ordained, and then commit an act of this kind and cohabit with
anyone under another name, she shall be expelled from the diaconate, and
both the parties shall suffer the penalties prescribed by this law and
others for persons of corrupt morals.
All women who
are ordained deaconesses must, at the time of their ordination, be
instructed in the duties of their office, and have the
precepts of the
sacred canons communicated to them in the presence of the other deaconesses,
in order that they may fear God and have confidence in their holy order; and
they are hereby notified that if they should regret having received
ordination, or, having abandoned their sacred office, they should marry, or
choose any other kind of life, they will render themselves liable to capital
punishment and the confiscation of their property by the holy churches or
monastaries to which they are attached. Any persons who may be so bold as to
marry or corrupt them shall, themselves, be liable to the penalty of death,
and their property shall be confiscated by the Treasury. For if, by the
ancient laws, capital punishment was inflicted upon virgins who permitted
themselves to be corrupted, how much more reason is there for Us to impose
the same penalty upon those who are dedicated to God; and why should We not
wish that modesty, which is the greatest ornament of the sex, should be
preserved, and be diligently practiced by deaconesses, in accordance with
what is becoming to Nature and due to the priesthood?
CHAPTER VII.
CONCERNING
ECCLESIASTICS WHO ADOPT ANOTHER MODE
OF LIFE.
Those who have
once become deacons or priests can, under no circumstances, relinquish their
sacred duties. We decree that this rule shall not only be applicable to
priests and deacons, but also, where any sub-deacon or reader renounces his
former condition and embraces another life, he is notified that if he does
anything of this kind (as has already been stated by Us), he shall either be
assigned to his curia along with his property, or, if he is without
resources, shall be devoted to this service.
THIRD PART OF
THE LAW.
CHAPTER Vill.